The conduct of Lord Lester of Herne Hill Contents

Annex 3: Papers relating to the Appeal

Lord Lester’s Grounds of Appeal

Introduction

1.The Parliamentary Commissioner for Standards has upheld a complaint of sexual harassment, corruption and grave abuse of power against Lord Lester, arising out of events said to have occurred [REDACTED—over a decade] ago, allegations that he strongly denies.

2.The complainant’s allegations, in summary, were that Lord Lester had “sexually harassed” her in [REDACTED—over a decade ago], offered her a “corrupt inducement to become his mistress” and warned her of “unspecified consequences if she did not accept his offer”.3 As the Commissioner correctly recorded, the complainant informed the press of her allegations long before she complained to the Commissioner.4

3.This is the first time the House of Lords’ Code of Conduct5 has been used to investigate a complaint of sexual harassment. The Commissioner decided to proceed with the investigation using a Code that is designed to enforce transparency in Members’ financial and personal interests, and which does not contain any Rule of Conduct covering sexual harassment or the other alleged misconduct.6 It provides a procedure which requires natural justice but has widely been recognised (including by the Senior Deputy Speaker of the House) as being unsuitable and unfair to resolve complaints of this nature and gravity, even in relation to complaints made within its three-year limitation period.7 For one thing, the Code does not expressly provide for cross-examination and legal representation.8

4.The Sub-Committee on Lords’ Conduct agreed with the Commissioner that the investigation should proceed, without giving Lord Lester an opportunity to make any observations on the fairness of doing so.9 The Sub-Committee was informed, incorrectly, that the allegations related to events between [REDACTED] and [REDACTED] years ago (the complaint relates to events said to have occurred in [REDACTED—over a decade ago], [REDACTED] times the normal limitation period).10

5.The Commissioner published Lord Lester’s name and the fact that he was being investigated for a breach of “personal honour” on her website without permitting him to comment, with the result that the Press published the fact of the investigation.11 A subsequent leak (the source of which the Commissioner would not investigate) led to publication of the allegations in the Sun and The Times, shredding Lord Lester’s reputation while the complainant remained anonymous.12

6.As a result of the Commissioner’s findings and the particular factors she asked the Sub-Committee on Lords’ Conduct to take into account in considering penalty, the Sub-Committee decided that Lord Lester should be expelled from the House of Lords forever.13 The Sub-Committee considered that their role was not to question any of the Commissioner’s findings and conclusions; that is for this Committee.14

7.This would be the first and only time any Member has been expelled from the House of Lords. The Sub-Committee applied the most extreme penalty available, and did so retrospectively; the power to expel was not in existence at the time of the alleged events.15 Parliament intended it to be invoked only for the most egregious conduct.16

8.The Sub-Committee permitted the investigation to proceed on the express understanding, as provided in the Code, that the Commissioner would apply the basic principles of natural justice.17 This was crucially important given the difficulty of fairly resolving complaints brought [REDACTED—over a decade] on. For example, natural justice dictates that the burden of proof should be squarely on the complainant, only to be discharged on the basis of strong and cogent evidence, proving each of the key allegations, and that the evidence relating to each of the key allegations is tested rigorously and thoroughly.18

9.As explained below, these basic principles of fairness were not observed. The result was that the Commissioner’s investigation, and the conclusions she drew, were made as a result of a seriously flawed approach.

10.Annexed to these Grounds is a legal opinion prepared by David Perry QC and Rosemary Davidson. Mr Perry advised Parliament in July 2018 on the proposed Independent Complaints and Grievance Policy.19 Lord Lester asked him to consider the Commissioner’s Report and provide his views as to whether the investigation, analysis of the evidence and conclusions were fair and accorded with principles of natural justice. Mr Perry’s independent opinion is that it did not do so. The Committee is invited to read that opinion in full.

Natural Justice and Fairness

11.The Code of Conduct requires the Commissioner, the Sub-Committee and the Committee to “act in accordance with the principles of natural justice and fairness”.20

12.As Mr Perry explains further in his opinion, where a person faces grave allegations of misconduct turning on disputed evidence as to veracity and credibility, with potentially serious adverse consequences for the alleged wrongdoer (in disciplinary or similar proceedings) fairness demands that the person concerned has a right to cross-examine witnesses. In R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin),21 Stadlen J reviewed the authorities [84] and concluded that “fairness requires that in disciplinary proceedings a person facing serious charges, especially if they amount to criminal offences which if proved are likely to have grave adverse effects on his or her reputation and career, should in principle be entitled by cross-examination to test the evidence of his accuser(s) where that evidence is the sole or decisive evidence relied on against him.” There would have to be “compelling reasons” why cross-examination would not be permitted [108(viii)].22

13.The right to cross-examine a witness implies a concomitant right to legal representation, particularly where it would be inappropriate for the alleged wrongdoer himself to question a complainant: R (SS) v Knowsley NHS Primary Care Trust [2006] Lloyds Med Rep 123 per Toulson J at [86]; Kulkarni v Milton Keynes NHS Foundation Trust [2010] ICR 101, per Smith LJ at [67].23 It is clear that the requirements of natural justice may apply with equal force in parliamentary disciplinary proceedings: Demicoli v Malta (1992) 14 EHRR 47.

14.In this case, natural justice demanded that Lord Lester be given the opportunity to cross-examine the complainant and her supporting witnesses through his legal representative, or at least that the Commissioner should do so in her inquisitorial capacity. The complaint alleged grave allegations of sexual misconduct and abuse of power relating to events occurring almost [REDACTED—over a decade] ago which, if proved, would have the most profound negative consequences for Lord Lester. The complainant’s evidence was critical. Lord Lester raised the necessity for cross-examination with the Commissioner on a number of occasions, but no cross-examination was permitted.24 He was not aware of how flawed the Commissioner’s approach to the evidence had been until he received a copy of her report.

15.The Guide to the Code of Conduct states at [127]: “Nor do members accused of misconduct have any entitlement to cross-examine complainants ...”. This means that the Code does not give a general right to cross-examine. But it does not mean that cross-examination is precluded even where fairness so requires, still less that there should be no other rigorous testing of the evidence. Any such approach would mean the Guide would conflict with, and frustrate, the Code of Conduct at [21].

