That the Report from the Select Committee on Independent Complaints and Grievance Scheme: Changes to the Code of Conduct (4th Report, HL Paper 335) be agreed to.
My Lords, the fourth report from the Committee for Privileges and Conduct, Independent Complaints and Grievance Scheme: Changes to the Code of Conduct, has its genesis in the autumn of 2017 when allegations surfaced in the media about inappropriate behaviour and a culture of bullying, harassment and sexual misconduct at Westminster. A great deal of work has been done since then by politicians, officials and employee organisations on a cross-party and bicameral basis. This led to a new independent complaints and grievance scheme for Parliament, including a behaviour code which sets out the standards of behaviour expected of everyone working on the parliamentary estate.
The House of Lords Commission agreed that the independent complaints and grievance scheme, or ICGS, and the new behaviour code,
“would meet the clear need for a new approach to dealing with bullying, harassment and sexual misconduct both on the Parliamentary Estate and in the course of parliamentary duties elsewhere”.
The Lord Speaker, the chair of the commission, asked the Sub-Committee on Lords’ Conduct to consider how to integrate the ICGS with the Code of Conduct for Members of the House of Lords, the Guide to the Code of Conduct and the Code of Conduct for House of Lords Members’ Staff; and how the proposed independent reporting and investigatory service can best sit with existing procedures for investigating breaches of the codes.
That is the task we were given. The report before the House sets out proposals for amending the Code of Conduct, the guide to the code and the code of conduct for Members’ staff to incorporate the requirements of adherence to the behaviour code. These proposals are the result of extensive and detailed work by the Sub-Committee on Lords’ Conduct, supported by the noble Baronesses, Lady Anelay of St Johns and Lady Donaghy, as co-opted members, and subsequently by the Privileges and Conduct Committee. We also consulted Members in February and early March. The results of that consultation have informed our proposals.
There is a clear need for specific and appropriate processes for reporting and investigating complaints of bullying, harassment or sexual misconduct. Those processes must work fairly and effectively for Members and complainants, and provide appropriate support for both. Those processes must draw on the growing evidence base on best practice for addressing such behaviour. The package of changes set out in the report and the changes to the codes of conduct in the appendix to the report represent a significant step towards achieving that.
I am sure that noble Lords will have read the report in some detail, but it may help the House if I set out the key proposals. The Code of Conduct should incorporate the behaviour code and make it explicit that behaviour by Members or their staff which constitutes bullying, harassment or sexual misconduct is a breach of the code. The requirement to comply with the behaviour code will be retrospective to 21 June 2017—the start of the current Parliament. Complaints of bullying or harassment can be made to independent helplines, as well as to the commissioner, and complainants and Members can be signposted to sources of advice and support. This requirement will apply to Members who are on leave of absence or disqualified if they are on the Parliamentary Estate or using the facilities of Parliament.
My Lords, as some noble Lords will know, last December I participated in the debate on the report on Lord Lester. Since then, I have submitted a very full memorandum to the committee chaired by the noble Lord who just introduced this Motion, so my views are available to anybody who wants them. Therefore, I am sure I will be forgiven if I speak very briefly and confine myself to but three issues.
First, the fourth question in the report, and the one left over, is: should we make the process for investigating and determining complaints against Members more, or entirely, independent of the House? My answer to that is an emphatic yes. Perhaps I might make a declaration and say that for the last nine years or so, I have been exclusively concerned as a legal practitioner as a legal adviser to the regulatory panels that regulate the conduct of doctors, nurses, midwives, social workers and healthcare professionals. Your Lordships might think that I am a bit set in my ways, but they certainly inform my conclusions.
I accept entirely that our procedures must not deter complainants from coming forward, but we must not put in place a process that is unfair to a respondent Peer or one that does not accord with the principles of natural justice. An adverse finding against a Peer is a very serious matter for that individual. Inevitably it will cause damage, possibly irreparable, to their reputation. The sanctions, expulsion or long suspension should be viewed in the same light as sentences imposed by criminal courts, or the suspension or strike-off orders imposed by the regulatory authorities.
Your Lordships will know that most regulatory authorities operate under procedures established by Parliament and supervised by the appellate jurisdiction of the courts. In summary, the processes are very similar to those that prevail in the courts and, in particular, require proper discovery of evidence, the entitlement to full legal representation and the hearing and cross-examination of all relevant witnesses. I believe that any process we create must be similar to the processes we require of all the regulatory regimes with which I am associated.
