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The conduct of Lord Lester of Herne Hill Contents

Comments from the Commissioner on Lord Lester’s Grounds of Appeal

Introduction

1.Lord Lester has appealed against my findings that he breached the requirement in the Code of Conduct that he act on his personal honour. He has also appealed against the recommendation of the Sub-Committee that he be expelled from the House.

2.My comments do not address the recommendation of expulsion by the Sub-Committee, but only Lord Lester’s points of appeal against my findings, and his criticisms of aspects of my report that are not contained in his points of appeal, but that I need to address.

3.The Grounds of Appeal run to 30 pages. Helpfully, in the conclusion to the document, Lord Lester sets out 6 overarching grounds on the basis of which he says that his appeal should be allowed.

4.In this document I will deal with those 6 points. In the Appendix to this document I provide comments on each of the criticisms made by Lord Lester, and these are referenced in my comments on his 6 points.

5.However, before dealing with the 6 points, I have a number of overarching points of my own to make, which provide, I hope, a context which will assist the Committee in its deliberations. These deal with Lord Lester’s approach to the investigation; the status of the counsels’ opinion on which he relies to a significant extent; his attempt to introduce fresh evidence; his responsibility for any inaccurate or unevidenced assertions in the Grounds of Appeal and his unsatisfactory conduct during the investigation.

6.References to the Grounds of Appeal are given as (GA x), to counsels’ opinion as (O x) and references to my report are given as (R x).

Lord Lester’s approach to the investigation

7.From the outset, Lord Lester has not accepted the legitimacy of my investigation or the procedure laid down by the House for conducting it. In his letter to me of 28 February he complains that: he was not given an opportunity to make representations before his name was published on my website, the investigatory procedure to be followed was unfair; and the fact that he was not given an opportunity to address the Sub-Committee before it considered whether to allow me to investigate was also unfair. He asked me to consider an alternative process (R Appendix H) [reference is to a document that has not been published], which would have involved asking the House to amend the Code after the investigation had begun.

8.I replied to explain that I could not deviate from the procedure laid down by the House in the Guide to the Code (R Appendix I). [reference is to a document that has not been published]

9.Despite this, Lord Lester has continued to assert that the process is unfair. He wrote to the Sub-Committee saying that: the Code did not cover the present case; the ‘personal honour’ requirement was not free-standing but had to relate to the rules on openness and financial interests set out in the Code; it was unfair that he had no right to cross-examine the complainant; that the standard of proof had to be higher than the balance of probabilities required by the Code; that the delay since the behaviour complained of made the process inherently unfair; and that I should delay any investigation until the reforms currently under consideration by the Sub-Committee on Lords’ Conduct made a more appropriate process available. He wrote to Lord Brown and asked the Sub-Committee to rule that the Code did not cover the complaint (R Appendix K). [reference is to a document that has not been published]

10.The Sub-Committee rejected his request, and confirmed that I had to investigate under the existing Code, and pointed out that the allegations were not simply of sexual harassment but also of grave abuse of power in the exercise of Lord Lester’s parliamentary duties (R Appendix L). [reference is to a document that has not been published]

11.As required by the Code, I sent Lord Lester a draft of part of my report, containing factual information, but not my analysis of findings, so that he could comment on it.

12.His response repeated his complaints of procedural unfairness; saying that: Parliament has recognised that the Code does not cover sexual misconduct (this is the case in the House of Commons where there is no equivalent ‘personal honour’ provision); I had ‘declined’ to investigate the breach of confidentiality when the press revealed information after the notification on my web site; the correct standard of proof was higher than the civil standard of the balance of probabilities; and the sexual harassment alleged by the complainant was not covered by the Code as it did not relate to his parliamentary duties.

13.Finally, in his Grounds of Appeal, Lord Lester repeats that the process is unfair as: it does not allow for legal representation or cross examination; repeats that I did not allow him to comment before publishing the fact of the investigation on my webpage and that I ‘would not’ investigate the subsequent leak; that fairness required that he should be entitled to legal representation and cross examination.

14.It is clear, therefore, that Lord Lester has never accepted the legitimacy of the investigation.

15.As he is well aware, there is no other procedure for investigating complaints of misconduct made against Members of the House. The implication appears to be that Lord Lester considers that, whether or not the allegations were true, he should not have been subject to investigation.

16.This is, of course, a point of view, and Lord Lester is entitled to hold it, but it was not one with which the Sub-Committee, two of whose members include very senior retired judges and lawyers, agreed when it authorised me to start this investigation.

17.The House of Lords has not published its procedure for dealing with complaints under the Bullying and Harassment Code, which will be available when it comes into effect but the procedure agreed by the House of Commons makes no provision for legal representation or cross examination, and it seems likely that the same will apply in the House of Lords, as consistency. where possible, is acknowledged to be desirable.

18.I also wish to draw the Committee’s attention to the Privileges Committee’s Report on the Conduct of Lord Moonie, Lord Snape, Lord Truscott and Lord Taylor of Blackburn, printed on 11 May 2009, and debated on 20 May 2009. The report included the report of the Sub-Committee on Lords’ Interests, which had investigated allegations made by the Sunday Times that the four Members had been “prepared to accept fees of up to £120,000 a year to amend legislation in the House of Lords on behalf of business clients”.

19.At that time, the Sub-Committee’s role included carrying out the investigations which are now my responsibility. The procedural rules were the same then as they are now, except that in 2009 Members’ lawyers could communicate with the Sub-Committee on behalf of their clients, whereas now they cannot, following a revision of the Code recommended by a Leader’s Group chaired by Lord Eames.

20.The purpose of the debate in May 2009 was to decide whether the recommendation of another Privileges Committee Report, on sanctions, should be accepted so as to allow for the first time an additional sanction of suspension from the House; to agree the findings of the Committee in relation to the conduct of the four Members; and, if suspension were decided to be a permitted sanction, to agree with the recommendations that Lord Truscott and Lord Taylor of Blackburn should be suspended.

