The Conduct of Lord Moonie, Lord Snape, Lord Truscott and Lord Taylor of Blackburn - Privileges Committee Contents

Appeal of Lord Taylor of Blackburn to the Committee for Privileges

  Dear Mr Johnson,

Allegations against Lord Taylor of Blackburn—"Appeal" to Committee for Privileges

  Under cover of a letter from Mr Brendan Keith, dated 23 April 2009, Lord Taylor of Blackburn was sent a copy of the Report of the Sub-Committee on Lords' Interests into the allegations made in the Sunday Times on 25 January 2009.

  This letter invited Lord Taylor to send to the Clerk to the Sub-Committee any comments on the evidence he was sent. Nevertheless, you have subsequently confirmed, in your letter dated 29 April 2009, that the Sub-Committee's report had already been sent to the Committee for Privileges and that no further substantive changes could be made to the text. Lord Taylor has, however, been told that he may submit an "appeal" against the Sub-Committee's findings to the Committee, in accordance with Para 19(e) of the Code of Conduct. The Committee will then consider this appeal at the same time as it considers the Sub-Committee's findings.

  It should be noted from the outset that Lord Taylor does not accept that this opportunity to make submissions to the Committee for Privileges is an "appeal". Lord Taylor has been denied any opportunity to respond to the findings of the Sub-Committee that were adverse to him before those findings were sent on to the Committee for Privileges. Given that the Sub-Committee appears in its report to have reformulated the charges against him, this "appeal" is in actuality Lord Taylor's first chance to defend himself.

  Correspondence between Lord Taylor and the Sub-Committee has been sent to the Committee for Privileges as an annex to the report. The Committee is asked to read that correspondence in full, together with the statutory declarations of Lord Taylor and his personal assistant Janet Robinson, so that the appeal below can be put in its proper context.

LORD TAYLOR'S APPEAL

Chronology

17/12/2008	Jonathan Calvert, a Sunday Times journalist, calls Lord Taylor using the false name David Thompson and dishonestly claiming to be from Michael Johnson Associates (MJA)
18/12/2008	Lord Taylor and Calvert meet for coffee at the House of Lords. The meeting ends with Lord Taylor "walking away" (and Calvert's comment "it's up to us to convince you, obviously")
12/01/2009	Calvert follows up on the meeting by sending Lord Taylor an email attaching a background brief on the Business Rate Supplements Bill and asking for another meeting
15/01/2009	Unrecorded conversation between Lord Taylor and Calvert
	Lord Taylor meets Calvert and another Sunday Times journalist, Claire Newell, posing as Claire Taylor of MJA
	Sunday Times claims that Lord Taylor left telephone messages for Calvert—unrecorded
16/01/2009	Calvert calls Lord Taylor
20/01/2009	Calvert sends Lord Taylor an email attaching a lengthy briefing on the BRS Bill
	Janet Robinson, Lord Taylor's assistant, acknowledges receipt without comment
21/01/2009	Lord Taylor leaves Calvert a telephone message thanking him for briefing
	Calvert leaves Lord Taylor a message in response (exact date unknown)
	Lord Taylor leaves Calvert a message stating that he has had meetings on the Bill
	Lord Taylor leaves second message for Calvert
22/01/2009	Sunday Times claims that Calvert left a message for Lord Taylor
23/01/2009	Michael Gillard of the Sunday Times tries to call Lord Taylor and leaves message
	Gillard successfully calls Lord Taylor and reveals to him the undercover "sting"
??/01/2009	Lord Taylor leaves final message for Calvert

SUMMARY OF SUBMISSIONS

  1.  The Sub-Committee's finding is flawed both on substantive and procedural grounds.

  2.  The Sub-Committee has found that Lord Taylor was willing to breach the Code of Conduct (report paras 280 & 281). In terms of an actual breach of the Code of Conduct, this can only possibly be interpreted as a breach of Paragraph 4(b): "Members of the House ... should act always on their personal honour." There has been no finding of any other breach.

  3.  The term "personal honour" has never been satisfactorily defined and thus imposes a standard that is insufficiently certain and foreseeable to permit a finding of breach.

  4.  Even if this standard is accepted, to establish a "willingness" to breach the Code of Conduct sufficient to amount to a failure to act on his personal honour, the Sub-Committee needed to have considered the evidence before it to establish Lord Taylor's mindset in light of his knowledge at the time. It failed to do so.

  5.  If it had done so it could not have concluded that Lord Taylor had failed to act on his personal honour, because it would have had to acknowledge that the evidence before it confirmed that any suggestion made by Lord Taylor that he had breached or was willing to breach the Code was entirely and deliberately false. His motive in doing so was to establish whether those he was dealing with were or were not genuine lobbyists. He cannot therefore be guilty of acting against his personal honour.

  6.  In any event, the finding against Lord Taylor cannot stand because it was reached through an unfair process.

  7.  Lord Taylor 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 (or at least the Sub-Committee's own inquisitorial powers) and the right to confront your accuser—in the case the Sunday Times journalists whose examination was sought in order to elicit exculpatory evidence.

INTERPRETATION OF CODE OF CONDUCT

  8.  At paragraphs 39 to 66 of its Report, the Sub-Committee engages in "a detailed analysis of the Code of Conduct." At the end of that analysis the Sub-Committee established criteria against which the conduct of the four Lords, including Lord Taylor, would then be tested.

  9.  The majority of the Sub-Committee's interpretation of the Code of Conduct accords with Lord Taylor's understanding of the Code, which he believes he shares with a significant number of Peers. For example, Lord Taylor agrees that the "purpose of the no-paid-advocacy rule is to prevent a Member from entering into any financial arrangement that would limit his complete independence to act in the public interest in Parliament or bind him to a particular point of view on behalf of a body outside Parliament" [para 48], and that the "distinction between receiving a financial inducement to influence the parliamentary process and having a financial interest as a result of employment or otherwise" is essential [para 50].

  10.  In particular, Lord Taylor understands and believes in the "key distinction" [para 59] between unacceptable advocacy and acceptable advice, discussed at some length in the November 2000 Seventh Report of the Committee on Standards in Public Life: "Standards of Conduct in the House of Lords" (quoted in paragraph 60 of the Sub-Committees' report). Lord Taylor abided by this distinction at all times.

  11.  However, a few other matters in the "criteria" established by the Sub-Committee are entirely novel.

  12.  Specifically, Lord Taylor is concerned by the Sub-Committee's interpretation of "personal honour"—a quiet and arcane term, dating from a time when escutcheons were blotted and political life was lived in gentleman's clubs. It is a term that has not been adequately defined by the Sub-Committee or at any stage in its existence. An underlying principle of the European Convention on Human Rights is that the law must be sufficiently certain to allow a person to foresee what behaviour will and what behaviour will not be in breach of that law. This requirement protects against arbitrary punishment and is a cornerstone of any conception of the rule of law. The Sub-Committee simply states that the term "personal honour" has "been used for centuries." Longevity is no substitute for legal certainty.

  13.  Neither is certainty provided by referring to the Seventh Report of the Committee on Standards in Public Life which also proceeds on the basis that "personal honour" is simply universally understood. This is not a hard and fast rule against which behaviour will be tested and reputations destroyed. The uncertainty of the rule can only be increased by considering past occasions on which members of the House of Lords, such as Lord Archer and Lord Kagan before him, despite their misdeeds have not been found to have been in breach of their personal honour.

  14.  The Sub-Committee's view on "personal honour" is indicated in its novel suggestion in paragraphs 42 and 52 that a Member of the House of Lords will be in breach of the Code of Conduct if he appears to act or speak in a way that is not consistent with public perception of what is appropriate behaviour for a Lord. This is a particularly uncertain standard of behaviour to which no Member of the House of Lords could hope to adhere—especially if he or she is to have their private conversations recorded and scrutinized. Lord Taylor is entitled to have his conduct measured against a recognised standard, not the shifting sands of public opinion whipped by up by tabloid hostility against politicians generally. The majority of the public do not have full knowledge of a Peer's circumstances—not least that, unlike an MP, he is unpaid and that he is perfectly entitled to work as a consultant, Parliamentary or otherwise.

  15.  By putting at risk Lord Taylor's reputation and livelihood on the basis of an accusation that he has appeared to act in a way that public opinion, in the sway of the popular press, would not consider appropriate, the Sub-Committee has fallen foul of the requirement of certainty in law and the protection against arbitrariness this provides. Lord Taylor understands that he must act in accordance with the Code of Conduct, and maintains that he has done. He does not accept that he must comply with this arbitrarily imposed and uncertain standard. While he admits that he boasted and exaggerated and in some respects behaved foolishly, had the sting continued he would never have accepted money for breaching the Code and would never have acted in a way that would compromise his integrity.

  16.  One other matter of dispute is the view at paragraph 63 that "making an introduction" is necessarily a breach of the Code of Conduct. As Lord Taylor put it in his statutory declaration:

"I have to say that I do not consider that approaching ministers, having explained that I am working with a certain company, having declared my interest and suggesting that the company has some reasonable points to make and would like to meet the minister could be other than proper."

  While Lord Taylor denies having ever done such a thing, it is disputed that such an introduction, made in the public interest and after having declared any interest the individual Peer might have, would be a breach of the Code of Conduct. There is certainly nothing specific in the Code creating such a prohibition, and with an explicit declaration of interest it cannot be in breach of the "spirit" of the Code. This is an example of the Sub-Committee interpreting the Code of Conduct in a novel way that may not meet general agreement.

CONCLUSION OF THE SUB-COMMITTEE

  17.  At paragraph 281 of its report the Sub-Committee sets out its final conclusion on Lord Taylor:

"We conclude that Lord Taylor's conversations with the journalists display his clear willingness to breach the Code of Conduct by engaging in paid advocacy, and by failing to act on his personal honour, as required by paragraphs 4(c) and 4(b) of the Code."

  18.  In paragraph 280 the Sub-Committee considered that Lord Taylor's reason for deceiving the journalists about his behaviour in Parliament must have been either that "it was a true picture he was painting, in which case he had breached the Code in the past and was agreeing to breach it again; or it was a story spun in order to secure a lucrative contract, in which case he was falsely suggesting that he would breach the Code in future." The Sub-Committee then expressly states that "we prefer the latter finding."

