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The sub-committee is not a court of law and has not determined any criminal charge. Nor has it determined any civil right. It has performed its role as a disciplinary body acting on behalf of the committee and the

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House under the House’s extensive and essential powers of self-regulation. In doing so, the sub-committee and the committee as a whole have acted independently and impartially, with conspicuous fairness, in accordance with the fundamental principles of natural justice, and with scrupulous care as to the evidence. Because the committee and the sub-committee have not determined a criminal charge or a civil right of any Member of the House, it is quite clear that there is no question of any breach of the European convention. If the noble Lords, Lord Truscott or Lord Taylor, were to complain to the European Court of Human Rights of any alleged violation of their convention rights, their complaints would undoubtedly be declared inadmissible.

The sub-committee and the committee decided, in the light of the seriousness of the allegations, that particularly strong evidence was required before they could be satisfied that the allegations were proved. The four Members were fairly informed of the case against each of them. They each received legal advice. They each had a fair opportunity to answer what had been put to them, both in writing and orally. The record of their interviews, which is now before the House, shows the conspicuous, courteous and fair way in which the sub-committee questioned them. However, the noble Lord, Lord Truscott, a former Minister of the Crown, who had the benefit of the advice both of a partner of the firm Bindman and Partners and apparently of the former DPP Sir Ken Macdonald QC, treated attack as his best line of defence. He alleged in his letter before the House of 4 May to the chairman of the Committee for Privileges that the sub-committee’s report bore very little relation to the evidence he had given at the hearing. He described the sub-committee’s conclusions as,

“a crude attempt to arrive at a predetermined judgement”—

an allegation of actual bias on the part of the members of the sub-committee. He also claimed that the report was,

“surprisingly and disappointingly intellectually flawed”.

The noble Lord’s letter of appeal continues even more bizarrely:

“At the Hearing itself I felt like a Guantanamo inmate. I was continually interrupted, with one Member in particular being aggressive and descending at times into sarcasm. I at once felt that my ‘guilt’ had been prejudged. My wife, whose uncle spent time in the Gulag, can't escape a feeling of déjà vu. 1930s Russia. Stalin is in power. Political committees decide an individual's fate on the basis of ill-founded allegations and without any evidence of actual wrongdoing”.

I have read and reread the entire record and the sub-committee’s full report. There is no basis for the extraordinary attack that was mounted by the noble Lord, which aggravates his misconduct and demonstrates a total lack of judgment or self-knowledge.

As for the noble Lord, Lord Taylor of Blackburn, his lawyers alleged in his appeal that the finding against him could not stand,

“because it was reached through an unfair process”,

and that he was,

“denied basic procedural safeguards guaranteed by domestic and international law, and by the House of Lords own rules. Not least of these is the right to know the charges against you and to test the evidence against you through cross-examination ... and the right to confront your accuser”.

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Like the noble Lord, Lord Truscott, the noble Lord, Lord Taylor, declined the invitation to present his appeal in person to the Committee for Privileges. Unlike the noble Lord, Lord Truscott, the noble Lord, Lord Taylor, also refused to appear before the sub-committee. Instead, he submitted a statutory declaration. As a result, the sub-committee at no stage had the opportunity to question him on the detail of his defence. However, the evidence against him was cogent and compelling.

The noble Lord, Lord Taylor, was advised throughout by Finers Stephens Innocent. His lawyers raised procedural and legal objections based on what the sub-committee rightly described as a “fundamental misconception” of its role. In my view, they were also based on a fundamental misconception of both domestic law and international human rights law. In his letter of 17 February, Mr Mark Stephens alleged that the sub-committee,

“appear to wish to proceed by flouting both the letter and spirit of the right to a fair trial, guaranteed under Article 6 of the European Convention on Human Rights”.

In his letter of 12 March, he referred to what he described as the “pretence in the code” about the fairness of the procedures. These and other criticisms were entirely misguided.

A further point is now made in an attempt, I think, to persuade the House not to suspend either the noble Lord, Lord Truscott, or the Lord Taylor, from the service of the House until the end of the current Session. It is apparently said by Mark Stephens, the lawyer of the noble Lord, Lord Taylor, and repeated fairly and properly by the noble Baroness, Lady Mallalieu, that they were not warned that the House had the power to suspend and that the guidance sent to them stated clearly—as it did—that the House had no power to suspend, so they will face a retrospective penalty. That might be a good argument if it could be shown that it would have made any difference to their conduct or their dealings with the sub-committee or committee if they had known that there was a power to suspend. However, that has not been suggested by Mr Stephens or the noble Baroness, Lady Mallalieu. It would be entirely unrealistic to suppose that if the noble Lords had known of the possible penalty, they would have advanced any defence of their conduct that has not already been considered by the committee.