21.This was in the context of no Member of the House having been suspended since the time of Oliver Cromwell, and the historic nature of the decisions under consideration was evident to all those present. The relevance to the current proceedings is obvious.

22.In the evidence attached to the Report is correspondence between the Sub-Committee and the legal representative of one of the Members, which sets out allegations of procedural unfairness, including: a general complaint that the proposed procedure did not comply with the requirements of a fair trial as set out in Article 6 of the ECHR; and, more specifically that the procedure was unfair in that:

23.The Sub-Committee rejected the allegations of unfairness, saying: ‘In the Sub-Committee’s view, a fair hearing requires that the person whose conduct is being investigated is told the rules under which his conduct is being assessed, is shown all the evidence, and is given a fair opportunity to respond. Fairness also requires that the individual peers are given an opportunity to respond in writing, which allows them to use the services of such lawyers as they wish to instruct.’

24.In the subsequent debate, Lord Lester was scathing in his rejection of the allegations of procedural unfairness:

“The Sub-Committee is not a court of law and has not determined any criminal charge. Nor has it determined any civil right. It has performed its role as a disciplinary body acting on behalf of the committee and the House under the House’s extensive and essential powers of self-regulation….Because the committee and the sub-committee have not determined a criminal charge or a civil right of any Member of the House, it is quite clear that there is no question of any breach of the European convention …

The sub-committee and the committee decided, in the light of the seriousness of the allegations, that particularly strong evidence was required before they could be satisfied that the allegations were proved. The four Members were fairly informed of the case against each of them. They each received legal advice. They each had a fair opportunity to answer what had been put to them, both in writing and orally …

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

“because it was reached through an unfair process”,

and that he was,

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

[…]

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

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

In his letter of 12 March, he referred to what he described as the “pretence in the code” about the fairness of the procedures. These and other criticisms were entirely misguided”212

25.I draw attention to Lord Lester’s May 2009 speech in such detail because it shows that in 2009 he vigorously defended the processes which he now seeks to undermine.

The Status of Counsels’ Opinion

26.The first document attached to the Grounds of Appeal is an opinion by David Perry QC and Rosemary Davidson. In his grounds (GA 10) Lord Lester describes this as an independent opinion.

27.However, although no doubt Ms Davidson and Mr Perry are people of integrity, and Mr Perry’s eminence is well known, it is not correct to say that the opinion is independent, or should be accepted without reservation.

28.Firstly, the opinion was obtained by Lord Lester’s solicitors, Messrs Peters and Peters. We do not know what instructions were given by the solicitors, nor do we know what meetings took place, and to what extent all the evidence was properly considered before the opinion was finalised.

29.Lord Lester’s (undated) Grounds of Appeal were received by the Committee staff on Monday 15 October, two days after the date of the opinion, Saturday 13 October. In view of the close mirroring of the contents of the opinion in the contents of the Grounds, and in view of the fact that Lord Lester has had my report since 11 September it seems probable that there was considerable contact between the members of Lord Lester’s legal team in the weeks available to them for preparation. I do not suggest for a moment that there is anything wrong with this, simply that it cannot be described as an independent document, but must be seen as one designed to advance Lord Lester’s cause.

30.Secondly, this is only an opinion, not an accepted decision made in an adversarial court.

31.In a standard appeal the appellant (Lord Lester) and the respondent (me) would both put up legal arguments (opinions) as to why the appeal should, or should not be allowed. I do not have that option, as the processes set out in the Code do not permit this. However, what I can say is that, if I had that opportunity, I have no doubt that I would be able to obtain a reputable, eminent opinion that disagreed in many, if not all, respects from that of Mr Perry and Ms Davidson.

32.Finally, as Lord Lester has raised Mr Perry’s involvement in the proposed Independent Complaints and Grievance Policy, I should point out that Mr Perry was asked to advise on ‘the functioning of the policy in circumstances where the subject of a complaint made under the policy may also be capable of constituting the subject of a criminal investigation and, potentially, a prosecution’. This did not include any advice on the contents of the scheme.

33.I ask the Committee to bear this in mind.

Lord Lester’s attempt to introduce fresh evidence

34.The Committee will be aware that it is not its role to reopen the investigation, but simply to ‘use their judgment to decide whether, on the balance of probabilities, they endorse the conclusions of the Commissioner’ (para 144, Guide to the Code).

35.Lord Lester, at (GA 40-50), introduces new evidence, in the form of old emails and diary entries, which he says cast even more doubt on the reliability of my findings. In doing so, he seeks to get the Committee to re-open the investigation.

36.The Guide to the Code makes no reference to admitting fresh evidence, which makes sense when the Committee is precluded from reopening the investigation. I readily concede that there may be circumstances where fresh evidence should be admissible, for instance when new information, unavailable at the time of the investigation, shows that findings are no longer safe.

37.However, neither of those criteria apply in this case:

Lord Lester does not seek to explain why this evidence should be introduced at this stage, nor why it was not produced earlier.

38.The unfairness of this attempt can be illustrated by his claim (GA 46) that his first meeting with the complainant was [REDACTED—several months after the date he had given in his evidence during the investigation], although she had contacted him via a colleague in [REDACTED—a date about two months previous] to ask him to attend her book launch on [REDACTED].

39.However, in his statement of 26 March [reference is to a document that has not been published] Lord Lester said that he had met the complainant in [REDACTED—a date three to four months before the date asserted above], and in his interview with me on 10 April [reference is to a document that has not been published], he said that he had met her in his chambers, and either then or shortly thereafter he had agreed to go to her book launch, and she had attended at least one, if not more, political meetings with him to garner support ‘before Christmas.’

40.Clearly, these two accounts are inconsistent. If I had been given the information during the investigation, I could have:

41.As Lord Lester has given no good reason for not providing this information in a timely way, I do not believe the Committee should admit it, or use it to re-open the investigation.

Lord Lester’s responsibility for any inaccurate or unevidenced assertions in the Grounds of Appeal

42.Lord Lester’s Grounds of Appeal rely very heavily on counsels’ opinion, which is acceptable and normal. If Lord Lester were not himself an eminent jurist, he could counter any criticism of errors and inaccuracies by saying that he is not an expert, and has simply taken counsels’ advice, in its totality, which many lawyers would consider a very sensible and proper attitude in a lay client.