My Lords, the reforms proposed by the committee, as helpfully outlined by the Senior Deputy Speaker, will be a distinct improvement on the current system. No one who participated in the debates in November and December on the conduct of Lord Lester, or who listened to those debates, could think it was a satisfactory way for the House to assess the conduct of one of its Members. I entirely agree with the comments of the noble Viscount, Lord Hailsham.
The committee is, in my view, right to recognise that there should be a new conduct committee with lay members to hear appeals from the commissioner and to vary any sanctions. My primary concern about the report is that it does not secure a sufficiently independent determination of complaints. A new conduct committee consisting of five Members of the Lords and four lay members will simply not command public confidence because it is not independent of the House. It is easy to predict what will happen if the commissioner makes a finding of a breach of the code and the new conduct committee then overturns that decision by a narrow majority, with all or most of those members who are Lords voting in favour of the relevant Peer. It is inevitable that the House will be strongly criticised and that its reputation will suffer. It will inevitably be said that the Members of the Lords are looking after one of their own. The very fact that the Members know that there would be such criticism will make it very hard for them to assess fairly the conduct of the relevant Peer and exonerate him or her if they think it right to do so.
The only system that can command public confidence and be fair, to both the complainant and the accused Peer, is a wholly independent one with appeals from the commissioner going to a panel composed exclusively of lay members with, I suggest, a retired Court of Appeal judge as the chairperson. I entirely recognise that some Members of the House will find it very difficult to give up their power in this way, but we need to do so if our complaints system is to command confidence and respect.
My Lords, I hope that a non-lawyer can get a word in edgeways, because there are other issues apart from all these legal issues raised incessantly by lawyers, and we have an opportunity as well as a right to raise our own issues. First, however, I commend the work done by the Senior Deputy Speaker and by the members of the committee, who have done a very difficult job very well indeed. I particularly thank the noble Baroness, Lady Anelay, and my colleague and noble friend Lady Donaghy, who has discussed this matter with me, for their excellent input.
There are 101 questions arising from the report and I will raise only one—but it is an important one. It has nothing to do with the legal processes—I will leave that to the lawyers. What worries me is that we are looking at this on a bicameral basis, as if everything that applies to the House of Commons applies equally to the House of Lords—and that is not the case; it is a very different situation here. In particular, there is one important difference I want to draw the Senior Deputy Speaker’s attention to. It relates to paragraph 59, which mentions, as the Senior Deputy Speaker mentioned,
“House of Lords Members’ Staff”.
What is meant by that? I would like to have the opportunity to employ people and I certainly would not bully them, harass them or get involved in any sexual activity with them. I would like to be able to do that—
No, no—I would like to be able to employ them, not to do that. These Cross-Benchers are on the ball; they pick things up quickly.
I was a Member of the House of Commons for 26 years. We got a special allowance to employ staff in our constituency and in the House of Commons. There are arrangements for employing and paying staff and structures to enable MPs to do that. That is not the case in the House of Lords. So what is meant by, “House of Lords Members’ staff”? A number of Members of the House of Lords have people working for them, but they are paid for by outside bodies, whether it be a film company, an organisation to which they give professional advice or, indeed, their law firm: they are not employed by the House of Lords. Can the Senior Deputy Speaker indicate whether these staff are covered if they are employed by someone else? It is not clear in any way from this whether staff who come in to help Members of the House of Lords but are employed by some other organisation are covered. Some people employ interns. Are interns covered by this? Are they considered to be House of Lords Members’ staff? It needs to be clarified. What about volunteers? I have an excellent volunteer who comes regularly to help me. Is he to be considered under “House of Lords Members’ staff”? Is he covered by this? None of this has been dealt with.
The desire to extrapolate from what happens in the House of Commons to what happens down here has been too strong, and a number of anomalies have arisen. I have raised one of them that needs to be clarified and I hope that there will be answers to these questions—if not now from the Senior Deputy Speaker, certainly before we get the final report from the commissioner, Naomi Ellenbogen. I hope that, before we approve anything finally, these kinds of anomalies and questions will be answered—and I am grateful to the lawyers for allowing me to squeeze in between them.
