Advice from Mr Richard Drabble QC
1. The principle purpose of this advice is to
indicate shortly my views on one particular matter relating to
the current investigation into further complaints against Mr Keith
Vaz MP. The matter has reached the stage where a Memorandum has
been compiled by the Parliamentary Commissioner for Standards
and has been submitted to the Committee. A Draft but not the final
version has been seen by Mr Vaz.
2. The particular matter relates to issues arising
out of Ms Filkin's current position. Her decision not to stand
as a candidate again when her fixed term expired and effective
resignation in early December was accompanied by a great deal
of publicity and controversy. There was widespread press coverage.
This advice is written because it seems to me inevitable that
the background would, in more orthodox judicial situation, give
rise to issues of "apparent bias"; and that there is
an issue of how a Memorandum and Report written against a background
where Ms Filkin was contemplating her position and making her
decision on the basis of her views of the support or lack of it
that she was receiving in certain circles.
3. I am acutely conscious of the sensitivities
raised by issues of apparent bias in any context; and even more
so in the present one. I should make it clear that I have not
attempted to, and would not have been in a position to, make a
comprehensive survey of the relevant factual background. Even
less am I able to make any comment on the rights and wrongs of
the approach taken to Ms Filkin's re-appointment; either by herself
or by anyone else. It would be quite wrong for me to do so. The
purpose of this Advice is to indicate that in my view a problem
does exist, for the reasons that I shall shortly indicate. The
present situation is one where, in my view, the problem arises
regardless of any fault of any kind on the part of any individual.
4. It is plain that Ms Filkin's decision was
made against a background where she considered that she was not
receiving appropriate support in certain quarters in the House
of Commons; the press reports were to the effect that she had
been the subject of a whispering campaign against her. One example,
which I cite because it led to the response dated 19th December
2001 from the Clerk to the Committee, was in the Sunday Times
of 9th December 2001. Under the heading "Commons watchdog
to name guilty men", the article reported that Ms Filkin
intended to present a dossier of how her inquiries had been undermined.
An article by David Hencke, in the Guardian of 10th December 2001,
indicated of Ms Filkin that "she is not expected to name
those behind the whispering campaign until she has left her job
in February. One reason is that one of the chief "whisperers",
Keith Vaz, the former foreign office minister, is still under
5. Mr Bindman, my instructing solicitor, wrote
to the Committee on the 17th December 2001. He received a reply
on 19th December. A material part read:
"The Committee was concerned by the report in
The Sunday Times and has agreed to give further consideration
Whatever may have been suggested in the newspapers,
the Commissioner has never suggested that Mr Vaz has been engaged
in a whispering campaign. She has made clear that such incidents
have been no real obstacle to her getting on with her job. The
Committee has full confidence in her ability to conduct an impartial
investigation in relation to Mr Vaz."
6. As I have indicated, it would be positively
wrong for me to express any views on whether or not Ms Filkin
does believe that Mr Vaz has been engaged in a whispering campaign.
This Advice is written on the basis that she does not. Nonetheless,
the uncontroversial facts are that her decision not to seek a
further term was made against a background of her views that she
was not receiving appropriate support from certain quarters in
the House of Commons; and that this was related to the work that
she had undertaken. The issue that this Advice addresses is whether
in those circumstances there is "apparent bias". I stress
again that the problem, as I see it, comes not from the rights
and wrongs of the situation concerning re-appointment but from
the inherent difficulty in dealing with a controversial inquiry
concerning a former minister in circumstances where such controversy
over re-appointment has arisen.
7. In addressing the matter, I have considered
the authorities on apparent bias as they concern judges; and also
the approach of the House of Lords in recent case of Magill
v Porter. The latter, so far as relevant for present purposes,
dealt with an allegation that the auditor should have recused
himself when asked to do so after holding a dramatic press conference.
Quite apart from the important point that the actions of the Parliamentary
Commissioner are reviewable solely by parliament and not by the
Courts, her position is in any event different from that of either
a judge or the auditor. Her Memorandum and Report go to the Committee;
she makes no decision and the Committee is free to accept or reject
her report. If it wishes to do so, it can receive oral evidence.