16.If members and their representatives are not permitted to cross-examine, it is essential for the Commissioner to do so in her inquisitorial capacity. As further explained below, she did not do so, nor did she conduct any rigorous testing of the evidence.25

The Commissioner’s approach

17.The Commissioner’s approach to resolving the complaint was as follows.26 The Commissioner asked herself whether Lord Lester had given the Commissioner any reason why the complainant would have made these allegations, if they were not true. The Commissioner concluded that he had not given a reason why the complainant would have made these allegations. The Commissioner took the same approach to the complainants’ witnesses; because Lord Lester had not suggested a “conspiracy”, she accepted their evidence and considered that she did not have to analyse the inconsistencies and discrepancies between their accounts.27

18.On that basis, the Commissioner concluded that the complainant must be telling the truth:

“As I could not think of any plausible reason why the complainant would make detailed but untrue allegations about Lord Lester, and take no further action for many years, I considered that she was more likely than not to have been telling the truth when she spoke to her witnesses and complained to me.”28

19.For the same reason (i.e. because the Commissioner said Lord Lester had not explained why the complainant had made the complaint if it were untrue) the Commissioner considered that it followed that she did not have to consider each of the allegations in detail. Instead, since the Commissioner thought that “something of concern took place” [REDACTED—over a decade] ago, she considered herself “bound to accept” the complainant’s entire version of events on all allegations: She said:29

“171. This is not a case where I have to examine in great detail each of the allegations made by the complainant, as there is no suggestion that the complaint arises from any misunderstanding between the complainant and Lord Lester or any misinterpretation of remarks made by Lord Lester...

“172. I conclude from this that if I find, on the balance of probabilities, that something of concern took place between Lord Lester and the complainant that led the complainant to share her concerns with others at the relevant time, I am bound to accept her account of events, as no alternative is given, other than that the events did not happen.”

Serious flaws in the Commissioner’s approach

20.The Commissioner’s approach is seriously flawed and will result in grave injustice unless it is overturned by this Committee. This appeal to the Committee for Privileges and Conduct is Lord Lester’s last domestic remedy, and the only remedy that might preserve what remains of his reputation.30

21.First, finding against Lord Lester on the basis that neither he nor the Commissioner could prove the complainant’s motive in making the complaint reverses the correct burden of proof and violates the presumption of innocence. It starts from the position that the complainant is telling the truth, which has been repeatedly recognised to be an unlawful approach.31 It results in the same finding of guilt whether the respondent is guilty or not guilty, if he cannot prove a motive that by definition is not his to know. This is particularly unfair in the context of a procedure that does not involve cross-examination and where it is therefore impossible for the respondent or his representative to probe possible motives.

22.As Mr Perry’s opinion notes, the Commissioner’s approach is analogous to the heavily criticised and now discredited policy of the Police to “believe” victims who report allegations of sexual abuse unless there is contrary evidence. Sir Richard Henriques, in his review of the Metropolitan Police’s investigation known as Operation Midland32 concluded that:

“In cases of sexual allegations, and in particular non-recent cases, there are mostly only two versions of the facts; the complainant’s and the suspect’s. When a complainant gives a straightforward account of sexual misconduct, with no variation or inconsistency, the present policy requires an officer to believe it unless there is ‘credible evidence to the contrary’. That is a simple reversal of the burden of proof.”

23.Second, the Commissioner’s approach ignores the obligation on the complainant not only to discharge the burden of proof, but to discharge it on each of the key allegations on the balance of probabilities, with strong and cogent evidence.33

24.The question should have been whether, considering all the evidence in detail, the burden of proof was discharged in relation to each allegation to the requisite standard. By considering that if the Commissioner accepted that “something of concern took place” (whatever that means) she was bound to accept the totality of the complainant’s allegations, the Commissioner short-circuited the need to consider whether the complainant had proved each of the key allegations to the required standard of proof.34 Indeed the Commissioner’s view was that “this is not a case where I have to examine in great detail each of the allegations made by the complainant”.35

25.Third, in any event, the Commissioner’s approach was premised on the mistaken view that Lord Lester’s position was that the complainant and her witnesses were lying about everything36. In fact, Lord Lester expressly disavowed this position:

(a)He said “I am not saying it is all untrue”, but it was “extremely hard” for him to give a “fair answer” to the question of whether the complainant and her witnesses were dishonest.37

(b)He could not say that the complainant was making everything up. He expressly recognised that something must have happened that caused the complainant great distress and had caused her to speak to the associates at the time.38

(c)He explained that “I do not know why the complainant acted as she did in making her complaint against me and going to the press. It is inappropriate to speculate”.39

(d)It was only when pressed by the Commissioner that he expressed the view that the complainant and her witnesses might be lying.40 However, for the reasons explained above, he had previously made it clear that that was not his position, or that it was a conclusion that he could not properly reach, since he could not remember with any accuracy what had occurred.

26.Fourth, the Commissioner’s view that she was bound to accept all of the allegations, even the most serious, if she considered that “something of concern” had happened, meant that she did not test the evidence rigorously relating to each allegation before deciding whether or not to accept it.

27.Witness evidence was a key part of the case; it had to be vigorously tested if there were any question of a finding that one or other person was lying. Since the procedure the Commissioner adopted did not include an opportunity for Lord Lester and the complainant to test the evidence themselves, it was incumbent on the Commissioner to perform this role herself. She did not do so, whether in relation to the complainant, her supporting witnesses, or Lord Lester.

28.The Commissioner did not regard the interviews she conducted with witnesses as an opportunity to test their evidence or put to the witnesses the inconsistencies and weaknesses in their evidence, or the evidence that was obviously inconsistent with their accounts. She said the purpose of her interview with Lord Lester was rather “to discuss aspects of his statement to give him the opportunity to tell me anything else that he thought was relevant”.41 Her interview with the complainant was “to discuss points made by Lord Lester”.42 The Commissioner did not interview the complainant’s four witnesses at all (she spoke to T on the telephone).

