Select Committee on Standards and Privileges Appendices to the Minutes of Evidence


APPENDIX 25

   Opinion from the Hon Michael J Beloff QC and Miss Dinah Rose,

Blackstone Chambers

IN THE MATTER OF: MR KEITH VAZ MP

OPINION

Introduction

1.  We have been asked to advise Mr Keith Vaz MP in relation to the investigation into complaints against him that has been undertaken by the Parliamentary Commissioner for Standards ("the Commissioner"), and that has now been referred to the Select Committee on Standards and Privileges ("the Committee"). We have had the benefit of reading an Advice dated 14 January 2002, by Richard Drabble QC.

2.  This opinion takes into account new developments that have occurred after Mr Drabble wrote his advice, in particular:

a)  The information that the Commissioner does not intend to make any amendment to her report to the Committee in the light of Mr Vaz's responses to it;

b)  The revelation that the Commissioner believes that Mr Vaz "pressured" her in some unspecified manner, at a meeting on 3 July 2000.

Powers and functions of the Commissioner and the Committee

3.  The office of Parliamentary Commissioner for Standards was created as a result of the Nolan Report. The Commissioner is appointed pursuant to Standing Order 150. Her principal tasks include investigating complaints concerning the propriety of the conduct of MPs, and reporting the results of such investigations to the Committee. According to Erskine May (p. 427):

"If [the Commissioner] finds that there is a prima fade case or that the complaint raises issues of wider importance, he will report the facts and his conclusions to the committee, which may then call for an explanation from the Member concerned and may hear evidence from such persons as it thinks fit, including the Member concerned and may hear evidence from such persons as it thinks fit, including the Member and his witnesses A report with an appropriate recommendation is made to the House, with which, as in other cases, the final decision rests."

4.  Thus, the Commissioner herself makes no decision or finding of fact that is binding on the Committee. Her role is an investigative one, culminating in the production of a memorandum. That memorandum is submitted to the Committee, which itself has full powers of investigation including coercive powers to require the production of documents, and the attendance before it of any Member, that are not available to the Commissioner. The Committee then reports to the House, which makes a decision.

5.  The Commissioner and the Committee, carrying out their functions under Standing Orders of the House of Commons, have the power to regulate their own proceedings. The manner in which their powers are exercised cannot, as a matter of fundamental constitutional principle, be questioned by any English court. The House of Commons is the sole judge of the exercise of its privileges, and is independent of outside control in order the better to fulfil its democratic functions.[25] We respectfully stress that this advice is written not on the basis that the acts of the Commissioner or Committee are justiciable, but on the basis that the acts of the Commissioner or Committee are justiciable, but on the basis that the Committee might wish in the exercise of its procedural discretion to have regard to established common law principles of fairness.

Factual background

6.  We do not seek to recite the full history of the investigatons conducted by the Commissioner into complaints against Mr Vaz. The following dates and face are relevant to the issues considered in this Opinion:

a)  On 15 November 2001, the Commissioner informed Mr Vaz that she hoped to be able to let him have her draft memorandum in December, and that she would be able to give him a week to provide his suggested corrections and any further comment he wished to make.

b)  On 18 November 2001, Mr Vaz replied that five working days were insufficient.

c)  On 28 November 2001, the Commissioner wrote to the Speaker, informing him that she had decided not to re­apply for her position when her term of office expired in February 2002.

d)  On Friday 30 November 2001, late in the evening, the Commissioner sent her draft memorandum to Mr Vaz. She asked Mr Vaz to provide suggested corrections of fact and comments by 8.30 am on 10 December 2001.

e)  On 7 December 2001, Mr Vaz wrote to the Chairman of the Committee explaining that he needed a more time to give him a reasonable opportunity to respond to the large volume of new material contained in the draft memorandum.

f)  On 10 December 2001, the Chairman explained to Mr Vaz by letter that the Committee would already have received the Commissioner's report when it met to consider his request for an extension of time. However, he suggested that Mr Vaz should send any points he wished to make direct to the Committee, and indicated that anything sent in early January would be in the Committee's hands before it began detailed consideration of the Commissioner's report.

g)  On 13 December 2001, Mr Bindman on behalf of Mr Vaz wrote to the Chairman, expressing concern that the timetable proposed would result in the Committee considering the draft memorandum before the Commissioner had had the opportunity to amend it on receipt of Mr Vaz's response.

h)  The Chairman replied on 17 December 2001, stating that "If the Commissioner believes it is appropriate to make changes or corrections to her report in the light of [Mr Vaz's] responses, I am sure she will do so."

i)  On 17 December 2001 and 8 January 2002, Mr Vaz's responses to the draft memorandum were submitted.

