Examination of Witness (Questions 115
- 119)
TUESDAY 27 FEBRUARY 2001
THE RT
HON SIR
NICHOLAS LYELL
QC
Chairman
115. Sir Nicholas, welcome to the Committee,
and thank you very much for that most useful letter that you sent
to me. Can I start off by asking you about this logical progression
which you set out as to the way the Committee should proceed,
the way complaints are received, insufficient background material
is obtained and so on. Where do you feel, in that logical progression,
there have been any mistakes you could draw the attention of the
Committee to, or do you feel that we have broadly followed those
lines? (Sir Nicholas Lyell) No. Without casting aspersions
the reason I said that was that I think, having read quite a number
of the reports, the Committee would have benefited and will benefit
in the future by trying to apply a logical progression. This is
not something unique to this Committee, as I explained. In a sense
I have lived through this because, in the thirty years I have
been at the bar, I and other members of my chambers have given
advice to various public bodies who have had to exercise disciplinary
functions and who had very weak procedures thirty years ago and
are gradually building up much more sensible—not over-legalistic
but sensible—procedures which help to guide the way that
an inquiry is carried out and a disciplinary proceeding is seen
through. I think the reports do show that they would have benefited
from a more definite procedure.
116. But the Commissioner, of course, does follow
much of what you set out here and then, of course, it comes to
the Committee in the form which he provides, she satisfies herself
that a complaint made is one which is reasonable and invites the
members to speak orally and, of course, the members know what
the infringement is and that it is an important aspect and one
that is the first rule, as you put it, of natural justice. Have
we erred in any way on that? (Sir Nicholas Lyell) Yes.
I think so. You have asked me for my honest opinion and I think
so.
117. Would you explain? (Sir Nicholas
Lyell) Yes. I think the import formality of the procedure
in a number of cases has led to allegations being made and the
allegation by the complainant simply being passed on for comment
to the member who is alleged to have done something wrong. I think
what would be helpful and important in the future is that the
Commissioner draws back and says, "Now, what actual rule
does that allegation infringe?", and get clear in her own
mind where the infringement lies. It may well be that the allegations
do not sustain the infringement but it is important to clarify
what the actual charge would be in the mind of the Commissioner
and for the Commissioner then to think, "Well, does this
allegation actually match up to it?", in which case she may
wish to ask the complainant for some more detail. When she has
enough detail to be satisfied that the allegation does at least
constitute a prima facie case for a charge, or at least has a
basis for a charge, she should make clear in any communication,
and it should preferably be written, what the nature of the charge
is, if we have got to the stage of making it, or the charge which
she might think of making is so that the person complained of
can focus their mind on the right issue.
118. What makes you think she does not do that
already? (Sir Nicholas Lyell) I am sure she sets out
and would wish to do it but I have read a lot of reports and,
having read them, I think they seriously could have benefited
from this greater structure.
119. Coming on to the question of legal assistance
and advice, we did produce a report in which we suggested some
way in which legal expertise can be given to the Commissioner
in certain cases and we heard from John Major about two weeks
ago about the legal expertise that might be available. What do
you say about the legal expertise that you would like to suggest
on this? Do you think that would be of some help, and in what
way? (Sir Nicholas Lyell) I have been thinking about
this quite carefully because I have read at least a good deal
of your discussion with John Major which was helpfully provided
to me yesterday. I have not managed to read the later pages of
it but I think I have read the legal bit. If one thinks back to
the past, there have been occasions on tricky cases where Sir
Gordon Downey had specific legal help I think from Nigel Pleming
QC, but I think looking to the future at some stage the Commissioner
needs to have a degree of legal training. Now I meant to look
it up and, with great respect to the Commissioner, I am not sure
whether she did have legal training—I know she did a wonderful
job in NACAB and that is where we first met—but I was wondering
whether you really have to have another lawyer sitting alongside
the Commissioner or whether you start—and I am looking to
some distant future and this is entirely a matter for the Committee
and the House—by trying to have a Commissioner who has the
training to exercise a quasi judicial function. It is jolly difficult
to do and I think, if you have the training inherent, it is easier
to do it and, if you have a Commissioner who is not legally trained,
then I think he or she ought to have the opportunity to speak
regularly with a legal advisor who can answer these questions,
suggest frameworks and discuss questions as to whether particular
facts constitute an infringement or not in order to give the necessary
guidance.
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