43.However, Lord Lester is not a lay client in the ordinary sense of the phrase, and must have known, or should have known, that counsels’ opinion, and his own Grounds of Appeal, contain assertions which are either inaccurate on the face of the papers, or unsubstantiated through lack of evidence.

44.I find it disturbing that, for instance, suggestions about my failure to behave in particular ways have been repeated throughout the investigation, up to and including in the Grounds, with no acknowledgement to the explanations that I have given, and no response to those explanations.

45.Of course he is entitled to disagree with my position, but to ignore inconvenient facts is not satisfactory.

46.Details of these matters are given below and in the Appendix.

Lord Lester’s unsatisfactory conduct during the investigation

47.Lord Lester seriously breached confidentiality in July, as set out in R paras 212-215. He offered no explanation, and put the Member to whom he spoke, and the complainant and those who were with her, to whom the Member spoke immediately afterwards, in a potentially vulnerable position, as they could have been suspected if details of the breach had emerged. Luckily, and impressively, none of those to whom confidential matters were revealed have breached confidentiality in their turn.

48.At the end of September my office received an email from one of Lord Lester’s witnesses, who had been contacted by Lord Lester’s solicitors, and who had been told of the outcome of the investigation. This was a breach of confidentiality.

49.During most of the investigation, except when he was out of the country, Lord Lester bombarded my office (sometimes several times a day) with demands that I should complete the investigation quickly and exonerate him.

50.While making all due allowance for his anxiety, this was grossly inappropriate. I did not speak to Lord Lester, and my clerk bore the brunt of the harassment, for which I am, and was, very grateful. I was not influenced by his repeated calls, but he should not have made them.

51.I know that there were concerns about the length of time the investigation took, but Lord Lester has to take responsibility for a good deal of this; he did not respond in substance to the complaint for nearly 7 weeks, and, just as we were hoping to get the report to the sub-committee before the summer recess, he breached confidentiality, as described above. This necessitated a further investigation, which although brief, made it impossible to submit the report before the recess.

52.I am aware that his supporters complained to the Press about the ‘delay’, but of course I do not know if Lord Lester was implicated in this.

Lord Lester’s 6 overarching grounds of appeal

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

53.As set out above when commenting on Lord Lester’s approach to the investigation: the procedural rules agreed by the House are long standing; have been used when very serious allegations against other members have been investigated; are considered by the Sub-Committee to comply with the principles of natural justice; and were strongly endorsed by Lord Lester in his speech of 2009.

2. In the absence of cross-examination by Lord Lester, I should have cross-examined witnesses or otherwise tested the credibility and veracity of witnesses with rigour, but did not do so.

54.I am not entirely sure what Lord Lester means by cross-examination in these circumstances, but if he means testing the evidence where there is a challenge or a good reason to do so, then the report shows that I did this, throughout the process, and where I did not, I gave my reasons. (R156). The meticulousness with which I did this is clear from R 93 to 152.

55.For instance, I did not challenge the evidence of the initial four witnesses who confirmed that the complainant had spoken to them at the time, or shortly after, the events complained of. As I explained in my report (R), they were all senior people (a judge, an ex-Chief Crown Prosecutor, a Deputy Head of Mission in our embassy in an EU country, and a friend and colleague), recalling what the complainant had said to them many years ago, and, in my view inevitably, recalling differently. Asking them to explain discrepancies between what they recalled being told and what the complainant recalled saying, seemed to me an exercise in futility. They had done their best in difficult circumstances, and challenging them would not improve their recollection. I did not consider it appropriate to accuse them of lying, just as I did not consider it appropriate to accuse Lord Lester’s witnesses of lying. Lord Lester makes much of his good character, which I fully accept. I also accept the good characters of all the witnesses, which I consider I am entitled to do.

56.I give further details of testing the evidence at 4 below.

3a. I believed 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 she believed that ‘something’ had happened.

57.This claim is based on a paragraph in my executive summary (R18 and 19) which is necessarily a truncated version of my reasoning, which is set out in detail at 5 below. This assertion is apt to mislead the Committee.

58.The assertion that I believed that ‘something’ had happened is taken out of context. I explain at 5 below how I reached the conclusion that it was more likely than not that something had happened that caused the complainant to speak to her 6 witnesses at the time or shortly thereafter.

3b. I may have been influenced by my misunderstanding that Lord Lester’s position was that the complainant and her witnesses were lying.

59.This is bizarre.

60.In his statement Lord Lester made much of the discrepancies in the witnesses’ statements, which was fair enough, but did not deal with their assertions that the complainant had spoken to them about his behaviour at the time, or shortly after, it occurred.

61.I found this odd, and raised it with him in interview. (pp 9-11 R Appendix O) [reference is to a document that has not been published]

62.I asked him if he accepted that the four witnesses had correctly recalled that the complainant had made allegations against him at the time, or whether he thought they were lying about this. Lord Lester spoke at some length about the discrepancies in the witness statements and the unsatisfactory conduct (as he saw it) of one of the witnesses, but did not answer the question, and after a while I asked again. He said that he found it extremely hard to give a fair answer to my question, to which I replied: ‘That is fair enough’, which could not by any stretch of the imagination be seen to be expressing dissatisfaction with his answer, or indicating that more was expected from him; I thought what he said was all the answer I was going to get, and was going to move on. However, Lord Lester then gave another long reply, culminating in him volunteering that he believed that the complainant and her witnesses were telling ‘a pack of lies’.

63.In his Grounds he says that this was an unfair conclusion for me to draw, as he had previously made different comments. However, as I would have thought he would be the first to acknowledge, if direct questioning (so long as it is not bullying or overbearing) elicits something new, it cannot be disavowed simply because the speaker wishes he had not said it. Obtaining such new and illuminating information is the whole purpose of cross-examination.

4. This approach reversed the burden of proof and came close to the discredited approach of believing the complainant without question as the starting point.

