Examination of Witness (Questions 140
- 159)
TUESDAY 27 FEBRUARY 2001
THE RT
HON SIR
NICHOLAS LYELL
QC
Mr Foster
140. Is there not a difficulty that, when one
appears before the criminal or civil court, one at least knows
in advance what the test is? How would members of Parliament know
what test was to be applied in their particular case? For example,
in simple registration issues one can see that is not going to
affect one's career but, in almost every other matter that comes
before us, is not it always a serious disciplinary matter for
a member to be admonished by this Committee and, indeed, the House? (Sir
Nicholas Lyell) Yes. You were asking how a member would know
what standard would be applied—well, I think the member
should know that the standard that is applied is normally the
balance of probabilities: it is whether or not they did do it,
but if it is a serious allegation then the Committee will think
very seriously before it finds this serious matter established
in order to do justice to the individual. I do not think one can
give a more glib answer than that, or a more precise answer than
that. One cannot say that certain things require a standard of
proof required to be established to the criminal standard of proof,
though there will be some elements which certainly should require
to be established to that high standard before they are found
against somebody, otherwise grave injustice could be done.
141. So would you go as far as to say that,
if what the member was accused of equated to a criminal offence
or was subject to criminal proceedings, in such a case the criminal
standard should be applied? (Sir Nicholas Lyell) Yes.
The Committee should be sure before it finds somebody guilty a
criminal offence.
142. You have indicated that you have read a
number of our reports. Have you always found it easy to determine
whether the evidence has been based on a breach of the code or
a breach of the rules, and do you have any comment on that? (Sir
Nicholas Lyell) I am sorry; I was listening rather carefully
to your question and it would be interesting to have it again.
143. Perhaps I could refer you to the guide
which has the code at the beginning and then it deals with the
rules and guidance and so on. There have been a number of comments
about how the code came about and what its status is but in reading
the reports has it always been clear to you whether a member had
been found guilty of a breach of that code or, indeed, a breach
of the rules and do you believe that a breach of the code should
itself be blameworthy? (Sir Nicholas Lyell) Breaking
that down into two parts, I think the first part is that the code
and the guidance are not easy to read: they overlap; they are
not always consistent; and there are portions which do not tie
in well with other portions. The question which has very understandably
vexed the Commissioner of what is an employment agreement has
to be looked at very carefully, and I have read the Commissioner's
arguments and I respectfully disagree with them but I can see
how she reaches her view, although I do not think that was right,
but it is a very good example of the complexity of the matter.
Quite a lot of the code is quite complex and the way it fits into
the guidance is quite complex, and that is why I emphasised in
my letter right upfront saying that it is important, when a complaint
is made against a member, that the Commissioner thinks very carefully
what rule is infringed and explains very carefully to the member
alleged to have infringed it what it is they are supposed to have
done wrong which is the first rule of natural justice.
144. I take it then that it would only apply
in your case for the rules being breached as opposed to the code
or guidance notes having been breached? (Sir Nicholas Lyell)
Well, the code is the rules.
145. In part. (Sir Nicholas Lyell)
The guidance notes supplement the code and provided they are right,
which I think by and large they are, then the guidance notes read
with the code tell you what you should or should not be doing.
Where I began to part company was that I think that it is a legitimate
criticism, and I say this with respect to everybody because, particularly
if you are a lawyer, people are criticising things all the time,
that is the essence of legal analysis. I think there has been
some moving of the goal posts or incremental development of the
rules, and I think it is quite important for the Committee and
the House to stand back and think exactly what we do want our
rules to be, get them written up in a clearer, more comprehensive
way, and then pass them through the House or reject them as is
the will of the House.
146. In answer to Peter Bottomley a moment ago
you said you did believe it was the obligation of members to give
every assistance to the Commissioner in her investigations. Would
you qualify that in any way in terms of at what point it would
be conditional on the other aspects you have discussed—namely,
clear and unequivocal indication that a rule has been broken?