29.The Commissioner tested credibility by searching for publicly available information as to the witnesses’ truthfulness rather than by cross-examination.43 She did not challenge or probe their version of events. Lord Lester expressed surprise that key events of the complaints were not even put to him: “I was interviewed by her for an hour without challenge to the key aspects of my evidence. I had expected, for example, to be questioned at least about the central allegation that I offered to get the complainant a peerage if she had sex with me. But the subject was not mentioned”; “My denial was not challenged or probed or tested”. 44

30.The Commissioner decided on several occasions that she did not need to put critical allegations or inconsistencies to the witnesses. Even where Lord Lester pointed out discrepancies between the statements from the complainant, and points that could not be true45 the Commissioner said she did not need to put these issues to the witnesses because “they had already asserted the truthfulness of their evidence and Lord Lester’s response did not contain any factual material to which a response should be sought”.46

31.As Lord Lester stated, “if I were to be disbelieved, it could only be fairly on the basis of my evidence and credibility having been tested by cross examination. The same is true as regards the claimant”.47 Yet the Commissioner’s Report, based on this fundamentally flawed approach, found Lord Lester to have been dishonest in his account without ever putting this to him. The Commissioner noted that had he acted in the manner alleged, he would have remembered doing so; she said it was likely that he would remember these events if they had taken place “because of the nature of the alleged misconduct”.48 Lord Lester was clear that he did not remember acting in this manner, yet, despite his denial, the Commissioner found that he was guilty without putting to him her conclusion that that he must therefore be lying about his recollection.

32.Fifth, the Commissioner’s approach meant that even though she noted that other explanations were possible for the complaint and the witness evidence (other than their accuracy), she declined to investigate the many possible reasons why the complainant’s account could have been inaccurate.49 For example:

(a)the complainant could have contacted the witnesses because she had misunderstood Lord Lester’s behaviour;

(b)the complainant might have been mistaken in what she believed had happened;

(c)some (even if not all) of the allegations might have been exaggerated or imperfectly remembered [REDACTED—over a decade] on;

(d)the complainant might have been influenced by her distress and suffering as [REDACTED], and/or by resentment that she felt herself supplanted by S.

(e)the complainant’s recollection may have been coloured by political differences with Lord Lester, such as their disagreement over whether the [REDACTED—parliamentary business] should [REDACTED], and the lack of credit her organisation received [REDACTED] when compared to similar groups such as [REDACTED] (see the comments of [REDACTED]).50

33.Sixth, the Commissioner’s approach, summarised above, led her to place no or plainly insufficient weight on evidence that was obviously inconsistent with the complainant’s allegations. The following are several examples among many more.

a) Emails and book dedications

34.The complainant’s personal handwritten inscriptions in the books she gave to Lord Lester at the time of the alleged events, and the contemporaneous emails she sent him, are strikingly inconsistent with her allegations and consistent with Lord Lester’s account (see the copies annexed). This is strong and compelling evidence because it is contemporaneous and objective, and does not rely on recollections [REDACTED—over a decade] on:

(a)The first inscription was written by her on [REDACTED] at a book signing, a week after the alleged sexual assault at Lord Lester’s house. It states: “Antony [sic] Thank you so much for your love and support. It has been my pleasure to meet you. Love and admiration.”51

(b)The second inscription was in a copy of the complainant’s second book sent to Lord Lester as an unprompted gift around the time of its publication in [REDACTED—around 30 months after the Herne Hill events]. It says: “Anthony I share this book with you & hope it continues to inspire you. I thank you for all your support with our cause and send you love and respect. Best [signature]”.52

(c)On [REDACTED—around seven weeks after the Herne Hill events], the complainant forwarded to Lord Lester an email from a victim of [REDACTED] and wrote to him the following message:53

“How sad are the lives of [REDACTED]? Please read this, I have offered her my hand of friendship and will meet her one day soon. We need to develop a ‘Friendship Network’ for [REDACTED]!

Will you help me achieve this goal for [REDACTED]?

Lots of lovexx”

35.The complainant brought none of these to the Commissioner’s attention. The books were produced by Lord Lester and the email by S.54

36.Lord Lester pointed out that these messages are impossible to reconcile with the complainant believing she had been harassed, assaulted, threatened and demeaned by him so recently before.55 The Committee is invited to read them.

37.The complainant provided the following explanations, none of which was tested by cross-examination or otherwise, though plainly they should have been:

(a)The complainant stated that Lord Lester had requested that she sign the first book with love and she did so “under… pressure” when she was “disconcerted and intimidated by his behaviour”.56 She also offered the differing explanations that she “did what seemed best at the time”, “tend[s] to write such dedications in flowery language” and that “[i]t is the case that I did admire the work that he had done”. These different and apparently inconsistent claims obviously required cross-examination if there was any question of believing them; the far more likely explanation was that the complainant had not been sexually harassed and threatened a week before signing the book in these terms and was grateful to Lord Lester for his support at her book launch in [REDACTED].

(b)The complainant’s explanation for the second book inscription was that her publishers had a list of recipients for complimentary copies and that, despite Lord Lester’s previous conduct towards her, she still respected his work on the [REDACTED—parliamentary business] and, in any event, had a habit of writing affectionate dedications.57 She further states that she “would have worked with the publishers in the circulation of pre-publication copies” and that at that stage she had decided to “get on with her life”. Again, this explanation demanded cross-examination given the nature of the allegations; the second inscription is extremely difficult to reconcile with the complainant’s account of harassment and threats and, even on the complainant’s account, was not written under any alleged “pressure”.

(c)The email was written only a few weeks after the alleged harassment and threats and the complainant explained it as being consistent with her usual style of sign-off.58 She also stated that at that time “I had made up my mind that I was not going to complain” and that “getting on with things as an advocate was my way of coping”. Again, this explanation should have been properly tested given that the affectionate tone and sign-off are not consistent with the allegations. The fact that the sign off was similar to her “usual” sign off is precisely the point; Lord Lester was not, on the complainant’s account, a person to whom she would have been likely to have adopted her usual friendly sign off given what she says had happened so recently before.

38.S’s evidence as to the complainant’s manner towards Lord Lester is similarly inconsistent with the complainant’s allegations. S said that at a meeting in [REDACTED—around two months after the Herne Hill events] the complainant appeared “to be warm towards Lord Lester, smiling, and comfortable in his company, but a bit frosty towards her”.59 The complainant’s explanation of this meeting was that “I did not wish to draw attention to anyone (this situation)” and that “my behaviour was my way of dealing with this situation and I was not going to turn down an event with an opportunity to advocate on these issues because of [Lord Lester]”.60 However, while this might explain why the complainant attended the relevant event or did not refuse to speak to him, it does not explain why she appeared warm, smiling and comfortable in his company. Again, this was an explanation which should have been tested but was not.