  19.  This finding is consistent with the Sub-Committee's conclusion at paragraph 264 that Lord Taylor's exaggerations to the journalists "were designed to win a lucrative contract with lobbyists."

  20.  While the overall finding of the Sub-Committee requires decoding, it appears clear that:

(a) Lord Taylor has not been found actually to have breached the Code of Conduct;

(b) Lord Taylor has been found to have displayed a "willingness" to breach paragraphs 4(b) and 4(c) of the Code of Conduct.

  21.  There is nothing in the Code of Conduct prohibiting "willingness" to breach the Code. Either Lord Taylor has engaged in paid advocacy or failed to act on his personal honour or he has not. Taken at its highest this finding can only possibly amount to an actual breach of paragraph 4(b)—"Members of the House ... should act always on their personal honour."

Agents provocateurs

  22.  The core of the charge against Lord Taylor is raised in paragraph 280. Lord Taylor denies the allegation, but if it were found to be true would Lord Taylor's "story spun to secure a lucrative contract" actually amount to a breach of his personal honour?

  23.  Firstly, it is reiterated that "personal honour" is simply too uncertain and inconsistent a concept on which to base a finding of guilt and a subsequent sanction.

  24.  However, it is accepted that certain behaviour would offend against a popularly understood concept of "personal honour"—insofar as that means personal integrity. For example, making a false statement under oath, or deceiving the public by issuing a false prospectus or making a false statement in the House. In private the concept is less clear still, but it might be considered a breach of personal honour to deceive an individual into entering into a business relationship. It would undoubtedly be a matter of fact and degree.

  25.  There could not, however, be a breach of personal honour when there is no honour on the other side of any such agreement—where falsehoods are induced by the actions of an agent provocateur, especially one working for a powerful newspaper seeking to make money out of a 79 year old servant of the people.

  26.  In criminal courts the actions of agents provocateurs often result in a finding of abuse of process, which stops the case in its tracks, or in the exclusion of evidence. At the very least, they would be regarded in law as substantial mitigation—and there is a good deal of authority to that effect in sentencing cases (eg R v James William Chalcraft and Neil David Campbell [2002] 2 Cr. App. R. (S.) 42). Where a sting is involved it is necessary to show that it has gone far enough for an offence to be committed—ie that money has actually been paid or corrupt services begun to be supplied, or that there has been a clear agreement that spells out such unlawful services.

  27.  In this case of course, the particular unfairness to Lord Taylor is that the Sunday Times aborted the sting before he had crossed the Rubicon. So his defence, that he would never have crossed it, must rely on his sworn statement and that of Ms Robinson. His character and credibility and his oath all attest to the fact that he would not, had the sting continued, either agreed to act as a lobbyist for this company or, in the unlikely event that they were able to satisfy him of their bona fides, that he would not have engaged in paid advocacy on their behalf. The Sub-Committee does not say it is sure that he would have compromised his integrity in these ways and at the end of the day that is the vital question.

A.  SUBSTANTIVE GROUNDS

"Willingness" to breach the Code of Conduct

  28.  As discussed above, the allegation that Lord Taylor is in fact guilty of breaching the Code simply because he has shown himself to be willing to do so is an attempt to hold Lord Taylor to an inconsistent and uncertain standard of behaviour. This is also a new and entirely circular charge. That "willingness" to breach itself constitutes a breach of the Code appears to have been extrapolated by the Sub-Committee from the focus on public perception set out above—itself a novel concept introduced by the Sub-Committee.

  29.  Nevertheless, Lord Taylor rejects entirely the finding that he was "willing" to breach the Code. As made clear in paragraph 2 of his statutory declaration (SD para 2):

"I have never acted with the intention of breaching the code of conduct or doing anything unethical"

  30.  At paragraph 38 of its report the Sub-Committee acknowledges that "no money changed hands. No contracts were signed for the provision of Parliamentary services. No services were provided." On a fair reading of the evidence it is clear that, even if the Sunday Times' devious sting had never been revealed, at least on Lord Taylor's part no money would have changed hands, no contracts would have been signed and no services would have been provided. They could not have proved that they were genuine and so Lord Taylor would have had no further truck with them. In the unlikely event that further dishonest representations persuaded him that they were genuine, he would certainly not have breached the Code by engaging in paid advocacy on their behalf.

  31.  The Sub-Committee's conclusion that Lord Taylor was willing to breach the Code comes at the end of a number of confused and confusing findings in relation to his behaviour and, more crucially for the Sub-Committee, his motives. The following submissions deal with the errors in those findings in turn.

Lord Taylor's evidence

  32.  At paragraph 201 the Sub-Committee states that "it is regrettable that Lord Taylor and his solicitors have failed to assist us, by denying to us the evidence we would have drawn from our detailed questioning of him had he attended the Sub-Committee." The reason why Lord Taylor declined the invitation to appear before the Committee was the almost complete lack of procedural safeguards discussed in depth below. It is indeed regrettable that Lord Taylor was denied the opportunity to defend himself against the Sunday Times' allegations in a fair and open procedure, and was instead forced to explain himself by way of statutory declaration. Nevertheless, Lord Taylor did provide a sworn statutory declaration. This is the best evidence that the Sub-Committee had available to it—evidence on oath backed up by potential punishment. It is unfortunate, to say the least, that the Sub-Committee appears to have completely failed to understand the significance of such a declaration. Lord Taylor was not given the credit to which he was entitled for his years of unblemished service and particularly his unblemished credibility. This should have been weighed in the balance in his favour.

  33.  In paragraph 202 the Sub-Committee suggests that Lord Taylor must be "judged on his behaviour and on the meaning of his words and on his intentions." It is clear from the rest of the report that in fact any findings are derived solely from the Sub-Committee's view of Lord Taylor's motives, as his behaviour and words are not in breach of the Code. In making those findings the Sub-Committee failed to give his sworn evidence due weight and thus failed to take on board his defence.

  34.  In paragraph 203 the Sub-Committee states confidently that if Lord Taylor had truly been suspicious of MJA from the start, he should not have continued speaking with the undercover journalists. Instead he "should at that point simply have walked away." The Sub-Committee has completely failed to appreciate that Lord Taylor did literally walk away at the end of this first meeting. His position was evident from Calvert's parting words: "But it's up to us to convince you, obviously" [see H1 p20]. The Sunday Times nevertheless chose to target him again a month later (see brief chronology above) and to entrap him with a more sophisticated and costly sting operation. It is important to note that Lord Taylor had not made any attempt to follow up on the meeting himself.

  35.  In any event, this suggestion that Lord Taylor did not walk away when he should, taking things beyond the Code of Conduct, is incorrect. The Sub-Committee is merely stating what it, with the significant benefit of hindsight and the certain knowledge that these were agents provocateurs, considers would have been a better way of dealing with a particular situation. However, when Lord Taylor is perfectly entitled to engage in paid Parliamentary consultancy and to provide advice on, amongst other things, seeking amendments to legislation, there is no ethical reason why he cannot explain that other people's ideas of the way things work are naive and incorrect and then correct them. Even if he was slightly wary, there was no reason why he could not probe further.

  36.  In relation to Lord Taylor "setting out his credentials and his record of achievement" this too is dealt with in his statutory declaration, in his description of himself as "a loquacious old man with an advanced degree of self-satisfaction" (SD para 2) and (albeit in relation to the second meeting) in his acknowledgement that he is "a somewhat lonely old man without regular companionship, and that I may well have used this occasion as an opportunity to discourse to company, and simply to talk very loosely ... I boasted about myself extensively" (SD para 25). What person (or what politician) does not enjoy the opportunity to tell an attentive audience of their many triumphs and achievements, and how many would not, in a seemingly private setting, add generous embellishment here or there when so doing? Even if such behaviour is completely foreign to the members of the Privileges Committee, it cannot fairly be considered proof of a willingness to act in breach of the Code of Conduct unless it is followed by subsequent misconduct.

  37.  In paragraph 205 the Sub-Committee accepts that Lord Taylor "said frequently what he could not do" but then criticises him for giving "a clear impression that it was only the methods suggested by MJA that troubled him."

  38.  As the Sub-Committee accepts, Lord Taylor is entitled to enter into Parliamentary consultancies and is entitled to advise clients on parliamentary matters, including the passage of legislation, but not to engage in advocacy on the client's behalf. In other words, when the ends of MJA were to attempt to persuade ministers that an amendment should be made to a particular Bill, ie lobbying, it is indeed only their methods that should trouble Lord Taylor. And trouble him they did, which is why he attempted to suggest alternative steps that they could take.

  39.  As Lord Taylor explained clearly in his statutory declaration:

"I berated the disguised journalist for his naivety both as a matter of principle and as a matter of practicality, pointing out, because I thought this guy would be more persuaded by an argument based on practicality rather than morality, the ineffectiveness of having people speak for you in the chamber. The point I was making is really one of blinding simplicity: you will get a better hearing from a minister if you get your message across to him in an informal situation—eg "over a pie and a pint" rather than in a formal meeting when he or she is surrounded by civil servants. I probably got carried away a bit with my examples but I was not on oath or under any duty to speak precisely: I was in a private conversation with a man of exasperating naivety, and trying to bring home to him how his conception of parliament was mistaken." (SD para 13)

  40.  In the quotation from the Neill Report at paragraph 60 of the Sub-Committee's own report, one of the forms of advice which it expressly states is permitted is providing:

"indications as to which are the appropriate ministers to approach for purposes of furthering the interests of the client and how such approaches might be made."

  41.  This is what Lord Taylor was doing, albeit in the generalised way appropriate to a first meeting and tailored to the naive man with whom he was speaking. The Code of Conduct, even on the Sub-Committee's view, quite properly does not prohibit providing general advice on how to go about approaching ministers or other civil servants. As is made very clear in paragraph 210 of the report, Lord Taylor recognised that "he could and would advise lobbyists, in accordance with a consultant's proper role."

