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Privileges and Conduct - Motion to Agree

Part of the debate – in the House of Lords at 4:30 pm on 30th April 2019.

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Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 4:30 pm, 30th April 2019

My Lords, I think the House will know that for some years now I have had the honour of chairing the sub-committee. I promise I will not say a huge amount. I will first try to nail what I might call a loose point from the noble Lord, Lord Foulkes, about Lords Members’ staff. I might have got hold of the wrong end of the stick that he was waving, but on page 57, headed “Code of Conduct for House of Lords Members’ Staff”, paragraph 1 specifically describes the staff to whom these few paragraphs are directed. It applies to,

“staff who have a parliamentary photo-pass or email account sponsored by a member of the House of Lords for the purpose of providing parliamentary secretarial or research assistance to the member, including members’ spouses with an email account”.

If I have missed the point, so be it. No doubt he will pursue that matter later.

As today’s debate as a whole has shown, and as was perfectly apparent from the responses to the consultation process we had a month or so ago, there is room for a huge diversity of views on the huge number of interlocking issues, as the noble Lord, Lord Evans, said, that this report raises. Someone said there are 101 issues—a gross exaggeration: there are many more than that. The fact is that a lot of these questions overlap. Naomi Ellenbogen, Queen’s Counsel, who is, I understand, a member of the Bar Standards Board and is very well regarded, is to report at the end of July. She is hard at work on her report and seeing a number of people; I myself have been asked to see her in a couple of weeks’ time. I hope that one value of this debate is that she will be able to see the House’s views on a number of questions that have been raised.

There are one or two absolutely fundamental questions. One is whether we shall continue to operate an inquisitorial rather than adversarial process. There is no doubt an imperfect divide between the two, but that is a pretty basic question. Those such as the noble Viscount, Lord Hailsham, are in effect contending for an adversarial process. He helpfully nods to show it. There it is. It is obvious from the report that I, with colleagues on that committee, strongly support an inquisitorial approach.

A second basic question is whether the whole process should be totally independent of the House; again, there are those who contend for that. Can I throw into the mix one or two considerations? As we know, the House of Commons is operating on a 50:50 basis now, and following the recommendation of our sub-committee, it now gives its lay members a vote. There was a time when it was thought that giving lay members a vote would forfeit the privilege otherwise attached to these proceedings, but surely if you have an entirely independent process, with no Member of the House involved, you certainly do not attract parliamentary privilege. Now there are those—the noble Lord, Lord Thomas, among them—who would say, “Well, good thing, too”, and we are then subject to the review processes of the courts and all the rest of it. Again, I respectfully question whether that is a good idea. Certainly, the Commons does not seem to be thinking of going down that rather unusual route.

Another consideration is that if the whole thing is outside the control of this House and wholly independent, if and when it is necessary to impose some of these new statutory sanctions—expulsion, obviously, and suspension beyond the length of a current Parliament—there will have to be primary legislation, because at the moment it is the decision of the House to deal with these things. Therefore, one has to take a longer view than the idea of removing any involvement of this House. We all recognise that it is very desirable to have lay members. They introduce their external experience, and contribute greatly to the independence of the process. That too is helped here by the commissioner making the recommendation as to sanction, which at the moment she does not.

There is also the question of personal honour—and I can see that there is room for two views on this. The noble, Lord Thomas, suggested that it is difficult to define. It was a concept introduced by the noble and right reverend Lord, Lord Eames, in 2011, when the processes were last revised. It is the sense of the House, and therefore at the appellate stage you really would need some Members to be involved in overseeing it.

There are hosts of questions on the whole business of the process of investigation. I do not want to go into that. I say only that it is rather bizarre that of those who question the ability of our independently appointed commissioner and criticise her as being unable to conduct this process satisfactorily, and instance the Lester case, almost no one went to see all the factual material, including the transcripts, although there was an open invitation to do so. My noble friend Lady Deech did, after the debate, but before the debate only two people actually troubled to go and look at that material. One was the noble Lord, Lord Macdonald of River Glaven—who then made a speech saying that having looked at the transcripts of the commissioner’s interviews of the central witnesses, he was entirely satisfied that the procedure had been properly conducted. I do not want to go too far down this road, but he has a measure of experience as an erstwhile DPP, so I would caution those who want to begin altering what I suggest is a perfectly satisfactory inquisitorial process into something which is dangerously akin to an adversarial process.

I will make one point in respect of the specific arguments of the noble Lord, Lord Pannick. When you get to the appeals stage, I see that there may be room—I suggest that perhaps there already is, although you would need to have a Motion changing the Standing Orders before you can get there—and there may be a stronger case than was hitherto acknowledged for allowing some measure of representation, certainly in the case of any Member of the House who cannot properly conduct his own appeal. That criticism aside, I respectfully suggest that this report is a huge improvement on what has been previously accepted and I urge your Lordships to accept it.