Opinion from the Hon Michael J Beloff QC
and Miss Dinah Rose,
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
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.
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.
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
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
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
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
"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
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
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.
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
 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  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 possibilitya word we emphasisethat 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
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
 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
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
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"
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 consideredand
apparently still considersthat 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  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
 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  1 WLR 669, confirming that the Commissioner is
not subject to judicial review. Back
Although there was reference to this meeting in the minutes of
the Committee's meeting on 30 January 2001. Back