If the member was uncertain about what it was, would you believe
that was an excuse or not for failure to co-operate? (Sir
Nicholas Lyell) I think if a member is unsure what is being
alleged against him then he must say so: to say, "Before
I answer your question, please can I be quite clear what it is
you are saying I have done?". We know that a number of members
have had to take legal advice at very considerable expense which
is regrettable and there are questions as to whether they should
be funded or assisted by some lawyer appointed by the House. Before
they go to their lawyer, whether paid or provided, it is absolutely
essential that they know what charge they have to meet so they
can explain it. If they feel that the charge is not clear, their
duty is not to clamp up and not co-operate but preferably to write
back because it is best that these things are recorded in their
own words and say, "Before I answer, please could you explain?".
147. Lastly, what is your view as to whether
a Select Committee such as this can ever mete out justice in this
situation? Can the compromises of a Select Committee system, the
unanimous report objective, ever line up with the analytical approach
that is needed in a judicial tribunal to mete out justice? (Sir
Nicholas Lyell) I think the answer is that it can but I think
this is a problem which faces all aspect of self-regulation. Of
course in a highly political body people can be friends but have
very different political views and sometimes be enemies and have
very different political views and you are going to get political
tensions in this Committee at all times. Certainly at the time
when I sat on it there were unquestionably political tensions
and it would be disingenuous to deny it. I am sure that the Committee
then—and now—does its utmost not to allow political
considerations to intervene but there is always a risk and the
Committee will be aware of it. I am a strong believer in self-regulation
and frankly I think the House has to regulate itself. I think
it is wise to get some legal advice and to have a Commissioner
who is trained and fitted for the purpose and who is independent
to assist it.
Mr Williams
148. You made the point that you think the House
should stand back at this stage and consider where we are and
where we are going, and you made the point that, having given
them the opportunity to stand back and then having extended the
period over which they could stand back, most of our members stood
so far back they could not see the document on which they were
due to be commenting. I think twelve, if I remember offhand, was
the number of people who, as you did despite your very busy life,
out of a whole House of Commons responded, despite the importance
of the work of this Committee. I was with you on the cash for
questions Privileges Committee and I would say to you again, before
I ask my question, that I have been struck forcibly by the difference
between the lack of political tension in this Committee compared
with that one, and both have been considering cases on the eve
of an election. Coming to my question, which sounds as if I am
asking you to pat us on the head but it is more fundamental than
that: do you think the House should take a degree of comfort in
the fact that, over a four-year period, a highly politically mixed
group has never reached a conclusion that has not been unanimous?
You remember the difficulty we had before, and there was a minority
report on the Hamilton case as well. Do you think that the unanimity
should be seen as a form of cosiness, or do you see it as a matter
of reassurance with your experience of these committees? (Sir
Nicholas Lyell) I think the unanimity is a matter of reassurance,
yes. It is excellent that the Committee can reach unanimity. We
have people of no political party—Martin Bell is here—and
all political parties represented here and the Committee has a
duty to try to reach a unanimous conclusion. I think it is excellent
that they have managed to do so.
Chairman: Interrupting briefly, what
does offend the Committee greatly is being called a Labour-dominated
Committee. We have four very valuable members of this Committee
who exercise a considerable role in putting the views of the whole
Committee and, of course, it is a non-party body. I just mention
this on the record because it does offend us greatly when we hear
that aspersion cast upon us. Please continue.
Mr Williams
149. Can I switch completely and ask you this:
like myself you have been in the House quite a while and we have
seen varying penalties imposed on members—and I warn you
I am peddling a minority viewpoint? (Sir Nicholas Lyell)
Yes. Since I have read it you may be pushing at a slightly open
door!
