The conduct of Lord Lester of Herne Hill Contents

Transcript of Lord Lester’s oral appeal to the Committee for Privileges and Conduct, 1 November 2018

Members present:

Lord McFall of Alcluith (The Chairman)
Earl Cathcart
Lord Dear
Lord Eames
Baroness Evans of Bowes Park
Lord Hope of Craighead
Baroness Jay of Paddington
Lord McAvoy
Lord Mackay of Clashfern
Lord Newby
Baroness Smith of Basildon
Lord Stoneham of Droxford
Lord Taylor of Holbeach
Viscount Ullswater

Celia Marr, Peters and Peters Solicitors LLP, and Lord Pannick QC were in attendance.

Examination of witness

Lord Lester of Herne Hill

Q1. The Chairman: Lord Lester, I welcome you and your colleagues, Lord Pannick and Celia Marr, to the Committee. At the beginning, I take the opportunity to remind you, as we know from correspondence, that you must represent yourself. Your colleagues may not speak, but you can consult them at any point. If you wish to adjourn for a short time while you consult your advisers, that is more than permissible. You have Committee Room 3, adjoining us, for that. If you need a break at any time, we can adjourn for a short period.

I assure you that the papers have been read carefully and you need not repeat the points already made in them. In your letter to me yesterday, you indicated that you are aware that you have 30 minutes to make a statement to the Committee. After that, we will ask you to withdraw for a short period to decide whether the Committee has any questions to put to you. If we do have any questions, we will invite you back in.

I remind you that the Committee’s remit is, first, to hear your appeal; secondly, to decide on the balance on probabilities whether the Commissioner’s conclusions are correct; thirdly, to decide whether the recommended sanction is appropriate; and, fourthly, to be mindful of the Guide to the Code, where it states that, “the Committee will not reopen the Commissioner’s investigation”. I believe that there was discussion outside about whether you can be present if we hear from the Commissioner. It is almost certain at the moment that we will not be hearing from the Commissioner.

With that, I ask you to submit your case. Thank you.

Lord Lester of Herne Hill: My Lord Chairman, thank you. I am very grateful to the Committee—for being here, among other things. What is at stake could not be more significant for me. I would be the first Peer ever to be expelled. The allegations are of abuse of power, corruption and sexual harassment almost [REDACTED—over a decade] ago, of which I am innocent. I did not abuse my power. I did not harass the complainant. I did not offer her a peerage in return for sex or threaten her. I did not exclude her from meetings about the [REDACTED—parliamentary business]. I did not threaten her with repercussions if she did not sleep with me. It is not in my character to do any of those things, and I did not do them.

Because I thought it helpful to have the views of an objective authority on fairness in parliamentary and disciplinary procedures, my solicitor approached David Perry QC to ask if he would give an independent opinion on whether the Commissioner’s approach to evidence and investigation here accorded with natural justice.

I had no communication with David Perry and have never met him. He agreed to give an independent opinion to be placed before the Committee. He said that he felt so strongly that something had gone badly wrong that he would do so pro bono. As Mr Perry explains, the Commissioner’s approach was fundamentally flawed.

First, the Commissioner wrongly considered that all of the allegations stand or fall together. She should have assessed each allegation separately to see if it was proved. Secondly, she should have identified the particular allegations which, if proved with strong and cogent evidence, would amount to a breach of the Code. Thirdly, since the allegations depend on credibility and veracity, either I should have been able to cross-examine or the Commissioner should have tested the evidence by probing questioning.

The Commissioner did not do any of those things. She admits candidly that she did not consider the evidence relating to each of the allegations separately. As she wrote in her report, “This is not a case where I have to examine in great detail each of the allegations made by the complainant”. That is because she saw this case as being about, “the complainant’s credibility”, as she put it in her comments, “with the allegations standing or falling together”. All the allegations “generally stood”, as she put it, for two reasons that she gave: first, because the Commissioner formed the view that the complainant was credible on the basis that, “I could think of no rational reason why a woman of the complainant’s apparent sanity and probity” would make these allegations; secondly, because the Commissioner thought she was “bound to accept” the complainant’s “account of events” because “no alternative is given, other than that the events did not happen”. In other words, because I did not think it appropriate to speculate about why the complainant might have made the complaint, the Commissioner thought that she should believe her account in full.

David Perry has explained that the approach of believing the complainant unless there is contrary evidence reverses the burden of proof and puts too much weight on the absence of explanation for the complaint. The courts have rejected this, along with the approach that all allegations stand or fall together. A person’s credibility and reliability are not a “seamless robe”, as the Court of Appeal has put it—evidence and witnesses can be reliable on one point but not on another, particularly after [REDACTED—over a decade ago].

There are numerous examples of how this approach led the Commissioner to accept even the most serious allegations without any evidential basis. I only have time to give one example. In half an hour, I cannot reply to all the extra points made by the Commissioner last week, defending her decision in 28 pages of comments and an appendix.