64.The basis of this point comes from the assertion in the opinion, (O 38) that I believed the complainant because I could think of no plausible reason why she would lie.

65.At R 169-180 I set out my reasons for accepting, in broad terms, the evidence of the complainant’s first four witnesses that the complainant had spoken to them about what she alleged to be Lord Lester’s misconduct.

66.I went on to point out that accepting their evidence did not, in any way, mean that I accepted that the complainant was telling the truth, as I explained at R174-180.

67.I was alive to the possibility that the complainant had been mistaken in her perception, or had acted out of malice [REDACTED—over a decade] ago, and, for the reasons given, decided that these possibilities were very unlikely.

68.It is a travesty of the explanation in my report for Lord Lester to assert that I found that the complainant was credible because I could think of no plausible reason why she would lie. In fact, as I set out at R174 -180, I found the complainant credible because I could think of no rational reason why a woman of the complainant’s apparent sanity and probity would make detailed and specific false allegations against Lord Lester, do nothing for many years, and then make a complaint.

69.When I wrote the report, it occurred to me that perhaps I should explain what I would have done if the evidence had been different, but I decided that discussing hypothetical scenarios would be neither useful nor necessary. However, as the reasons I have given have been misinterpreted, I will now try to explain by reference to what I would have done if the evidence had been different.

70.If there had been no corroborative evidence from the initial witnesses, and no other corroborative or supporting evidence, and I had been asked to decide if the complainant’s unsupported allegations made it more likely than not that Lord Lester had behaved as alleged, despite his denial, I suspect that I would have found that the burden of proof had not been met, as the evidence would have been 50/50.

71.However, there was cogent corroborative evidence, despite all the attempts by Lord Lester to airbrush it away, which tipped the balance of probability in favour of the complainant.

72.It is interesting that Lord Lester seeks to undermine my reasoning in the way he does, because this carefully skates over the fact of the statements of her witnesses, and suggests that, in considering Lord Lester’s word against that of the complainant, I acted irrationally and incorrectly in accepting her account.

73.It is also interesting that Lord Lester makes no reference to the two later witnesses who also confirmed that the complainant had spoken to them at the time. One of these, H, recalls being phoned by the complainant during the night she stayed at Lord Lester’s house and I refer to her evidence again below. She has the distinction of being the only witness evidence Lord Lester accepts in part, (R Appendix X and R Appendix Z page 6 at para 31). [reference is to a document that has not been published]

74.If Lord Lester had said that there might have been a conversation with the complainant about how to be elevated to the House of Lords, this would immediately have raised the possibility that the complainant had misunderstood or misinterpreted an innocent remark, and I would have pressed her on this, just as Lord Lester says I should have done. The same would apply if he had acknowledged that he might have made a flirtatious remark, or commented on her appearance, even though he had forgotten doing so.

75.However, in his statement and his interview with me, he made no suggestion of any possible misunderstanding, or misinterpretation. As his statement was dated 26 March, which was nearly 7 weeks after he had been given full details of the allegations, including the complainant’s unredacted statement, I assume that he and his lawyers would have been doing all they could to find an explanation for the allegations. It would have been reasonable for him to have raised any possibility for me to investigate, but he did not, until now.

76.I would have taken the same approach of challenge and probe if one of her witnesses had claimed that the complainant had made other allegations of misconduct quite different to those made by the complainant to me. However, they did not.

77.My reasoning took full account of the evidence and the burden of proof.

5. I did not scrutinise each of the allegations individually as I should have done.

78.In the absence of any evidence to cast doubt on one allegation more than another, and in light of Lord Lester’s blanket denial, the issue became one of the complainant’s credibility, with the allegations standing or falling together. For the reasons given, I found that, generally, they stood.

79.However, this did not prevent my looking at the strength of the evidence in relation to each of the allegations, and on some minor matters I considered that the evidence did not reach the necessary threshold, and said so (R206-210).

80.I have been a mental health tribunal judge for 10 years, and sit several times a week. Sometimes cases are uncontentious, or the evidence is overwhelming in support of a particular opinion or finding. However, often there are disagreements between professionals; disagreements between the detained person and the professionals, and contradictory reports. These disagreements and contradictions can relate to historical facts, diagnoses, and evidence of past risk and assessments of future risk and how to manage it. Some of the disputed information can relate to events decades ago, but if it is still relevant it has to be assessed. I am completely familiar with teasing out weak and strong evidence, and testing weak evidence. I use my judgement to identify strong evidence, which will often be based on corroboration by a number of people. This is part of my job, I am not only entitled to do it, but have to do it, and I have applied the same judgement of the evidence in this investigation. I have recently been appointed to sit in the Court of Protection, where I will use the same judicial skills to make decisions on deprivation of liberty, health and welfare and property and financial affairs in the cases of adults who lack capacity to make the decisions themselves and where there are disputes.

6. I underestimated, or failed to put to the complainant, aspects of the evidence which were inconsistent with her account, including:

a. the book signings and emails;

81.This is dealt with at R111-119 and 143-144, and my analysis of these matters at 191-197. This shows that the matters drawn to my attention by Lord Lester and S were put to the complainant. She gave me explanations which I found credible. I am aware of the increasing evidence of the ways in which women who have been sexually harassed respond, including by trying to carry on as if nothing has happened, and I consider that the complainant’s response fits well within this range. Dame Laura Cox’s report, recently published, refers to this.

b. the correct chronology of events;

82.Both the complainant and Lord Lester revised their evidence on the chronology during the investigation. I chased up, and raised with the complainant, these changes, and did not challenge Lord Lester’s alterations during the investigation.

83.Lord Lester has introduced new evidence, which he says undermines some of the complainant’s claims even more than he considers the previous evidence had done. I have dealt with the general unfairness of this above, and now deal with his assertion, based on new material, that the complainant’s claim to have been excluded from meetings ‘for several weeks’ cannot have been true.(R Appendix A p8 at para 31, GA 42-44). [reference is to a document that has not been published]

84.His claim entirely relies on the complainant’s original belief that she spent the night in his house in [REDACTED—that his first meeting with the complainant was several months later than he had said in his evidence during the investigation] and that the alleged exclusion [REDACTED—therefore cannot have taken place as she claimed.]

