Select Committee on Standards and Privileges Third Report

Annex 56B

Observations about procedure provided by Mr Geoffrey Bindman, Bindman & Partners, Solicitors, as part of Mr Vaz's response Annex 56A


  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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