My Lords, this report is the culmination of the Conduct Committee’s review of the Code of Conduct and the Guide to the Code of Conduct, launched last spring. We chose to embark on this review—and sometimes I wondered whether that was a wise move. We were not asked to do so by Members of the House and were not required to do so by others, but we felt that it was the right thing to do. The existing code is 15 years old, and I hope the House agrees that we have made a number of improvements to it.
I start by thanking the committee—Peers and lay members—for their work on the report and, of course, the staff of the House who gave us wonderful help. It was clear, as we began to take evidence, that many Peers had not actually read the code, and I do not altogether blame them: it was too long, a bit repetitive and parts of it were very unclear. But we have been helped by the comments and thoughts from the debate in the Moses Room in October and from extensive evidence given to us by noble Lords, in person or in writing. I am not just being polite—that has been immensely helpful to us—although, going on, I will try to be polite.
I am also grateful for the feedback that we have had since the report was published. I have spoken to many noble Lords individually and to the main parties. Of course, we are not satisfying everybody. We cannot. There is a price paid when you try to achieve compromise, but I sense, from the feedback that I have had, that there is widespread understanding of and support for the report.
At this stage, I remind noble Lords that our aim was to simplify and clarify the rules. We have tried to make them shorter, clearer and less bureaucratic. We have also sought to uphold the current code’s twin objectives. I will quote them:
“to provide guidance for members of the House of Lords on the standards of conduct expected of them”
and—this is important but has sometimes been overlooked—
“to reinforce public confidence in the way in which members of the House of Lords perform their parliamentary duties”.
These two objectives were the test for every change that we considered. We asked ourselves, “Is this helpful to Members?” Secondly, “Does it reinforce public confidence in the House?” Sometimes those questions yielded different answers, so we had to strike a balance.
I shall give the House one example: the registration of non-financial interests. Public confidence in the House requires transparency over Members’ outside financial interests; I think we are probably all agreed on that. If Members failed to disclose outside employment or other major financial interests, that would undermine public trust and confidence in the House. However, the public interest in requiring the disclosure of Members’ unpaid roles—for example, with voluntary or charitable organisations—is far less clear. Over the years, the rules governing non-financial interests have become wider and more complex, resulting in several Members falling into inadvertent breach. We want Members in this House to have a wide range of interests, so this is quite a difficult area.
Leave out “agreed to” and insert “referred back to the Committee with an instruction that, in place of paragraph 38, the Committee bring forward proposals giving effect to the following: that the facts and the recommended sanction should be determined by an independent tribunal; that the member should at all times be entitled to legal or other representation; and that the representative should be entitled to cross-examine witnesses and make submissions.”
My Lords, in speaking to the amendment in my name and in response to the question posed by the noble Baroness, I begin by saying that it is not my intention to divide the House.
The report before the House reaffirms the House’s commitment to the inquisitorial method of dealing with complaints and rejects the adversarial system. Its position is fully summarised in paragraphs 36 to 38 of the report, to which I shall very shortly return. I disagree with that conclusion.
The report’s conclusion is wholly inconsistent with the procedures that Parliament has, by statutory instrument, imposed on all the professions that I have ever encountered. Since 2010, I have practised exclusively as a legal assessor—that is, a legal adviser—to the panels which regulate doctors, nurses, midwives, social workers and all the professions which fall under the supervision of the Health and Care Professions Council. I have done hundreds of days of that work since 2010, all at appropriate times, duly registered.
As to purposes and consequences, there is no serious distinction to be made between the regulation of the conduct of Members of this House and the regulation of the conduct of members of those professions. All those professions are required by Parliament to use as an essential part of their regulatory procedures the adversarial system, which is rejected in the report. The decisions as to fact and sanction in those jurisdictions are all made by an independent tribunal. The respondent in all those jurisdictions is entitled to full legal representation, including the right for the representative to cross-examine and to make submissions.
The role of the regulator is a limited one. The regulator acts as an investigator into the complaint, and if the regulator concludes that there is a prima facie case, its role is to present the case before an independent tribunal, often by means of a lawyer instructed for the purpose. The regulator is not the arbiter of either of fact or sanction and, in my view, the commissioner’s role should be similar and limited.
My Lords, first, I congratulate the Conduct Committee on reducing the amount of the Code of Conduct by 30%. If this lesson was followed in other areas by Whitehall, we would have less legislation to worry about. Perhaps the team that has done this might offer its services to other departments.