Perhaps I may squeeze in myself after the noble Lord.
The proposed new code is a considerable advance on the existing procedures. It is an excellent proposal that a complaint of bullying, harassment or sexual misconduct should be investigated by independent investigators. The role of the commissioner should be to receive their report and, in the light of that report and any material provided by the Member concerned, to determine whether there are unresolved factual issues. If there are, she may decide formally to question the parties and their witnesses orally in separate interviews or—here I very much agree with the noble Lord, Lord Pannick—to appoint counsel to the inquiry to assist her in that task. If it is a difficult or an extremely sensitive task, it would be appropriate for her to decide to do that.
I regret that the report remains tied to the concept that the offence to be investigated is a “breach of personal honour”. If ever a phrase is redolent of mothballed ermine, that is it. Paragraph 37 explains that,
“the term ‘personal honour’ is ultimately an expression of the sense of the House as a whole as to the standards of conduct expected of individual members”.
It is,
“subject to the sense and culture of the House as a whole”,
which, the report comments, “change over time”. It is somewhat curious, therefore, that the House appoints a commissioner who is by definition independent of the House and has never had the opportunity to imbibe its culture—to breathe in the mothballs—in order to determine whether a Member is in breach of his personal honour. Further, it is equally curious that an appeal should lie to a panel which contains four lay members who are in precisely the same position. If misconduct is alleged against a Member, any charge should set it out in plain language, specifying the time, the place and the date. The findings of the commissioner should establish whether that precise charge has been proved.
My Lords, I declare my interest in the register as the chairman of the Committee on Standards in Public Life. However, I speak on my own account. I very much welcome the report from the Privileges and Conduct Committee, which seems to be a significant step forward. But, as the Senior Deputy Speaker said, it is a step forward rather than the final step in the whole process. In particular, the increased independence that will be part of the construction of the conduct committee is extremely important. I share the view of the noble Lord, Lord Thomas of Gresford, that we need to continue in that direction and that a minority position for independence may not be satisfactory, particularly when difficult cases are being adjudicated, because public opinion on these issues is moving forward and we clearly need to be in step with it. The proceedings in this House before Christmas were clearly not in step with it, and I am therefore grateful that we will not be revisiting that episode, which I think was probably discreditable to us all.
On the question raised by the noble Lord, Lord Foulkes, about the bicameral nature of this, we need to recognise that this is a complex series of interlocking pieces of process. Various pieces of process are happening in your Lordships’ House, and a variety of pieces of procedure are happening in the other House. We must bear in mind that this is a totality. We cannot entirely separate what happens here from what happens there, not least because the House of Commons, the other place, is considering the question of non-recent conduct, which is likely to extend back considerably further than is currently proposed in your Lordships’ House. There is a difference there, but of course there is movement between the two Houses, so we may find that procedures in the other place impact on Members here. We need to bear in mind that those are linked issues and, I believe, in the public mind, they would be seen as part of the same issue. Therefore, we need to bear in mind how they are being played at both ends. At the moment, there is of course a considerable difference between the procedures here and those in the other place, even though there is some movement in the direction of co-ordination between the two.
I agree with what the noble Lord says about working together and agreeing a bicameral core operation. However, things are different. To illustrate the public mind, I was sitting in my office in Millbank House. The phone rang, and someone from a corporate office said, “Could I speak to Lord Foulkes’s diary secretary?”. I said, “You’re speaking to him”. They think we have a whole panoply of members of staff working for us. We need to get over the point that that is not the case.
I entirely take the noble Lord’s point and would welcome having a diary secretary myself, but I do not. It is clear that we do not have identical working procedures at both ends of the Palace. Nevertheless, the principles are the same. We also need to recognise that if there are changes in the procedures in another place, we need to consider how they might impact here and vice versa. We need to make sure that there is visibility in the procedures at both ends. It is not clear to me that there has been quite as much visibility in the recent period as one might from the outside have expected.
I welcome the fact that the new conduct committee will look at and take forward the work that has been done by the Privileges and Conduct Committee so far. I think that we are still some way from reaching a perfect system; I suspect that we will never reach one because there will always be changes both in public expectations and in procedures that need to be reviewed. However, we have been provided with a helpful step in the right direction and I look forward to the new procedures being put in place.
