Select Committee on Standards and Privileges Appendices to the Minutes of Evidence


Advice from Mr Richard Drabble QC



1.  The principle purpose of this advice is to indicate shortly my views on one particular matter relating to the current investigation into further complaints against Mr Keith Vaz MP. The matter has reached the stage where a Memorandum has been compiled by the Parliamentary Commissioner for Standards and has been submitted to the Committee. A Draft but not the final version has been seen by Mr Vaz.

2.  The particular matter relates to issues arising out of Ms Filkin's current position. Her decision not to stand as a candidate again when her fixed term expired and effective resignation in early December was accompanied by a great deal of publicity and controversy. There was widespread press coverage. This advice is written because it seems to me inevitable that the background would, in more orthodox judicial situation, give rise to issues of "apparent bias"; and that there is an issue of how a Memorandum and Report written against a background where Ms Filkin was contemplating her position and making her decision on the basis of her views of the support or lack of it that she was receiving in certain circles.

3.  I am acutely conscious of the sensitivities raised by issues of apparent bias in any context; and even more so in the present one. I should make it clear that I have not attempted to, and would not have been in a position to, make a comprehensive survey of the relevant factual background. Even less am I able to make any comment on the rights and wrongs of the approach taken to Ms Filkin's re-appointment; either by herself or by anyone else. It would be quite wrong for me to do so. The purpose of this Advice is to indicate that in my view a problem does exist, for the reasons that I shall shortly indicate. The present situation is one where, in my view, the problem arises regardless of any fault of any kind on the part of any individual.

4.  It is plain that Ms Filkin's decision was made against a background where she considered that she was not receiving appropriate support in certain quarters in the House of Commons; the press reports were to the effect that she had been the subject of a whispering campaign against her. One example, which I cite because it led to the response dated 19th December 2001 from the Clerk to the Committee, was in the Sunday Times of 9th December 2001. Under the heading "Commons watchdog to name guilty men", the article reported that Ms Filkin intended to present a dossier of how her inquiries had been undermined. An article by David Hencke, in the Guardian of 10th December 2001, indicated of Ms Filkin that "she is not expected to name those behind the whispering campaign until she has left her job in February. One reason is that one of the chief "whisperers", Keith Vaz, the former foreign office minister, is still under investigation....".

5.  Mr Bindman, my instructing solicitor, wrote to the Committee on the 17th December 2001. He received a reply on 19th December. A material part read:

"The Committee was concerned by the report in The Sunday Times and has agreed to give further consideration to it.

Whatever may have been suggested in the newspapers, the Commissioner has never suggested that Mr Vaz has been engaged in a whispering campaign. She has made clear that such incidents have been no real obstacle to her getting on with her job. The Committee has full confidence in her ability to conduct an impartial investigation in relation to Mr Vaz."

6.  As I have indicated, it would be positively wrong for me to express any views on whether or not Ms Filkin does believe that Mr Vaz has been engaged in a whispering campaign. This Advice is written on the basis that she does not. Nonetheless, the uncontroversial facts are that her decision not to seek a further term was made against a background of her views that she was not receiving appropriate support from certain quarters in the House of Commons; and that this was related to the work that she had undertaken. The issue that this Advice addresses is whether in those circumstances there is "apparent bias". I stress again that the problem, as I see it, comes not from the rights and wrongs of the situation concerning re-appointment but from the inherent difficulty in dealing with a controversial inquiry concerning a former minister in circumstances where such controversy over re-appointment has arisen.

7.  In addressing the matter, I have considered the authorities on apparent bias as they concern judges; and also the approach of the House of Lords in recent case of Magill v Porter. The latter, so far as relevant for present purposes, dealt with an allegation that the auditor should have recused himself when asked to do so after holding a dramatic press conference. Quite apart from the important point that the actions of the Parliamentary Commissioner are reviewable solely by parliament and not by the Courts, her position is in any event different from that of either a judge or the auditor. Her Memorandum and Report go to the Committee; she makes no decision and the Committee is free to accept or reject her report. If it wishes to do so, it can receive oral evidence. It follows that any breaches of the rules of natural justice can be cured by the actions of the Committee itself. Even if the Committee in the present case were to form the view that there was an issue of "apparent bias", it could deal with the situation by effectively repeating the whole of the fact-finding exercise that has led to the Memorandum and Report. The effect of any view that there was "apparent bias" at the time the Memorandum and Report was written would accordingly be limited to ensuring that the Committee carried out its own fact finding exercise on a comprehensive enough basis to ensure that its decision was genuinely taken afresh.