Understanding of the rules

  42.  The Sub-Committee dwells on the question of whether or not Lord Taylor was aware of the rules contained in the Code of Conduct, despite the fact that its interpretation seems to reduce them to the vague criterion of not doing anything an uninformed member of the public might consider inappropriate.

  43.  Lord Taylor made it clear to the undercover journalists, as he made it clear in his statutory declaration, that he understood the no-paid-advocacy rule—albeit in the sense discussed above rather than in the way it has now been interpreted by the Sub-Committee after they reached their judgment. Indeed, Lord Taylor's insistence on not breaking the rules is a consistent feature of his conversations with the journalists—up to the point where he began making deliberately outlandish claims designed to draw them out.

  44.  In paragraph 208 the Sub-Committee is critical of Lord Taylor's understanding that approaching ministers, declaring an interest and suggesting a meeting with a client is not in breach of the Code of Conduct. As discussed above, Lord Taylor believed that doing so, as long as it did not conflict with the public interest, was legitimate. This is a perfectly reasonable interpretation of the Code of Conduct, and one that is widely held. The Sub-Committee in its report appears to be changing the rules. However, if Lord Taylor is mistaken in his understanding of the Code of Conduct he apologises for that and is willing to apologise both to the Committee and the House. However, it should be emphasised that Lord Taylor has in fact never acted on his understanding [see SD para 39(viii)].

Lord Taylor's actions

  45.  The Sub-Committee accepts the legitimacy of Lord Taylor providing advice on who the lobbyists should meet, on their chances of success and on guidance he could get from individuals such as "Gary" in Victoria Street (see paragraphs 210-213 of the report). While Lord Taylor clearly did not enter into any formal agreement, or even formal negotiations, with the undercover journalists to provide such advice, it is acknowledged that if he had this would have been entirely within the Code of Conduct.

  46.  It is notable that the section of the report on Lord Taylor's actions is so brief. As stated above, it is a novel, circular and illogical suggestion that Lord Taylor is in breach of the Code of Conduct because of his apparent "willingness" to breach it. This is nevertheless the only basis upon which the Sub-Committee is able to accuse Lord Taylor, without taking into account his sworn evidence as to what was really in his mind—the intention or mens rea in making the statements.

Lord Taylor's methods/intentions

  47.  The Sub-Committee goes on, however, to indicate that it was "troubled" by the fact that Lord Taylor's explicit refusal to act in breach of the Code of Conduct did not seem to them to have been for the right reasons. Paragraph 213 of the report appears to suggest that the Sub-Committee is able and empowered not only to check whether rules have been followed but also to punish those who do follow the rules but for a reason the Sub-Committee does not like. This is a truly astonishing basis upon which to impugn the unblemished reputation of a Peer of 30 years standing!

  48.  In any event, Lord Taylor completely denies the suggestion that he had some sinister ulterior motive when spoiling the Sunday Times sting by refusing to take cash to ask questions or put an amendment in the House. In the first interview Lord Taylor did eventually put the journalist in his place by telling him he was "completely off" and "ignorant", but he first addressed him in practical terms rather than appealing to his sense of morality. This is explained in more detail in Lord Taylor's statutory declaration, particularly at paragraph 13—quoted above. It cannot reasonably be interpreted as establishing that Lord Taylor was oblivious to the ethical binding nature of the Code.

  49.  The Sub-Committee seems able to do little more than indicate it is not happy with the tone of Lord Taylor's discussions. It is important to bear in mind once again that this was a private conversation, which amounted to the opening gambit in preliminary discussions over a consultancy role. While moralising might have been a useful lesson for the fictitious lobbyist Mr Thompson, it is simply not a breach of any Parliamentary rule to tell someone that acting in breach of the Code of Conduct is ineffective, as well as being wrong.

  50.  At paragraph 215 the Sub-Committee clutches a very thin straw by emphasising the words "I should watch what's going on in committee, and then when it comes in here I will do more with it." These vague words are no more than a general indication that Lord Taylor, if a contract was arranged, would assist his clients in relation to the Bill. The Sub-Committee itself has to look elsewhere to try to find what is meant by "doing more", but is unable to find anything damning.

  51.  Firstly the Sub-Committee claims at paragraph 216 that Lord Taylor indicates a willingness to speak in the Chamber for his client's benefit. Importantly, all they can refer to is a passage from the second meeting with the undercover journalists. This is significant for two reasons. Firstly, as Lord Taylor makes clear in his statutory declaration (SD para 31), at this stage he is suspicious of the journalists and seeking to "call their bluff." Secondly, in this passage Lord Taylor emphasises the need to register his interests and to declare them before speaking in the Chamber. It is ironic that in seeking to damn Lord Taylor the Sub-Committee referred to a passage in which he emphasises the importance of adhering to the Code of Conduct.

  52.  In any event, in relation to what he says is possible, Lord Taylor accepts that his understanding of the Code of Conduct is that he is able to speak on a matter that concerns a client if he considers it to be in the public interest and if he declares his interest first, both on the publicly available register of interests and in the Chamber itself. There is nothing in the Code of Conduct that says otherwise (see above). If, however, he is wrong in this (as others may well have been) then he stands corrected and is willing to apologise for his misunderstanding, but such an honest belief hardly indicates a lack of personal honour and simply cannot indicate any intention to deceive or behave improperly "behind the scenes."

  53.  The second example of "doing more", referred to by the Sub-Committee at paragraph 217, is "evidence" that they claim "shows that Lord Taylor was willing to lobby Ministers and civil servants for the client's benefit." The first passage then quoted [H1p8] shows no such thing. It is taken from early in the first meeting with the undercover journalist, at a point when Lord Taylor is simply talking about the way in which he works generally as a Member of the House of Lords—to give the "lobbyist" an idea that informal approaches can work better than those conducted with a fanfare. There is and could be no suggestion that such an approach is wrong in principle—only that it would be wrong for Lord Taylor to do this on behalf of a client. Once again, Lord Taylor never has and never would do so.

  54.  Completely out of sequence and context the Sub-Committee also quotes in paragraph 218 one line from the second meeting with journalists that took place almost a month later [H2p14]. It is not fair or accurate to lift a single line from this conversation and attempt to use it to bolster an allegation made in respect of the initial meeting. In any event, Lord Taylor does explain in his statutory declaration that this part of the second meeting was also a discussion of general interaction between Parliamentarians, civil servants and lobbyists:

"I was not of course suggesting that I was open to receiving payment for influencing ministers over a pie and pint in the dining room. This was never my intention. There is nothing sinister about my advising them to meet ministers informally rather than formally—it is simply the truth that all lobbyists understand—it is merely a reflection of the way in which civil servants, when present, manage to control ministers and inhibit their imagination." [SD para 26]

  55.  Lord Taylor's references to his contacts within the Treasury teams, referred to at paragraph 219 of the Sub-Committee's report, while true, are a clear example of his bluster and boasting in the first meeting. Indeed, the Sub-Committee itself acknowledges in paragraph 220 that what is quoted in the previous paragraph is mere "boasting of his connections."

  56.  The bluster reaches a higher, and more fantastical, level both towards the end of his second meeting with the journalists and particularly in the telephone calls that followed that second meeting. At this point Lord Taylor was making increasingly extravagant and outlandish claims in an effort to "flush out" the truth of the sting operators' game. This is discussed further below, but it is clear that Lord Taylor was never genuinely suggesting that he would meet with Treasury ministers. He accepts that he was lying, but was doing so in order to provoke the "lobbyists" into revealing themselves. This cannot be a breach of personal honour—on any interpretation of that term. For the Sub-Committee to conclude, despite Lord Taylor's reasonable and consistent explanation, that this "indicates a clear willingness to breach the Code" is itself "astonishing." A person's integrity is not compromised if he tells lies for an acceptable purpose—in this case in attempting to unveil a suspected liar.

  57.  In paragraph 221 the Sub-Committee states that Lord Taylor "claimed that he could arrange meetings for the clients with Ministers and officials." As was explained in Lord Taylor's statutory declaration, and is discussed above, Lord Taylor's interpretation of the Code of Conduct is that there is nothing inappropriate about approaching a ministers and, having declared your interest, "suggesting that the company has some reasonable points to make and would like to meet the minister"—as long as this is consistent with the public interest. However, Lord Taylor makes it clear in his statutory declaration [SD para 39(viii)] that he has in fact never approached a minister or civil servant and asked them to meet with a client.

  58.  Thus once again the very worst that Lord Taylor can be accused of is that he has what is undoubtedly a widely held and understandable mistaken understanding of the Code of Conduct—but that he has never acted upon that misinterpretation.

  59.  At paragraphs 222-223 of its report the Sub-Committee quotes extensively from the transcripts of the two meetings between Lord Taylor and the undercover journalists in an attempt to show that he was willing to lobby civil servants. Once again the Sub-Committee has construed Lord Taylor's words in the most damning way possible, completely failing to appreciate the context in which he was speaking and the explanation given in his statutory declaration at paragraph 15:

"My descriptions of what should be done at the top of page 11 refer to "you" ie the company that employs me as a consultant, and not something that I would do personally. When I say "what you do is you talk to the parliamentary team ... you point to them the difficulties that the retailer will be having| you get them to amend it that way," I was referring to the perfectly proper procedure that companies adopt if they want changes in legislation: ie they go to the people responsible and make their submissions. As consultant I may advise them on how to make their pitch and whom to go to see—but it is the company's pitch and not mine. I do not play any part in the amendments process. I was telling them "what you do is you meet the minister, you meet the various people." I was not suggesting that I would do this for any company. I would help identify decision makers; certainly that is the role of a consultant."

  60.  The way in which these comments were understood and would have been understood by a reasonable third party is clearly an area on which Lord Taylor would have wished to cross-examine Calvert. This was not possible.

  61.  At the first meeting Lord Taylor does nothing more than explain to the naive man he is dealing with how he deals with civil servants (legitimately and in the public interest) and how the lobbyists themselves could and should deal with civil servants he might identify as worth speaking to.

  62.  The Sub-Committee incorrectly states at paragraph 224 of its report that "Lord Taylor was clearly confirming how he intended to act for the client's benefit." The passage quoted: "I'm going to talk to them about it and then I'm going to talk to people here and see what we can do", is entirely consistent with the information gathering and subsequent provision of advice that is the legitimate role of a paid consultant. It may well be that he is setting out his stall and hinting that he can do more than he could actually do, but this is not per se a breach of the Code.