My Lords, I should begin by referring to my interests in the register and stating that I took part in the debates relating to Lord Lester, to which I shall refer in a moment. In that regard, I am pleased to be able to say that I consider Lord Lester a personal friend.
Today we have taken a new look, rightly, at a subject of considerable importance: how this House proposes to tackle conduct that has apparently become more prevalent recently than it was in the past; namely, instances of individuals in a position of power taking advantage of that power to bully, harass and commit sexual misconduct involving individuals in a less powerful position.
It is important that the House should act in accordance with the rule of law and is an example to other institutions—here, I pay recognition to the improvements recommended in the report which we are considering. Undoubtedly, those who had that responsibility have given careful attention to the problems and put forward what they regard as the best proposals that at this stage it is possible to make. Those proposals are certainly to be welcomed as an improvement.
I say that remembering that Lord Lester was successful in the first debate in relation to his conduct but that in the second the position was reversed. That perhaps illustrates the difficulties involved. I am not in the least surprised that those who have spoken before me have made comments which could be regarded as being critical of what is in the report but at the same time have felt it possible to welcome what is now proposed.
After the second debate, I was left with the uncomfortable feeling that Lord Lester did not receive the fair treatment to which he was entitled. In saying this, I have no insight as to his guilt or otherwise. However, irrespective of his position, he remained entitled to a procedure which was fair. Although cross-examination was not an essential requirement in the circumstances in which he was involved, the fact remains, as others have said, that without cross-examination it is very difficult and sometimes impossible to ascertain where the truth lies when two people give different accounts which are wholly unsupported in either case. I was therefore delighted that the House decided to hold an inquiry conducted by an eminent QC into the procedures which should apply in this type of case.
I am grateful to the noble and learned Baroness for drawing that to my attention but it is not stated in the report.
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The existing requirement that a Member should act always on their personal honour should be widened to cover a Member’s performance of their parliamentary activities, as well as their parliamentary duties. This wider scope will apply retrospectively.
A new conduct committee should be appointed to take on all conduct functions of the Privileges and Conduct Committee and the Sub-Committee on Lords’ Conduct, both those relating to bullying and harassment and those relating to other breaches of the Code of Conduct. It will have lay members with full voting rights to work alongside the Lords members to hear appeals and oversee the Code of Conduct. This will bring more independence and a valuable external perspective to the committee’s work.
The conduct committee would act as the appeal body for the Member who was the subject of a complaint and, in cases of bullying, harassment or sexual misconduct, for the complainant. Appeals would be restricted to judicial review-type grounds.
The independent House of Lords Commissioner for Standards should continue to investigate complaints to establish whether there has been a breach of the codes of conduct. In cases of bullying, harassment or sexual misconduct, she will have the option of being assisted by independent investigators appointed by Parliament for this purpose.
The role of proposing a sanction should be carried out by the commissioner, rather than the conduct committee. This is another step forward in making the process more independent of Members.
Reports from the conduct committee relating to the behaviour of individual Members, including those imposing sanctions, should be decided by the House without debate. We recommend a new Standing Order to make that clear.
There are a number of proposals intended to provide a process better suited to dealing with complaints of bullying or harassment. These include removing the expectation that a complainant should raise the complaint with the Member in the first instance, and new provisions on protecting the identity of the complainant and the Member complained against.
This report is not intended to be the final answer. There are Members who wish us to go further and faster in delivering a system more or wholly independent of the House. That is for the proposed new conduct committee to consider, particularly in light of the report of the independent inquiry into bullying and harassment in the House of Lords, led by Naomi Ellenbogen QC, expected in July. These proposals are an important step towards improving our processes and delivering appropriate independence for dealing with complaints of bullying and harassment. They will keep the House of Lords in step with the new approach taken across Parliament. I hope that the House will support them. I beg to move.
My conclusion is that the role of the commissioner should be confined to investigating the complaint, establishing whether there is a prima facie case and regulating the interlocutory procedure. The commissioner should be the prosecuting authority but not the ultimate judge of fact or the decider of sanction. The determination as to fact and the recommendation as to sanction should be matters for an independent tribunal presided over by an experienced legal practitioner. The respondent Peer should be entitled to legal representation, and that representative should be entitled to cross-examine the relevant witnesses. I do not agree with the rejection of the right of cross-examination, as set out in paragraph 45 of the report.