It follows that any breaches of the rules of natural justice can
be cured by the actions of the Committee itself. Even if the Committee
in the present case were to form the view that there was an issue
of "apparent bias", it could deal with the situation
by effectively repeating the whole of the fact-finding exercise
that has led to the Memorandum and Report. The effect of any view
that there was "apparent bias" at the time the Memorandum
and Report was written would accordingly be limited to ensuring
that the Committee carried out its own fact finding exercise on
a comprehensive enough basis to ensure that its decision was genuinely
8. The formal test for apparent bias is now settled
by the House of Lords in Porter, where Lord Hope, in paragraph
102, cited with approval a passage from In re Medicaments
2001 1 WLR 700. It makes it plain that the test in England and
Wales should not differ from that applied the ECHR cases by the
Strasbourg court. It is expressed as follows:
"The Court must first ascertain all the circumstances
which have a bearing on the suggestion that the judge was biased.
It must then ask whether those circumstances would lead a fair-minded
and informed observer to conclude that there was a real possibility,
or a real danger, the two being the same, that the tribunal was
9. The test has now become easy to state but
not so easy to apply. Some further points can be made.
10. First, one must guard against the risk of
being too "precious" about identifying matters which
might unconciously influence a tribunal. This is obviously particularly
true in a parliamentary context; where the Committee itself will
be drawn from different political parties and where the background
is that of vigorous political life of the House.
11. Second, however, the test is the existence
of a real possibility. In an orthodox judicial situation,
an allegation of apparent bias will be made good if the fair-minded
observer perceives there to be such a possibility.
12. Importantly, for present purposes, the House
of Lords in Porter considered the relevance of the Auditor's
own views as to whether he was biased. Lord Hope said at para
"The Divisional Court said ... that it had particular
regard to his reasons for declining to recuse himself in reaching
its conclusion that he had an open mind and was justified in continuing
with the subsequent hearings. I would agree that his reasons were
relevant, but an examination of them shows that they consisted
largely of assertions that he was unbiased. Looking at the matter
from the stand-point of the fair-minded and informed observer,
protestations of that kind are unlikely to be helpful."
13. No doubt Lord Hope made this observation
because of what is called elsewhere in the authorities the "insidious"
nature of bias. Thus the judgement of a fact-finder may in fact
be influenced by bias despite an absolutely sincere belief that
this is not the case: this is the reason for the strength of the
rule that one cannot be a judge in one's own case. The immediate
relevance is that there may be "apparent bias" despite
the assurances given by Ms Filkin to Committee as recorded in
the letter of 19th December; and despite the fact that the Committee,
which of course has a close working relationship with Ms Filkin
developed over time.
14. One comes back to application of the test
to the present facts. I repeat that I have not attempted a full
fact finding exercise. However, it does seem to me that there
is a real issue here. The Report and Memorandum were written as
Ms Filkin was approaching the end of her fixed term appointment.
She plainly does have a sense that she has not been properly treated
by at least some parts of the House; and that this is connected
with her investigations. The current investigation is a noteworthy
example of the controversial investigations. I can say no more
than that in those circumstances, a fair-minded and impartial
observer might feel that there was indeed a real, and not too
"precious" danger that the fact-finding and indeed turn
of phrase in the Memorandum and Report was unconsciously influenced
by a sense of grievance. It would not seem to me that a genuine
belief by her that Mr Vaz was not one of the whisperers would
dispose of the matter. The possibility of bias arising from a
sense of grievance might flow from a belief that she was being
undermined by other influential parliamentary friends of an ex-Minister.
15. Accordingly, in my opinion it would be appropriate
for the Committee to consider whether the objective circumstances
are such as to raise a real possibility of bias in the sense that
I have indicated. If it did, it would be inappropriate to rely
on the Memorandum (or any parts of it) without taking steps to
ensure that its own fact-finding was sufficiently comprehensive.
16. I would wish to add two other comments of
a procedural nature. First, the period of five days given by the
Commissioner for comment on the Draft Memorandum was, in my view,
quite clearly wholly inadequate for the purpose. Second, this
investigation raises acutely the problem of how the interests
of third parties are to protected within the procedures adopted
by the Commissioner and Committee. In other inquiries, "Salmon"
letters are written, giving any party criticised a chance to comment
on any criticisms that the Inquiry is minded to make of them.
No parallel steps have been taken in the present case, despite
the very considerable damage that would be done by publication
of such criticisms with the protection of parliamentary privilege.
14 December 2002 Richard