  63.  This is the limit of Lord Taylor's role. Lord Taylor has and had no intention of lobbying himself. Indeed, Lord Taylor has never lobbied ministers or civil servants on behalf of any client. His position on lobbying is neatly summarised by the Sub-Committee at paras 228 to 230.

Lord Taylor's attempts to push the journalists "into revealing their game"

  64.  As mentioned above, Lord Taylor in his statutory declaration explained that he (and his personal assistant Janet Robinson) was increasingly suspicious of the undercover journalists (eg SD paras 12 and 21), that while he was reassured at times by their apparent professionalism (eg SD para 34) his doubts increased and towards the end of the "sting" he deliberately lied to the journalists about his actions and intentions in order to "flush them out" (SD paras 33-34).

  65.  In paragraphs 232-234 of its report the Sub-Committee explains that it does not accept this explanation from Lord Taylor, given three important factors.

  66.  First is that "Lord Taylor's emphasis on surreptitious techniques indicates that he knew what he was suggesting to do in relation to MJA was improper." This is unfair and untrue. Lord Taylor respects the rules of the House of Lords but he is a pragmatist and is aware that sometimes negotiations "behind the scenes" will be more honest and open, and thus more effective, than those conducted in public. This is the art of lobbying and is undoubtedly true, as many lobbyists and corporate advisers would make plain. Acknowledging that this is so does not amount to "improper" behaviour. The Committee will be familiar with the recent decision of Jack Straw to refuse to disclose the minutes of the Cabinet meeting on the decision to invade Iraq. This was justified on the basis that disclosing the Cabinet's discussions would undermine democratic decision-making in future—because free and open discussion would be inhibited by the knowledge that it might be scrutinised in future.

  67.  The second factor was that "comments made by Lord Taylor during his meetings with the journalists about his own lack of discretion in what he was saying to them suggests that he knew that his methods were compromising." Once again the Sub-Committee has added 2 and 2 and made 5. Lord Taylor good naturedly suggests he has revealed too much about the way things are done since doing so could mean that his role as a consultant is undermined. There is nothing sinister in keeping one's modus operandi secret. In any event, he is making a joke about himself, perfectly in character: Who needs a consultant if they can "cut out the middle man"? Lord Taylor has not revealed any compromising methods that he might be concerned about. This passage shows a lack of any guilty conscience—he is actually letting them know that he harbours some suspicions about them and is implicitly challenging them to prove that they are genuine.

  68.  The third factor is Lord Taylor's comment that "rules are meant to be bent sometimes." Lord Taylor deals with his use of this common expression in his statutory declaration (SD para 27). The Sub-Committee acknowledges this but says that the explanation was "convoluted and unconvincing." Lord Taylor's explanation was simply that he meant the phrase in the same way as it was used by Atticus Finch in "To Kill a Mockingbird"—that overly rigid rules can sometimes prevent justice. This is an explanation that is entirely consistent with the context in which the comment is made—Lord Taylor insisting once again that he will not be party to breaking the rules. To suggest that this passage is "convoluted" is inexplicable—the Committee is asked to read it for itself and consider whether the Sub-Committee's comment is fair. The passage is straightforward and lucidly clear.

  69.  The interpretation of this single comment as a "signal" that Lord Taylor was "ready in certain circumstances to break the letter and spirit of the Code" is entirely unreasonable and indicates how far the Sub-Committee was prepared to go to find fault on Lord Taylor's part.

Previous clients

  70.  Lord Taylor stands accused of breaching the Code of Conduct in relation to his dealings with the fictional "MJA". However, he was also accused by his persecutor, the Sunday Times, of having previously amended legislation on behalf of a genuine client, Experian. This was denied from the very start by Lord Taylor in his conversation with Michael Gillard (quoted at para 238 of the report), in which he confirmed that he had not amended legislation but simply advised by "pointing out the difficulties about legislation." He added that when he had used the term "I've got it amended" he meant "It is the agents that have got it amended."

  71.  That the Sub-Committee is prepared to conclude that Lord Taylor is dishonest on the basis of a "cold call" cross examination by an aggressive Michael Gillard of the Sunday Times, without being given any sight of the transcript, is deeply disturbing—particularly in light of the Sub-Committee's refusal to allow Lord Taylor to cross examine Gillard on his methods and motives in return. This is typical of the Sub-Committee's unfairness—it is aware of Gillard's reputation and his history of unsuccessful libel defences, beginning with Lord Goldsmith's successful exposure of his methods (Gillard v Goldsmith (1981)).

  72.  Lord Taylor addressed his relationship with a genuine client, Experian, in his statutory declaration [SD para 39(iv)], which is quoted in paragraph 240 of the report. He states clearly that "I have never myself secured or attempted to secure any amendment to any bill `quietly behind the scenes or otherwise'."

  73.  In fact the Sub-Committee comes to no conclusion on whether Lord Taylor has acted inappropriately in relation to Experian. It is certainly in no position to find against Lord Taylor on this matter. However, it has concluded at paragraph 241 of its report that "Lord Taylor's clear intention was to make the journalists believe that he had worked on legislation in the interests of Experian, in order that he might win a contract with the lobbying company." The Sub-Committee adds that Lord Taylor's mention of a meeting with Lord Drayson over gas storage is "another example of his boasting about what he could do for those who employed him."

  74.  The Sub-Committee is apparently claiming that Lord Taylor has breached the Code of Conduct by exaggerating what he has done on behalf of previous clients when discussing with a potential future client what he could do for them. This is a circuitous route by which to accuse Lord Taylor of wrongdoing.

  75.  Such behaviour cannot possibly be a breach of any part of the Code of Conduct apart from the catch-all "personal honour." The flaws in this standard are discussed above. Nevertheless, Lord Taylor denies that he has done anything untoward in referring to his work for Experian. In the course of his work as a consultant he has provided them with legitimate advice that has helped them to secure amendments to legislation. Since MJA themselves were hoping to lobby for a change to a Bill it is little wonder that Lord Taylor thought that they would be interested in the legitimate work he had done for Experian.

  76.  Lord Taylor is guilty of nothing more that boasting—delivering a "tradesman's puff." This occurred in a private conversation. There was no deception of the public, and indeed no deception of those with whom he was speaking (another matter that could and should have been proven through cross-examination). There was thus certainly no breach of personal honour.

  77.  At paragraph 62 of its report the Sub-Committee quotes Lord Griffiths' "helpful rule of thumb" on the distinction between legitimate advice and illegitimate advocacy. It is noteworthy that Lord Griffiths states:

"You can say, `Well, I think we might get the amendment through'. But, what you cannot do is take any part in helping to get the amendment through." (emphasis added)

  78.  Thus even Lord Griffiths agrees that saying that "we" got the amendment through, or even "So I've got that amendment", rather than they've got that amendment, is not in of itself a problem as long as Lord Taylor has not himself taken any part in helping to get an amendment through. He has not.

Lord Taylor's motives

  79.  In paragraphs 242-246 of its report the Sub-Committee considers Lord Taylor's motives. As previously discussed, it is disturbing and unsatisfactory that the whole question of Lord Taylor's "guilt" appears to have been determined on the Sub-Committee's assessment of why he took steps that in of themselves were entirely within the rules.

  80.  In summary, the Sub-Committee rejects Lord Taylor's submission [SD paras 5 and 14] that his interest was originally piqued by mention of "generating 500 new jobs, many of them in the North West" and finds instead that "money was an important motive for Lord Taylor."

  81.  Firstly, Lord Taylor makes it absolutely clear in the course of his meetings with the journalists that money is not his primary concern. In his very first telephone conversation with "David Thompson" Lord Taylor does not mention money apart from saying "I have got past the stage of seeking monetary rewards" and indicating (in response to a question) that he might work for free. The transcripts of the two meetings that followed cover more than 80 pages, but only a few lines deal with how much Lord Taylor might be paid. Even in these lines Lord Taylor makes it clear that discussions about money embarrass him.

  82.  Secondly, the Sub-Committee appears to have decided that wishing to earn money for doing legitimate work is itself a breach of "personal honour." This is patently untrue. Lord Taylor was discussing a potential consultancy and was entitled to be paid for that consultancy. As distasteful as the Sub-Committee appears to find it, once the question of money has been raised there is nothing wrong in seeking a good wage for an honest day's work.

  83.  The worst that Lord Taylor can genuinely be accused of is that once money had been raised he reminded the undercover journalists that they had previously offered £10,000 per month not £5,000 per month. It is respectfully submitted that this is a reminder that any human being would have provided when faced with a sudden 50% pay cut, and is in no way dishonourable.

  84.  Thirdly, Lord Taylor's motivations did include those quoted by the Sub-Committee at paragraph 242 of the report—he enjoyed a challenge, he liked solving problems, he enjoyed helping young people whom he liked, and he did things for his own satisfaction. Lord Taylor would stand by these as subsidiary motivating factors, and there is nothing wrong or in any way in breach of the Code of Conduct for him to do so.

  85.  Fourthly, Lord Taylor was however primarily motivated by the potential for new jobs for the North West. He makes this abundantly clear in his statutory declaration—as quoted in paragraph 243 of the report. Indeed, this was the true meaning of the frequently quoted "you just whetted my appetite" comment (see SD para 17). The Sub-Committee does not believe that this motivation was genuine, because it apparently does not appear in the evidence it received from the Sunday Times.

  86.  Lord Taylor honestly recalls that jobs for the North West were mentioned in an early conversation with the journalist Jonathan Calvert. It should be pointed out that the Sunday Times accepts that a conversation between Lord Taylor and Calvert took place on 15 January 2009, before the second meeting, but was not recorded. Despite this gap, Lord Taylor has been denied any opportunity to question Calvert on that recollection. This was an issue on which cross-examination, or at the very least careful questioning by the Sub-Committee, was essential. How does the Sub-Committee know that Calvert would not have accepted that the North West was mentioned if this was put to him in cross-examination? It is completely unfair of the Sub-Committee to have found that he has lied without allowing him to make good his defence.