150. In that case I am encouraged because it
does seem to me that, short of expelling a member, suspension
should almost be the ultimate sanction because it does not just
punish the member but also the members' constituents. Suspension
not only precludes constituents from being represented for, say,
a month but it includes a fine element because they do not get
paid, so there is a fine element already implicit in that. Do
you not think it would be cleaner and tidier and better-graded
system if we perhaps dispensed with suspension but went in for
a rather wider-ranging fine system? (Sir Nicholas Lyell)
I think the Committee of the House would be very sensible to consider
a fining system. One of the idiotic things about the House is
its supposedly immense powers, and I am thinking of people beyond
the range of the House now; not members of the House but its powers
to discipline those who offended against it in its role as a court
going back to the Middle Ages, and the absurd notion that it could
imprison people in the clock tower and so on, which now would
be held to be a cruel and unusual punishment because of the noise
of Big Ben. Really this is all desperately out of date; it is
not suggested that members of the House should be put into the
clock tower and nor should anybody else but I think a more modern
range of penalties should be considered. I am speaking entirely
personally—not as a lawyer but just as a member of the House
with 22 years' experience—and I find it offensive that members
of the House should be suspended so that they cannot do the work
of their constituents. I do not find it at all offensive that
the Speaker should require somebody to withdraw from the chamber
by naming them—I think that is an excellent discipline.
Fortunately we have not seen it used much but we used to see it
used quite often. In those cases you do not lose any pay and you
just have to go away for a couple of days but it marks the misbehaviour,
which is an effective penalty, and I think a fine would be. I
think this business of suspension for a month deprives the constituents
and, what is more, I want people to be here and be heard. I want
a diverse House where people speak up without fear or favour.
They can be slapped down if they disobey our rules but they should
be allowed to be here and it should be a very severe penalty to
suspend somebody. I think it should be kept in reserve, and only
used very rarely.
151. Can I alarm you and send into panic our
colleagues from the press gallery who are avidly listening to
every word we say and tell you that I was astonished when serving
on a Committee of both Houses looking into rules on privilege
to discover that in the devolved Scottish Parliament they have
powers of imprisonment for contempt. Moving on, however, it is
very important that we have the weight of your views on the two
questions I have asked previously of both our other witnesses—namely,
firstly, the question of vexatious and frivolous. We have precluded
it from any direct action so far on the grounds of preserving
freedom of speech for members. My argument is that we are not
stopping a member from having freedom of speech but if, at the
end of the day, they severely damage another member for frivolous
or vexatious reasons, they should themselves be subject to criticism
by this Committee. What would your view be on that? (Sir
Nicholas Lyell) I would simply agree; they should.
152. The other question comes back to the question
of the wide-ranging integrity built into the criteria laid down
by the Nolan Committee in which in the table of "Thou shalts"
early on in the report it indicates that members shall be open
and honest—which, of course, we hope we all are—but
which we have been inclined to interpret in terms of in relation
to our conduct as members of Parliament and in relation to our
work as members of Parliament. When we made at my request an approach
to the Neill Committee and asked whether they saw it in that light,
they came back, strangely enough, with this very wide interpretation.
Is it really a matter for this Committee if I go and hire a car
and conceal from the hirer the fact I have a terrible record of
endorsements or anything like that? Is that a matter for this
Committee, or for the hirer, myself, the police if they take it,
and the courts? This has become very confused in several of the
inquiries we have held. (Sir Nicholas Lyell) I can
quite understand that it has become confused. I have not read
exactly the reply that you had from the Neill Committee but I
have listened to it discussed and I have read it in the reports
of John Major's meeting with you recently. Whether it is what
Nolan intended or not, I think the message that you have received
is mistaken. I think the role of this Committee is to deal with
the conduct of a member of Parliament in relation to his membership
of Parliament and his duties and responsibilities as a member
of Parliament. If a member of Parliament misbehaves in a civil
or criminal fashion outside Parliament, that is to be dealt with
by the ordinary law of the land, by the courts or other tribunals
set up for that purpose, and is not a matter for this Committee.
Mr Levitt
153. Many of us on the Committee probably regret
the increase in involvement of lawyers, particularly the frequency
in which members bring lawyers with them to represent them—present
company excepted, of course. If it is to become the norm that
people have legal representation in serious cases when they appear
before us, and if they are then acquitted, should there be a process
by which they are awarded costs? (Sir Nicholas Lyell)
I think it is something that has to be considered quite carefully,
yes. As we look to the future, we need changes, as I say. We need
a clearer structure for legal advice and guidance to the Committee
and the Commissioner and I think members who are accused before
the Committee must be entitled to go and seek legal advice and,
occasionally, to have legal representation. Do you allow lawyers
to speak to you on behalf of the member?
