Annex 56B
Observations about procedure provided
by Mr Geoffrey Bindman, Bindman & Partners, Solicitors, as
part of Mr Vaz's response Annex 56A
IV OBSERVATIONS ABOUT
PROCEDURE
62. As I indicated in section I of this
letter the purpose of this section is to make some observations
about the manner in which this investigation has been conducted
with a view to improving the procedure to be adopted in subsequent
cases. I repeat that Mr Vaz would like to have the opportunity
of discussing these matters with the Committee in due course.
63. A feature of this Investigation has
been its length and the multiplicity of matters that have been
examined. The course of the Investigation does not easily or clearly
relate to the procedural steps that are described in paragraphs
66 to 73 of the Guide to the Rules relating to the Conduct of
Members or to the present Commissioner's description of the Investigation
Process set out in the Appendix to the Ninth Report. Whilst I
would not seek to argue that any particular procedure should be
rigidly adhered to; or that the Investigation ought to be conducted
with all the procedural trappings of a legal trial, there are
particular dangers in an investigation such as the present which
this case reveals. They include at least the following:
(i) the danger of a roving investigation
into a multiplicity of matters, not the subject of any formal
complaint to the Commissioner, the very length of which is itself
capable of being unfair to the Member. (You have recognised this
in paragraph 29 of your draft memorandum but see my comments in
paragraph 60 below).
(ii) the danger of such a wide ranging investigation,
unless very carefully controlled, involving allegations concerning
third parties which they have no opportunity to challenge and
which are not capable of being fairly resolved within the procedure.
(iii) the danger of the procedures of the
House being used under cover of Parliamentary privilege, to air
long standing grievances between political opponents and to feed
the appetite of some journalists for pretexts to attack politicians.
(iv) the danger of allowing the investigation
to stray into areas which fall outside the responsibility of the
member, particularly those within the province of a local authority
or local political party in the member's constituency.
64. Before turning to the specifics of this
case, it is sensible to highlight some obvious and well known
features of the process. The Commissioner is responsible for the
investigation of complaints alleging that the conduct of a member
is compatible with the Code of Conduct or the Guide. Paragraph
66 of the Guide envisages that any such complaint should be in
writing; and paragraph 67 indicates that it is not sufficient
for such a complaint to consist of an unsubstantiated allegation
in the expectation that the Commissioner or the Committee will
assemble evidence; it also indicates that anonymous complaints
will not be entertained and expresses particular doubts about
complaints founded only upon no more than a newspaper story or
television report.
65. An essential part of the background
to the role of the Commissioner and the Committee is that material
supplied to the Commissioner once she has started to investigate
a complaint; and any report ultimately published by the Committee,
is covered by Parliamentary privilege. This fact is a necessary
consequence of the public interest in investigating complaints;
but precisely because it enables comment that would otherwise
be defamatory it should, I submit, carry with it a responsibility
to ensure that investigations are clearly focused and do not allow
allegations (particularly involving third parties) which the public
interest does not very clearly require to be investigated.
66. The procedural steps set out in paragraphs
66 to 75 and in the Guide envisage, so far as immediately material,
the following:
(i) a complaint in writing. In a simple case
this complaint will mean that both the Member and the Commissioner
are clear from the outset about the precise nature of the allegation
to be investigated; and
(ii) a stage, before the Commissioner's Report
is drafted and placed before the Committee, where the Member has
the chance to comment on the evidence (and not merely the allegation
or a précis of the evidence) as it relates to a formulated
complaint. This requirement is implicit in paragraph 69 of the
Guide; and is expressly spelt out in paragraph 8 of the Appendix
to the Ninth Report. In making this point I repeat my disagreement
with the argument you advance in paragraph 33 of your draft memorandum.
Your investigation cannot in practice be characterised as an entirely
neutral fact-finding exercise given the sanctions and other serious
consequences which an adverse finding must entail.
67. It is obvious that not only when the
Commissioner reports that violations of the Code have taken place,
but even where, as in the case of Mr Vaz, the Member has been
exonerated, any adverse or critical comments contained in a report
which otherwise exonerates the Member, are likely to damage the
reputation and standing of the Member whatever the ultimate reaction
of the Committee, and the consequences may be serious. The same
applies to adverse comments on third parties, particularly if
these are contained in material that is ultimately published by
the committee. In those circumstances, natural justice demands
the procedural safeguards outlined above.