Accordingly, that does not constitute a good and sufficient reason for this House to reject the committee’s recommendation as to the sanction of suspension that it has proposed. I really respect the commitment of the noble Baroness, Lady Mallalieu, to natural justice and fairness; I entirely share it as a human rights lawyer and a public lawyer. However, I do not consider that there is a breach of the principles of natural justice or fairness, which are flexible principles. They are not conceivably breached in this case, and the penalties are in my judgment entirely proportionate.

Lord Falconer of Thoroton: My Lords—

Lord Goldsmith: My Lords—

Lord Maginnis of Drumglass: My Lords—

Lord Falconer of Thoroton: My Lords, I shall talk briefly on this issue; I do not think this is an appropriate occasion for a long debate. I do not intend to focus at

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all on the contents of the two reports in so far as they deal with the facts. If we wish to have a plausible process in which we consider the disciplining of our Members, we can do it only on the basis that those who look in detail at the evidence are respected in relation to what they do. I have read both reports. The work done by the sub-committee is utterly unimpeachable. There were 18 hearings. It has heard the evidence and analysed it with great care, and we should leave it to make the conclusions. It would not be fair for us to deal with an analysis of the facts on the basis of a casual look ourselves.

It must be clear that we are determining this on the basis of the facts, not on any basis to pander to public opinion. It must be our decision, based on the facts. I shall focus therefore only on the process. First, I believe that the advice given by my noble and learned friend Lady Scotland opened the door, quite rightly, to the possibility that there was a power to suspend. I believe it to be right that the body which decided whether or not to say that there was the power to suspend was the Committee for Privileges, which was greatly assisted by my noble and learned friend in doing that. I agree entirely with the memorandum put forward by the noble and learned Lord, Lord Mackay of Clashfern, who gets it precisely right.

5.15 pm

Secondly, I do not agree with the noble and learned Lord, Lord Lloyd of Berwick, who says that there is necessarily a clash between what my noble and learned friend Lady Scotland says and what the noble and learned Lord, Lord Mackay, says. It does not matter. We should support what the noble and learned Lord, Lord Mackay of Clashfern, says, because it seems to me to have a plausible disciplinary process. The idea that you cannot suspend is, with respect, not plausible.

Thirdly, paragraphs 39 to 53 of the sub-committee’s report, which is published as an annex to the second report of the Committee for Privileges, give a totally clear and insightful account of our obligations in relation to paid advocacy. We should adopt them as a House because they make absolutely clear that there is no real doubt about what is across the line. For example, is there anyone in this House who cannot distinguish between the eminent doctor who speaks in this House and urges it to give more money for the National Health Service where she may be employed and will therefore benefit—about which we have no complaint—and a Member of this House who is willing to make speeches and try to persuade other Members to pursue a particular aim in legislation because they are paid? That is where the line is drawn and that is the point that my noble and learned friend Lord Irvine of Lairg makes clear. Do not be distracted by any arguments about the greyness of the line. The position was very clearly identified.

The third and final point—

Noble Lords: The fourth!

Lord Falconer of Thoroton: My Lords, to quote my successor, accountancy was never my strong point. Tragically, everyone is nodding. On the point made by

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my noble friend Lady Mallalieu, if one looks at the evidence bundle, there is a letter in which those acting on behalf of the noble Lord, Lord Taylor of Blackburn, say that this is a process which affects, “my reputation and my livelihood”. I completely agree with that analysis. I find it totally implausible that, “Because I did not realise the House could suspend me, I thereby conducted my proceedings in a different way”. I have thought very carefully about this important point, which was made incredibly well by my noble friend Lady Mallalieu, and I do not think that it would have made any difference. Therefore, the view I have formed is that it will not affect the way I vote. I will vote in favour of the first report and, if it is accepted, I will vote in favour of the second report.