The finding that I had excluded the complainant from relevant meetings about [REDACTED—parliamentary business] has led to my proposed expulsion. The first point to note about this allegation is that the Commissioner did not even mention it in the note that she gave to the sub-committee in seeking permission to proceed with the investigation. Mr Perry explained that it is basic to natural justice that the accused is informed which are the allegations that, if proved, would breach the code. The Commissioner in response says that she did not have to give me that information because she was “clear in her own mind” what they were, and she told the sub-committee what these were. But exclusion from meetings was not even mentioned as one of the allegations that would breach the code if proved.

The complainant’s allegation on this was that there were “a number of weeks” between [REDACTED - date] and [REDACTED—around 2 or 3 months later] during which I no longer invited her to take part in relevant [REDACTED—parliamentary business] meetings, because she had refused my sexual advances in Herne Hill.

This allegation underpinned both the findings of abuse of power said to warrant expulsion: first, exclusion from meetings and, secondly, that I threatened to exclude the complainant from meetings as a “repercussion” if she did not agree to become my mistress. The Commissioner should have treated exclusion from meetings as a distinct serious allegation that required investigation—not as one allegation that could be upheld with all the others if the Commissioner found the complainant to be generally credible. So what was the evidence that I excluded her from meetings?

The complainant’s evidence was that she had “no idea how many meetings I would not have been invited to ... All I know is there was an absence”. The complainant said that her recollection was unclear and she had no notes or diaries from the time.

The only reason she alleged that she had been excluded from meetings was that she said that witness A had told her that he had noted her absence. So A’s evidence was obviously key.

But we now know from the Commissioner’s note to this Committee – it is not in the report – that she telephoned A and he could not recall anything at all about exclusion from meetings. All A said was that the complainant had told him something about the allegations at the time, but he could not be more specific and could not say anything about exclusion from meetings.

The Commissioner is appointed as “an independent and impartial investigator whose task is to establish the facts of the case”. But she never investigated whether there were in fact any relevant [REDACTED—parliamentary business] meetings during the period when the complainant says I excluded her from them, nor whether I in fact did exclude her from any.

My own evidence was that I did not exclude her from any meetings, for any reason. I did not do so. The Commissioner asked me no questions about this. She did not put to me that I must have been mistaken, that there were in fact relevant meetings and that I had excluded her because she had rebuffed my sexual advances. After my interview, until I saw the report, I assumed that she had accepted my evidence.

Not only that. The Commissioner also ignored evidence that fatally undermines the allegation. The evidence of S—you know that S is a senior serving judge—was that the date of the complainant’s key allegation was incorrect: the night that the complainant had stayed in Herne Hill was [REDACTED], not [REDACTED—2 or 3 months earlier]. On reflection, after seeing S’s clear evidence of this, the complainant and I both accepted this correction of the dates. The Commissioner found that “the complainant’s inaccurate recollection of the timing of events is not significant in undermining her account”, but in fact the timing and dates were crucial in undermining the complaint.

The correction of dates meant that the allegation that I had excluded the complainant from meetings after the Herne Hill night of [REDACTED] for “several weeks” until [REDACTED—media event] on [REDACTED—six days after the Herne Hill events] in the run-up to [REDACTED—parliamentary business] on [REDACTED—11 days after the Herne Hill events] was impossible. There were only six days between the Herne Hill event and [REDACTED—media event] during which she could have been excluded from meetings.

One of them was a Saturday. As I now know, I was in Strasbourg for two of them. The Commissioner did not investigate whether there was even a [REDACTED—parliamentary business] meeting on the remaining two days. She did not ask the complainant whether she might have been mistaken. Instead, she found, based on what I have summarised and nothing else, that the allegation was proved and that in no longer inviting the complainant to relevant meetings about [REDACTED—parliamentary business], I abused my power.

The report says that this was proved because the complainant’s exclusion from meetings “was communicated to A at the time of the events complained of”, but A specifically said that he could not remember what the complainant had told him, and he said nothing at all about exclusion from meetings.

In her response to my grounds of appeal last week, the Commissioner now says that even though A said he could not remember saying anything about exclusion from meetings, the Commissioner herself thinks it plausible that A had in fact contacted the complainant at the time “because she was not at meetings”. My Lord Chairman, this is pure invention by the Commissioner—A expressly said that he could not remember.

Secondly, although the Commissioner had to accept that the complainant could not have been excluded for several weeks, her response last week now says that “there were then further stages of [REDACTED—parliamentary business] [REDACTED—dates up to 6 months after the Herne Hill events], during which time there would have been meetings to which the complainant could have contributed”. That is quite extraordinary. No one, not even the complainant, has made any allegation of exclusion after [REDACTED—parliamentary business], which was on [REDACTED—11 days after the Herne Hill events]. I think that Lord [REDACTED] will remember that debate because he spoke in it.