8.  The formal test for apparent bias is now settled by the House of Lords in Porter, where Lord Hope, in paragraph 102, cited with approval a passage from In re Medicaments 2001 1 WLR 700. It makes it plain that the test in England and Wales should not differ from that applied the ECHR cases by the Strasbourg court. It is expressed as follows: —

"The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

9.  The test has now become easy to state but not so easy to apply. Some further points can be made.

10.  First, one must guard against the risk of being too "precious" about identifying matters which might unconciously influence a tribunal. This is obviously particularly true in a parliamentary context; where the Committee itself will be drawn from different political parties and where the background is that of vigorous political life of the House.

11.  Second, however, the test is the existence of a real possibility. In an orthodox judicial situation, an allegation of apparent bias will be made good if the fair-minded observer perceives there to be such a possibility.

12.  Importantly, for present purposes, the House of Lords in Porter considered the relevance of the Auditor's own views as to whether he was biased. Lord Hope said at para 104:

"The Divisional Court said ... that it had particular regard to his reasons for declining to recuse himself in reaching its conclusion that he had an open mind and was justified in continuing with the subsequent hearings. I would agree that his reasons were relevant, but an examination of them shows that they consisted largely of assertions that he was unbiased. Looking at the matter from the stand-point of the fair-minded and informed observer, protestations of that kind are unlikely to be helpful."

13.  No doubt Lord Hope made this observation because of what is called elsewhere in the authorities the "insidious" nature of bias. Thus the judgement of a fact-finder may in fact be influenced by bias despite an absolutely sincere belief that this is not the case: this is the reason for the strength of the rule that one cannot be a judge in one's own case. The immediate relevance is that there may be "apparent bias" despite the assurances given by Ms Filkin to Committee as recorded in the letter of 19th December; and despite the fact that the Committee, which of course has a close working relationship with Ms Filkin developed over time.

14.  One comes back to application of the test to the present facts. I repeat that I have not attempted a full fact finding exercise. However, it does seem to me that there is a real issue here. The Report and Memorandum were written as Ms Filkin was approaching the end of her fixed term appointment. She plainly does have a sense that she has not been properly treated by at least some parts of the House; and that this is connected with her investigations. The current investigation is a noteworthy example of the controversial investigations. I can say no more than that in those circumstances, a fair-minded and impartial observer might feel that there was indeed a real, and not too "precious" danger that the fact-finding and indeed turn of phrase in the Memorandum and Report was unconsciously influenced by a sense of grievance. It would not seem to me that a genuine belief by her that Mr Vaz was not one of the whisperers would dispose of the matter. The possibility of bias arising from a sense of grievance might flow from a belief that she was being undermined by other influential parliamentary friends of an ex-Minister.

15.  Accordingly, in my opinion it would be appropriate for the Committee to consider whether the objective circumstances are such as to raise a real possibility of bias in the sense that I have indicated. If it did, it would be inappropriate to rely on the Memorandum (or any parts of it) without taking steps to ensure that its own fact-finding was sufficiently comprehensive.

16.  I would wish to add two other comments of a procedural nature. First, the period of five days given by the Commissioner for comment on the Draft Memorandum was, in my view, quite clearly wholly inadequate for the purpose. Second, this investigation raises acutely the problem of how the interests of third parties are to protected within the procedures adopted by the Commissioner and Committee. In other inquiries, "Salmon" letters are written, giving any party criticised a chance to comment on any criticisms that the Inquiry is minded to make of them. No parallel steps have been taken in the present case, despite the very considerable damage that would be done by publication of such criticisms with the protection of parliamentary privilege.

14 December 2002  Richard Drabble QC

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