It is also very sensible that it has been decided that the Code of Conduct should not compel people to register their interests when they are unpaid and charitable. Having said that, I sincerely hope that noble Lords will declare their interests when they are trustees of a charity, because it adds to the authority with which they speak on the subject. Although it will not be compulsory, I like to think that people will continue to do that.
My amendment is basically designed to remove harassment from the charges that can be brought by one Member of Parliament against another. The noble Baroness, Lady Manningham-Buller, has made the point that this would then mean that a Member of your Lordships’ House could sue somebody in the Commons. I hope that, if by the use of this for party-political purposes it completely discredits the code, we might actually see the other place amending its way of doing business in the same way as I rather hope we might amend our way of doing business.
The wording of my amendment is worked out to completely exclude members of staff, and it does not include sexual harassment and bullying, which is very important. The real problem is that the Oxford English Dictionary is quite clear in saying that “harassment” means “trouble by repeated attacks”, which means that there must be more than one occasion on which the particular offence is committed. The noble Baroness has made the point that much of the code is lifted from the Equality Act, but there is no mention in the Act of redefining harassment, as it is in the Code of Conduct, to being down to an isolated incident. We therefore have a tremendous problem here with the definition of “harassment” in the beginning.
My Lords, the Motion in the name of the noble Baroness, Lady Manningham-Buller, has been moved, as has the amendment in the name of the noble Viscount, Lord Hailsham. The noble Lord, Lord Hamilton, has spoken to his amendment. For the remainder of the debate, the advisory speaking time is four minutes, and I ask all noble Lords to adhere to that. After three minutes, they should start making their concluding remarks and, at four minutes, their time is up.
My Lords, I congratulate the noble Baroness and her committee on their work in reviewing the code of conduct and the manner in which they did it. It was a privilege to give evidence to the committee, and I was extremely impressed, though not surprised, by the care with which it approached its work.
The committee had two overlapping tasks, the first being to streamline the code and guide to make them clearer and less ambiguous. By reducing its length by 30% and simplifying the language, it has clearly achieved this. It also had to deal with several substantive issues on which there is no consensus in the House—here it was impossible for it to please everybody. For myself, I wish it had dropped the reference to “personal honour” and brought in an offence of bringing the House into disrepute. I was one of those who, to quote the report, thought that the term was
“hard to understand and archaic”.
But I was given the chance to argue that case before the committee, and I simply failed to convince it. So it was with other Peers and other topics. But the committee weighed my evidence and all the evidence it heard, and reached its own conclusions, as it was tasked by the House to do. That is why I will vote for the report and do not support the amendments today.
The noble Viscount, Lord Hailsham, has argued for an independent tribunal and legal representation. The report, having considered the case for an adversarial system, rejects it on the grounds that he quoted: that it
“would result in a long-drawn out and expensive process, potentially undermining rather than promoting the principles of natural justice and fairness”.
As opposed to the noble Viscount, I agree with that conclusion and so cannot support his amendment.
The noble Lord, Lord Hamilton of Epsom, wishes to amend the code to prevent Members bringing complaints of harassment against other Members, for the reasons he has just enumerated. I completely disagree with him. Harassment is a serious offence, and standards of acceptable behaviour and what constitutes harassment have changed for the better, in my view, over recent years. To accept the noble Lord’s amendment would tolerate behaviour that is intolerable, and it would be an extremely retrograde step were the House to agree to it.
My Lords, I chair the Steering Group for Change, which advises and supports the House of Lords Commission and the management board on continued efforts to improve the workplace culture of the House. We create a space where Members and staff can work together in an open and collaborative way. The effectiveness of the House of Lords relies on strong working relationships between Members of the House and the administration to strengthen the House as an institution. It also has the potential to build positive public perceptions of this House.
The steering group considered the recommendations of the review. We are grateful to the chair of the Conduct Committee, the noble Baroness, Lady Manningham-Buller, for attending our meeting last week, and to the Conduct Committee and its officers for the enormous amount of work carried out to produce this substantial report. We see this as a protection for Members and not a threat. It will reassure staff that everyone on the estate will be treated equally, and it will be a signal to members of the public that we have a fair, independent and robust system for dealing with conduct issues.
The right revered Prelate the Bishop of Derby, who is a member of our steering group, had originally intended to speak but cannot because of family health. She has asked me to say on her behalf:
“My own expectation that in this place of work, that having a robust code backed up by clear guidance is really important for the expression of the culture of who we want to be, expressed in the way of how we’re going to do it, and that is important for every person at every point of this organisation and it should just be a given”.