j)  On 15 January 2002, Mr Vaz attended before the Committee and gave oral evidence. At this time, he had not received a copy of the Commissioner's conclusions, which had been circulated to the Committee. Mr Vaz asked whether the document that had been circulated to the Committee was not the Commissioner's final report, and whether it would be amended on the basis of the documents he had submitted, and the evidence he had given. The Chairman informed him (Transcript, Q 312):

"The position is that Ms Filkin has an opportunity to change her report in the light of the extra evidence that you have submitted."

k)  On 17 January 2002, Mr Vaz was provided with a copy of the Commissioner's full report. including her conclusions. At paragraph 753 of the report, the Commissioner noted that

"This memorandum has not ... had the benefit of Mr Vaz's corrections of fact, or other comments."

l)  On the same day, according to our instructions, Mr Vaz met the Secretary to the Committee, who informed him that the Commissioner did not intend to make any amendments to her report as a result of Mr Vaz's responses to it.

m)  On 21 January 2002, Mr Vaz submitted a further response to the new material he had seen for the first time at or after the Committee hearing on 15 January.

n)  On 22 January 2002, the Speaker published certain correspondence between himself and the Commissioner. This included a letter dated 14 December 2001, in which the Commissioner stated:

"You asked for evidence of pressure by Members holding high office. Your office will have my published reports and, although I do not wish to name individuals, your staff will be able to point out the relevant passages. I have no need to add to what is available in those published reports, but you will notice that in one report I refer to a two­hour meeting with a Member holding high office without, exceptionally, printing a record of the content of that meeting. This was because I did not wish to risk prejudicing the Committee on Standards and Privileges against the Member when they considered my report on the complaints against him. While potentially damaging to the Member, the content of the meeting had no direct bearing on the substance of the complaint. I therefore did not think it proper to include it in my report. I did, however, brief the then Chairman of the Standards and Privileges Committee. I will be glad to supply you with a copy of my file note of that meeting should you wish to see it as it has a bearing on your question about pressure."

o)  That was a clear reference to a meeting between the Commissioner, Mr Vaz, Mr Bindman and Mr Keith Bennett (Keith Vaz's agent), which took place on 3 July 2000. The publication of this letter was the first indication to Mr Vaz that the Commissioner had felt that he had "pressured" her in any way at this meeting.[26]

p)  On 23 January 2002, an article by David Hencke appeared in The Guardian, alleging that "it appeared" that Mr Vaz had "threatened" the Commissioner at the meeting on 3 July 2000. It is not clear whether the use of the word "threat" was an inference drawn by Mr Hencke from the letter of 14 December, or whether he had an additional source of information.

q)  On 28 and 29 January 2002, Mr Bindman wrote to the Speaker and the Secretary to the Committee respectively, raising the question of the meeting of 3 July 2000.

Procedural fairness

7.  It is well­established at common law that those who investigate and report on the conduct of others, and who may make findings of fact that damage or destroy reputations or careers, are under a duty to act fairly, even if they have no power to make any binding decision: Re Pergamon Press Ltd [1971] Ch 388, at 309. Procedural fairness can be summarised as encompassing the right to be heard, and the right to a hearing by an impartial tribunal.

8.  The right to be heard includes a person's right to be told the nature of the case they have to meet, and to be given a reasonable opportunity to respond to it.

9.  The current legal approach to impartiality is set out by Mr Drabble in his advice, at paragraphs 8-13. See, in particular, Porter v Magill [2002] 2 WLR 37, at paragraph 104. We note that in this area it is well-established that appearance is as important as actuality; and there is no need to impugn the good faith of the Comnuissioner in the analysis which we develop below. The key question is whether the fair­minded and informed observer, having considered the facts, would conclude that there was a real possibility—a word we emphasise—that the tribunal was biased.

10.  In addition to the matters already identified by Mr Drabble in his earlier advice, there are two matters that give rise to a concern as to the fairness of the procedure that has so far been followed in this investigation. These are:

a)  The decision of the Commissioner not to amend her report following receipt of Mr Vaz's responses to it;

b)  The revelation of the Commissioner's belief, previously undisclosed, that she was "pressured" by Mr Vaz on 3 July 2002.

The Commissioner's decision not to amend her report

11.  It appears from the correspondence, and the Transcript of the meeting on 15 January 2002 that the Chairman of the Committee envisaged that amendments might be made to the Commissioner's report in the light of Mr Vaz's response to it.

12.  Paragraph 753 of the memorandum indicates that the Commissioner was herself aware that there were matters in the memorandum that were incomplete, or that might require correction in the light of further information received from Mr Vaz. That is also apparent from the conclusion "inquiries incomplete" which appears at paragraphs 785, 798, 806 and 817 of the memorandum.

