Privileges and Conduct Committee — House of Lords, 2018-12-17
Topic: Government Operations
David Pannick (Crossbench, Unknown): My Lords, I declare my interests: I have been a friend and colleague of Lord Lester for many years. I assisted him during the disciplinary process, although I was not allowed to speak on his behalf. On 15 November, I moved the amendment that the Commissioner for Standards had failed to comply with paragraph 21 of the Code of Conduct because the process was not fair or in accordance with natural justice, which the House approved by 101 votes to 78. I have not tabled an amendment today because, as the Senior Deputy Speaker mentioned, Lord Lester has resigned, but I want to make three points First, I think it is a matter of regret that the committee did not accept the view expressed by the House on 15 November. We had a three-hour debate and views were expressed on both sides of this difficult issue. I expected the committee to move forward with an approach that accepted the view of the House, rather than contradicting it. When we engage in parliamentary ping-pong, it is with the House of Commons, not with ourselves—not with a committee of this House. It is regrettable that the committee did not accept the view of this House Secondly, although the committee has satisfied itself that the procedures in this case were fair and in accordance with natural justice, I can tell the House that that is not the view of a substantial number of Members, who have expressed that view to me. From my discussions with senior lawyers and judges outside the House, I can also tell the House that that community’s overwhelming view is that, but for parliamentary privilege, this report would not withstand challenge in a court of law. That is for all or some of the reasons set out in the opinion of David Perry QC and Rosemary Davidson attached to the original report of the committee; I agree with the Senior Deputy Speaker that it is unnecessary and inappropriate to go into that today The courts would not find what is said in paragraph 15 of the second report from the committee very persuasive. It relies on a decision made by Lord Denning in 1952, but the standards of disciplinary justice and administrative law have moved on in the last 66 years. The courts would not find the arguments summarised by the Senior Deputy Speaker—that this is an internal disciplinary matter, where we follow the same procedures as other parliamentary assemblies—very persuasive. This is a matter where an individual’s reputation has been destroyed by reference to allegations of what is said to have occurred over 11 years ago. That requires the highest standards of fairness in the procedures. That point was made by the Joint Committee on Parliamentary Privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in 1999. I agree with what his committee said at paragraph 280 of its report, that disciplinary proceedings in Parliament, whether against Members or non-Members, should be brought into line with what were described as "contemporary standards of fairness". It said at paragraph 281 that it was "essential" that there should be, "safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies" For the avoidance of any doubt, I emphasise that I am not saying, and I have never said, that the House should believe Lord Lester rather than Ms Sanghera. I do not know who is telling the truth about this matter. I am not naive. I recognise that otherwise respectable men do very odd things in relation to sex. I have constantly argued that the only fair and effective way to determine who is telling the truth is to follow the procedures, which include cross-examination, which are accepted in courts of law and other disciplinary tribunals. I recognise of course that the process must be fair to the complainant as well as to the person accused, but there is no inconsistency in believing, as I do, both that sexual harassment and abuse of power are serious wrongs that should be properly investigated and, when proved, should be punished, and that allegations of this nature, like all other allegations of serious misconduct, must be addressed by a fair and rigorous process. That is not disrespectful to complainants or—to answer the Senior Deputy Speaker—damaging to the reputation of this House. Indeed, if anything is damaging to the reputation of this House it is not to adopt in relation to these matters procedures that withstand serious scrutiny The Senior Deputy Speaker also suggested that it is unfair to criticise the commissioner because she cannot answer back. With great respect, that is wrong in principle and in fact. It is wrong in principle because in any other public context a decision can be challenged in court. The commissioner cannot be immune from reasoned criticism, especially when paragraph 21 requires her to act fairly. It is wrong in fact because the commissioner did answer back. She responded to the points made by Lord Lester to the Privileges and Conduct Committee My third and final point is that the committee should take a hard look at our procedures for the future. Those procedures ought to implement the recommendations of the Nicholls committee in 1999, particularly those relating to cross-examination and the right to legal representation. I note that in Written Answer HL 2916 on 16 November 2017 the Senior Deputy Speaker said in relation to complaints of sexual assault and sexual harassment: "The procedures and processes for investigating complaints made under the Code were not designed with complaints of this nature in mind and this is something … the Committee for Privileges and Conduct will need to consider" This case has illustrated that the noble Lord was correct in that statement. The procedures are not designed to address a complaint of this nature, and careful consideration is now required as to what amendments to introduce in the light of this unhappy episode. I say "unhappy" because it has been a painful experience of course for Ms Sanghera and for Lord Lester, but also for many noble Lords, including myself and, I am sure, the members of the committee. I have much regretted taking a different view on this issue from many noble Lords who I much respect.