Privileges and Conduct — House of Lords, 2018-11-15
Topic: Government Operations
James Peter Hymers Mackay (Conservative, Centre-right): My Lords, the most severe burden that anyone has to carry is adjudicating upon the conduct of our fellow citizens. Many of us have done that as judges and even more as magistrates. It is a very heavy burden indeed, and one which, in this situation, we have to shoulder in respect of a colleague in this House. The responsibility has been put on the Committee for Privileges and Conduct to refer the result of an inquiry to the House. That is what we have done. The committee is composed of the leaders and Chief Whips of all the parties and the Convenor of the Cross Benches. There are also one or two others in it, of whom I happen to be a member. I have been a member for a long time I certainly find it a heavy responsibility, because two parties are involved: the complainer and the person against whom the complaint is made. When the complainer decides to come forward with a complaint, they have before them the rules that are to govern the procedure. Therefore, I do not think it is open to this House, if it is to be fair, to alter the rules as they apply to this case. We are bound to apply the rules as they were to this case. As the noble and right reverend Lord, Lord Eames, has pointed out, these rules, in substance, have been approved by the House for a long time. Certainly, my noble and learned friend Lord Woolf says he gave up because he thought it was not fit for purpose. I never heard that complaint and, as far as I know—I am subject to correction and, like many of my friends, I am not at all infallible—it has not been put by any Motion on the Floor of the House. That is my recollection The procedure has been laid down in considerable detail in the code of conduct, which says that the procedure to be used is that which is set down in the guide. Therefore, the commissioner and all the committees that dealt with this were bound by the rules that presently exist. It would be extraordinary to try to alter these rules while a case is being considered and after the complainant has put in her complaint. The commissioner is directed as to what to do if there is a conflict. She has to consider both sides and make sure that the person complained against has the opportunity to object. She put all the evidence she had before the noble Lord, Lord Lester, and he had full opportunity to comment on it Cross-examination has been referred to. It is, for example, an important part of our criminal procedure. But look for a moment at the opinion that the noble Lord, Lord Lester, obtained. On page 75 of the report, there is a quotation from the High Court of Australia, and it is interesting to see how it puts it—I had better put my glasses on so that I can read it properly. It states: "Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial" That is the adversarial system. The system applied by the rules that this House has approved for almost 10 years —it is nine years, I think—is the inquisitorial procedure. Therefore, it is left to the commissioner to assess the credibility of the people involved by conversing with them in detail, as she has done with both the complainant and the noble Lord, Lord Lester I have to say that I have known the noble Lord, Lord Lester, for a long time. He knows that I have very high confidence in him, for reasons that I do not need to go into. However, we now have two people before this House: the complainer, who came to the House on the basis of the current rules, and the noble Lord, Lord Lester, who has sat under these rules for nine years without, as far as I know, bringing forward any complaint or amendment. In that situation, the Committee for Privileges is bound to consider the report of the commissioner and come to a conclusion, one way or the other, but it is not entitled to reopen the proceedings. The commissioner is given the responsibility of deciding where the truth lies The commissioner applied the balance of probabilities, which is required by our rules, but she said that, in the particular case she was dealing with, the consequences were serious and therefore she felt that—as the conclusion makes clear—there was cogent evidence from the complainer and her witnesses that this was proved. Therefore, she applied the balance of probabilities in the light of judgments such as that of Lord Nicholls. In that situation, I find it very difficult to see how we can modify the procedures that the complainant expected to confront when she launched her complaint.