39.The Commissioner did not conduct any critical analysis of these matters. In addition to the points set out above:

(a)She did not consider the significance of the chronology (see paragraphs 41 to 50 below) and how to reconcile the first inscription with the complainant’s allegation of sexual assault and abuse of power in the preceding week. The chronology reveals that the alleged harassment and threats occurred on [REDACTED—date of the Herne Hill events] and in the subsequent days; and that the book launch was on [REDACTED—eight days after the Herne Hill events]. The proximity in time between the events makes it even more implausible that the complainant would have written an affectionate inscription had the complaint been true.

(b)She did not consider the contradiction between the complainant’s account of being pressurised to sign the first book “with love” and the expansive message she in fact wrote; and the very similar inscription that appeared unprompted in the second book. Indeed, the Commissioner took the view that the complainant wrote the second inscription because she was keen to keep Lord Lester’s favour to advance her project: Report [194]. However, the second inscription (in the complainant’s second book published in [REDACTED]) was written long after work on the [REDACTED—parliamentary business] had ceased. The Commissioner did not appreciate this point or put it to the complainant.

(c)The Commissioner noted that the complainant frequently and generally used affectionate sign-offs with professional contacts and therefore “no adverse inference can be drawn”: Report [80], [118], [196-7]. But the complainant does not allege they made inappropriate advances, inducements and threats prior to her sending emails to those people. It is highly unlikely that the complainant would have used such affectionate language towards someone that had harassed, assaulted, threatened and demeaned her just days beforehand.61 There plainly should have been an adverse inference.

(d)The Commissioner did not test the complainant’s account of the [REDACTED—around two months after the Herne Hill events] meeting nor why she appeared to a neutral observer to be warm, smiling and comfortable in Lord Lester’s company.

40.There are additional emails (copies of which are annexed) concerning Lord Lester’s relationship with the complainant which are inconsistent with the complainant’s version of events and which cast serious doubt on the accuracy of her allegations:62

(a)On [REDACTED—seven or eight days after the Herne Hill events], at Lord Lester’s request his PA (Evie Jamieson) arranged for the complainant to be able to sit “below-the-bar” at the [REDACTED—parliamentary business] on [REDACTED—11 days after the Herne Hill events] (as a guest of Lord [REDACTED] as Lord Lester already had two guests attending). She had previously been on his list of invitees for the South West Gallery. This contradicts the complainant’s allegation that Lord Lester excluded her from meetings.

(b)On [REDACTED—17 days after the Herne Hill events], Kate Beattie, a legal researcher at the Odysseus Trust, wrote to the complainant passing on help and advice from Lord Lester. The email suggests that Lord Lester continued to be supportive of the complainant on this date. Again, this is at odds with the allegation that she was excluded.

(c)In [REDACTED—around four months after the Herne Hill events], Lord Lester wrote to the complainant to let her know that he would write a letter in support of her application for a grant. This (and the fact that Lord Lester subsequently did so) indicate an ongoing friendly and supportive relationship inconsistent with the threats the complainant alleges Lord Lester made, and the other allegations.

b) Chronology

41.The correct chronology is inconsistent with the complainant’s case but, although the Commissioner was aware that the complainant had been wrong about the dates, she did not appreciate their significance. The correct chronology is annexed.63 Lord Lester draws the Committee’s attention to the following three points.

42.First, the complainant alleged that the events in Herne Hill took place at the end of [REDACTED] or [REDACTED—dates around two or three months before the now accepted date of the Herne Hill events] following her first meeting with Lord Lester at the House of Lords on the same date.64 Further, that following the incident at Lord Lester’s home, and the complainant’s subsequent conversation with Lord Lester at the House of Lords, but before her appearance on [REDACTED—media event] with Lord Lester, he excluded her from meetings concerning the [REDACTED—parliamentary business] over the course of at least “a few weeks”.65 She claimed that her exclusion was so obvious that A contacted her about it.

43.The Commissioner accepted this allegation (Report [202]). It was of critical importance because it amounted, in the Commissioner’s view, to an abuse of power (Report [22]). The Sub-Committee identified it as part of the “gravamen of the complaint” which justified expulsion (see their report [13]).

44.However, the correct of events, taking place over 8 days in [REDACTED], which the Commissioner began to appreciate66, showed that this allegation was not true. Lord Lester’s first interaction with the complainant was not in [REDACTED] but when she emailed Kate Beattie on [REDACTED—around two months before the book launch] to ask Lord Lester to attend the launch of her book on [REDACTED—around eight days after the Herne Hill events].67 At this point the complainant was a stranger to Lord Lester and was asking for a favour. The events in Herne Hill took place on [REDACTED].68 The [REDACTED—media event] took place on [REDACTED—six days after the Herne Hill events].69 There were no meetings between [REDACTED—date of the Herne Hill events] and [REDACTED—date of the media event] from which the complainant could have been excluded, still less a period of at least “a few weeks”;70 indeed on [REDACTED—two days after the Herne Hill events], Lord Lester was in Strasbourg for a hearing before the European Court of Human Rights (see further below).71 Lord Lester pointed out repeatedly to the Commissioner that the allegation that he excluded the complainant from meetings was untrue. He was correct, as the evidence shows. No witness to whom the Commissioner spoke recalled any such conduct by Lord Lester or provided any evidential support for this allegation. Importantly, the witness A, whom the complainant says contacted her about her absence from meetings, does not corroborate her account.

45.The Commissioner noticed the date inconsistency and accepted that the proper chronology was that the events at Herne Hill occurred on [REDACTED] and [REDACTED—media event] was on [REDACTED—six days after the Herne Hill events]. The Commissioner raised the issue with the complainant but did not receive a full or proper explanation: Report p. 168. Accordingly, shortly before finalising her report, the Commissioner was in possession of information which showed that:

(a)the complainant’s claim to have been excluded from meetings over several weeks was incorrect;

(b)the correct chronology and sequence were inconsistent with the complainant’s allegation;

(c)the complainant had no satisfactory explanation for the inconsistencies;

(d)there was no supporting evidence for the allegation of deliberate exclusion.