13.  It should also be borne in mind that Mr Vaz had not had sight of much of the critical material in the memorandum before he received it on 30 November. His responses to the memorandum were thus his only opportunity to be heard in relation to much of the case against him.

14.  In these circumstances, it is surprising that the Commissioner has decided to make no amendment to her report in the light of Mr Vaz's responses. No reason has been given for that decision.

15.  It is thus difficult to view the memorandum as a final product of a completed investigation. Rather, it apparently remains the initial draft that was shown to the subject of the investigation for comment. The most obvious example of its draft status is paragraph 753 (stating that the memorandum has not had the benefit of Mr Vaz's comments), which has been superseded by events, but remains unaltered.

16.  Accordingly, in the interests of a fair procedure, we suggest that it would be appropriate for the Committee itself carefully to re­examine the findings of fact, opinions and conclusions expressed by the Commissioner in the light of Mr Vaz's responses.

17.  Although no reason has been given by the Commissioner for her decision to put the memorandum before the Committee before Mr Vaz had had an opporturdty to respond to it, and not to reconsider her memorandum in the light of Mr Vaz's responses, the timing of events would suggest to the fair-minded and informed observer that she may have been motivated by a desire to complete the investigation before the end of her period of office. However understandable such motive might be, this is not a reason that should outweigh the resulting unfairness to Mr Vaz: see R (Legal and General Assurance Ltd) v The Pension Ombudsman [2001] EWHC Admin 1086, which likewise concerned a regulator requiring the subject of an investigation to comply with an abbreviated timetable in the light of his own imminent departure from his post.

Appearance on bias

18.  It appears from the recently-published correspondence between the Commissioner and the Speaker that the Commissioner believes that some form of "pressure" was applied to her by Mr Vaz at the meeting on 3 July 2000. This allegation has never been put to Mr Vaz. The nature of the conduct or words that were believed by her to amount to "pressure" remain undisclosed, making it impossible for him to respond to the allegation.

19.  The course of events gives rise to a concern that a fair­minded and well-informed observer might conclude that there was a real possibility that the Commissioner was not impartial in her conduct of the investigation, for the following reasons:

a)  An investigator who believes that the person she is investigating has put pressure on her to deter the investigation might reasonably be thought likely to conclude that the person in question has something to hide, and accordingly to form an adverse view of their credibility and motives. Such an adverse view of Mr Vaz is apparent throughout the memorandum;

b)  the possibility of the formation of an adverse view of Mr Vaz arising out of the belief that "pressure" was being applied by him is particularly significant given the Commissioner's references to "improper pressure on witnesses" (paragraph 756);

c)  it is of particular concern that the matter was not disclosed to Mr Vaz or the Committee, so that it could be addressed and dealt with, although it was still of sufficient importance to the Commissioner almost 18 months later for her to refer to it in her latter to the Speaker;

d)  if the Commissioner herself considered—and apparently still considers—that revelation of the alleged pressure might adversely distort the impression formed by the Committee of Mr Vaz, it would seem that logically she ought to have appreciated that she herself was capable of being influenced by the self-same considerations, and should accordingly have put her allegations to Mr Vaz;

e)  in any event, it would have been appropriate for the Commissioner to inform the Committee of her perception so that it could form its own judgment about what was or (more materially) might reasonably be thought to be the Commissioner's state of mind in pursuing her investigation.

20.  In the light of this new information, in addition to the matters referred to by Mr Drabble, we respectfully suggest that the Committee might properly conclude that it would be unsafe for it to rely upon the findings made by the Commissioner in any recommendation it made to the House. In the interests of fairness, the Committee ought to use its own investigative powers to establish the facts, or, failing that, instruct the newly-appointed Commissioner to re-investigate the complaints. The possible inconvenience of such a course is outweighed by its justice. As Lord Atkin said in GMC v Spackman [1943] AC 622 at 638: "Convenience and justice are often not on speaking terms."

1 February 2002  The Hon Michael J Beloff QC and Dinah Rose


25   See, for example, Pickin v British Railways Board [1974] AC 765, per Lord Reid at 787G: "The function of the Court is to construe and apply the enactments of Parliament. The Court has no concern with manner in which Parliament or its officers carrying out it standing orders perform these functions; and R v Parliamentary Commissioner for Standards, ex parte Fayed [1998] 1 WLR 669, confirming that the Commissioner is not subject to judicial review. Back

26   Although there was reference to this meeting in the minutes of the Committee's meeting on 30 January 2001. Back


 
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