Lord Morris of Aberavon: My Lords, I thank the noble and learned Lord, Lord Mackay, and the noble and learned Baroness the Attorney-General for their assistance. It is one of the duties of the Attorney-General to advise Parliament, sometimes at short notice and frequently in uncharted territory. The Attorney-General has referred to a respectable argument. When I hear these words, I reach out for an illusory book of precedents. I have had to use it myself. It does not mean that there is solid and unassailable authority for a conclusion. In the absence of firm authority, it is the best that one can do. Having read them very closely, I prefer the conclusions of the noble and learned Lord, Lord Mackay. The Attorney-General is right to conclude that the safer course is to create a legislative framework to confer a power of suspension. She is right about that. However, such legislation could not be retrospective. We are dealing with the situation as we find it.

It is common ground that we cannot exclude a Member permanently. Otherwise, a wicked majority might wish to exclude the whole of the Opposition. That could have advantages for some. Secondly, the House, on this common ground, could imprison, despite practical difficulties, or fine. The latter, in the present circumstances, has its own attractions.

The noble and learned Lord, Lord Mackay, has argued that we would not be extending our privileges if we adopted our procedures to preserve order and decency. It is a long-standing power. We have done so in other contexts. We draw up the rules about the House, and we have undoubtedly used that as part of our privileges.

While nothing is certain in this field, I conclude, as the noble and learned Lord, Lord Mackay, has done, that we have the inherent power to suspend for a defined period within the lifetime of a Parliament a Member guilty of clear and flagrant misconduct. It is dangerous and unnecessary to give alternative illustrations of facts. We are dealing with particular facts as found by the Committee for Privileges. I ask myself: if a Member behaves in an inappropriate fashion—which is, of course, subject to a subjective judgment—is the House powerless to act? I conclude that it is not.

There is no valid argument against suspension, except that it has not been done before for a long time. Common sense dictates that, if you can imprison or fine, it should be within our power to impose a lesser penalty.

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Lord Goldsmith: My Lords, I do not want to prolong the legal debate. However, I would like to make one point about the position of the advice and the contrasting advice that has been given. To disclose my position, I support the conclusions of the first report and, with a heavy heart, the conclusions of the second report.

I had the privilege, when I held the office that my noble and learned friend Lady Scotland now holds, to advise both this House—for example in the debate on reasonable chastisement—and the Committee for Privileges from time to time. I regarded those occasions as occasions for advice and as somewhat different from the occasions when the Government were asking whether a particular course was lawful. I see no dishonour whatever if this House takes the view—and the noble Lord the Lord Chairman is right to say that it is for this House to do it—that it prefers one legal view over another. There is no dishonour at all, not least because the noble and learned Baroness made it clear in her advice that she saw that there was a respectable view both ways. Therefore, I very much hope that, if the House decides to vote for the first report—as I will—she will not take that as any taint whatever on the very high regard in which I certainly hold her and I know that others do as well.

Noble Lords: Hear, hear!

Lord Goldsmith: My Lords, I want to say one other thing about this. I reached the conclusion, for the reasons that have been advanced—I do not want to repeat them—that we do have the power to suspend. I am glad to have reached that conclusion, because I would have been unhappy if this House did not have such a power to regulate its own procedure. I would have been unhappy justifying our present position as a self-regulating House if we did not have such a power. I emphasise—I respectfully urge noble Lords to view the matter the same way—that the question is not whether we would like to have the power, but whether we do have the power. My conclusion is that we do have the power and, as it happens, that we should exercise it as well. The reputation of this House is high because we have the ability and we have exercised the power to regulate our procedures and our Members in the past, not because we are going to arrogate a new power to ourselves today.

Lord Mackay of Clashfern: My Lords—

Lord Maginnis of Drumglass: My Lords—

The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): My Lords, the will of the House indicates that we hear from the noble and learned Lord, Lord Mackay.

Lord Mackay of Clashfern: My Lords, I participated in this business with a heavy heart, as many noble Lords have expressed today. But one thing I am absolutely clear about is that all in the Privileges Committee and the sub-committee wanted to be fair to our colleagues in every possible respect. The noble and learned Baroness the Attorney-General knows that I have the utmost respect for her and that in the past I have shown some small but tangible evidence of that. She pointed out

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that there was a respectable argument the opposite way and I did my duty for the Privileges Committee to explore it. I think she would accept that the argument presented in my memorandum is sufficiently respectable to command a good deal of support in this House. But I am not at all dismissive of the opinion of the Attorney-General and of course I spoke to her before I submitted anything to the Committee for Privileges. I said that I was minded to do something like this and we had a conversation, the content of which is between us.

