Select Committee on Standards and Privileges Minutes of Evidence

Examination of Witness (Questions 115 - 119)




  115. Sir Nicholas, welcome to the Committee, and thank you very much for that most useful letter that you sent to me. Can I start off by asking you about this logical progression which you set out as to the way the Committee should proceed, the way complaints are received, insufficient background material is obtained and so on. Where do you feel, in that logical progression, there have been any mistakes you could draw the attention of the Committee to, or do you feel that we have broadly followed those lines?  (Sir Nicholas Lyell) No. Without casting aspersions the reason I said that was that I think, having read quite a number of the reports, the Committee would have benefited and will benefit in the future by trying to apply a logical progression. This is not something unique to this Committee, as I explained. In a sense I have lived through this because, in the thirty years I have been at the bar, I and other members of my chambers have given advice to various public bodies who have had to exercise disciplinary functions and who had very weak procedures thirty years ago and are gradually building up much more sensible—not over-legalistic but sensible—procedures which help to guide the way that an inquiry is carried out and a disciplinary proceeding is seen through. I think the reports do show that they would have benefited from a more definite procedure.

  116. But the Commissioner, of course, does follow much of what you set out here and then, of course, it comes to the Committee in the form which he provides, she satisfies herself that a complaint made is one which is reasonable and invites the members to speak orally and, of course, the members know what the infringement is and that it is an important aspect and one that is the first rule, as you put it, of natural justice. Have we erred in any way on that?  (Sir Nicholas Lyell) Yes. I think so. You have asked me for my honest opinion and I think so.

  117. Would you explain?  (Sir Nicholas Lyell) Yes. I think the import formality of the procedure in a number of cases has led to allegations being made and the allegation by the complainant simply being passed on for comment to the member who is alleged to have done something wrong. I think what would be helpful and important in the future is that the Commissioner draws back and says, "Now, what actual rule does that allegation infringe?", and get clear in her own mind where the infringement lies. It may well be that the allegations do not sustain the infringement but it is important to clarify what the actual charge would be in the mind of the Commissioner and for the Commissioner then to think, "Well, does this allegation actually match up to it?", in which case she may wish to ask the complainant for some more detail. When she has enough detail to be satisfied that the allegation does at least constitute a prima facie case for a charge, or at least has a basis for a charge, she should make clear in any communication, and it should preferably be written, what the nature of the charge is, if we have got to the stage of making it, or the charge which she might think of making is so that the person complained of can focus their mind on the right issue.

  118. What makes you think she does not do that already?  (Sir Nicholas Lyell) I am sure she sets out and would wish to do it but I have read a lot of reports and, having read them, I think they seriously could have benefited from this greater structure.

  119. Coming on to the question of legal assistance and advice, we did produce a report in which we suggested some way in which legal expertise can be given to the Commissioner in certain cases and we heard from John Major about two weeks ago about the legal expertise that might be available. What do you say about the legal expertise that you would like to suggest on this? Do you think that would be of some help, and in what way?  (Sir Nicholas Lyell) I have been thinking about this quite carefully because I have read at least a good deal of your discussion with John Major which was helpfully provided to me yesterday. I have not managed to read the later pages of it but I think I have read the legal bit. If one thinks back to the past, there have been occasions on tricky cases where Sir Gordon Downey had specific legal help I think from Nigel Pleming QC, but I think looking to the future at some stage the Commissioner needs to have a degree of legal training. Now I meant to look it up and, with great respect to the Commissioner, I am not sure whether she did have legal training—I know she did a wonderful job in NACAB and that is where we first met—but I was wondering whether you really have to have another lawyer sitting alongside the Commissioner or whether you start—and I am looking to some distant future and this is entirely a matter for the Committee and the House—by trying to have a Commissioner who has the training to exercise a quasi judicial function. It is jolly difficult to do and I think, if you have the training inherent, it is easier to do it and, if you have a Commissioner who is not legally trained, then I think he or she ought to have the opportunity to speak regularly with a legal advisor who can answer these questions, suggest frameworks and discuss questions as to whether particular facts constitute an infringement or not in order to give the necessary guidance.

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Prepared 23 March 2001