85.However, the complainant’s statement does not say that the exclusion happened before the [REDACTED—media event], but that it occurred with [REDACTED—parliamentary business] “fast approaching”. The [REDACTED—parliamentary business] took place on [REDACTED], so there were 12 days between the night at Lord Lester’s house and the [REDACTED—parliamentary event] during which I accept the complainant could not have been excluded ‘for several weeks’. However, there were then the further [REDACTED—parliamentary events] until [REDACTED—five to six months after the events in Herne Hill] during which there would have been meetings to which the complainant could have contributed.

86.As Lord Lester did not raise the ‘impossibility’ point during the investigation, and as there are explanations that could undermine his assertion of impossibility, and as I cannot now ask the complainant to respond to this challenge, it is not open to Lord Lester to seek to raise this new point now, and this ground of appeal should be rejected.

87.This is probably the right point to comment on A’s evidence, which Lord Lester says does not corroborate the complainant’s claim on the exclusion point.

88.A gave little information in his statement, and when I phoned him during the investigation he told me he could say no more than was in his statement (which is why that phone contact is not mentioned in the report).

89.I accept that when A says that he recalls her telling him about ‘the alleged events’ he does not say that this was in the context of him contacting her because she was not attending meetings. It would appear from his statement that he cannot remember the context.

90.However, in my view, his evidence that the complainant told him about Lord Lester’s behaviour gives a strong indication that her version of her contact with him was correct.

91.A was an outlier of all those to whom the complainant spoke to at the time; not a colleague or friend, (T, M, H and J) and not someone who she was referred to for specialist advice (N). The complainant’s evidence is that she was reluctant to make a complaint, or do anything to jeopardise the draft legislation, and it seems implausible that she would have contacted A of her own initiative to inform him of Lord Lester’s behaviour. A more plausible explanation is that it happened as the complainant said; he contacted her because she was not at meetings, and, anxious not to give the impression of lacking keenness for the project, she told him what Lord Lester had said to her.

c. the overwhelming evidence of lack of propensity and positive good character;

92.Lord Lester claims that I did not give sufficient weight to his excellent character, and did not deal with whether he had a propensity to act in this way (G53) and that therefore it was not open to me to find that this was a bizarre isolated example of grave misjudgement and serious misconduct amounting to public corruption and sexual harassment. (G54)

93.Having accepted without question that Lord Lester is a man of excellent character, I consider that it follows that I was satisfied that he did not have a propensity to act in this way. I deal with his argument that I should have interviewed more character witnesses to establish his lack of propensity below, together with the suggestion that the lack of propensity meant that the allegations could not be made out.

94.This argument, when accompanied by a number of character references from people well known to the Committee, comes perilously close to saying that good people, with excellent reputations and high status, if they are important enough, should be given credit not available to the many millions of people known only to their friends, family, colleagues and associates, who live good lives, behave impeccably towards women, support the advancement of women and then are claimed to have had have a single lapse.

95.Lord Lester asserts that I found that his behaviour was ‘bizarre isolated example of grave misjudgement’ (GA 54) and says it was not open to me to find this. I do not know what motivated Lord Lester, and did not speculate or write this in my report. His actions could have been a bizarre misjudgement, or could have been a deliberate and reckless attempt to use his position in an unsavoury way, in full knowledge that what he was doing was wrong and in the belief that he could not be held to account by Parliament and that the complainant would probably not have been believed if she had gone to the police.

96.Lord Lester’s good character was acknowledged by me at the time I interviewed him and subsequently. He put forward several character witnesses and I interviewed a number of these, who might have been able to comment on the interaction between Lord Lester and the complainant. He put forward others, whom I did not interview, as I could see no need, having accepted the evidence of the witnesses that I did interview that his behaviour towards women, including young women working with him in junior positions, was impeccable.

97.However, lack of propensity does not mean that such behaviour cannot occur, as this would mean that after establishing a lack of propensity a person would never behave unacceptably. This is an obvious nonsense.

98.I have read the new character references, and note that some of them refer to Lord Lester’s innocently flirtatious manner with women on occasion, and suggest that his behaviour could have been misinterpreted. However, he made no such suggestion, despite having weeks to consider his response with his lawyers in and out of the House before submitting it. These character referees also do not know the identity of the complainant, who, in her own field, is as eminent as Lord Lester and held in high regard in official circles.

99.Many of the concerns expressed in the cases quoted in the Opinion, on the reliability of allegations against well-known people, arise where the complainants are damaged and vulnerable people, with very troubled histories (which they often attribute to the alleged behaviour of the well-known person) and with a considerable discrepancy between their circumstances and those of the alleged abuser. The complainant is not in that position.

d. The evidence of S and Lady Lester

100.When Lord Lester talks about the evidence of S, what he means, as shown at (GA 57 and 58) is the claim by the complainant that Lord Lester had told her that she was to be replaced by S.

101.Lord Lester points out that S could not, and did not, replace the complainant, as her skills were very different. However, I was not investigating whether S replaced the complainant, and it is hard to see how I could have done. What I was investigating was whether Lord Lester had told the complainant that she was to be replaced by S.

102.I considered that Lord Lester probably had said something along these lines to the complainant (because I did not think she had made it up), but I also acknowledged that there was an element of uncertainty, and so this complaint would not be relied upon. This is all set out at R206, 207, 210.

103.With regard to Lady Lester’s evidence, I accepted it in its entirety. What I did not accept was Lord Lester’s contention that because Lady Lester did not observe the complainant to be upset, therefore the alleged groping in the car on the way to the house cannot have happened. This is all set out at R107-110.

Conclusion

104.For the reasons set out in this paper and in the appendix to this paper I am confident in my findings and in the processes I applied throughout my investigation. I ask the Committee to dismiss Lord Lester’s appeal against my findings.