154. Only if we specifically invite them to. (Sir
Nicholas Lyell) I think that is wise and I think the Committee
should keep control of that, but that the member should be entitled
to have legal advice and guidance is absolutely right and if it
is a serious charge and the member needs legal assistance, they
should have legal assistance on the same basis that other citizens
would have when faced with serious charges. The fact that you
are rich and can afford a lawyer should not put you in a better
position than somebody who is not and cannot. Exactly how to work
out the rules and how to make the legal advice available needs
more thought than I can give it in giving you a half minute answer,
but the principle that people should be allowed it is right. They
cannot be refused it and I do not think they can be refused it
under the European Convention of Human Rights—nor should
they.
155. On the specific case of costs, should that
be built into the budget for this Committee? (Sir Nicholas
Lyell) I think it probably should. If this Committee is going
to have a lawyer attached to the House—perhaps part-time—who
will offer advice, that lawyer will be paid for by the House and
if the member puts forward a reasonable case to the Committee
or the Commissioner for saying, "This is so serious they
want their own legal advice", (a) they must be entitled to
get it and (b), in proper circumstances, it may well be right
to give them some financial assistance.
Mr Campbell-Savours
156. I have been on this Committee and its predecessor
since 1983 and the last thing I would do, if I came before the
Committee to reply to a complaint, would be hire a lawyer. My
view is it is a waste of money. All it does is complicates the
proceedings. I have not sat through, being blunt, one case at
all where I have been influenced by what the lawyers have said.
I would like to ask you what you think hiring a lawyer sitting
next to you in a Committee brings to the proceedings of the Committee,
or in what way do you think it benefits the person being complained
about, if it is telling the full story? (Sir Nicholas Lyell)
I think the lawyer sitting next to somebody in a Committee is
probably the least significant part of it. I think the reason
people go for lawyers is for help with analysis; advice as to
what their rights are; advice as to what the ingredients of the
charge made against them amount to; and what evidence they should
bring in their own defence. That is what people go to lawyers
primarily about in relation to a disciplinary committee of this
type. I doubt whether you would disagree with their right to do
all that: I expect you would see the value of that. I am not suggesting
you should have advocates come before you in other than the rarest
circumstances. There may be an occasional circumstance where you
think somebody is making a very poor fist of explaining their
point and they have the lawyer beside them and you may ask the
lawyer if he could help the Committee since you are finding it
difficult to understand what the member is saying from a legal
point of view, and you may allow the lawyer to speak, but I think
you want to keep strong control of your own procedures in that
respect. Does that answer your question sufficiently? I noticed
a slight prejudice against lawyers which would have applied I
think to every tribunal and court in the land!
Mr Campbell-Savours: Not at all. It is
just that in these proceedings we hear of very substantial amounts
of money paid to lawyers to produce briefs and write letters which
add nothing to the rights of the members, and members could just
as well have written the letters themselves. Of late, we receive
from witnesses coming before the Committee letters from lawyers
and, indeed, in the case of members if I am not mistaken, on behalf
of members.
Mr Bottomley: Lobbying, in effect.
Mr Campbell-Savours
157. Does that not worry you? (Sir Nicholas
Lyell) Having looked reasonably closely at a number of cases,
I can entirely see that it was right and necessary for some members
to have sought legal advice and to have had legal assistance in
the drafting of the letters that they sent. Whether or not the
letter came under their letterhead or that of a lawyer, there
was full justification for them taking legal advice. Indeed, they
needed it.
158. But the lawyers send the letters to the
Commissioner, if you look at some of the Commissioner's reports? (Sir
Nicholas Lyell) I think that is a fact of life, frankly. If
somebody is going to go to a lawyer, in some ways it is better
that it is open—that it is the lawyer who is writing on
behalf of the member rather than the lawyer drafting the letter,
and you get a letter from, say, some member whose neatly reasoned
argument might seem "uncharacteristic".
159. Could I just say that I understand you
were intending to represent a witness before this Committee some
weeks ago? (Sir Nicholas Lyell) That is quite inaccurate.
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