46.Second, the proximity in time between Lord Lester’s first meeting with the complainant and the events at Herne Hill also casts doubt on the veracity of the complainant’s allegations. Lord Lester’s recollection as described to the Commissioner was inaccurate but, as a result of searching old diaries and emails after receiving the Commissioner’s report, the true position has been established: Lord Lester first met the complainant on [REDACTED—four days before the Herne Hill events] when she came to his chambers and told him of her experience.72 The complainant’s stay at Herne Hill was on [REDACTED]. The notion that Lord Lester – within 4 days of meeting the complainant for the very first time – made serious sexual advances towards her and told her that he loved her is even more unlikely. It is also inconsistent with complainant’s account that they first met in [REDACTED—around 10 months before the Herne Hill events] and that there were subsequently a series of meeting at which both were present.73

47.Third, the complainant’s account of what occurred the morning after her stay in Herne Hill is also inconsistent with the chronology. According to the complainant, she and Lord Lester left in a taxi for the train station so that she could catch her train to [REDACTED] and Lord Lester continued his advances at the station.74 The evidence of M – whom the complainant states that she spoke to on that very day – was that Lord Lester drove the complainant to the station, “grabbed at her sexually” and “repeated his threats”.75 Lord Lester said this was not correct, he did not do so, and that he would not have driven or taken a taxi to either Herne Hill or Kings Cross but rather taken a train to Blackfriars from where he could walk to his chambers.76

48.Lord Lester’s subsequent research has revealed that he did not travel to Blackfriars but went to Gatwick via Victoria to fly to Strasbourg. He was in Strasbourg on [REDACTED—two days after the Herne Hill events] for a hearing before the European Court of Human Rights, as the judgment in that case records.77 He travelled there on [REDACTED—the day after the Herne Hill events] on an Air France flight departing from Gatwick at 11:00am (booking reservation annexed ).78 In order to arrive at Gatwick in time for the flight, he would have had to leave Herne Hill soon after 8am (allowing time to travel to Victoria and take a train from Victoria to Gatwick).

49.He could not have travelled to Kings Cross with the complainant or accompanied her to the station. It is also very unlikely that Lord Lester “pursued [the complainant] around the kitchen” when he was likely to be getting ready for a flight, packing or preparing for the hearing.

50.The Commissioner concluded that “nothing turns on the dates of the incidents” and that “(i)n no longer inviting her to relevant meetings; he abused his power.” (Report [200 & 243]. This is incorrect; the credibility of the central allegations turned in part on the dates. The Commissioner’s conclusions again followed from her flawed approach summarised above.

c) Character evidence

51.The Commissioner correctly recognised that if someone were indeed guilty of the matters alleged, they would often have a propensity to act in this manner on other occasions.79

52.It was therefore essential for the Commissioner to have investigated the evidence as to Lord Lester’s propensity to act in this manner, in order to form a view on the evidence as to the likelihood of the allegations being true. The Commissioner noted that by naming Lord Lester on her website, others might come forward with further complaints for investigation80. They did not do so. Lord Lester offered a number of witnesses who could give evidence on this point; women with whom he had worked closely over the years and with whom he would have had every opportunity to behave inappropriately, or harass, or behave in a corrupt manner. He said to the Commissioner (p.101):

“It is crucial that each of these witnesses is interviewed. Given that an important reason for rejecting the allegations is that it is inherently implausible that I would do such a thing, and given my track record of commitment to diversity and of working with women, these witnesses are all women with whom I have worked closely. I would ask that you ask them directly about their experiences of working with me and whether they have had any concerns about the appropriateness of my behaviour towards them. They can give evidence of their knowledge and experience working with me and other female colleagues, and of the likelihood, in their view, given that knowledge and experience, of [REDACTED]’s allegations being true.”

And at p. 152:

“if the allegations of sexual harassment and abuse of power were true, it would mean that I have propensity to act in this manner, as the Commissioner rightly recognises…. Were there any question of a finding against me in the report, the Commissioner would at least have to have interviewed my character witnesses because their evidence would be highly material as to the propensity to act in this manner”.

53.Despite its obvious relevance, the Commissioner:

(a)declined to speak to these witnesses, on the basis that Lord Lester’s reputation was well-known both to the Commissioner (Report [159]) and the Sub-Committee (see their report [11]) and therefore she did not have to seek further evidence of his good character;

(b)considered that she should only speak to any witnesses that had raised concerns about his behaviour as opposed to those who spoke positively of him. (Report [227] and p115). There were none; and

(c)did not take into account the absence of propensity in deciding whether the allegations were likely to be true or whether Lord Lester should be believed. Had the Commissioner investigated this point, she would have noted the total absence of any suggestion at all that Lord Lester had any propensity to behave in the way alleged. This would and should have been another factor strongly suggesting that the allegations were not made out.

54.It was not open to the Commissioner in these circumstances to find that this was a bizarre isolated example of grave misjudgement and serious misconduct amounting to public corruption and sexual harassment. The Sub-Committee noted that the Commissioner’s findings that Lord Lester had “completely lost all sense of judgment and propriety” were “seemingly quite out of character” and that81:

“for decades past the respondent has been one of the most widely known, effective and admired of those campaigning for racial and sexual equality in this country, a renowned supporter of human rights and freedoms across the board.”