The amendment from the noble Lord, Lord Hamilton, to prevent Peers submitting complaints against each other would go against the grain of equal treatment for all on the Parliamentary Estate. It would drive a coach and horses through the behaviour code. Of course there are risks that a complainant might be playing politics. That is why we have independent and impartial commissioners. Members of the Conduct Committee are not naive about the political nature of our work. That is why the three main parties and the Cross Benches are represented on it.
My Lords, it is a pleasure to follow the noble Baroness, who is very wise, and to echo her remarks about the noble Baroness, Lady Manningham-Buller, who is a glutton for punishment; she actually extended her term of office in order to deal with this issue and it is a very important issue.
I am sorry that we have only four minutes—although it is advisory—to discuss very important questions. I have a number of comments, which I hope the committee might give consideration to. First, what is the definition of a “minor case”? It is not clear from the report to what that relates. Secondly, the idea of extending the terms of appointment to six years, although not really a matter for the committee, is undesirable.
My main concern is the extension of the committee’s remit into social media. In particular, I find some comments from the report quite worrying. For example, paragraph 24 says:
“as a self-regulating chamber the House of Lords has the right to determine that egregiously offensive statements made by its members on public-facing social media may in certain circumstances fall within the scope of the Code”.
It is hard to argue with that in principle. I do not do social media, because I think that it is a revolting place and what people say about each other is not to my taste, but the idea that the committee should get involved in social media is a very big step. To be fair, the report hedges around the circumstances, but the hedging is rather vague and it needs careful consideration.
My other point is that, although it is fantastic that we no longer need to declare a non-financial interest, the report makes it quite clear that getting up and saying, “I refer to my interests in the register”, which people in this place do every day at Question Time, is a breach of the code. However, they are still required to continue to declare their financial interests. I do not think that is practical. Question Time is already difficult because some people make very long questions or give very long answers—or responses to questions, certainly. Having to declare an interest at Question Time without being able to say, “I refer to the register”—it is a waste of time anyway, because nobody has a clue what is on the register—would just extend the length of Question Time. That should be given further consideration.
My Lords, even to the best behaved of us, the mention of a Code of Conduct investigation sends a shiver down the spine, because there are grave consequences in the world these days related to offences that might have been settled privately and amicably years ago: there is great publicity and the damage is long lasting.
Incidentally, I was once chair of the Bar Standards Board, which investigated the behaviour of barristers. It was a complex, nuanced, layered procedure but, for those reasons, I quite agree with the noble Viscount, Lord Hailsham, that regulation needs more independence than is being granted in this revised charter.
As far as substance goes, I am puzzled that bullying, harassment and sexual misconduct are regarded as so much more serious than other offences that they get separate treatment in the code and that there is no longer any limit at all on reporting sexual misconduct, even years ago. Are these offences really worse than violence, lobbying, financial misconduct and lying, especially as the latter group are more likely to affect people in the outside world?
I continue to think that the rules of natural justice are insufficiently taken account of, with reference to my time as chair of the Bar Standards Board. The general definitions of natural justice are wider than those put forward in the report and would include avoiding any perception of bias on the part of the judge, full disclosure of all the interests of the commissioners and that the person complained against should be able to challenge the evidence and have access to all the documents involved.
The case for legal representation is difficult, but today it is much stronger than it used to be. Just because the Committee for Privileges took a narrower view of the definition of natural justice some years ago, that does not mean that it was the right outcome. I do not see why we should be more hesitant in facing up to challenges of all sorts than the public are expected to be, so I suggest adding an explicit right to see all the documents and to have a lawyer speak for you at the hearings.
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We concluded that the bureaucratic burden of the rules on declaring non-financial interests was disproportionate when compared with a small potential benefit to transparency. We therefore recommended ending the requirement to register and declare non-financial interests. Members will still be able to declare them in debate, if they are relevant to the matter under discussion and if time allows, but in our view that is not an enforceable rule.
I have dwelt on that example of our thought processes to try to help the House to understand why we have made the changes that we have. We went back to first principles, restated the most important rules of conduct as clearly and as succinctly as we could—noble Lords will notice that the code and the guide are substantially shorter—while stripping away rules that we considered disproportionate. Noble Lords have had the chance to read the report and the new code and guide, so I am going to touch on only a few key points.