I turn secondly and briefly to the new conduct committee. It is essential that, from the initial hearing, there should be a proper right of appeal and I agree in substance with the provisions set out in paragraph 53 of the report. I accept that the powers of the committee should be essentially the same as those that arise in judicial review and should not, in the generality of cases, involve a rehearing of the facts. I would, however, give the committee an overarching power to quash a finding on the facts, where the interests of justice so require it. However, I disagree with the report’s recommendation on the composition of the committee. The lay element should be in the majority. All members should be voting members but the committee should be chaired by a senior legal figure, not necessarily one serving in this House.
Thirdly, I want to address briefly the role of this House. That is identified as the second question in the report, about whether this House should play a wider role. To that I answer an emphatic no, for two reasons. First, it is difficult to avoid a conflict of interest. It is thoroughly unseemly for Peers who know the respondent Peer to intervene on his or her behalf. Secondly, and differently, the committee or independent tribunal that first considered the matter will inevitably know a great deal more about the facts and the documents than any Member of this House could reasonably expect to.
Our stated objective, as set out in the guide on conduct and in the report itself, is to ensure that allegations made against Members are handled in a way that accords with the principles of natural justice and fairness. I do not believe our present procedures achieve that. My conclusion is that we should do away with the inquisitorial system presently in place and adopt a system similar to that which Parliament has imposed on all the regulatory regimes with which I am familiar. I do not recognise any reason of principle or procedure for according to Members of this House a different—I would say less fair— system of regulation than that which this Parliament has imposed by law on all professionals with whom I have worked, and within all the jurisdictions with which I am familiar. Accordingly, I hope we will look again at these procedures. I see that this is contemplated in the report introduced by the noble Lord, Lord McFall, and I welcome that fact.
Paragraph 12 of the report mentions, as did the Senior Deputy Speaker, that Naomi Ellenbogen QC has been appointed to advise on bullying and harassment and is expected to report this summer. She is a much-respected figure in this field and paragraph 21 says that it would be prudent to await her report before deciding whether there is a need for greater independence on the conduct committee. I am happy to go along with that and very much hope that Ms Ellenbogen will see the force of the case for independence and report accordingly.
I will comment briefly on two other matters. The first is the role of cross-examination, mentioned by the noble Viscount, Lord Hailsham. Paragraph 45 of the report says that cross-examination is unnecessary because the commissioner,
“can undertake a highly effective and rigorous testing of the evidence in a less confrontational style”.
It is exceptionally difficult for the same person to be both inquisitor and judge. There may not be many of them, but in cases where the commissioner has to decide who is telling the truth, her difficult task—and it is difficult—would be much easier if she listened while someone else asked the penetrating questions. The committee does not appear to have considered another solution to this problem. In these cases, where the commissioner has to decide who is telling the truth, she should have power to appoint independent counsel to assist her by asking questions of both the complainant and accused Peer, not in a hostile manner but in one that tests the evidence. The process of appointing counsel to the inquiry is a familiar means of testing evidence in other contexts. It works well and some Members of this House have used it when serving as chairmen on inquiries. I hope Miss Ellenbogen will address this point.
Finally, I mention the role of lawyers, as did the noble Viscount, Lord Hailsham. I declare my interest as a practising Queen’s Counsel. I find it very disappointing that paragraph 55 of the report seeks to defend the existing prohibition on counsel being appointed by the accused Peer, or the complainant, to speak on his or her behalf before the conduct committee. We are concerned here with decisions that can end a person’s career—that can damage, sometimes destroy, reputations built up over a lifetime, not just for the accused Peer but for the complainant as well. It is rare for a Peer or complainant to be able to represent themselves effectively in such circumstances, given the inevitable emotional strain on them. The task of the committee would be assisted by having the issues presented by a trained professional, rather than by the Peer or the complainant themselves. I hope that Naomi Ellenbogen will advise the committee that the fairness and efficiency of an appeal will be promoted if those involved can appoint counsel to make submissions on their behalf.