On the point raised by the noble Baroness, Lady Mallalieu, the House will wish to be fair in every respect to our colleagues. The position that has to be kept in mind is that the Committee for Privileges had no power to impose the sanction of suspension. That sanction, if it is to be imposed, is imposed for the first time in this House. By the time we come, if we do, to impose a suspension, it should be noted that the noble Lords in question had been clearly warned that the House, on the advice of the Committee for Privileges, considers that it has the power to suspend. The noble Lords have been warned that these resolutions are going down today and that if they have anything to say in respect of the treatment they have received or can suggest that what they did would have been different if they had realised that, after all, the House has this power, this is their opportunity to do so. It has been made abundantly clear to them that they may speak in these debates and in respect of the resolutions which are to be moved separately from the reports.

Lord Maginnis of Drumglass: My Lords, I apologise if my very brief point appears to be a diversion. We are all grateful to the Lord President, the noble Baroness, Lady Prashar, the sub-committee, and the Privileges Committee for the energy and determination that they have given to this problem.

Before we forget, five noble Lords were mentioned in the report in the Sunday Times on 25 January. One of them—my noble friend Lord Rogan—said, “No, I can’t do that. It would not be right”. That should not be forgotten today. I am grateful to him for representing what I believe was the honour of the House and I would not like this debate, sad though it is—and “sad” is the dominant word—to finish without those of us here acknowledging that at least one of our Members upheld the honour of this House. I am grateful to him and I think that other noble Lords will also be grateful.

5.30 pm

The Attorney-General (Baroness Scotland of Asthal): My Lords, as I have now been mentioned in despatches so often, it is only right that I should make clear to the House the position that I hold. But first I should say that it is right that the noble and learned Lord, Lord Mackay, and I have had a long association. Many noble Lords will know that it was he who had the poor judgment to agree to my taking silk at the age of 35. He reminds me often that it is said that he appointed the noble Baroness, Lady Kennedy of The Shaws, because he knew she was a Scot, and me because he believed I was a Scot.

Lord Mackay of Clashfern: My Lords, needless to say I had a better reason.

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Baroness Scotland of Asthal: My Lords, let me make plain what my position is as Attorney. I was invited to assist the committee in relation to a vexed matter which had tested the House on a number of occasions since 1642. The House had struggled with this matter in 1705 and 1956, and then again in 1999 and 2008. I was clear that any advice I gave to the committee could not and would not bind the House; it is for the House to determine how it should respond. I should also make clear that I felt keenly indeed the position in which the House was placed; all noble Lords are concerned about the honour of this House and would feel besmirched if any of our Members behaved in such a way as to bring us all into disrepute. But my role as Attorney is not to give the House the advice it may wish, but the advice it needs to hear in order for the House then to make its own decision.

It is important that the House understands the constitutional enormity of what it is about to do; in all its history it has never suspended a Member. It is open to the House to do so but it has to consider whether these changed times entitle and oblige it to act differently. However, because there is no external scrutiny of what your Lordships do—no one can gainsay your Lordships’ decision—your Lordships need to be slow, judicious and careful indeed before you exercise this power, particularly at this time when there is a furore about our constitutional arrangements.

We have had a careful and seasoned debate. I make it plain that, as Attorney for the time being, I am much comforted to see past Attorneys, who may have given similar advice which has been rejected, here with me. It is important, therefore, that the House understands that I gave the advice without fear or favour and without even looking at the facts complained about. I will not personally vote on either the first report or the second because I take the view that, as the adviser to the House, it would be inappropriate for me so to do. But I absolutely understand, without any doubt at all, the anger, concern and hurt that the House feels.

It is for the House to determine whether it seeks now to accrue unto itself a power that it has never hitherto exercised. The only time this was ever done was when the republic was in being, Cromwell was in position, and two loyalist Lords were suspended because they went to the King as opposed to coming to this Parliament. For that reason, and that reason alone, they were suspended. In 1705 our House determined that that was not a proper purpose. I do not say for a moment that this House cannot do that which it may choose to do; I simply say be cautious, be proportionate and consider what the best course is. I trust this House and I am sure that it will come to the right conclusion.

The Chairman of Committees: My Lords, we have had some impressive speeches today. I have certainly enjoyed the debate. As a non-lawyer, I have found it a great privilege to listen to such eminent legal brains as those we have heard from today, including the noble and learned Baroness the Attorney-General.

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