  87.  In any event, the fact that Lord Taylor did not subsequently say out loud for the benefit of hidden microphones that "my primary interest in this matter is the creation of jobs in the North West" does not mean that this was not the case. Lord Taylor is from the North West and has a long history of championing that region. As Lord Taylor says in his statutory declaration:

"The North West is my area and I have been humbled and privileged to help its people." [SD para 5]

  88.  It is one thing for the Sub-Committee to accuse Lord Taylor of breaching the Code of Conduct, it is going further to suggest that his commitment to the North West is not genuine. Unless the Sub-Committee is doing so, there is a sound basis on which to base a conclusion that, in the absence of direct evidence of his state of mind, it is likely that Lord Taylor would have been interested in assisting job creation in the North West. There is certainly no basis to find, beyond reasonable doubt, that Lord Taylor was interested solely in personal gain.

Did Lord Taylor enter into an agreement with the lobbyists?

  89.  Lord Taylor maintains that he never progressed beyond preliminary discussions with the supposed lobbyists, and that any suggestion he had entered into an agreement with them is false. His position is set out in his statutory declaration and summarised at paragraph 252-256 of the report. Once again the Sub-Committee shows that it is prepared to accept "evidence" gleaned through improper cross-examination of Lord Taylor in a cold call by the controller of the two agents provocateurs, Michael Gillard, whom the Sub-Committee cite with respect as if he were a senior police officer of unblemished repute conducting an interview under caution.

  90.  The Sub-Committee at paragraph 258 accepts that there was no written agreement. This should be spelled out more clearly as a finding. At paragraph 259 the Sub-Committee nevertheless concludes "that Lord Taylor believed he had reached an agreement with "MJA" (our emphasis). However, the Sub-Committee then backtracks by adding:

"We should nevertheless emphasise that the heart of the matter is not whether he concluded a legally binding agreement, but what he said he could do for MJA and his intentions in his discussions with them."

  91.  This passage indicates the following:

(a)The Sub-Committee is unable to establish that any agreement was entered into. The Sub-Committee has failed to deal with the fact that the statutory declarations of both Lord Taylor and his assistant Janet confirm that nothing would have been concluded without her involvement. Indeed, Lord Taylor tells the journalists that any deal would be notarised by Janet and then declared as an interest—neither of which events took place.

        The only passage that the Sub-Committee quotes from to support its view that Lord Taylor believed he had entered into an agreement is taken from p52 of the transcript of the second meeting. Lord Taylor specifically explains in his statutory declaration that at this stage of the second meeting his suspicions had been piqued and as a result:

            "That is when I decided to push them and—I had in my mind that the only way to bring this business to a conclusion was to pretend that we had done a deal and then see what they said. I really thought that their messing me around had some ulterior object. So I thought I would bring them to the crunch, pretend we had an agreement and see what they did. That is why I pretended at page 51: "we've agreed that we're doing the deal| when do we officially start? When do you want to start? Just name a figure. We've said 10 are you happy about that?"" [SD para 32]

        It is disappointing, and of significance, that this passage is not quoted in the Sub-Committee's report.

(b)On the correct standard of "beyond reasonable doubt," and indeed on the civil standard of "balance of probabilities," there is simply no prospect of any finding that Lord Taylor entered into or believed that he had entered into an agreement with the lobbyists.

(c)Lord Taylor accepts that the question of whether or not there was an agreement is of course central to an allegation of a breach of the Code of Conduct. The Sub-Committee, however, having realised that there is no real evidence of such an agreement has sought to minimise its significance. Thus the focus turns back to Lord Taylor's "motivation"—and the new allegation of "willingness" formulated by the Sub-Committee.

Lord Taylor's interest in the retail sector

  92.  The Sub-Committee's focus at paragraph 27 of its report on the lack of depth in Lord Taylor's understanding of what "MJA" were supposedly seeking to achieve strongly supports the fact that he had not yet entered into any agreement with them. On the contrary, it logically supports the inference that towards the end of his dealings with the undercover journalists he was really more interested in finding out the truth about them, ie whether or not they were genuine, than he was in the subject matter of the amendment they claimed to seek, of which he had the sketchiest understanding.

Lord Taylor's other explanations

  93.  Lord Taylor acknowledges that his initial reaction to being told by Michael Gillard that he had been the subject of a sting operation was a flustered one. Lord Taylor is an old man and while he had very strong suspicions about the journalists at this stage it was still something of a shock to be told that he was the dupe in a Sunday Times exclusive. Nevertheless, his denial that he ever had meetings with Yvette Cooper and Peter Mandelson are consistent and accurate. Furthermore, Lord Taylor denies that he has made any approaches to anyone or that he entered into any agreement. Lord Taylor repeats his consistent and truthful position in his sworn declaration, as is clear from paragraph 262 of the Sub-Committee's report.

  94.  In his statutory declaration Lord Taylor admits his age and loquaciousness and humbly accepts that he has a tendency to boast at times. He also states that much of what he said to the undercover journalists was loose talk and exaggeration. The Sub-Committee refuses to accept this and at paragraph 264 of the Report it states that "[h]is exaggerations were designed to win a lucrative contract with lobbyists." This is the core of the allegation against Lord Taylor.

  95.  While Lord Taylor was sceptical about the "lobbyists" he was meeting from the start, and while his suspicions about them grew, he nevertheless enjoyed the opportunity to spend time with some bright younger people—and particularly the opportunity to talk about himself and receive admiration for his achievements. Lord Taylor is 79 years old and on the verge of retirement, but he is indeed an active Member of Parliament as the Sub-Committee states. Being a Member of Parliament is not, however, proof against a tendency to exaggerate personal achievements or to ramble on at length.

  96.  Lord Taylor's exaggerations were made in the course of amicable and private conversation—not in the course of hard nosed negotiation as the Sub-Committee implies. They were not designed to deceive those he was speaking to (despite the great lengths they were going to deceive Lord Taylor) but merely to earn himself attention, praise and respect. This is not a breach of the Code of Conduct.

  97.  It is worth noting that at paragraph 202 of its report the Sub-Committee states that Lord Taylor's "conversations with the journalists were so exaggerated and his conduct so irrational that it may well be thought that no genuine lobbyist would have taken much time with Lord Taylor." It is hard to square the exaggeration and irrationality accepted by the Sub-Committee with their conclusion that this was not loose talk but a carefully constructed and deceitful attempt to secure a lucrative contract.

  98.  The Sub Committee goes on in paragraph 264 to say that Lord Taylor "claimed that he had abused his parliamentary influence in the past on behalf of paying clients and he indicated a clear willingness to abuse it in future on behalf of MJA." This is essentially a repeat of the overall allegation made against Lord Taylor by the Sub-Committee investigating him. For the reasons given in his statutory declaration, explained further above, Lord Taylor denies this allegation entirely and denies that he has acted against his personal honour.

Was there a counter-sting?

  99.  Lord Taylor's explanation that he said the things that he did to the undercover journalists because of his desire to "call their bluff and push [them] into giving up their game" is detailed in his statutory declaration and summarised in paragraphs 265 to 268 of the Sub-Committee's report. To an extent this matter has already been addressed in the above submissions on paragraphs 232-234 of the report, but since the Sub-Committee has returned to this issue these submissions will do the same.

  100.  Importantly, the Sub-Committee has failed to acknowledge the importance of Lord Taylor's consistency in his explanation for his actions. Despite concerns over reliance on Michael Gillard's call to Lord Taylor on 23 January, it is of huge significance that Lord Taylor's first reaction, having had no time to "make up" a defence, was that he was seeking to expose whether or not the journalists were genuine. It was plain that he had suspected them. Once again, cross examination of Gillard would have revealed this to be the case. Lord Taylor's explanation remains the same throughout the proceedings—see, for example, his statutory declaration.

  101.  The Sub-Committee makes it clear that it does not accept this explanation, but its reasons for doing so are themselves far from convincing. At paragraph 269 they note that Lord Taylor expresses his willingness to work with the journalists—"I want you to know that I think you're both good young people and I would be delighted to work with both of you" (H2p58). The Sub-Committee adds that in his statutory declaration Lord Taylor comments about this exchange "If only I had known the truth!"

  102.  Lord Taylor has never claimed that he was sure that a trick was being played upon him. As his statutory declaration indicates, Lord Taylor looks for the best in others (and perhaps unreasonably expects the same in return) and to the last he was hopeful that his suspicions were misplaced. If he had known the truth from the start he would have walked away and would not have been dragged through the gutter by the Sunday Times, nor would he be in the position he now finds himself before the Committee.

  103.  However, Lord Taylor's conspicuous and deliberate friendliness towards the two journalists at the end of the second meeting is entirely consistent with the attempts to "draw them out", which culminated in the outrageous claims about meetings with Ministers. In light of Lord Taylor's explanation it would have been more surprising if he had suddenly been cold or hostile.

  104.  In paragraphs 270 to 277 the Sub-Committee concentrates on Lord Taylor's detailed explanation for his claims that he would arrange meetings with, and then had met with, Ministers including Yvette Cooper, Jack Straw and Peter Mandelson. The Committee is invited to note that Lord Taylor has not wavered or altered his story from when the "sting" was first revealed to him in his conversation with Michael Gillard on 23 January 2009, throughout the Sub-Committee's investigation to this "appeal" to the Committee on Privileges.

  105.  After taking such time to set out Lord Taylor's evidence on his attempts to "flush out" the journalists, the Sub-Committee then explains its refusal to accept the story in one short paragraph (278):

"We are not persuaded by Lord Taylor's argument that he was stringing the journalists along ... We do not consider that this story is supported on the evidence. We do not believe that, if he was truly suspicious about the journalists' identity or intentions, he would have been so reckless as to tell them how he would behave as a consultant and to reveal the extent to which he had both broken the Code in the past and was willing to do so in the future. We have concluded that this story is an attempt after the event to justify his actions, and we do not accept it."

  106.  Firstly, it is worth noting that, despite his consistency, the Sub-Committee have misinterpreted Lord Taylor's defence as "stringing the journalists along." This was not what he was doing. He was seeking to raise the game to such a level that he would force the supposed lobbyists to reveal whether or not they were genuine but naive or were fraudsters of some sort.