I welcome the introduction of four lay members with full voting rights to join the five Peers proposed for the new conduct committee. However, when the conduct committee sits as an appeal panel to hear an appeal brought by a Member, it is my view, along with that of the noble Viscount and the noble Lord, Lord Pannick, that the lay members alone should determine it. Peers will have personal knowledge of the Member and may well be thought, rightly or wrongly, to be subject to unconscious bias one way or the other because of friendship, enmity, political views or personal dislike. In any other tribunal or court, a tribunal member, magistrate or judge would undoubtedly recuse himself or herself if he or she knew the party concerned personally.
The report itself does not suggest that it is the final word on the topic. As noble Lords have said, paragraph 21 recommends that the conduct committee should consider further the question of whether the process for investigating and determining complaints should be more or entirely independent of the House, in the light of the recommendations to be made by the Ellenbogen inquiry.
There is no consideration in the report of the process and procedure of an appeal hearing. In the Lester case I pointed out that the commissioner had herself adopted the role of respondent to the appeal, and referred to herself as such in correspondence. Although she was not called before the Conduct Committee, she provided the committee with a point-by-point refutation of Lord Lester’s case, in support of her own decision. I suggested that that was pretty unique for a person to be involved in an appeal against their own decision. It was never made clear whether she stepped in as a respondent to the appeal by invitation of the committee or on her own initiative.
Some thought should be given to the nature of these appellate proceedings, and a proper process agreed. The appeal panel should also undoubtedly have discretion to permit legal representation for the Member on the appeal, having regard to the complexity of the case, and other factors such as illness. It is positive that the report states that the grounds of appeal should include that the commissioner was plainly wrong in her finding and that significant new evidence has emerged, but it is not clear at the moment whether such grounds are permissible under existing procedures.
Finally, I welcome the decision not to debate the outcome. I thought the proceedings we held were an embarrassment. In my view, the final determination of a complaint should simply be reported to the House, not formally made a decision of the House. It should not be regarded as a proceeding in Parliament, and thereby caught by the paragraph in the Bill of Rights of 1688, which carries the heading “Freedom of Speech”:
“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”.
Every disciplinary process such as this in every other field of life is ultimately subject to the overriding jurisdiction of the High Court, and it would be healthy to make the disciplinary process of Parliament subject to proper judicial scrutiny.
The report is a significant advance, but it is not, as the report and the Senior Deputy Speaker recognise, the end of the story.
I was also pleased that the House thought it proper to conclude a process of consultation, although I was surprised that it was restricted to four topics, as noble Lords will see from the top of page six of the report. However, the report also makes it clear that if comments were made outside those four headings, they would be taken into account; indeed, they were. I hope that when Miss Ellenbogen’s report is made available in the summer, as expected, the House responds to it appropriately.
I turn now to the proposals contained in the committee’s report. Like other noble Lords, I wish to identify the ones I regard as particularly important, such as those amending the Code of Conduct and the guide to the code. I emphasise that paragraph 6 of the introduction to the report states that the proposed changes will include,
“a new set of processes for investigating complaints”,
of the type with which we are concerned; namely,
“bullying, harassment or sexual misconduct”.
Paragraph 29 on page 10 states:
“We recognise the clear need to implement specific and appropriate processes for reporting and investigating complaints”,
of the type with which we are concerned. These processes are intended to,
“work fairly and effectively for both members and complainants and provide appropriate support for both … and to draw on the growing evidence base on best practice for addressing such behaviour”.
The proposal I regard as of the greatest importance is that, where appropriate, the commissioner should be supported by a team of independent investigators appointed by Parliament, and that the commissioner may delegate any of her investigatory functions to them. The significance of this proposal—I believe I share the view of the noble Lord, Lord Thomas, here—is that it will produce a situation similar to that regularly adopted in public inquiries to appoint a counsel to the inquiry. A single commissioner acting alone may find it almost impossible to find the truth in this sort of case. The report does not indicate who the independent investigators will be, nor the qualifications they will have. However, I am prepared to rely on the fact that the commissioner is responsible for conducting a full investigation on behalf of the House, and that the House will ensure both that those who are appointed are fully qualified to do so and that the truth of the complaint can be assessed quickly. If I am right in making this assumption, my greatest reservation about the procedure in its unamended form is largely met because, for example, legal advisers can assist in conducting cross-examination if they wish to do so. I cannot see anyone objecting to questioning in that form.