68. It is also important that strict standards
of proof should be adopted, especially where allegations are made
that in effect amount to criminal conduct. You have recognised
this and stated in paragraph 28 that you are adopting a stricter
standard of proof than the balance of probabilities. It should
be made clear that proof beyond reasonable doubt is required where
criminal conduct is alleged. (That would certainly be so in relation
to the complaint by Mr Kapasi, which in this respect is the most
important of the complaints which you are investigating.)
69. I do not wish to make elaborate legal
submissions about the application of the ECHR, but it is worth
commenting that the treatment of both Members and third parties
concern interests which are at least close to those protected
by Articles 6 and 8, and that convention standards of fairness
would require such safeguards. Concerns have been publicly expressed
by Lord Neill about the impact of the ECHR on the Committee's
procedures (see Appendix 4).
70. I turn from these general observations
to the present case. There are only two clearly identifiable written
complaints—those of Mr Milne and Mr Gosling. The draft report
comes to unambiguous conclusions in Mr Vaz's favour on all the
matters which are the subject of these written complaints—see
paragraphs 301; 303; 312; 316; 321; 327; 395; 400; and 402.
71. Other matters dealt with in the draft
memorandum were not contained in any written complaint. I do not
suggest that the Commissioner should not investigate potential
breaches of the Code by Members if these come to light other than
by written complaint. But if such an investigation is to take
place, it is important to ensure that the Member is told in precise
terms at any early stage of the nature of the allegation he is
being asked to respond to. It is also important to ensure that
his responses to particular complaints are not said in any report
to be inadequate in the light of other, later, allegations which
the Commissioner has decided to investigate.
72. In the present case, Mr Vaz asked for
my help because, having responded fully to all the matters put
to him by you he did not know what complaints were being investigated
and what was the scope of your investigation. He was also very
concerned at the role of certain newspapers in the investigation.
This concern has increased on seeing your draft memorandum which
shows that some at least of the complaints have been inspired
and promoted by journalists (see for example paragraph 49 and
the press interviews with Brown and Kapasi).
73. The prominent role of the press in promoting
and publicising complaints and the investigation by the Commissioner
poses particular problems. When journalists present themselves
as witnesses the Commissioner may feel obliged to receive their
evidence but should not give the journalist any information about
the progress of the investigation. The Member should be fully
informed of any communications between the Commissioner and journalists.
In the present case it is surprising that you have not disclosed
notes of any of your meetings or conversations with journalists,
including those from whom you have received evidence. It should
be made clear that the Commissioner will not communicate with
the media during the progress of an investigation except for the
purpose of receiving evidence.
74. In my letter of 25 May (annex 27) I
reviewed the state of the investigation as it appeared to be at
that date. It was only as a result of that letter that you set
out clearly in your letter of 7 June (annex 28) the complaints
which you were investigating. In your letter you acknowledged
that Mr Vaz had been helpful in discussing the matters you had
raised with him and had responded to all the allegations (with
one minor exception, which by 7 June had already been cleared
up). In your letter of 7 June you repeated the statement that
"when my enquiries are complete I shall put to (Mr Vaz) any
evidence I have collected which might appear to be at variance
with his account." This appears to refer to the stage of
the investigation described in paragraph 8 of the Appendix in
the Ninth Report of the Committee, (see below) but a large number
of documents which you plainly regard as including such evidence
(if not what is their relevance?) were only put to Mr Vaz in your
draft memorandum and its annexes to which he is only now able
to respond.
75. Although you acknowledge, at paragraph
29 of the draft memorandum, the difficulties caused to Mr Vaz
by the particular course this investigation took, I do not accept
that they have in fact been adequately taken into account. The
clearest example of this relates to the Annual Calendars and Mapesbury.
As I have indicated above, no allegation concerning these matters
was formulated either in any written complaint or in the various
summaries provided by you to me. Yet the draft report (paragraph
337) is critical of Mr Vaz in this connection.
76. I turn now from the stage of the formulation
of the allegation to the stage envisaged in paragraph 8 of the
Appendix to the Ninth Report. As I have already indicated, in
my view fairness requires that before a draft report is drawn
up containing matters critical of a Member, he is given a chance
to comment on the actual evidence that is in the possession of
the Commissioner that is said to support a properly defined complaint.
This is what paragraph 8 appears to promise. In this connection,
the requirement for a sight of the evidence should mean precisely
that. There is a clear distinction, for which I argued in several
letters to you, which in my view you have failed to recognise
adequately in correspondence or the draft memorandum, between
a précis of an allegation and the evidence in support of
it. There should be some clearly identifiable moment in time before
the Commissioner commits herself to a draft report, when the Member
is given the chance both to appreciate the allegation as it is
formulated, and to see the actual evidence that is said to support
it.
