Select Committee on Standards and Privileges Minutes of Evidence

Examination of Witness (Questions 160 - 173)



  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 Going to your second question about what you do or do not publish, I think what you wrote down was my answer to an earlier question today in relation to what the Committee should do if it disagrees with the conclusion of the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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