Examination of Witness (Questions 160
- 173)
TUESDAY 27 FEBRUARY 2001
THE RT
HON SIR
NICHOLAS LYELL
QC
160. I am sorry. I completely withdraw that—it
was another lawyer who was going to represent and I am very sorry.
Can I move on to another matter? You said there are political
tensions within the Committee and there was always a risk of a
Committee having political considerations in mind: those were
your words. Prior to that you talked about perhaps the need for
the Commissioner to produce reports where she was not either upholding
a complaint or not. Do you not see a huge danger in that? If you
accept that a Committee of the House may well, in certain conditions,
have political considerations in mind, and that there are political
tensions in any Select Committee, including the former Privileges
Committee which you sat on, whereby the Commissioner does not
make a recommendation whether she believes that a complaint is
uphold or not, do you not think that there might well then be
political interference with that report, that the report may not
be fully considered by the Committee, and that the press outside
might say, "Well, look, that was the evidence produced by
the Commissioner but for some quite incomprehensible reason they
refused to uphold the complaint made despite all the evidence
supported"? Can you not see the value of the Commissioner
making a decision herself, whether she does or does not uphold
the complaint? (Sir Nicholas Lyell) There are two parts
to that. Firstly, whether or not there are or are not sometimes
political tensions in this Committee—and I think you were
on the previous Committee although I do not remember you being
present—
Mr Campbell-Savours: I was on the interim
committee sorting out the rules.
Mr Williams
161. It is all his fault! (Sir Nicholas
Lyell) That may explain it. Of course there will from time
to time be political tensions in a committee and in Parliament
with members from all parties and it is much better to recognise
that there will be for all members and for the Committee an ethos
which says, "We know this can happen and we are not going
to let it happen; we are going to be absolutely fair.", and
it is very encouraging to hear the Chairman and others say that
you have managed to be unanimous during this Parliament. Going
to your second question about what you do or do not publish, I
think what you wrote down was my answer to an earlier question
today in relation to what the Committee should do if it disagrees
with the conclusion of the Commissioner, the problem being on
the one hand to do justice to the individual member and, on the
other hand, to provide a fair and open report to the public so
that they may know on what basis justice was done. This is a problem
but, given that the system which has been set up—and I believe
that it is right in the end—makes the Committee not the
Commissioner the final arbiter of fact, then you have to make
a choice: either you publish the Commissioner's report, as you
do at the moment, which comes down on one side and you then publish
the Committee's report which comes down on the other side and
explain what the difference is, which—and let's be hypothetical
and say it is not this Committee and not this Commissioner—if
the Committee was right may do serious injustice to the individual,
or you simply publish the evidence which was available both to
the Commissioner and the Committee, and the reasoning of the Committee
as to why they nonetheless on this evidence did not find the case
proved, and leave it to the public to read the judgment as a whole.
You have a choice here. It is not terribly easy to know which
is the better answer but I think you should certainly reflect
on the suggestion I made that the evidence brought forward by
the Commissioner should be published but the conclusion and the
reasoning behind it should be the view of the Committee. Of course
they will have had the assistance of the Commissioner although,
in this instance, they will have taken a different view, with
the reason for the view that they are taking explained in the
published report.
Mr Campbell-Savours
162. Is that in all circumstances? (Sir
Nicholas Lyell) No, because I think it has been the experience
of this Committee that you have upheld the reports in 80, 90 or
even a higher percentage of cases so it is going to be the rare
case where the Committee comes to a different view. Then I think
there is a strong case for considering issuing the judgment of
the Committee which sets out the evidence that it was given and
sets out the reasons for its conclusion and the reasons for it—as
would happen in any other tribunal.
163. But do you not think that, by implication,
the public would then deduce what the Commissioner's position
was on the verdict? (Sir Nicholas Lyell) They might
do. We are open to public scrutiny; we cannot avoid that and should
not.
164. Taking you back, I do apologise; I mixed
up two different people and I do unreservedly apologise but, in
principle, do you think it is right that a member of Parliament
should represent a witness before this Committee in any circumstances,
and perhaps even be paid to do so? (Sir Nicholas Lyell)
I think one would be pretty reluctant to accept payment. It would
be very unusual, I think. I do not think it is wrong that a member
of Parliament should be able to bring another member of Parliament
to speak for them.
165. No, I am talking about where the witness
is not a member of Parliament. You might have a witness to one
of our inquiries, not the member concerned, being represented
by a member acting as a lawyer? (Sir Nicholas Lyell)
A witness being represented by a member? That does not sound at
all appropriate. It is not normal in any proceedings for a witness
to be represented at all.
Shona McIsaac
166. I wish to go back to the problem we have
where we may disagree with the Commissioner in our conclusions.