This is a new allegation by the Commissioner herself, who has not put this to anyone. It is completely untrue. There were no meetings to which she could have been invited before the end of [REDACTED—around 6 months after the Herne Hill events]. After [REDACTED—parliamentary business 11 days after the Herne Hill events] the [REDACTED—parliamentary business] was taken over by the government—[REDACTED], in particular—took charge of meetings with civil servants to [REDACTED]. It is regrettable that the Commissioner should have thought it appropriate to make lengthy submissions in this appeal as if she were an adversary in litigation, forcefully advocating and seeking to bolster her decision, even with new allegations of her own invention, rather than being a neutral independent and impartial finder of fact available to assist the Committee with evidence under paragraph 139 of the guide.

The contemporaneous evidence about what occurred during those few weeks is also impossible to reconcile with the other allegations, not just exclusion from meetings. The day after I am said to have harassed her in Herne Hill, which it now appears was only four days after I first met her, witness M said she was told I was in a taxi making unwanted sexual advances. M’s evidence was not tested. In fact, it turns out that I was on my way by train to Gatwick Airport to fly to Strasbourg at 11 am.

The complainant and I appeared together on [REDACTED—media event] on [REDACTED—6 days after the Herne Hill events]. On [REDACTED—1 or 2 days after the media event], I arranged for the complainant to sit below the Bar during the [REDACTED—parliamentary business] on [REDACTED—11 days after the Herne Hill events], and I [REDACTED—information relating to the parliamentary business].

On [REDACTED], only eight days after the events in Herne Hill, the complainant signed her book for me at the book launch she had invited me to in [REDACTED]. That, and her second book inscription, which she signed, are at tab 2: “Thank you so much for your love and support. It has been my pleasure to meet you. Love and admiration”; and she signed.

This normal, friendly interaction continued. On [REDACTED—around 7 weeks after the Herne Hill events], the complainant forwarded me an email from a victim of [REDACTED] and wrote the following: “How sad are the lives of [REDACTED]? Please read this, I have offered 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 love xx”.

These events and messages are impossible to reconcile with the allegations. Yet, as David Perry explains, the Commissioner did not even think the book inscriptions or friendly email merited an adverse inference, and dismissed the email on the completely irrelevant basis that the complainant and I have a generally informal email sign-off style. The complainant’s suggestion that the dedication in her book [REDACTED] was dictated by me should have been tested and rejected. In any case, even if it were true, which it is not, it could not explain the second book dedication in similar terms.

In fact, there is not a single email or letter or other contemporaneous evidence showing inappropriate conduct by me—no threat, no sexual suggestion, no record of meetings cancelled as a so-called “repercussion”.

Had I been guilty of these things, there would be likely to be other women coming forward in the past nine months. People who abuse their power with sexual assault are likely to have many victims. I have none. The relevance of the statements at tab 8 [Not published], from people who have worked closely with me over the years, are relevant to credibility and propensity.

The Commissioner should welcome contemporaneous evidence as a finder of fact, but she now seeks to exclude from this Committee the fact that I was in Strasbourg on [REDACTED—the 2 days following the Herne Hill events] as an attempt to reopen the investigation. This cannot be right. I searched for records of those dates when it became clear for the first time in the report that the Commissioner had revised the dates of the Herne Hill allegation but concluded that nothing turned on it—not in order to reopen the investigation, but to illustrate her failure to investigate what had happened in those days. I have explained all this in a separate note to the Committee on the evidence that the Commissioner seeks to exclude.

Searching for evidence nearly [REDACTED—over a decade] later is extremely difficult. I left my room in chambers years ago and the Odysseus Trust, my political office, is closed. The potential prejudice of investigating historic allegations is well known. That is why the new draft code draws a line at the current parliamentary term. But the Commissioner did not even tell the Sub-Committee that these allegations were [REDACTED—over a decade] old. She made no reference to the potential prejudice of proceeding as a relevant factor.

The Commissioner has now disclosed her note dated 23 January 2018, which shows that at what she calls the “pre-investigation stage”, she contacted four people at the complainant’s suggestion. Without having even met them, her assessment was that: “It was 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”.

My Lord Chairman, that is extraordinary pre-judgment. In her report, she described their evidence as “extremely important” and relied heavily on what they wrote, but she never interviewed them and never tested their veracity or reliability. David Perry lists the numerous points on which their often vague and inconsistent evidence cried out for testing, but the Commissioner says she thought challenging them would have been “futile”, because they were all senior people doing their best to recall events from a long time ago.