55.As a jury in a criminal trial is directed, the defendant’s good character goes to both propensity and credibility. A failure to give such a direction where the defendant’s credibility is in issue would likely render any conviction unsafe.82

56.In order that the Committee should have before it proper evidence regarding Lord Lester’s character and propensity (which the Commissioner declined to consider), for the purposes of this appeal Lord Lester has obtained further statements from: Natalia Schiffrin (a former lawyer at Interights, who worked closely with Lord Lester); Monica Carss-Frisk QC (a colleague of over 30 years and joint head of Blackstone Chambers); Lord Anderson of Ipswich KBE QC (a barrister and peer who has known Lord Lester for over 20 years); Baroness Kennedy of the Shaws; Baroness Prashar of Runnymede; Baroness Neuberger; Claire Weir (a former Parliamentary Researcher and colleague of over 20 years); Caroline Baker (a former research and administrator); Zoe McCallum (a barrister who worked with Lord Lester for three years) and Evie Jamieson (a former PA, for 13 years). The Committee is invited to read them in full. They all give evidence of Lord Lester as a man of integrity and principle whom they have never seen behave inappropriately towards women or abuse his position. Some (e.g. Natalia Schiffrin, Monica Carss-Frisk, Zoe McCallum and Claire Weir) refer to instances of working alone with Lord Lester or taking business trips with him as young women. They never experienced or witnessed any inappropriate behaviour at all. This evidence strongly indicates that Lord Lester is not someone who has a propensity to act in the manner alleged by the complainant. Indeed, the evidence is that such behaviour would be abhorrent to him. There is no evidence that suggests otherwise.

d) The role of KS

57.The complainant alleges that Lord Lester threatened that because of her “poor behaviour” she would be “replaced” on the [REDACTED—parliamentary business] by S, who would be invited to join him at his house in West Cork.83 Lord Lester explained to the Commissioner that S and the complainant played wholly different roles and at different times and there was no question of the complainant being replaced. S was a highly qualified family lawyer recommended to him by the President of the Family Division to assist with [REDACTED] in co-operation with government officials, whereas the complainant was involved in promoting her book and the [REDACTED].84 He would never have said such a thing and did not do so. That S was not and could not be, in fact, a replacement for the complainant is evidence that Lord Lester was unlikely to have said it, still less used it as a threat. S was never invited to visit Lord Lester in West Cork.

58.The Commissioner nevertheless found that Lord Lester had made the threat of replacement by S, even though “what was said to [the complainant] was inaccurate”.85 This is presumably because (as explained above) the Commissioner considered herself bound to believe the complainant’s account in full, and therefore to disbelieve Lord Lester’s account without properly considering or testing the evidence. In this instance, the inherent implausibility of the threat (which the Commissioner accepted), and that it would have been entirely contrary to Lord Lester’s character, should have been very strong evidence that it was not made.86

59.Lord Lester also strongly disputed the evidence of N, who stated that Lord Lester had asked the complainant to help him “[REDACTED—parliamentary business]”. Lord Lester would not have asked the complainant, who was not a lawyer, to help [REDACTED—activity in support of parliamentary business], and did not do so.87 Moreover, N’s statement is entirely inconsistent with the chronology, which demonstrates that by the time of the complainant’s first contact with Lord Lester (on [REDACTED—around six weeks before the Herne Hill events]) the [REDACTED—parliamentary business] had already [REDACTED—parliamentary business] in the House of Lords (on [REDACTED—arond two months before the Herne Hill events]) and so was fully [REDACTED—parliamentary activity]. The evidence of N, and/or the accuracy of what the complainant had told him, should have been tested.

60.The Commissioner did not put this key point to the complainant or to N on the basis that “I would not expect her to have a precise recollection of what had been said during what must have been an uncontroversial conversation between herself and N over [REDACTED—over a decade] ago.”88 Indeed, the Commissioner did not seem to think any discrepancies between the statements mattered given that there was no evidence of a conspiracy between the witnesses.89 That was the wrong approach. The inconsistencies cast into doubt the reliability of the witnesses and called for a thorough testing of the evidence.90

e) The evidence of Lady Lester

61.Lady Lester’s evidence with respect to the complainant’s stay at Herne Hill on [REDACTED] was: “I do not remember her being distressed in any way at all. I remember her being friendly and that was about the size of it.” That evidence was again inconsistent with the complainant’s allegation that Lord Lester had harassed her that night, starting in the car on the way to his house from the House of Lords, as a result of which she felt “incredibly uncomfortable”. The Commissioner’s conclusion that there was no inconsistency is incorrect.91 Lady Lester was an experienced immigration and asylum judge and the only other person who was present on the night in question. She remembers nothing about the complainant’s behaviour that would indicate she had been harassed. Her recollection is inconsistent with what the complainant said had occurred. The Commissioner should have attached greater weight to this evidence and tested the complainant’s account on the basis of it.

Penalty

62.The above serious flaws suggest that the Report as a whole should be withdrawn and there be no penalty. If the Committee does not accept the Commissioner’s findings as to abuse of power, it follows that Lord Lester should not be expelled. But even if the Committee were to accept the Report and reject all of the points made above, expulsion from the House is not the appropriate penalty for the following reasons.

63.First, the sanction of expulsion should only be imposed in the most extreme circumstances. On its introduction in the House, Baroness Hayman, who moved her Private Member’s Bill, said this:92

“Expulsion is obviously a hugely weighty and serious step. I profoundly hope that with this Bill on the statute book and the Standing Orders in place this provision would simply lie unused and there would never be conduct that would provoke the possibility of the House being asked to agree to expel a Member. However, it would be irresponsible not to have such a provision in place when all of us can envisage circumstances—it might be repeat offences against the Code of Conduct or sentences for criminal offences that were less than nine months or were suspended—where the House would wish at least to have the opportunity to consider expulsion and to decide whether it would be the right course of action.”

64.Baroness Hayman identified cases of repeat violations of the code, or criminal offences, as those which would justify expulsion. This case falls into neither category and does not justify expulsion.

65.Second, the Committee should have regard (as the Sub-Committee did) to the fact that the penalty of expulsion would be applied retrospectively; it did not exist as a sanction at the time of the alleged events. The retrospective application of criminal offences is prohibited by Article 7 ECHR. The allegations are extremely serious and would have a seriously adverse effect on Lord Lester’s career and reputation. Expulsion would be fundamentally unfair in particular in circumstances in which the only reason it can be imposed is that the complainant waited for [REDACTED—over a decade] before making the complaint.

66.Third, of the findings made against Lord Lester, only that of abuse of power could justify expulsion as a matter of principle (as the Sub-Committee recognised at [13]). However, the evidence that Lord Lester abused his power was substantially weaker even than the evidence relating to the other alleged misconduct that would not have justified this penalty.

67.In particular, the evidence that Lord Lester had excluded the complainant from meetings because she had refused to accede to his demands (a key part of the abuse of power allegation) was extremely weak for the reasons given above (see paragraphs 41 to 50). Furthermore, as explained above, the Commissioner did not examine the individual allegations of abuse in any detail. This was because she concluded that “something of concern occurred” and that she was therefore bound to accept the complainant’s version of events in full. The investigation on this point was manifestly inadequate.