  107.  More significantly, as will be obvious to the Committee at this stage, the Sub-Committee's conclusion is based on a false central premise—that Lord Taylor was revealing past breaches of the Code and indicating willingness to breach the Code in the future. This is simply not true, and is itself unsupported by the evidence. Lord Taylor admits some exaggeration and loose talk, but the fact remains that the Sunday Times' underhand efforts revealed nothing more than a discussion with potential clients of the way in which Lord Taylor could assist them through providing advice and direction on the way in which they could help themselves.

  108.  Once this essential truth is established, the fact that Lord Taylor told the journalists "how he would behave as a consultant" as well as how he had acted in the past is entirely unremarkable. Despite Lord Taylor's suspicions over the supposed "lobbyists" authenticity, which eventually led him into the realms of deliberately provocative fantasy, there were points at which he took them at face value and genuinely discussed the way in which they could legitimately get their client what he was seeking. Lord Taylor had no reason to hide his methods because there was simply nothing untoward for him to hide.

  109.  What is conspicuous in its absence is any reasonable explanation by the Sub-Committee as to why Lord Taylor told the journalists the outrageous untruths about his meetings with Cabinet members. The suggestion that Lord Taylor had met with these politicians was not only outrageous but also unbelievable—certainly for any genuine lobbyist. As the Sub-Committee itself acknowledged at paragraph 202 of its report Lord Taylor's "conversations with the journalists were so exaggerated and his conduct so irrational that it may well be thought that no genuine lobbyist would have taken much time with Lord Taylor."

  110.  If Lord Taylor had actually been seeking through these claims to negotiate a lucrative contract with "MJA" he would never have suggested anything so unlikely. Lord Taylor's knowledge of the ridiculous nature of these claims is evident from his final telephone message for "David Thompson", after the sting has been admitted, in which he reveals the natural progression of his claim: "I shall be seeing Gordon Brown some time over the weekend and I shall be seeing the Queen on Monday."

  111.  What does the Sub-Committee suggest Lord Taylor was intending to do next? To defraud MJA of large sums of money by creating an elaborate and continuing deceit that he was continually meeting with Government ministers? When MJA spoke to these ministers or some of their staff themselves and found out that they had been deceived would Lord Taylor have jumped on an aeroplane to Rio de Janeiro to live the high life with his ill-gotten gains?

  112.  This is patently nonsense. The only reasonable explanation for such obvious and easy to expose falsehoods is that given by Lord Taylor himself. He was seeking to discover whether these so-called "lobbyists" were bogus by provoking them to "come to the crunch" and to level with him about their client. This is clearly the only way that Lord Taylor's "irrational" behaviour makes any sense—but the Sub-Committee appears to have simply shut its eyes to the truth.

  113.  Crucially, this is in fact the only story that the evidence properly supports. It is supported by the sworn declarations of Lord Taylor and his assistant Janet Robinson, both of whom are entitled to credit for their good character. It is supported by the transcript of the conversation between Lord Taylor and Michael Gillard. It is hinted at throughout the transcripts of the meetings. The evidence simply does not suggest that this was a story concocted after the event.

  114.  While it deplores what it considers Lord Taylor's "clear intention" [para 79], the Sub-Committee fails to give any credit to Lord Taylor's real intention. Without the ability to cross-examine those who seek to condemn him, Lord Taylor was not given the opportunity to defend that real intention.

  115.  It is a basic error on the part of the Sub-Committee that it never considered that the case against Lord Taylor is premature because the Sunday Times brought the sting to an end before he was "on the hook"—unlike the 1994 case (mentioned in the report) where money was actually paid and received. On any fair view there can be no certainty, or even proof to a "very high standard", that Lord Taylor would have gone through with any agreement that would have required him to breach the Code and engage in paid advocacy. Again, in the absence of any cross-examination of the journalists we can't say why the Sunday Times brought its sting to an end at this premature stage—perhaps it thought that Lord Taylor's remarks that "rules are meant to be bent sometimes" was sufficient for its scoop.

  116.  The plain fact remains—and this is a feature of entrapment cases that are thrown out of the courts—that no fair person could be satisfied, particularly in light of Lord Taylor's unblemished record of 30 years' service, that he would have actually transgressed.

B.  PROCEDURAL DEFECTS

  117.  The findings of the sub-committee are vitiated by its failure to act fairly as required by para 19(d) of the code of conduct, by article 6 ECHR and by domestic public law principles.

  118.  Paragraph 19(d) of the very code of conduct under which this appeal is brought confirms that:

"in the investigation and adjudication of complaints against them, members of the house have the right to safeguards as rigorous as those applied in the courts and professional disciplinary bodies."

  119.  From the very beginning of the sub-committee's investigations into the SundayTtimes' allegations against him, Lord Taylor made it clear that he considered the sub-committee's procedures to be deeply flawed and unfair. Attention was repeatedly drawn to para 19(d). Despite giving the sub-committee ample opportunities, the problems identified were never rectified and the "right" in para 19(d) was simply not upheld.

  120.  In addition to its failure to uphold para 19(d), the sub-committee has:

(a) failed to meet its general public law obligation as a decision maker to act fairly and in accordance with natural justice in coming to that decision; and

(b) failed to comply with its obligations as a public authority under the Human Rights Act 1998, which include the duty to act compatibly with the right to fair procedure guaranteed by article 6 of the European Convention on Human Rights.

  121.  The committee will see from correspondence between Lord Taylor's representatives and the sub-committee that despite requests for clarification the sub-committee simply refused to answer whether it considered itself to be a public authority for the purposes of the Human Rights Act 1998. The silence on this point is telling. However, it should be noted that even if the sub-committee falls outside the HRA s6 definition of a "public authority", Lord Taylor is still entitled to enforce his right to fair trial before the European Court of Human Rights.

  122.  The sub-committee owes duties of fairness commensurate with the seriousness of the allegations against those it is investigating. The accusations against Lord Taylor are extremely serious. A finding that they have been substantiated will have profound ramifications for Lord Taylor's continuing membership of the House of Lords, his future work and his reputation after a lifetime of distinguished public service. Significantly his persecutor, the Sunday Times, has been advocating his expulsion from the house.

  123.  Furthermore, the allegations potentially amount to criminal conduct. After being referred to the metropolitan police by Chris Huhne MP, the mps issued a statement on 11 february 2009 in which they confirmed that they "will not undertake a criminal inquiry into any of the allegations raised." However, the statement immediately added: "should any further evidence or information come to light then clearly we will be under a duty to review this decision." Quite plainly, the police will be reviewing the sub-committee's report as soon as it is published and any finding adverse to lord taylor may put him further in jeopardy.

UNREASONABLE CRITICISM OF LORD TAYLOR

  124.  The various procedural defects are summarised below, but before these are dealt with in turn, it is necessary to address the Sub-Committee's allegation at paragraph 22 of the report that Lord Taylor said in the House on 26 January that he "wished to be able to refute the allegations in person before the Sub-Committee" but then "subsequently resiled from that position."

  125.  Lord Taylor did not "resile" from the position stated in the House. He maintained throughout the Sub-Committee's inquiry that he was keen to have the opportunity to put his side of the story before the Sub-Committee. However, he was quite reasonably unwilling to participate in a process that was entirely unfair. A number of requests were made for the unfair nature of the proceedings to be remedied precisely to allow Lord Taylor to act on his desire to give evidence before the Sub-Committee but, as is discussed in greater detail below, the Sub-Committee refused to take the reasonable steps required.

Identification of complaint and complainant

  126.  The Sub-Committee purports, and is obliged, to follow the procedure set out in the Fourth Report of the Committee for Privileges: The Code of Conduct; procedure for considering complaints against Members, HL Paper 205 (session 2007-08). That procedure is predicated on the existence of a "complaint" which the Sub-Committee then investigates.

  127.  In its initial letter to Lord Taylor the Sub-Committee stated that it was undertaking an investigation "in view of the allegations published in the Sunday Times of 25 January." Despite repeated requests from Lord Taylor in subsequent correspondence, the Sub-Committee failed properly to identify both the complainant and the "complaint" that was being investigated. Lord Taylor found it necessary to remind the Sub-Committee that an entitlement to knowledge of the charge against him, before he was required to respond to that charge, was a basic principle of procedural fairness.

  128.  In a letter dated 4 March a series of charges were finally put to Lord Taylor, but it swiftly became apparent that these had been formulated not by any complainant but by the Sub-Committee itself. It was not until 11 March 2009 that Lord Taylor was informed that the Sub-Committee was acting on a response from the Leader of the House of Lords, Baroness Royall of Blaisdon, to the negative stories that had appeared in the press—not any complaint. It is noteworthy that Baroness Royall only claimed to be making a complaint herself on 12 February 2009—more than two weeks after the investigation had begun.

  129.  A full explanation of the nature of the complaint against him was not provided until Lord Taylor was shown a draft of the "factual" section of its report under cover of a letter dated 3 April 2009. This explanation merely highlighted the flawed approach of the Sub-Committee from the very start.

  130.  At paragraph 8 of the report the Sub-Committee states that on 26 January 2009, a 25 January letter from Baroness Royall of Blaisdon was taken "to be a complaint for the purposes of commencing an enquiry into the allegations, and agreed to conduct an investigation." This letter was not, on any sensible reading, a complaint, and in any event Baroness Royall is herself a member of the committee charged with considering complaints against member of the House of Lords. She was in reality passing on the complaint that had been made to the world at large by the Sunday Times.

  131.  Now, in the final report sent to the Committee for Privileges, and seen by Lord Taylor at the same point, the Sub-Committee has itself reformulated the charges against him—accusing him of "willingness" to breach the Code of Conduct.

  132.  Regardless of whether the Sub-Committee was acting as an adversarial court of law (the procedural safeguards of which are explicitly promised in paragraph 19(d) of the House of Lords Code of Conduct) or on an inquisitorial basis, it cannot be for the tribunal itself to create the complaint and formulate the charges against Lord Taylor. The initiation of the action is a matter for the parties not the judge. This is the same even in an "inquisitorial" system such as that adopted in France. The failure to observe this fundamental rule left Lord Taylor in the unacceptable and unfair position that the Sub-Committee was both his accuser and his judge.