Appendix: Response to remaining points in the grounds of appeal and counsels’ opinion

1.Assertion: The Sub-Committee was given incorrect information that the events complained of had occurred [REDACTED—in the first 10 years of this century, and well before] the normal limitation period for investigations (G4).

2.Response: The Sub-Committee must authorise investigation of complaints that are more than four years old, not three. The period [given in the document before the Sub-Committee] came from the Complainant’s original submission, a redacted version of which was sent to the Sub-Committee and also, later, to Lord Lester. In January 2018 I prepared a note for the Sub-Committee seeking permission to investigate the complaint and enclosing the redacted version of the complainant’s original submission. My note to the Sub-Committee did not state that the events had occurred [REDACTED—in the period mentioned above]. The Sub-Committee had the redacted statement with the note, and although this deliberately did not have dates, it made plain that several years had passed (R Appendix F para 3) [reference is to a document that has not been published].

3.Assertion: I tested the credibility of witnesses by searching for publicly available information as to their truthfulness rather than by cross examination, and did not probe their versions of events (G29);

4.Response: There is no evidence that I sought information online to test credibility, rather than relying on cross examination. As I explained at R 159, I made a basic online check, not to confirm credibility, but to look for any evidence to undermine it. For instance, if there were allegations that the complainant had made similar complaints that had not been upheld, this would have been highly relevant in the context of her not having raised this complaint for so many years, and if there were allegations of inappropriate behaviour against Lord Lester, this could also have been significant, depending on the allegations.

5.Assertion: I found Lord Lester to have been dishonest in his account, and guilty of lying without putting this to him. (G31);

6.Response: I have (re)read my report from cover to cover and can find no reference to Lord Lester being dishonest, or lying. Although I find that the complainant is more likely than not to be telling the truth, this is not to say that Lord Lester is being dishonest in his account.

7.Just as he suggested that the complainant could be mistaken, it is possible that he is mistaken, and has suppressed, or otherwise forgotten, what happened. I do not intend to speculate on why this might be, but it is a real possibility which I do not discount.

8.Assertion: I declined to investigate the many possible reasons why the complainant’s account could have been inaccurate (G32);

9.Response: Lord Lester claims that I should have put various speculative possibilities to the complainant as to why she might be mistaken in her recollection. However, I do not consider that it is my role to make suggestions which are unsupported by any evidence. This applies not only to the complainant but also to Lord Lester.

10.The suggestions as to what I should have put to the complainant include that ‘the complainant might have been influenced by her distress and suffering as a [teenager and/or by resentment that she felt herself supplanted by S.’ If Lord Lester had wanted to raise this possibility, I certainly would have put it to the complainant, but I do not think I could have been expected to raise such highly speculative suggestion myself.

11.Assertion: It is suggested that I considered that I should only speak to any witnesses that had raised concerns about Lord Lester’s behaviour as opposed to those who spoke positively of him (G 53b).

12.Response: This is a reversal of what I said and did. In fact, as I explained in Lord Lester’s interview, I decided to interview the witnesses who might be able to comment on the complainant and any interaction between her and Lord Lester (R appendix O, pg 113 ff.). [reference is to a document that has not been published]

13.Assertion: At G54 Lord Lester attributes to me the comments of the Sub-Committee that Lord Lester had ‘completely lost all sense of judgement and propriety’ and that his actions were ‘completely out of character’.

14.Response These were not my words, I said nothing about any possible motive.

15.Assertion: At G70 Lord Lester claims that I directed the Sub-Committee only to consider the aggravating features of the complaint.

16.Response: I would not be so impertinent as to direct the Sub-Committee in any way. My conclusion was intended, and I believe was taken as, a summary of my findings amounting to breaches of the Code. They were not aggravating features, but the elements of breach.

17.Assertion: Lord Lester complains that the language I used in my note to the Sub-Committee before they decided on sanction was highly prejudicial: ‘persisted’; ‘took advantage’; even after she clearly objected’; ‘corrupt inducement.’ (G 70)

18.Response: In my use of language I was taking great care to use as descriptive and unjudgemental language as possible. So, for instance, I am of the view that unwanted touching is not necessarily unacceptable, as it can arise from a misunderstanding or from clumsy attempts to show interest. However, when it is persistent, even after the recipient has made it plain that it is unwanted, it amounts to sexual harassment.

19.I used the expression ‘corrupt inducement’ because it was the offer to help with a peerage that amounted to corruption and a breach of the Code. Lord Lester could have offered other inducements, such as money, which may not have engaged the Code.

20.I am sorry that Lord Lester considers that this language was prejudicial, and I confirm that I continue to have the highest opinion of his life’s work, having known of it for many years. My own contact with him has only been in the unhappy context of this investigation, but I also fully accept that the warm regard in which he is held, as expressed in his character references, is fully justified.

Points from Counsel’s opinion not dealt with elsewhere

21.Assertion: Counsels’ opinion is that fairness required me to identify at the outset what the separate allegations were and which of them, if approved, amounted to a breach of the code, and that the absence of such a charge sheet led me to treat the allegations as an indivisible whole (CA 4B).

22.Response: In my note to the Sub-Committee dated 23 January, (attached as an appendix), I set out the allegations which, if proved on the balance of probabilities, would amount to a breach of the code, and this shows that I was clear in my own mind, and with the Sub-Committee, about the elements of the complaint that had the potential to breach the Code.

23.The reply from Lord Brown to Lord Lester at (R Appendix L) [reference is to a document that has not been published] shows that Lord Lester was well aware of the elements of breach being alleged, before he put in his statement on 26 March.

24.Assertion: Counsel asserts that I proceed ‘on the basis that: (a) absent a plausible reason why the complainant would lie she ought to be believed; and (b) that the complainant’s written statement alone comprised prima facie evidence of an offence. This approach is analogous to the policy of “belief’ that the both the criminal courts and Sir Richard Henriques in his recent review of an investigation into historic offences (Operation Midland) have rejected as unfair, on the basis that it amounts to a reversal of the burden of proof’. (CO para 4c)

25.Response: I have dealt with point (a) in the other document.