68.Fourth, the Commissioner wished the investigation to go forward because of: a “current concern of Parliament to deal with sexual misconduct by its members”; “the publicity given to endemic sexual misconduct and abuse of power in many fields of work”; and the need for the House of Lords “to make plain to the public, including those working with Members of the House, that complaints of sexual harassment will be taken seriously” and that “behaviour of the kind alleged will be investigated if a complaint is made, as a breach of the Code” (Report [41]).

69.It would be unfair to take those wider factors into account in relation to Lord Lester’s penalty. Any penalty should be determined by reference to the facts of the case and the circumstances of Lord Lester, and not by the need to demonstrate that complaints of sexual harassment will be taken seriously.

70.Fifth, the Sub-Committee, in imposing the penalty of expulsion, was directed by the Commissioner only to consider aggravating features of the complaint, framed in language that can only be described as highly prejudicial (Sub-committee Report [9]; cf. “persisted”, “took advantage”, “even after she clearly objected”, “corrupt inducement”). The Sub-Committee should have been directed to other factors in Lord Lester’s case that are relevant to penalty, including:

(a)The fact that, if proved, the complaint related to isolated misconduct that occurred [REDACTED—over a decade] ago.

(b)The evidence all being that there was no propensity at all to conduct of this kind.

(c)The risk of repetition being nil.

(d)His well-known and impeccable character, in particular as an individual who has promoted equality for women and the rights of the vulnerable over the course of a lengthy and distinguished career.

(e)The profound adverse effect on Lord Lester’s career and his hard-earned reputation.

Conclusion

71.In summary, the Commissioner’s approach was flawed and unfair and the appeal should be allowed:

(a)Lord Lester was not permitted to cross-examine the complainant through his legal representative, as the nature and severity of the allegations demanded.

(b)In the absence of cross-examination by Lord Lester, the Commissioner should herself have cross-examined the witnesses or otherwise tested the credibility and veracity of allegations with rigour. She did not do so.

(c)The Commissioner’s flawed approach was to believe the complainant’s account and those of her witnesses’ wholesale on the basis that Lord Lester did not know why she would make it up and because of her belief that “something” happened. The Commissioner may have been influenced by her misunderstanding that Lord Lester’s position was that the complainant and her witnesses were all lying.

(d)This approach reversed the burden of proof as set out above, and came close to the discredited approach of believing the complainant without question as the starting point.

(e)It means that the Commissioner did not scrutinise each of the allegations individually, as she should have done.

(f)It also led the Commissioner to underestimate, or fail to put to the complaint, aspects of the evidence which were powerfully inconsistent with her account. These included: the book signings and the emails; the correct chronology of events; the overwhelming evidence of lack of propensity and positive good character; and the evidence of S and Lady Lester.

72.As to penalty, if the Committee were to uphold the report, it should have regard to the following:

(a)Expulsion is the most draconian penalty available;

(b)If applied, it would be applied retrospectively;

(c)The evidence of abuse of power was particularly weak;

(d)It would be unfair to take into account in determining sanction in this case any pressure that the House may be under to be seen to deal with such complaints robustly and the wider concerns referred to above;

(e)There are powerful circumstances which militate in favour of a lesser sanction including Lord Lester’s character, the non-existent risk of repetition, and the isolated nature of the alleged events [REDACTED—over a decade] ago.

3 Report from the Commissioner for Standards, para 7. The main body of the Commissioner’s Report is in numbered paragraphs 1-243, which are referred to in these Grounds of Appeal by square brackets, [x]. The appendices to the Report do not have numbered paragraphs and, therefore, are referred to by page number. [These appendices are not published]

4 Report p.118. [reference is to a document that has not been published] The Commissioner notes at [34] of the Report that the first contact about this matter also came from a journalist known to the complainant.

5 https://www.parliament.uk/mps-lords-and-offices/standards-and-financial-interests/house-of-lords-commissioner-for-standards-/code-of-conduct-for-the-house-of-lords/code-of-conduct-for-members-of-the-house-of-lords/

6 The rules of conduct are in Code [10-17]. There is a general principle that members of the House must act “on their personal honour”, but this is not one of the “rules” of the Code. The Commissioner explains at Report [36] that she had to put a note on her website noting that it might not be obvious from the Code and guidance that “personal conduct towards others” is a breach of the Code. This was also unclear to the complainant (Report p.38). [reference is to a document that has not been published]

7 For example, the report of the Working Group on an Independent Complaints and Grievance Policy (February 2018) recognised that sexual harassment complaints were “qualitatively different” and so required separate definition and procedures. The Senior Deputy Speaker, Lord McFall, had further stated (Commissioner’s Report p. 93): “The procedures and processes for investigating complaints made under the Code were not designed with complaints of this nature [allegations of sexual assault on the parliamentary estate] in mind and this is something the Commissioner would need to advise any potential complainant about, it is also something the Committee for Privileges and Conduct will need to consider.” [reference is to a document that has not been published]

8 Guide to the Code of Conduct [126-127]. The Guide can be found at https://www.parliament.uk/mps-lords-and-offices/standards-and-financial-interests/house-of-lords-commissioner-for-standards-/code-of-conduct-for-the-house-of-lords/guide-to-the-code-of-conduct/

9 Letter from the Chairman of the Sub-Committee on Lords’ Conduct to Lord Lester of Herne Hill, 21 March 2018 (Report p.95) [reference is to a document that has not been published], acting under paragraph 119 of the Guide).

10 Report p. 95. [reference is to a document that has not been published] The difficulties of fairly investigating historic allegations are well known. The need to consider the fairness of proceeding, including the potential prejudice to the respondent, was drawn to the attention of Parliament by Tom Linden QC in his opinion at Annex D to the July 2018 “Independent Complaints and Grievance Scheme Delivery Report” to Parliament.

11 The Guide did not require publication of Lord Lester’s name, but only “basic information” about the case, see paragraph 122 of the Guide.

