Select Committee on Standards and Privileges Minutes of Evidence

Examination of Witness (Questions 140 - 159)



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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