Access to evidence

  133.  In addition to being deprived of access to, and knowledge of, the complaint made against him, Lord Taylor was also required to fight tooth and nail throughout the investigation to get hold of the very evidence on which he was being tried.

  134.  Lord Taylor was first asked by the Sub-Committee to respond to the allegations published in the Sunday Times without being provided with any detail of any complaint or any evidence against him. He was later asked again to respond on the basis of a short set of transcripts, prepared by the Sunday Times itself from recordings of Lord Taylor's meetings and telephone conversations with the paper's undercover journalists—or agents provocateurs. It is important to note that from the beginning the Sub-Committee was content to rely on the accuracy of these transcripts.

  135.  After comparing these transcripts with the audio recordings of the meetings/conversations, obvious and alarming gaps and flaws in the Sunday Times transcripts were noted by Lord Taylor's representatives and brought to the Sub-Committee's attention. These included missing exculpatory passages (such as Lord Taylor insisting that he is honest and would not break his oath). These gaps and flaws can only have been deliberately engineered on the part of the Sunday Times. It was only after the completeness and accuracy of these maliciously edited and incomplete transcripts was challenged on Lord Taylor's behalf that the House of Lords Hansard department was instructed to prepare independent transcripts.

  136.  An example of the dishonest nature of the Sunday Times' transcript is not hard to find. Page 8 of the Sunday Times transcript purports to record the end of the first meeting between Lord Taylor and Jonathan Calvert. Rather than transcribing the clearly audible conversation at this point, the transcript simply reads: "Conversation continues as Lord Taylor takes Calvert to the peer's entrance where they part." None of the parting conversation is recorded. In the Hansard transcript, however, from page 15 onwards, this conversation is written down and includes Lord Taylor stating unequivocally that what he would do for a company who engaged his services was to "do all the research and tell you what chances you've got of being successful." Lord Taylor goes on to say "I promise you nothing. That's number one" and to reiterate that his role, if he accepted what was being offered, would be to advise on the likely success of a proposed scheme, and that in doing so he would be "absolutely completely honest with you ... You or your client will make your own mind up after that." This passage is obviously exculpatory and casts a revealing light on the malice of the Sunday Times decision to pursue Lord Taylor for a second meeting after he had clearly resisted their improper blandishments at the first.

  137.  While independent transcripts were finally sent to Lord Taylor's representatives at the beginning of March, these were not complete. The Sunday Times' transcripts of the telephone conversations between Lord Taylor and the journalists on 15 and 21 January were not even provided to the Sub-Committee until 18 March; after which they were forwarded to Lord Taylor. Perhaps significantly, the Sub-Committee had not noticed this gap in the evidence until it was pursued on Lord Taylor's behalf.

  138.  In addition to this selective "drip-feed" of information from the Sunday Times, Lord Taylor was explicitly denied access to evidence relating to the allegations against the other Members of the House of Lords. This material was highly relevant to Lord Taylor's case that he had been subjected to a malicious, unlawful and unfair entrapment by the Sunday Times.

  139.  Even at the point that Lord Taylor was given the very limited final opportunity to comment on the Sub-Committee's statement of facts in its draft report (on 3 April 2009) he was made aware of further relevant evidence to which he had been denied. Indeed, he continues to be denied access to that material. The Committee will note that at paragraph 7 of the Report that the Sub-Committee refers to correspondence received from Ben Wallace MP, and from two members of the public: Keith Pudney and Ian Dixon. Lord Taylor has not had sight of these communications nor been given any opportunity to comment on them. His request for these documents was simply ignored.

  140.  In summary, over the course of the Sub-Committee's investigation the provision to Lord Taylor of the evidence against him has been characterised by delay, a lack of care and unfairness on the part of the Sub-Committee as well as bad faith on the part of the Sunday Times. This has denied Lord Taylor a fair opportunity to answer the allegations against him.

Refusal of representation through counsel

  141.  Paragraph 20 of the Sub-Committee's report makes clear the stark inconsistency between the guarantee of "safeguards as rigorous as those applied in the courts and professional disciplinary bodies" set out in paragraph 19(d) of the Code of Conduct and the Sub-Committee's refusal to allow legal representation before it.

  142.  To be able to defend oneself through legal assistance of one's own choosing is a fundamental right explicitly guaranteed in Article 6 of the ECHR. Lord Taylor was denied this fundamental right on the basis of Standing Order 67:

"67.  A Select Committee shall call such evidence as it may require, but shall not hear parties by Counsel unless so authorised by Order of the House."

  143.  Standing Order 67 explicitly provides that the prohibition on hearing parties by counsel may be removed by Order of the House. Lord Taylor invited the Sub-Committee to make the appropriate motion to seek such an Order, but this request was refused without adequate explanation. By including the potential for exception to its prohibition, Standing Order 67 clearly recognises that in certain circumstances fairness will dictate that representation by counsel is permitted. Had the Sub Committee wished to treat Lord Taylor fairly it was within its power to do so. There is no doubt that the House would have agreed to dispense with the standing order to allow representation by counsel if given the opportunity.

Failure to scrutinise the Sunday Times or allow cross-examination

  144.  In its report, at paragraph 28, the Sub-Committee states that it "was not within our remit to examine the conduct of the [Sunday Times] journalists or issues of entrapment or the undercover use of recording equipment on parliamentary premises." This conclusion was entirely incorrect, and seems to be derived from a fundamental misunderstanding of the relevance of the Sunday Times behaviour. Even if it is not within the Sub-Committee's remit to take independent action against the Sunday Times for its flagrant breach of security and contempt of Parliament, it was undoubtedly well within its remit and indeed, as can be seen from the substantive grounds set out above, vital for it to have considered the impact of the effect on Lord Taylor's mind (and resulting behaviour) of the gradually dawning realisation that he may be the victim of a confidence trick, as well as the question of the admissibility before it of improperly obtained evidence.

  145.  The suggestion in paragraph 28 that Lord Taylor could make a complaint to the Press Complaints Commission is quite obviously completely inadequate. Not only would such a complaint serve no purpose in relation to the allegations that have been made against him, but also the industry-run PCC's lack of independence is widely recognized (see Sir David Calcutt's "Review of Press Self-Regulation" (Cm 2135 (1993)). Indeed, the PCC Code of Conduct was drawn up by Les Hinton, the head of News International in Britain, and Rupert Murdoch's News Corporation pays substantial sums to keep it going and remunerated. It is completely unrealistic of the Sub-Committee to suggest that Lord Taylor's complaints could be fairly or independently heard. This was put to the Sub-Committee before the report was finalised but no response was forthcoming.

  146.  Since the Sunday Times witnesses were at no point called for questioning by the Sub-Committee their cross-examination by Lord Taylor was never even a possibility. The ability to examine witnesses making serious, indeed criminal, allegations against a person is another basic feature of fair procedure that the Sub-Committee ignored. Once again this is despite it being guaranteed by Article 6 ECHR.

  147.  Lord Taylor, in his own statutory declaration and through his representatives, has maintained throughout the investigation that he was the victim of entrapment by agents provocateurs from the Sunday Times (see paras 8 and 9 of Lord Taylor's statutory declaration in particular). An agent provocateur is someone who invites or incites his target to commit and offence he would otherwise never have committed. Significantly, Lord Taylor had shown no disposition to engage in behaviour in breach of the "no paid advocacy" rule. The Sunday Times never revealed the reason why they chose to target him—another matter on which the Sunday Times could and should have been cross examined or, at the very least, questioned by the Sub-Committee.

  148.  Lord Taylor was the victim of a sting operation designed to "create" an offence under the Code of Conduct, and the criminal law, with a view to nothing more than selling more copies of the Sunday Times. As discussed at length above, he Lord Taylor explained in his statutory declaration that the behaviour that the Sub-Committee deems to have been against Lord Taylor's "personal honour," and thus in breach of para 4(b) of the Code of Conduct, was a result of the Sunday Times' attempted entrapment, of which he became increasingly suspicious. This led him to make outlandish claims about meeting senior ministers in order to draw out those he suspected and to discover their true purpose.

  149.  These statements were taken literally by the Sunday Times, but in any consideration of Lord Taylor's mens rea they must be read in terms of his purpose in making them, namely to "flush out" the truth. For this reason, as was explained in a letter to the Sub-Committee dated 12 March 2008, "extracts from the transcript of [Lord Taylor's] meetings with the agents provocateurs ... cannot be understood without exposing the background and context of the confidence trick that they had played upon him." Both taking evidence from the Sunday Times' reporters and permitting their cross-examination was essential to a fair consideration of Lord Taylor's defence to the allegations against him. The result of the failure to allow this is clear from the confused and unsupported findings of the Sub-Committee discussed below.

  150.  The Sub-Committee's refusal to question the Sunday Times witnesses, let alone allow them to be cross-examined, has also denied Lord Taylor any opportunity to properly explore the question of entrapment for the purposes of establishing the admissibility of the evidence against him.

  151.  Whether or not entrapment by private parties gives rise to the same broad abuse of process arguments as entrapment by emanations of the state (see R v Loosely [2001] 4 All E.R. 897), there can be no doubt that it can undermine the fairness of subsequent proceedings. To remedy this potential unfairness evidence obtained through entrapment may be excluded where its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. In criminal proceedings this would be done pursuant to s78 of the Police and Criminal Evidence Act 1984 (PACE) (see Morley and Hutton [1994] Crim.L.R. 919). In these proceedings the Sub-Committee simply turned a blind eye to the whole issue. It is a clear and obvious breach of Article 6 to deny an individual the opportunity to raise the issue of incitement during his trial (see Ramanauskas v Lithuania, Application no. 74420/01, 5 Feb 2008).