26.Point (b) is factually and legally incorrect. The Guide to the Code of Conduct at para 120 says: “The complaint must also be supported by evidence sufficient to establish a prima facie case that the Code has been breached.”

27.Accepting that the complainant’s statement provides evidence to establish a prima facie case that the Code has been breached does not mean that I thereby believe her statement. A prima facie case is simply a case that, if not challenged, provides enough evidence that an infraction has taken place. The fact that the Guide refers to prima facie evidence as a starting point for investigation supports my interpretation, as without prima facie evidence, there can be no investigation.

28.I am satisfied that a detailed statement can provide the necessary evidence to support a complaint. To say otherwise suggests that an unwitnessed and unreported sexual assault can never be investigated under the Code. For the reasons given in my main document, it may be the case that such a complaint may not meet the necessary standard of proof, but that does not mean that it cannot even be investigated.

29.In any event, I did not accept the complainant’s statement alone that a prima facie case had been established. As is clear, before applying to the Sub-Committee for permission to investigate the case, I also obtained supporting statements from four witnesses, and it was this totality that satisfied the Sub-Committee that I should be permitted to undertake the investigation. (R43)

30.Assertion: At CO10 Counsel sets out that one of the allegations made by the complainant was that Lord Lester ‘touched her leg on a number of occasions. The complainant asked him to desist but he continued to touch her leg”.

31.Response: The complainant’s allegation was that Lord Lester persistently put his hand on her thigh. (R Appendix A para 20) [reference is to a document that has not been published]. The description in the Opinion minimises the allegation.

32.At 10 (E) the opinion says that after Lord Lester’s wife had left Lord Lester placed his arms around the complainant’s waist, but does not say, as alleged by the complainant, that he also placed his arms further up her body, such that she had to force herself away (R Appendix A para 22) [reference is to a document that has not been published]. This is a further example of minimisation.

33.Assertion: In 13 (g) it is claimed that I consider there was nothing inconsistent in Lord Lester’s wife having seen the complainant to be friendly and not distressed while in the house, given the complainant’s account that she has not found it appropriate to complain about Lord Lester’s earlier behaviour.

34.Response: In fact, my findings are based on the fact that the complainant did not allege that she had been traumatised by his behaviour, as Lord Lester alleges.

35.Assertion: Paragraph 25 of the opinion claims that the complaints against Lord Lester include serious allegations of criminal nature, including sexual assault, harassment and misconduct in public office. The consequences of upholding the complaint include the revocation of his right to practice.

36.Response: In the context of the Code of Conduct, the allegations are serious, as the standard of conduct expected of Members of the House is extremely high. Furthermore, the allegation that Lord Lester offered to help the complainant receive a peerage, if she acceded to his proposition for a sexual relationship, is particularly serious in this context, as it reinforces the view held in some quarters that appointments to the House of Lords are sometimes made for reasons other than merit.

37.However, in the context of the criminal law, these matters do not amount to serious allegations of a criminal nature. The allegations of sexual assault and harassment would be seen by all reasonable people as being at the lower end of the scale of offences.

38.Misfeasance in public office requires acts in bad faith by a public official that result in harm to another, including financial or reputational harm or personal injury.

39.I do not know whether Lord Lester can be considered a public official for this purpose, but it is clear that there is no suggestion that he took any action to assist her in obtaining a peerage, nor does the complainant say that not being invited to meetings caused her to suffer any financial or reputational loss, or any personal injury, so there is nothing to support a claim of misfeasance in public office.

40.It is not correct to say that upholding the complaint would include the revocation of Lord Lester’s right to practice. Any revocation of Lord Lester’s right to practice as a barrister could only be made following disciplinary proceedings by the Bar Standards Board which would reach its own conclusions, and would not rely upon my findings.

Appendix: Note to the Sub-Committee on Lords’ Conduct by the Commissioner for Standards, 23 January 2018

Sexual misconduct and the Code of Conduct

1.In November 2017, in light of the allegations being made about the sexual misconduct of MPs and their staff, and after being advised that no complaint about such conduct had ever been made to my predecessor, I considered whether such conduct was covered by the Code of Conduct.

2.The purpose of the Code is:

(a)to provide guidance for members of the House of Lords on the standards of conduct expected of them in the discharge of their parliamentary duties; save for paragraphs 16 and 17, the Code does not extend to members’ performance of duties unrelated to parliamentary proceedings, or to their private lives;

(b)to provide the openness and accountability necessary to reinforce public confidence in the way in which members of the House of Lords perform their parliamentary duties.

3.The Code contains principles and rules. The rules do not cover sexual misconduct, but I determined that the principles do.

4.The relevant principle is in paragraph 8:

“Members of the House:

a) must comply with the Code of Conduct;

b) should act always on their personal honour; (my emphasis)

c) must never accept or agree to accept any financial inducement as an incentive or reward for exercising parliamentary influence;

d) must not seek to profit from membership of the House by accepting or agreeing to accept payment or other incentive or reward in return for providing parliamentary advice or services.”

5.Personal honour is not defined in detail, but is referred to in paragraph 6 of the Guide to the Code:

The term “personal honour” has been explained by the Committee for Privileges as follows:

“The term ‘personal honour’ has been used within the House for centuries to describe the guiding principles that govern the conduct of members; its meaning has never been defined, and has not needed definition, because it is inherent in the culture and conventions of the House. These change over time, and thus any definition of ‘personal honour’, while it might achieve temporary ‘legal certainty’, would quickly become out-moded … the term ‘personal honour’ is ultimately an expression of the sense of the House as a whole as to the standards of conduct expected of individual members … members cannot rely simply on their own personal sense of what is honourable. They are required to act in accordance with the standards expected by the House as a whole. ‘Personal honour’ is thus … a matter for individual members, subject to the sense and culture of the House as a whole.””

6.I considered that the current standards of the House would view some forms of sexual misconduct as a breach of personal honour, and concluded that sexual misconduct, if it occurred in the context of the discharge of a Member’s parliamentary duty, could engage the Code.

Information on my webpage

7.In early November 2017 a journalist [REDACTED], wrote to the House of Lords Press Office raising the following queries:

8.He said that he had looked through the Code of Conduct and he could not see complaints of this nature being covered by it.

