Examination of Witness (Questions 120
- 139)
TUESDAY 27 FEBRUARY 2001
THE RT
HON SIR
NICHOLAS LYELL
QC
120. The Attorney General, of course, sat in
the old Privileges Committee, but we do not have that situation
today although we do have one of our colleagues who is a well-respected
lawyer which helps quite a bit but at the same time it has not
got the authority of the Attorney General. Do you think we should
have something like that? (Sir Nicholas Lyell) I think
in an ideal world it is helpful. Again, I read the discussion
with John Major on this, and I sat on that last Privileges Committee
with John Morris; I was Attorney General at the time and he was
shadow Attorney General, and I think it was of some significant
help that there were two lawyers, and there may have been others
there, to help to provide the framework. I was very struck by
what John Major said—you have an immensely heavy task as
it is and, knowing what a heavy task the Attorney General has,
I do not think there is enough time in the world for his joining
you to sit on the Committee; he could not make himself available
sufficiently to give the Commissioner the assistance she needs.
I think there is quite a lot to be said, however, if one is recasting
the Committee, and if there are reasonably senior—and I
can say this without putting myself forward because I am not standing
at the next election—members of the House who have legal
training, and it does not matter whether they are barristers or
solicitors, but particularly if they have some judicial training
or if they have sat as recorders and that sort of thing, then
it could be very helpful to get one or two on to the Committee.
121. You mention the problem of members not
being allowed to approach ministers or civil servants if they
are subject to the advocacy rule. In my experience, there were
a number of cases when I was a minister where I did have people
approaching me on a matter that concerned them personally. You
do not seem to take this as seriously as perhaps others might.
Why is that? (Sir Nicholas Lyell) I do not think it
is a question of taking things seriously: it is a question of
openness. Most important is that the House and the country should
know where people are coming from so that, if you are doing anything
in which you have to slightest personal interest, you should declare
it: if it is something which is capable of being declared on the
face of the register, as most things are, then it should appear
on the face of the register. I got worried—and it may just
be the wording of the 15th report which I was re-reading this
morning and wondering exactly what the advocacy rule meant: if
you go back to 1947, there was a rule against advocacy. It goes
back as long as that but when I came into the House I well remember
Sir Eldon Griffiths, as most of us will, who was the paid representative
of the Police Federation. I do not think we had a register of
members' interests in those days but every single one of us knew
that Eldon was the paid representative of the Police Federation.
It was widely rumoured he was paid £20,000 a year: it was
said that his predecessor was no less a person than James Callaghan,
so these were people of high repute who were performing advocacy
but in circumstances where where they came from and what they
were doing were known. As I sat on every Criminal Justice Bill
until I became a minister for about seven years—no I missed
one—I heard Sir Eldon Griffiths putting the police case
quite openly and if I may say so, although sometimes at some length,
extremely helpfully. There was a very well-informed person who
was taking a very valuable part in the Committee yet, in a sense—in
a very real sense—he was a paid advocate.
Mr Campbell-Savours
122. The public did not know. (Sir Nicholas
Lyell) Those members of the public who read the newspapers
would have known because it was constantly mentioned in the newspapers
but I quite agree that, if you asked 98 per cent of people, they
would not have known but they would not have cared. It is for
us to make sure our procedures are right.
Mr Bottomley
123. Can I start in a different way? Let's assume
that neither this Committee nor the Commissioner are prosecutors.
Let's start with the Commissioner saying that the person who holds
her office only looks into a complaint when there is a reasonable
ground to do so, so, in effect, there is some likelihood of evidence
being there. Would you agree with me that, firstly, a member who
is complained of needs to co-operate fully and openly with the
Commissioner themselves? (Sir Nicholas Lyell) Most
certainly, yes.
124. And what they should not do is say, "This
is akin to a criminal prosecution. You find the evidence; I am
not going to help you; I will get my own lawyers to block, delay
and not encourage those who might hold evidence that would be
helpful to the Commissioner from giving it"? (Sir
Nicholas Lyell) No. This is not a situation where so-called
right of silence applies. If you come here as a member of parliament
you are elected and , if somebody makes an allegation against
you and the Commissioner asks you to talk to her about it, you
should give an open answer. I was emphasising a little earlier
on that you are entitled to have explained to you what you have
done wrong and where in the rules of guidance you should look
and so on, but then you should be as helpful as you can.