The Commissioner notes what I said in the House of Lords in 2009 approving the Code of Conduct procedure in that case. That is a jury point. The requirements of fairness and natural justice depend on the circumstances of the particular case, not on what I said nine years ago about a different case not involving alleged sexual misconduct. As Mr Perry explains, this case turns on disputed historic issues of credibility, on pain of expulsion. The Joint Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead, wrote in its 1999 report on disciplinary procedures: “the more serious the consequences, the more extensive must be the safeguards if the procedure is to be fair … In dealing with specially serious cases … Committees of both Houses should follow procedures providing safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies. At this level the minimum requirements of fairness are for the member who is accused to be given: a prompt and clear statement of the precise allegations against the member; adequate opportunity to … have legal assistance throughout; … the opportunity to examine … witnesses; the opportunity to attend meetings at which evidence is given, and to receive transcripts of evidence”.

The Committee went on: “In determining a member’s guilt or innocence, the criterion applied at all stages should be at least that the allegation is proved on the balance of probabilities. In the case of more serious charges, a higher standard of proof may be appropriate”.

My Lord Chairman, none of that has been afforded to me.

Lord Nicholls’ Joint Committee has special authority, because its members included so many law officers, past and then serving, and a former Home Secretary, and it obtained an impressive amount of expert evidence.

The Sun newspaper called me “Lord Mo-Lester” when the complaint was leaked, and the Times published headlines, and my photograph, headed “Peer faces sex harassment inquiry” and, again with my photograph, “Lib Dem peer resigns over sex-pest allegations”. The Commissioner accepts that publishing my name and the fact of her investigation on her website did not, in her words, “work well” in terms of trying not to stir up interest. I have been in limbo for nine months. Yet the Commissioner, who kept me in the dark on what was happening until I read her report in September, now herself accuses me of “harassment” and “grossly inappropriate” behaviour for calling her office to inquire when this nightmare might end.

There must be a fair process for resolving complaints of this kind in Parliament, but it is essential that the process is fair for everyone. I ask you not to endorse the findings that the allegations were proved – corrupt inducement, threats of retaliation, exclusion from meetings, and sexual harassment – and not to endorse the penalty, for all the reasons set out in my grounds. Thank you for listening.

The Chairman: Lord Lester, I do appreciate how distressing and painful this has been for you. Your submission is a very succinct and very clear expression of your appeal and is very helpful to us. We as a Committee now need a few minutes in private to decide if we will put any questions to you. May I ask you and your colleagues to adjourn to Committee Room 3? We will ask you in again very shortly.

Lord Lester of Herne Hill: May I mention one other thing? I have had copies made of what I have just said, because the footnotes all give the correct references to where you find all the information. I will leave those copies behind for anyone who wants to check up the sources. I thought that might be useful.

The Chairman: Yes. Thank you very much.

The Committee continued in private and then resumed with the witness present.

Q2. The Chairman: Lord Lester, welcome back. As a Committee, we have no questions to address to you, but, in light of your late submission yesterday and the response from the Commissioner overnight, we feel it proper to give you the opportunity to respond. There will be a maximum of 10 minutes for you to do that. We have also decided not to hear from the Commissioner. Have you understood everything? .

Lord Lester of Herne Hill: Thank very much, Lord Chairman. Obviously this process of back and forth has to stop some time, so let me have an attempt. I am very grateful for the chance to respond to this further statement, which we have just been handed.

The Commissioner now seems to be suggesting that, although the evidence shows that the complainant came to Herne Hill on [REDACTED] and that I first met her only four days earlier—the complainant accepted that—it is more plausible that I had met the complainant months before. The Commissioner speculates, because she recognises the implausibility of the contention that I would have propositioned the complainant so soon after meeting her, and leaps to the assumption, for which there is no evidence, that I must have met the complainant long before, rather than drawing the much more obvious conclusion that the allegations are unsubstantiated.

The Commissioner also suggests that it is grossly unfair to rely on evidence produced after the report, but even she recognises that it is highly material. What would be grossly unfair would be to expel me without considering evidence which exonerates me and which I found in response to the errors in the report, which I did not receive before the report was adopted. The first that I saw of the report and the analysis was in September. I have already given you a note explaining the difficulty that I have in trying to establish facts from [REDACTED—over a decade] ago, including finding bits of diary and other stuff.

All this shows the danger – I would say the grave danger – of purporting to decide on credibility nearly [REDACTED—over a decade] after the event without a rigorous procedure, which elementarily involves cross-examination of the complainant and the witnesses. I suggest to the Committee that it should reject the Commissioner’s speculation and reject her misguided attempt to shore up a report produced after an unfair procedure and a woefully defective process of reasoning. I am sorry to have to say all that.

The Chairman: Lord Lester, many thanks for that. We are very grateful that you have come back to give us your views. The staff will be in touch about the next steps. It is just for me to remind you that the proceedings remain privileged and private up to the point of publication. Many thanks again.

Lord Lester of Herne Hill: I understand. Thank you.

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