Select Committee on Standards and Privileges Minutes of Evidence

Examination of Witness (Questions 120 - 139)



  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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