125. And you should encourage those you are
in contact with also to supply evidence to help the Commissioner
dispose of the complaint? (Sir Nicholas Lyell) Yes.
126. Because, going into previous reports, there
is growing evidence that more and more lawyers are raising more
and more points and challenging the Commissioner more and more
often in a way I think the House of Commons should protect the
position of the Commissioner and be even more robust in rejecting
what is said as this Committee did when James Goudie QC was quoted
by a member in an attack on the Commissioner? (Sir Nicholas
Lyell) I am afraid I did not read that, so I do not know what
he said.
127. But essentially, if the Commissioner is
up to the job, the Committee's job is to make sure the Commissioner
can ask for information and the Committee should expect that that
information would be provided by the member of Parliament and
by those around them. (Sir Nicholas Lyell) Yes.
128. If the Commissioner is not the prosecutor
but it is the person who finds the evidence and reports to the
Committee, and the Committee's main job is to produce a report
with a recommendation to the House if thought appropriate, is
there a total absence of a prosecutor and, if so, is that a reasonable
position to be in? (Sir Nicholas Lyell) Is it your
starting point that the Commissioner is not the prosecutor?
129. I understand the Commissioner is not. The
Commissioner is the investigator. (Sir Nicholas Lyell)
Well, we have put the poor Commissioner into an extremely difficult
position, because we expect her and her predecessors to be the
investigator to start with. We expect her to be the person who
formulates the charges and then forms a view about the charges
and then puts the charges to the Committee coupled with her recommendation
as to its finding, and that overlaps both the role of investigator,
prosecutor, and, to some extent, preliminary judge. So that is
what we are asking her to do and we cannot get away from that
fact.
130. Maybe there is room for disagreement. Suppose
the Commissioner's job is to hear the complaint and she asks for
the evidence, produces it, puts it in the report and says that
in her view, as it is now, there appears to be evidence that a
particular rule was not abided by. It is a bit strong to call
that prosecutor or judge. Is it not just the investigation? Is
it not, in effect, finding that the complaint appears to be substantiated,
and these are the reasons why? (Sir Nicholas Lyell)
If you are going to draw a parallel with the court system, then
you cannot get away with using the court terminology. It is perfectly
sensible to have a Commissioner who investigates and analyses
what offence, if any, the complaint comprises, and who gathers
in the evidence and forms what, in your procedures, is a preliminary
view. It is preliminary in the sense that it can be overturned
by the Committee. Therefore the Commissioner has to perform a
role which, subject to being overturned by the Committee, is both
investigator, prosecutor and judge. It is an inquisitorial system—perhaps
that is the best word.
131. Finally, although there are many other
points I could raise with Sir Nicholas, thinking now about past
cases, if a complaint is made which cannot be dismissed but the
information is not available to uphold it, do you think there
is scope for saying "This complaint cannot be dismissed but
it cannot be upheld", or do you think it is required of us
to say that, because it cannot be upheld it is therefore rejected,
which then would allow me as a member of Parliament to say, "I
have been cleared" but, in fact, nothing of the sort has
happened—almost a sort of Scottish "not proven"? (Sir
Nicholas Lyell) I think the Committee has got to make up its
mind and then make its report to the House in the terms that it
thinks is fair and just in the context of the evidence that has
been given to it. There will be occasions when the Committee will
say, "This caused us great anxiety but we are not satisfied
that these grave allegations have been established".
132. So they are not dismissed: they just have
not been upheld? (Sir Nicholas Lyell) I think you want
to be careful and look at the language which the Committee uses
to the House. Members of Parliament are entitled to the view they
are innocent until proven guilty, like any other citizen.
133. But can I put it to you that there are
two sets of justice: one is to the member of Parliament who should
not be unsafely convicted or criticised and the other is that
the reason for this system is to uphold the standing of Parliament
and most members of Parliament most of the time, so if a complaint
comes in for which there is quite a lot of evidence so that the
complaint cannot be dismissed but there is not the level of proof
to show that the member of Parliament has clearly broken a significant
rule, by in effect not upholding the complaint against the member
of Parliament sometimes people think that the complaint had no
substance when, in fact, it may be very different to that? (Sir
Nicholas Lyell) This happens in court proceedings very often,
and there is a great danger, which magistrates are trained to
avoid, in thinking that if you do not find the person charged
guilty, you are somehow calling the person who made the complaint
or who was the witness a liar, or the policeman. You have to remember
that, in any system of justice, he who asserts must prove. If
you go away from that, then you go away from any notion of justice
which anybody can understand. The burden must be on the person
who makes the allegation to establish it. You may wish, as Parliament
will and the Commissioner will because sometimes these are grey
areas, to dismiss a charge but to say, "We were not satisfied
this charge was established but nonetheless we think that the
complainant was right to raise the matter with the Commissioner;
this raised very serious issues and we looked at them extremely
carefully. If we had been satisfied they were established we would
have taken appropriate action". This Committee does not have
simply to say guilty or not like a jury; it produces a sensible
report which can be read by the public.