  152.  In reality the Sunday Times instigated, and indeed caused, the alleged breach of the Code of Conduct, the Sunday Times was the true "complainant" against Lord Taylor who instigated the Sub-Committee's investigation and the Sunday Times was also the source of all the evidence against Lord Taylor. In this context, shielding the Sunday Times from all inquiry and investigation, granting it complete impunity, unfairly prevented Lord Taylor being able to defend himself properly before the Sub-Committee. It also indicated an unfortunate bias on the part of the Sub-Committee in favour of the Sunday Times and against Lord Taylor.

  153.  In its report the Sub-Committee gives the excuse that its desire to keep the proceedings "informal" enables it to override the fundamental safeguards of legal representation and proper testing of evidence through cross-examination. In the circumstances, and given the potential damage to Lord Taylor, this approach was wrong in law and unjust.

  154.  In any event, it is inaccurate to suggest that legal representation and questioning of witnesses by the parties is not consistent with an inquisitorial process. In European jurisdictions where an inquisitorial model is preferred to an adversarial system, persons under investigation are entitled to be represented by counsel, who are able to ask questions of witnesses. This is guaranteed by Article 6 ECHR.

  155.  Various particular areas in relation to which cross-examination was necessary to test and improve the evidence are discussed in the substantive grounds above. In summary these include:

(a) Lord Taylor's disputed recollection that "jobs for the North West" were referred to by the Sunday Times journalists;

(b) The Sunday Times decision to pursue Lord Taylor—why did they target him at first and why did they pursue him after he walked away from the first meeting?

(c) Whether Lord Taylor's references to "you", "you", "you" [eg H1 p11] were in reality understood to be references to what he could do, as the Sub-Committee finds;

(d) Whether Lord Taylor's exaggerations were understood to be devious lies or simply a "tradesman's puff";

(e) The consistency of Lord Taylor's account that he was seeking to "draw out" the lobbyists to see if they were fraudsters;

Incorrect standard of proof

  156.  At the beginning of its investigation the Sub-Committee referred Lord Taylor to "The Code of Conduct; procedure for considering complaints against Members", which indicated that the Sub-Committee intended to apply the civil standard of proof to its investigation. Lord Taylor was obliged to inform the Sub-Committee that such a standard of proof was not suitable and that the appropriate standard of proof in comparable disciplinary proceedings was the criminal standard: beyond reasonable doubt. The Sub-Committee was referred to In re A solicitor [1992] 2 WLR 552, which made clear that the criminal standard of proof applies in disciplinary proceedings where what is alleged is tantamount to a criminal offence.[15] This approach was more recently endorsed by Lord Mustill in his inquiry into allegations of misconduct by the Chief Justice of Trinidad.

  157.  To some extent the Sub-Committee appeared to have taken these submissions on board: in paragraph 19 of its report the Sub-Committee recognized the seriousness of the allegations against Lord Taylor and his co-accused and "accordingly decided to apply a very high standard of proof." Inexplicably, however, the Sub-Committee nevertheless concluded that a standard "falling just short of the criminal standard" was appropriate.

  158.  Once the seriousness of the allegations against Lord Taylor was recognized the only possible conclusion was that the correct standard must be proof beyond reasonable doubt, ie the criminal standard.

  159.  In any event, it was and remains far from clear what a standard "falling just short of the criminal standard" actually means, or how it could be applied in practice. The judgment of Lord Lane in In re A Solicitor warned of adopting a standard somewhere between civil and criminal:

"It seems to us, if we may respectfully say so, that it is not altogether helpful if the burden of proof is left somewhere undefined between the criminal and the civil standards. We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, to put it another way, proof beyond reasonable doubt."[16]

  160.  More recently, in Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35 and In re D (Secretary of State for Northern Ireland intervening) [2008] UKHL 33 the House of Lords has made it clear that there is just one standard of proof in civil proceedings, and that a heightened standard must mean the criminal standard of proof. In the former case Lord Hoffman confirmed:

"13 ... I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case, at p 812, that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard."

  161.  It is clear that it is no longer appropriate to claim that a "heightened" civil standard of proof has been adopted. This was put to the Sub-Committee in advance of it formally concluding its report. It thus had the opportunity to apply the correct criminal standard of proof to these proceedings, but chose not to do so. This alone is a sufficient and indeed necessary basis for an appeal.

Bias

  162.  Despite the serious nature of the allegations against Lord Taylor and the potential penalties he faced if found guilty, the Sub-Committee carried out its interrogation of the accused entirely in private. This enabled one of its members or officials to leak details of its work to the Sunday Times (possibly for reward)—a newspaper that had a vested interest in persecuting Lord Taylor, and in seeing him condemned as that would justify its own condemnation.

  163.  Lord Taylor was reminded by the Sub-Committee on more than one occasion of paragraphs 15 and 16 of the 4th Report from the Committee for Privileges: The Code of Conduct: procedure for considering complaints against Members, HL Paper 205 (Session 2007-08) by which the Sub-Committee "is bound":

15.  owever, from the point that the Sub-Committee decides to undertake an investigation all evidence and correspondence relating directly to the inquiry is covered by parliamentary privilege. It must remain confidential unless and until it is published by the Committee for Privileges. evidence or correspondence were to be published or disclosed to anyone else without the Committee's agreement, this would be a contempt of the House Any attempt to obstruct an investigation may also be treated as a contempt.

16.  However, material that is made public or has previously been made public (for instance newspaper articles or statements made to the media) would not be covered by parliamentary privilege and would be unlikely to attract privilege at common law. The Committee for Privileges strongly deprecates the making of statements to the press by any of the parties to an investigation while that investigation is in progress, and will take any attempt to use an investigation to generate publicity into account when considering a complaint.

  164.  On 5 April 2009 the Sunday Times published the story "Lords for Hire May Be Suspended." It reported from "sources close to the committee" that the Sub-Committee would find against two peers and that Lord Taylor had refused to attend without legal representation. We complained of this leak to the Sub-Committee but no action was taken against the newspaper.

  165.  On Saturday 25 April 2009 we warned the Sub-Committee that the Sunday Times had obtained a copy of the draft report concerning Lord Taylor from "sources close to the sub-committee" and was planning another "scoop" in flagrant breach of confidence and parliamentary privilege. The Sub-Committee was invited to injunct the paper. There is no doubt that any judge would have granted that injunction. However, it was decided not to inconvenience News Ltd by stopping their unlawful front page story. In consequence, the leak was published on the front page of the Sunday Times on 26 April 2009: "Guilty Peers face a Year's suspension", boosting the newspaper's circulation and News Ltd's profits.

  166.  Lord Taylor is reluctant to believe that the Sub-Committee has been biased against him in its investigation. Unfortunately, particularly when taken together with the refusal to question or allow questioning of the Sunday Times in relation to the conduct of its undercover journalists, the fact that the Sunday Times subsequently has been given free rein to flout confidentiality and Parliamentary privilege, in clear breach of the Sub-Committee's own guidance, evinces a bias in favour of that newspaper, and a preference for covering up its misdeeds.

Opportunity to comment on findings against him

  167.  A final flagrant breach of procedural fairness took place when the Sub-Committee refused Lord Taylor the opportunity to respond to the findings it had made against him before its report was sent on to the Committee for Privileges.

  168.  Principles governing the fair procedure for public inquiries were established by Lord Salmon in the 1960s (the "Salmon principles"—see Cmnd 2152 (1963) and Cmnd 3121 (1966)). One basic principle is that where an inquiry makes findings that are adverse to an individual, that individual must be provided with those findings so that they may comment on them prior to the inquiry's report being finalized. The standard method for drawing criticisms to the attention of those subject to them is by sending what has come to be known as a "Salmon letter" setting out every criticism and inviting them to contest the basis for the finding.

  169.  This principle remains central to fair procedure. During the Matrix Churchill Inquiry in the early 1990s the Salmon principles were reviewed by Scott LJ, and in his Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (HC 115 (1995—6)) he confirmed that:

"(iii) proposed criticisms should be drawn to the attention of the objects of the criticisms so that they can, if desired, make representations or offer additional evidence in response before the criticisms become final"[17]

  170.  It is thus obvious that the Sub-Committee's decision to give Lord Taylor an opportunity to comment only on "matters of fact", which in fact meant only the section of the report that is now paragraphs 1 to 38 (then 1 to 36), before the report was finalised was completely unacceptable. As a result, Lord Taylor now finds himself facing for the first time what are essentially new allegations of "willingness" to breach the House of Lords Code of Conduct (see below for further discussion).

  171.  This means that Lord Taylor was never told of the true nature of the charges against him, and as a consequence has never had an opportunity to answer those charges before now. Thus far from being an appeal, this is effectively Lord Taylor's first opportunity to meet the charges against him. Furthermore, Lord Taylor is facing allegations from the very "independent" body that is meant to be investigating his conduct.

CONCLUSION

  172.  The Committee is asked to reject the findings of the Sub-Committee for the following reasons:

(a) Following receipt of the Sub-Committee's report Lord Taylor is now facing for the first time allegations against him formulated by the Sub-Committee itself.

(b) Because it is acknowledged by the Sub-Committee that Lord Taylor has not breached the Code of Conduct except to the extent of a "willingness" to breach the Code, which does not itself amount to a breach of paragraph 4(b) of the Code.

(c) "Personal honour" imposes a standard that is insufficiently certain and foreseeable to permit a finding of breach.

(d) Lord Taylor is not and never has been willing to breach the Code, and the evidence clearly establishes that such willingness was never expressed to the undercover journalists.

(e) Lord Taylor was denied a fair hearing before the Sub-Committee, in breach of basic principles of natural justice, Article 6 ECHR and the Code of Conduct itself.

(f) In particular, Lord Taylor was never given an opportunity to challenge his entrapment by the Sunday Times.

(g) This sting operation was brought to an end prematurely, before Lord Taylor had breached the Code of Conduct and in circumstances where, on all the evidence, a fair minded person, in the light of Lord Taylor's past character and conduct, would judge it most unlikely that he would have done so had the pretence continued.

  Yours sincerely

  Finers Stephens Innocent LLP

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15   It should be recalled that the allegations against Lord Taylor were referred to the police for investigation, and that the potential for action by the police remains extant. Back

16   This paragraph was quoted approvingly by the Privy Council in Campbell v Hamlet [2005] UKPC 19. Back

17   See para K1.6. Back