On enforcement, we have introduced a minor cases procedure to allow the commissioners quickly to dispose of allegations of minor technical breaches, the details of which will be published only once the case has been resolved. We have restated in the code that, in investigating alleged breaches,
“the Commissioner and the Conduct Committee must … act in accordance with the principles of natural justice and fairness”
We have made it clear, as has been the case for many years, that Members under investigation are entitled to consult friends or advisers, including legal advisers.
The noble Viscount, Lord Hailsham, would go further, requiring the Conduct Committee to reverse its conclusion in paragraph 38 of the report and instead proposes a wholly independent investigatory and decision-making process with no Member of this House or any Conduct Committee report. I am grateful to the noble Viscount for letting me know last year that he was going to raise this issue. But my view, and that of the committee, is that this proposal strikes at the heart of the House’s culture of self-regulation. It would take the regulation of a Member’s conduct away from that Member’s peers, entrusting it instead to a quasi-judicial process with full cross-examination by lawyers, presumably representing both sides. The process would be long and more costly, and would deter some victims, in particular of bullying and harassment and sexual misconduct, from coming forward.
Over the years, many legally eminent Members of this House, former Lord Chancellors and Supreme Court justices, have sat on the Conduct Committee and its predecessor committee, which I chaired at one stage, including two former chairs: the late Lord Brown of Eaton-under-Heywood, and the noble and learned Lord, Lord Mance. The committee that undertook the review also included three KCs, including a former law officer, the noble and learned Lord, Lord Garnier. These committees over the years have all rejected calls for a fully adversarial system, and the House has just as consistently agreed with its committee. Of course, it remains a matter for the House, but I hope that the noble Viscount will not press his amendment to a Division.
Returning to the report, I have not got much more to say, because I know the time is tight. The committee resisted calls to extend the code further into Members’ non-parliamentary lives. We understand that, in a small handful of cases, Members’ behaviour in their private lives has hit the headlines, creating a perception that the House’s reputation has been damaged. But we need to be clear that the purpose of the code, consistent with the principles of self-regulation, is to help the House in regulating Members’ parliamentary conduct. Members are not full-time; they have jobs and lives outside the House, and we need to respect that separation.
Similarly, we have restated again the existing protections for Members’ freedom of speech. The code is clear that the constitutional principle of freedom of speech in parliamentary proceedings is a primary consideration, and the enforcement procedure underlines that policy matters or Members’ views or opinions wherever expressed, whether inside or outside the House, are not within the commissioner’s remit.
Before concluding, I turn to the amendment tabled by the noble Lord, Lord Hamilton of Epsom. He does not seek to reject the report in its entirety but would instruct the Conduct Committee to bring forward proposals that would
“remove the entitlement of members of either House to bring complaints of harassment against members of the House of Lords”.
The amendment would therefore exclude a relatively small group of people, Members of one or other House, from the possibility of making a complaint of alleged harassment by a Member of this House.
This strikes at the heart of the changes and improvements in the culture of Parliament that have been made since 2017, when the then Prime Minister, the noble Baroness, Lady May of Maidenhead, personally intervened to support the establishment of an independent complaints and grievance process. That led to the behaviour code agreed by both Houses, which protects everyone who works here. I remind noble Lords of the original mandate, which was for a behaviour code that applies to all persons working for or within Parliament. The amendment of the noble Lord, Lord Hamilton, would create a situation in which Members of this House could still bring complaints of harassment against MPs, but MPs could not complain against Peers. I doubt that the Commons would stand for that. So we risk a tit for tat and a potential unravelling of the behaviour code.
Harassment in the workplace is unlawful. The offence is defined in Section 26 of the Equality Act 2010. I do not believe that a Member of this House who is subject to harassment by another Member should be deprived of the right to complain about unlawful behaviour. I shall listen to the noble Lord but if he presses his amendment to a Division, I hope the House will strongly reject it.
Finally, what will happen after today’s debate? If they are agreed, the new rules will come into effect on 5 April and new versions of the document will be available then. Members’ entries in the Register of Lords’ Interests will be automatically updated to reflect the simplification of the registration categories. No action is needed by Members on this point.
I look forward to the debate and, with that, I beg to move.
Amendment to the Motion
The report suggests that the adversarial system, in particular the cross-examination of parties and witnesses,
“would result in a long-drawn out and expensive process … undermining … the principles of natural justice and fairness”.
That sounds to me awfully like an argument for putting convenience before justice. To be fair, other criticisms are made in paragraphs 36 to 38.
The problems encountered with regard to complaints and to the proceedings against Members of this House are precisely the same as those encountered in all the jurisdictions to which I have referred—indeed, in most other legal interparty proceedings.