Mr Foster
134. Do you have any views about the difficulty
that arises when the Committee does come to a different judgment
from the Commissioner? Obviously to some extent the press then
choose their verdict but could you suggest any way in which this
unjust assessment by the press of the verdict they did not like
might be prevented? (Sir Nicholas Lyell) I was thinking
about this whilst I was listening to Kenneth Clarke discussing
it with you. I am thinking aloud and I am not suggesting this
is a perfect solution, but you will have got to the position where
the Commissioner will have made a report which will have indicated
her findings on the matter, and which will also have indicated
the evidence on the basis of which she reached those findings.
I think I am right in saying that her report is not published
to the world until you have considered it, is that not correct?
Chairman: Yes.
Mr Foster
135. Well, not intentionally! (Sir Nicholas
Lyell) I think it is worth exploring whether it would be possible
for the Commissioner, in circumstances where the Committee which
has had to consider the matter as the ultimate judge, has reached
a different view from that recommended by the Commissioner, to
produce a report which says what the evidence was that the Commissioner
put before the Committee and then explains, because it is then
over to the Committee, why, while the Committee considered that
evidence very carefully, they were not satisfied that the matter
was proved. This is what a judge has to do very frequently in
dismissing a case and I think it should be possible for the Committee,
with the help of the Commissioner and some legal assistance. You
would not want legal assistance every time or you would be cluttered
up with lawyers. If you have not got lawyers on the Committee
at the time who can help in this drafting you might get some outside
help, but it should be possible to produce a judgment which squares
that circle.
136. Would you see room perhaps for the verdict
of the Commissioner not being in any published report, or do you
think that would compromise the independence of the Commissioner
given that the rest of us are political animals? (Sir Nicholas
Lyell) Are you talking about in the case where the Committee
has taken a different view from the Commissioner, or in all cases?
137. To be consistent perhaps in all cases but
certainly where a different view was taken so as to avoid the
embarrassment of the Committee and the Commissioner coming to
different views? (Sir Nicholas Lyell) I think in the
normal cases which you are dealing with then you uphold the Commissioner,
but there will be occasions where you do not and then you should
publish the Commissioner's report to you and you uphold it and,
if you think there are mitigating circumstances, that should appear
in your report in relation to whatever recommendation you make
to the House for penalty. If, however, you are going against the
Commissioner's report, then at least you can consider the method
I just suggested in my last answer.
138. Do you think that perhaps the Committee
should have greater guidance, perhaps even within the rules of
procedure, as to the standard of proof that should be established
before a finding of guilt is established? (Sir Nicholas
Lyell) Yes. The Committee needs to reflect on this and get
some advice. The way that matters work in the courts depends on
the nature of the court. In a criminal court, of course, is standard
is always the criminal standard—namely, that you must be
sure that the person is guilty. The old fashioned words were "beyond
reasonable doubt" but now one advises the jury that they
must be "sure". The lesser standard which applies in
the civil courts is the basic standard of balance of probabilities—is
it more likely than not. Nonetheless civil courts and disciplinary
tribunals dealing with circumstances where allegations which are
quasi criminal—or, indeed, criminal—are made or which
are fraudulent, which is, of course, also criminal, are made,
do expect them to be established to a higher standard. There is
quite a lot of guidance one can get and one could ask a lawyer
to give you some advice on this in not too extensive written form.
Normally I think this Committee should work on balance of probabilities,
and that would normally be perfectly satisfactory.
Mr Bottomley
139. The negligence issue? (Sir Nicholas
Lyell) That is what applies in the case of negligence and
in a civil case of negligence the case is decided on the balance
of probabilities. When allegations are made, however, which are
particularly sensitive or serious and particularly, therefore,
open to injustice if they are too lightly established, then the
Committee should advise itself to be satisfied to quite a high
standard that it thinks it right to find them proved, and there
are examples of this which have been used by wise Tribunals over
the years.
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