12 The Commissioner now accepts that publishing the notice on her website naming Lord Lester and the fact of the “personal honour” investigation “did not work very well” as a way of trying not to stir up interest (Report p.118). [reference is to a document that has not been published] The Commissioner declined to investigate who leaked the full allegations to the press when asked to do so (Report p.55) despite the obvious potential relevance to motive and credibility of the person(s) responsible. [reference is to a document that has not been published]

13 Paragraph 19 of the Code.

14 Report [8]

15 They did so on the basis of Standing Order 12 and the House of Lords (Expulsion and Suspension) Act 2015 section 1, which empowers the House to impose this penalty where in its opinion the conduct giving rise to the resolution occurred before the coming into force of the Act and was not public knowledge before that time.

16 See paragraph 63, below

17 Report [53], p.95, [reference is to a document that has not been published] paragraph 21 of the Code.

18 All this was made clear to the Commissioner. Lord Lester repeatedly raised concerns about the fairness of the process and made suggestions as to what natural justice might demand in the particular circumstances of this allegation See eg his letters to the Commissioner (Report p. 89), letter to the Chairman of the Sub-Committee (p. 91), response to the complaint (p. 95) and interview with the Commissioner (p. 106). [All references to documents which have not been published.]

19 Independent Complaints and Grievance Scheme Delivery Report: https://www.parliament.uk/documents/news/2018/1%20ICGP%20Delivery%20Report.pdf

20 Paragraph 21 of the Code

21 This is so both at common law and under Article 6 of the European Convention on Human Rights.

22 See also Ogbonna v NMC [2010] EWHC 272; upheld by the Court of Appeal in [2010] EWCA Civ 1216; R (SS) v Knowsley NHS Primary Care Trust [2006] Lloyds Med Rep 123 [82-84]; White v NMC [2014] EWHC 520 (Admin) [13]: Albert & Le Compte v Belgium (1983) 5 EHRR 533 [28-30].

23 There is also a right to legal representation in a disciplinary context where the charges are very grave and the case is complex. R(G) v Governors of X School [2012] 1 AC 167 per Lord Dyson at [71]; Kulkarni v Milton Keynes NHS Foundation Trust [2010] ICR 101, per Smith LJ at [67] (cf. R v Secretary of State for the Home Department ex p. Tarrant [1986] 1 QB 251, as approved by the House of Lords in R v Board of Visitors of HM Prison, The Maze, ex p. Hone [1988] 1 AC 379, per Lord Goff p. 392C-E).

24 As Lord Lester said (p.119): “there is a breach of natural justice … [the complainant] is able to make whatever allegations she likes without being cross-examined. I, on the other hand, am publicly named and presumed to be guilty by a procedure where I cannot clear my name because I cannot cross examine her… the only safeguard I have is your duty of care towards me”. [reference is to a document that has not been published]

25 The annexed opinion of David Perry QC and Rosemary Davidson reaches the same conclusion as to the need for cross-examination: [17-23], [28], [52-57]

26 Report [18-19] and [171-2]

27 Report [170] and [173]

28 Report [18].

29 Report [171-172] (emphasis added)

30 Paragraph 19 of the Code

31 See the opinion of David Perry QC and Rosemary Davidson, [40-45]

32 “An Independent Review of the Metropolitan Police Service’s handling of non-recent sexual offence investigations alleged against persons of public prominence”, 31 October 2016

33 Cf. Report [155]; R(N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, [62]; Re H (Minors) [1996] AC 563

34 See the opinion of David Perry QC and Rosemary Davidson [64-70], which identifies the same flaw.

35 Report [171]

36 Report [10], [57], [163]

37 Report p. 113-114 [reference is to a document that has not been published]

38 Report p. 113. [reference is to a document that has not been published] The Commissioner does not even mention Lord Lester’s position on all of these points, stating instead at [45] that Lord Lester’s view is that the authors of four statements were “lying about having been told at the time about the allegations”.

39 Report p. 142 [reference is to a document that has not been published]

40 Report p. 114 [reference is to a document that has not been published]

41 Report [62]

42 Report [63]; see the opinion of David Perry QC and Rosemary Davidson, [58-59]

43 Report [158-159]; the opinion of David Perry QC and Rosemary Davidson explains that this was an irrelevant consideration: [75].

44 Report [231] pp. 151, 157 [reference is to a document that has not been published]

45 See for example the accounts of M and the complainant as to the events of [REDACTED], explained further below at paragraphs 46 to 49.

46 Report [101]

47 Report p.153 [reference is to a document that has not been published]

48 Report pp.24 and 120 [reference is to a document that has not been published]

49 Report [176-177]

50 Report [176], [179]

51 Report [111]

52 Report [115]

53 Report [143]

54 Report pp. 108, 111 [reference is to a document that has not been published]

55 Report, p.97-98, 156. [reference is to a document that has not been published]

56 Report, [113]

57 Report [117]

58 Report [144]

59 Report [146]

60 Report, p.161 [reference is to a document that has not been published]

61 As explained in the opinion of David Perry QC and Rosemary Davidson [72-74] the Commissioner had regard to an irrelevant consideration in this respect.

62 These emails were not before the Commissioner but found by Lord Lester in response to the Commissioner’s Report.

63 Lord Lester has prepared this chronology for the purposes of this appeal but much of the information it contains was before the Commissioner. Where Lord Lester relies on information which was not before the Commissioner, it is identified below.

64 Report, p. 62 [reference is to a document that has not been published]

65 Report p. 18 [reference is to a document that has not been published]

66 Report p. 168 [reference is to a document that has not been published]

67 This email was not before the Commissioner.

68 As the Commissioner and complainant accepted: Report p. 167. [reference is to a document that has not been published]

69 Again, the Commissioner accepted this: Report p. 161. [reference is to a document that has not been published]

70 David Perry QC and Rosemary Davidson identify as a matter which should have been put to the complainant properly: [62].

71 The information regarding the hearing in Strasbourg was not before the Commissioner.

72 Lord Lester referred to this meeting in his evidence before the Commissioner but did not give a date or the correct date: Report pp. 96 and 108. [reference is to a document that has not been published]

73 Report p. 60 [reference is to a document that has not been published]

74 Report p. 63 [reference is to a document that has not been published]

75 Report p. 75 [reference is to a document that has not been published]

76 Report p. 113 [reference is to a document that has not been published]

77 [REDACTED]

78 The information regarding the hearing in Strasbourg was not before the Commissioner.