9.He received the following reply, which had been agreed by me, the Clerk to the Sub-Committee and the Clerk of the Parliaments.

“If a complaint were raised with the administration of a Member behaving inappropriately to anyone on the House of Lords estate we would advise the complainant on the options available to them given the circumstances of the complaint.

Members of the House of Lords are subject to a Code of Conduct which provides guidance on the standards of conduct expected of members in the discharge of their parliamentary duties. This includes a requirement to act on their personal honour. If a member of the public, or a research assistant, was subject to harassment by a member then they could make a complaint to the Commissioner who would make a preliminary assessment of whether the allegation was linked to the discharge of parliamentary duties and, if so, whether it could constitute a breach of the Code which requires members to act on their personal honour. If the preliminary assessment concluded that these two tests had been met the Commissioner would investigate the allegation and if she became aware that it was likely that a criminal offence had taken place she would alert the police.

The Code of Conduct states that a complaint must usually be made within four years of the conduct complained of. In exceptional circumstances the Commissioner may investigate conduct which occurred more than four years before a complaint is made, provided that the Sub-Committee on Lords’ Conduct agrees and that it is satisfied that there is a strong public interest in the matter being investigated.

It would be open to the House in the future to amend the Code of Conduct to require members to abide by an anti-harassment policy.”

10.As the journalist’s enquiry mentioned that he was not sure if the Code covered the behaviour complained of, I put a note on my webpage, clarifying the position, in mid-November. The note had been drafted with the help of officials, and seen by Lord McFall of Alcluith, Chairman of the Committee for Privileges and Conduct. The note says:

“Message from the Commissioner

The House of Lords Code of Conduct provides guidance on the standards of conduct expected of members in the discharge of their parliamentary duties. This includes a requirement to act on their personal honour in the discharge of their parliamentary duties. In relevant circumstances, I take personal honour to include personal conduct towards others.

It has been drawn to my attention that this may not be obvious from the wording of the Code and its guidance. Anyone wishing to establish whether the particular behaviour of an individual could amount to a breach of the Code, may contact me for further information.

Contact should be in the usual way, but may be through an intermediary if the person concerned wishes to remain anonymous during the preliminary discussion. Any preliminary discussion will be strictly confidential.”

The complaint

11.A few days later my office was contacted by a solicitor, acting for the complainant. He spoke to an official, and then to me, and then forwarded the complainant’s statement to me. I have subsequently contacted four people to whom the complainant spoke at the time, and their responses are in the papers.

12.I am satisfied that the alleged behaviour engages the Code, as the allegations include physical and verbal sexual harassment on several occasions; abuse of power by making threats of retaliation; and an offer to subvert the process for appointing Members, for personal gain.

Exceptionality and public interest

13.The Guide to the Code states:

“119. The complaint must usually be made within four years of the conduct complained of. In exceptional circumstances the Commissioner may investigate conduct which occurred more than four years before a complaint is made, provided that the Sub-Committee on Lords’ Conduct agrees and that it is satisfied that there is a strong public interest in the matter being investigated.

120. The complaint must also be supported by evidence sufficient to establish a prima facie case that the Code has been breached.”

14.In my view, there are exceptional circumstances that justify an investigation being made. These are:

15.I also consider that there is a strong public interest in investigating this complaint, because:

16.As for there being a prima facie case, I find it hard to think of a stronger set of statements, or a more convincing set of witnesses, including a senior lawyer, a senior civil servant and a district judge.

Confidentiality

17.The complainant contacted me via a solicitor, who did not initially give me her name. He explained that she needed to know whether her identity would be kept confidential if I decided to investigate the complaint. After a conversation with her solicitor about the possibilities and problems of preserving her confidentiality, I had a meeting with her, her partner and the solicitor.

18.After the meeting, I wrote to her, confirming that I would do my best to keep her name and any identifying details private, except that, of course, the Member complained against would have to see everything.

19.I explained that the investigation process was confidential, but that I could give no guarantee that her name would not leak out in due course.

20.On that basis, she decided to proceed with her complaint.

21.The Code requires that complaints are not accepted if made anonymously. I do not consider that this complaint has been made anonymously, as I know who the complainant is, and, if I investigate the complaint, so will the Clerk to the Sub-Committee and the Member complained of.

Confidentiality process

22.Currently we are in a pre-investigation stage, and I determined that, at this stage, I should not share the names of the complainant, or the Member complained of, with anyone. My thinking was that if the Sub-Committee decides that I should not investigate, but knows the name of the Member complained of and the allegations against him, the Sub-Committee Members would not be able to forget the information in the statements. This would be unfair on the Member, who would not have a chance to clear his name, or even to know what had been said about him. Therefore, during this stage, I have shared all information and communications with the Clerk only after redacting names and identifying information.

23.If the Sub-Committee gives me permission to investigate, I will provide unredacted statements to the Clerk and to the Member complained of, so that the investigation can proceed in the normal way. The Clerk and I have already discussed how to share the unredacted information in the way least likely to lead to an accidental disclosure of confidential information.

24.The Sub-Committee will become aware of the identity of the Member when a note goes up on my website. This note will be as uninformative as possible, to minimise the risk of speculation. My preference would be simply to say that Lord X (naming him) is being investigated for a breach of the Code. However, I have been advised that the Code may require a reference to the breach relating to personal honour. I would welcome the Sub-Committee’s advice on this point.

25.When I write my report, I will maintain the complainant’s privacy, by using redacted information. However, in my view, the decision on whether she is named at this stage will be for the Sub-Committee. One possibility is that it will agree not to name her, without asking to know who she is, or why she wants this protection. The other possibility is that the Sub-Committee will want to know the facts and reasons in detail before deciding on this matter. I do not think that the Sub-Committee needs to decide on this at this stage, but I raise it as a matter for future decision.

212 HL Deb 20 May 2009 col 1410-12 https://publications.parliament.uk/pa/ld200809/ldhansrd/text/90520-0006.htm



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