Relevant concerns—and there are concerns—can be and are met by a number of special measures, which time prevents me articulating. In all those other jurisdictions, complaints are often made by one colleague against another or by an employee against a superior, but such problems are not a barrier to effective regulation.
There is no time in this debate to argue in detail the merits of the adversarial system, so I shall conclude with this general assertion. There must be a presumption in favour of the House following in its own procedures the procedures that Parliament has imposed on everybody else. I suggest that only the most powerful arguments should displace such a presumption, and I cannot identify those arguments. Therefore, I believe that this House should adopt the procedures that Parliament has imposed on everybody else. Although I do not intend to divide the House, I beg to move the amendment standing in my name.
The recent case, which has been alluded to, of my noble friend Lady Meyer, was by anybody’s estimation a single incident, and I do not think you can apply harassment in its understood terms to that case. On top of that, I have talked to a number of lawyers in your Lordships’ House and they think that that case would have been dismissed by a court of law as being trivial. I do not think we are in the business of treating Members of your Lordships’ House more harshly than a court of law would. I am not here to reopen the case—I am not trying to do that—but I hope we can learn a few lessons from the cases that have happened.
There is no doubt in my mind that the code of conduct, as it is now worded, is leading to miscarriages of justice. We should be very mindful of this and of the problem that, actually, there are party-political politicians in your Lordships’ House. I was recently told by a noble friend that people are now refusing to go on parliamentary trips, or indeed share a taxi, with a Member of an opposition party, in case that can be used against them. This is a problem. If the onus is put on the complainant to say that they have been upset by some remark that somebody has made, this can be exploited very much in terms of party-political advantage. I do not think that is what the code of conduct is involved in at all.
Under the code of conduct, complaints can be brought for four years to the Commissioner for Standards and, therefore, it could be possible to stack up a number of cases that then emerge just before a general election and could be used for party-political advantage. I do not think that is how the code of conduct should be abused, which is why I am putting my amendment to the House today. I hope that the noble Baroness will seriously consider the dangers of the wording of the code of conduct, as it now is, because it could be badly abused in the future.
Neither do I recognise that there have been any miscarriages of justice in the past relating to this issue. His suggestion that the code could be abused for party-political advantage is simply implausible. If anybody were to try this, I am sure that they would be given extremely short shrift.
I urge the House to support the Motion to approve this report, reject the amendments and thank the noble Baroness for her extremely distinguished stint as chair of the committee.
Finally, on the amendment from the noble Viscount, Lord Hailsham, to introduce an adversarial system to deal with conduct issues, this has been considered many times before and rejected consistently by this House. It would put us at odds with the House of Commons, the Scottish Parliament, the Senedd and the Northern Ireland Assembly. My concern is also echoed in the words of the noble Baroness, Lady Manningham-Buller, that it would increase the length and expense of investigation. I hope very much that we will give wholehearted support to the Conduct Committee’s report and our thanks to the noble Baroness for her most distinguished chairing of this committee in the last few years.
Paragraph 49 relates to Members who have left the House. The suggestion is that, if a former Member were to breach the rules, it would be for the commission or the Clerk of the Parliaments to use their powers. I mean no disrespect to our distinguished clerk, but I think it should be for the commission and not for the Clerk of the Parliaments.
The noble Baroness and her committee have produced a document in which I can pick holes, but it is a great leap forward from what we had before. They took evidence—I gave evidence—and they considered it very carefully. It would be quite wrong for the House not to support this unanimously and with great gratitude to the noble Baroness and her committee for their work, which cannot have been easy.
The problem with the system now, comparing it to natural justice, is that it is one commissioner only who decides whether or not to investigate, carries out the investigation and decides, like a judge, what the consequences and the punishment should be, and the allegation need be proved only on a balance of probabilities. It is time now to bring those procedures into line with natural justice to a greater extent.
One ambiguity needs to be clarified relating to the rule about the use of facilities, such as one’s office, primarily—whatever that amounts to—for parliamentary purposes. It is widely accepted that at home one has to use one’s own facilities, such as computing, research, book purchase and so on, for parliamentary duties, and people may be paying researchers and assistants from their personal income, because if you live out of London the daily allowance will not stretch that far. As a reciprocal measure, I would have thought it permissible to use one’s office here for office purposes, whether parliamentary or otherwise, especially if, as a non-Londoner, one has no other office facilities to hand. I hope that there is some sympathy for a broad definition of what may be allowed in one’s office on the parliamentary estate.