Privileges and Conduct — House of Lords, 2018-11-15
Topic: Government Operations
James Hope (Crossbench, Unknown): My Lords, I wonder if it would be of assistance to the House if I were to speak next. I should explain that one of my duties as Convenor of the Cross-Bench Peers is to sit upon the Committee for Privileges and Conduct. That is a responsibility that I bear on behalf of my colleagues on the Cross Benches, and I had the important duty of sitting on this particular committee. I shall explain succinctly why I felt unable to accept the contention of the noble Lord, Lord Lester, that the commissioner was at fault in the way that she carried out her investigation. I have of course listened with great care to what my noble friend Lord Pannick has said in presenting the amendment I shall concentrate on two matters: what the commissioner did and what she was required to do. The first thing that she did, as required by paragraph 119 of the guide, was to seek and obtain the agreement of the sub-committee, chaired by my noble and learned friend Lord Brown of Eaton-under-Heywood, to investigate. That is because the alleged incidents occurred more than four years before the complaint was made. She obtained that consent from the sub-committee and proceeded to receive the details of the complaint and then meet the noble Lord, Lord Lester, to provide him with the details that were contained in it The noble Lord then began a process of challenging the process being adopted by the commissioner. First, he asked for an alternative procedure by way of a dialogue to be adopted so that he and the complainant could meet together with the commissioner to discuss the incidents that she was complaining about. The commissioner was uncertain as to what she should do about that, so she went back to the sub-committee to find out what its advice was. In the meantime, the noble Lord, Lord Lester, had complained to the sub- committee about the fairness of the procedure. The important point to note is that the commissioner was told by the sub-committee that she was bound to investigate the complaint under the procedure laid down by the code and the guide to conduct. I emphasise that point because I think it should be realised that if there is any basic fault in the procedure, which is my noble friend’s essential point, the sub-committee shares the responsibility for the way in which the case proceeded, as does the sub-committee that looked at the matter afterwards The instruction from the sub-committee was to follow the procedure laid down by the code and the guide. The Senior Deputy Speaker very helpfully set out a good deal of what is contained therein and I do not want to go over it, but there is a crucial passage at paragraph 124 that has to be understood and that has been in the guide for many years. It says: "Proceedings are not adversarial, but inquisitorial in character" That is a crucial passage in the guide, which is followed through in the following paragraphs that talk about no entitlement to cross-examination. The point is that an adversarial process is one where cross-examination is indeed resorted to and, as I think my noble friend was suggesting, one might well have counsel to assist in putting those questions. That is the nature of the adversarial process that all of us who have sat as judges, and indeed who have appeared in courts as lawyers, are familiar with, but this was an inquisitorial process where the conduct of the inquiry was in the hands of the commissioner, appointed, as has been pointed out, by the House to conduct this process as an independent and impartial investigator One has to understand that because, when one comes to the phrase, which has also been quoted, that the commissioner, "shall act in accordance with the principles of natural justice and fairness", one has to understand what that phrase means. The principles of natural justice have been established in our common law for many years. There are two of them, assuming of course that the investigator is impartial. Principle number one is that the person complained against shall have fair notice of the case being made against him. Principle number two is that the person complained against shall have a fair opportunity to answer to the complaint. Those are the principles of natural justice that are universal and which are referred to in that paragraph in the guide. Cross-examination is the essence of an adversarial process, and one must assume that when the House approved the guide in this form it understood very well that this was the nature of the process that it wished to adopt. One might say that the important point was to keep the adversarial element—counsel and all the rest of it—out of it and put it in the hands of the commissioner so that she could conduct the inquiry as best she could If one follows through what the commissioner actually did—I do this not to reopen her inquiry, which we are not allowed to do, but to test the coherence of what she did—one sees that she interviewed the noble Lord, Lord Lester, to discuss aspects of his statement. She said she gave him the opportunity to tell her anything else that he thought was relevant, applying the principle of natural justice. Significantly, his response was to deny the allegations in every particular. As she said, his case was not that it was a misunderstanding or a misinterpretation, so either the complainant or the noble Lord was not telling the truth, and she had to decide that issue As we know from the report, she then contacted witnesses, and she used her discretion as to how best to do that. She provided the noble Lord, Lord Lester, with copies of the statements by these witnesses. She then considered no fewer than 12 challenges that the noble Lord made to the progress of the investigation so far. Here your Lordships see the second principle, the opportunity to reply, being applied. She then showed him her draft report. He made 10 more representations, each of which she considered and dealt with before the report was finalised. So if one works through the report, one finds that she conducted the process in accordance with fairness and the principles of natural justice She noted that there were discrepancies between the complainant’s statement and those of the witnesses but, as she pointed out, that was not altogether surprising in view of the lapse of time. Indeed, on the contrary, if they had been exactly fitting with each other, that might suggest collusion, which, in her judgment, was absent in this case. She accepted that the witnesses were telling the truth as best they could She said she did not need to examine each of the allegations in great detail, the reason being that the complaint was not said to arise from a misunderstanding or misinterpretation and she was not provided by the noble Lord, Lord Lester, with material to conduct a penetrating investigation of the kind where one might put to the complainant alternative explanations for what might have happened. I think she was saying to us in the report that it was not for her to construct the noble Lord’s excuse if he did not provide that excuse to her himself I have two final points. She said that when she was dealing, as so often with these very difficult cases of sexual misdemeanours, with competing positions of the two people involved, on the whole she might have regarded this as a 50/50 case where the balance was not tipped against the noble Lord, Lord Lester. That was why she had regard to the witnesses to see if she could test, by some independent evidence, whether there was a cogent reason for preferring the complainant’s account of what had occurred. All that is perfectly orthodox, coherent and understandable The last and most important point is one that every judge who sits in an appeal has to appreciate and I suggest to your Lordships that we should grasp it too: the commissioner had the great advantage of seeing, interviewing and assessing the complainant herself. We do not have that advantage. The commissioner’s advantage is one that she alone had, and it was her assessment of credibility that was crucial to the determination of this case There has been a lot of criticism of the commissioner’s conduct. I respectfully suggest that she conducted the process to the best of her ability and in accordance with the rules provided for her by the House, which the House looked at in 2010, for example, and has not sought leave to change. I do not think the process could be said to have been at fault if tested by the principles of natural justice and fairness, and I respectfully submit to your Lordships that the amendment should not be agreed to.