77. It cannot be said that such a moment
occurred in this case at all. The first sight either I or Mr Vaz
had of much of the voluminous material contained in the annexes
to your draft report was when the draft was delivered (with a
fourteen day deadline for comment). One example that particularly
concerns Mr Vaz is the reliance on the transcript of an interview
with Sir Peter Soulsby, extensively quoted in the draft memorandum
itself, the text of which was not disclosed until the draft had
been completed.
78. I have suggested that the standard of
proof should be at the highest level where criminal conduct is
alleged, as in the case of Kapasi. The Commissioner in such cases
must obviously not only be impartial (which I do not doubt for
one moment in the present case) but must appear to be impartial.
The evidence in relation to that complaint relied heavily on Sir
Peter Soulsby, the only witness personally known to you, with
whom you have a professional relationship as a fellow member of
the Audit Commission and a member of its Analysis and Research
Panel, of which Sir Peter is chairman. This situation suggests
that guidelines are required where the Commissioner may face an
apparent conflict of interest. I accept of course that you properly
brought the matter to the attention of the Chairman but I raise
this as a matter of principle.
79. In summary, the main lessons to be learned
from this Investigation are:
(i) if the Commissioner is going to stray
from investigation of a written complaint this fact must be acknowledged
early and the allegation clearly formulated and put to the Member
(ii) the procedure must be operated so as
to ensure that, in the event of there being any possibility of
adverse comment, there is an opportunity for the complete evidence
and the allegation to be commented on by the Member.
80. Next, I wish to make some observations
about the treatment and protection of third parties. Witnesses
and complainants have received letters from you marked "confidential"
but their letters are included in the annexes and may become public.
They should be told that although confidential their evidence
may be published. Witnesses and potential witnesses should also
be made aware that the member who is being investigated has not
been found guilty of any wrong doing. The failure to do so has
created the false and damaging contrary impression in some quarters.
81. As I indicated above, if the draft report
were to be published in its present form it would contain material
that is plainly defamatory of Mrs Merlyn Vaz—see the transcript
of the interview with Sir Peter Soulsby and eg paragraphs 340,
342, 353. I have already requested that these paragraphs be removed
from the draft report. The purpose of my observations at this
stage is simply to state the obvious—that allegations are
contained in this material which are highly defamatory of Mrs
Vaz. To mention two of the most offensive, she is accused in paragraph
353 of being a "ready vehicle" for influencing the improper
allocation of land, and elsewhere is accused of having a "history
of begging for money." She has not been given any chance
to comment at all and it is highly unsatisfactory that there is
any danger of this kind of material going into the public domain
without adequate protection of Mrs Vaz's interests. Though she
could have readily responded when these allegations were first
made, she has, unfortunately, since October been ill with cancer
and is now undergoing chemotherapy. Mr Vaz has not discussed with
her any matters connected with your investigation. References
are also made to other third parties, as indicated earlier, which
are critical and to which they have been given no opportunity
to respond.
82. The issues raised by the comments about
Mrs Vaz are a dramatic example of the problems that will inevitably
be faced if wide-ranging investigations of this sort, not based
on specific complaints made to the Commissioner, are undertaken.
Other issues of invasions of privacy are concerned. For example,
the annexes include material personal to Mr Zaiwalla (see annex
65) and to Mr Attwal, including copies of accounts naming persons
unconnected with the investigation.
83. Another important issue which the Committee
is invited to consider is the financial burden on the member who
may be subjected through no fault of his or her own to a complex
investigation of the type here under consideration. In virtually
every recent investigation the Member has felt the need for legal
advice. Paradoxically the understandable desire to escape the
constraints of a legal process may encourage this need. In the
absence of formal procedures, it is more difficult to ensure fairness.
Legal advice for the Commissioner and the limited degree of formality
suggested in these observations may help to reduce the complexity
of investigations and thereby save cost. Lord Neill has also recommended
that the Commission have access to independent legal advice (see
Appendix 4).
84. While recognising the important responsibilities
of the Commissioner and the Committee to ensure that members of
Parliament conduct themselves in accordance with the high standards
demanded by the Code of Conduct, I venture to suggest that Members
are no less entitled than other citizens to be treated fairly
when their conduct is investigated. It is hoped that these observations
will be of some value to you and the Committee. Mr Vaz has already
indicated that he would welcome an opportunity of addressing the
Committee upon them.
Geoffrey Bindman
8 January 2001
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