I want to know what your views are about perhaps having a more
structured memorandum from the Commissioner. What I have in mind
are the guidance booklets magistrates get which give the charge
and tell the magistrate to consider the mitigating circumstances,
et cetera. Do you think we could construct something like that
so the Commissioner's memorandum would have, "This is the
charge against the member, here are the facts, however here are
the mitigating circumstances which could be considered and the
member's defence", and then the Committee would have something
more structured to consider before it came to its conclusions?
Do you think that might avoid some of the problem we have with
the press seizing on whichever version they think is going to
get the best headlines? (Sir Nicholas Lyell) I think
structure and procedure are important and that really was my first
point. You talk about mitigating circumstances but those come
after you have made your finding. First of all, you have your
charge, you have your evidence, you consider your evidence, you
reach your conclusions as to whether the person is or is not guilty
and whether or not the allegation is or is not established and
then, having decided that it is established, you go on to consider
what recommendation as to penalty you will make. Mitigation comes
a little later, therefore. Subject to that clarification, however,
I think the more structured procedure which I was recommending
will be very helpful in leading to a sensibly-reasoned judgment
with the evidence properly displayed and then the conclusions
properly explained, which I was dealing with in my previous answer.
167. And possibly it could link in with Mr Williams'
idea of fines if you have this more structured approach? (Sir
Nicholas Lyell) We must be very clear about this: before you
get to any question of mitigation and fine, you have to decide
whether they did it; whether they were guilty.
168. That is why I was wondering if the structured
approach could also apply to the way a Commissioner constructs
a memorandum? (Sir Nicholas Lyell) Yes, I think so.
I think the Commissioner could well construct her memorandum like
that. I confess I have not read the most recent ones and it may
be that she has been doing this. She sets out, "I have received
a complaint from so-and-so; I have looked into it in a preliminary
way; I believe such-and-such rules have been broken; I acquainted
the member with this fact; there was brought before me the following
evidence and my own investigations produced the following further
evidence. As a result"—she will say—"I have
formed the conclusion", and she will give her view. The Committee
then consider the matter and form a different view with a different
interpretation or a different view of the evidence and decide
that, whereas the Commissioner found that the matter was proved,
the Committee for reasons which they will explain take a different
view. I think that structured form, however, will certainly help
the report of the Committee to make sense.
169. You do not feel that the Commissioner should
perhaps within that report say, "However, the member"—who
has been accused of whatever offence - "says this in their
defence", so both elements are within the Commissioner's
memorandum? (Sir Nicholas Lyell) That is very sensible,
yes. It is quite right that the defence that is put forward should
be well and fairly expressed in the Commissioner's report to the
Committee.
170. What I would hope, therefore, is, if both
of those elements were in the Commissioner's memorandum to us,
then it is less likely we are going to disagree with something
within the memorandum. Do you see what I am getting at? If the
weight is against the member— (Sir Nicholas Lyell)
You are not going to disagree with the Commissioner very often
anyway. I do not want to be unduly legalistic about this at all
but if you look at it in the sense of what happens in a very simple
Crown Court case, and I sit as a recorder so I have to do these
summings-up, you rehearse the evidence, and then you set out very
clearly what the argument for the prosecution is and you take
great care to set out what the argument for the defence is and
then you leave it to the jury. That is a very straightforward
structure for a summing-up. Of course, here the Committee is the
jury rather than the Commissioner and to follow that with the
reason why the Committee came to the conclusion it did will lead
to a sensible and logical report.
171. So the Commissioner becomes a cross between
the Procurator Fiscal and a recorder? (Sir Nicholas Lyell)
Well, people seem to be jibing at this—or Peter Bottomley
did—but the fact is that we have given the Commissioner
a difficult job where she has to receive the complaint and investigate
it, so she is the investigator; she then has to be satisfied that
there is a prima facie case to be answered and put the charge
to the person, and then seek out further evidence in support of
it—she probably will have sorted out most of it before she
puts the charge—and invite the person accused to produce
their evidence against it and then make up her mind. These are
in a sense the roles of investigator and prosecutor and, to some
extent, judge.
172. Finally, would you agree that the Committee
are not here simply to rubber stamp the Commissioner's reports? (Sir
Nicholas Lyell) Most certainly. It is the absolute duty of
the Committee to exercise their own judgment on the matter. It
will support the Commissioner in her very difficult job but that
in no way is the same as failing to exercise their own independent
judgment on the rights and wrongs of the cases brought before
the Committee.
173. It is just that sometimes in the press
it is deemed a failure by this Committee if we do not agree with
the Commissioner one hundred per cent? (Sir Nicholas Lyell)
You have to be robust and stand up. We all get criticised in the
press!
Chairman: Thank you for coming along
and answering our questions today.
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