In its report the committee confirms its recommendations that the House should endorse the Commissioner for Standards’ finding that Lord Lester breached the Code of Conduct by sexually harassing a complainant and offering her corrupt inducements to sleep with him.
The report was agreed before Lord Lester retired from the House on Tuesday 11 December. The report includes the recommendation that Lord Lester be suspended until 3 June 2022, as the Committee had recommended in its original report, however as Lord Lester has retired that recommendation will not now be put to the House.
The report follows a vote in the House on 15 November 2018 in which the issue was referred back to the committee for further consideration. It addresses the issues raised in the debate, showing that the comments made criticising the Commissioner for Standards and the process of the original investigation were unfounded.
Comparison with other organisations
During the debate it was suggested that the Lords’ disciplinary process lacked procedural protections for the accused that would be standard in other disciplinary contexts. The committee show these assertions “were and remain wrong” and that the process used for Lord Lester’s case was fair and complied with the principles of natural justice.
The use of cross-examination in internal disciplinary processes
The committee point out that many organisations do not allow cross-examination as part of their disciplinary processes. Cross-examination is not allowed in the Scottish Parliament, Welsh Assembly or Northern Ireland Assembly for complaints against Members and is also not used by the Judicial Conduct Investigations Office or the Independent Adviser on Ministers’ Interests for complaints against Judges or Ministers respectively.
The report goes on to highlight the problematic nature of cross-examination in cases of sexual harassment and points out that the House of Lords investigatory process are deliberately designed to be inquisitorial rather than adversarial.
Robust testing of evidence
The committee says that when cross-examination is not used evidence must be robustly tested by a competent investigator, exactly as happened in the Lord Lester case.
The committee deal with concerns raised about: witnesses not being interviewed in person; the complainant writing dedications in her books to Lord Lester; the delay in the complainant bringing a complaint; probing of the offer of a peerage; and the issue of corroboration in turn, showing that the Commissioner for Standards at all stages acted appropriately, subjecting evidence to robust scrutiny and examination. The committee expresses regret that some Members used the debate to unfairly criticise the Commissioner.
Standard of Proof
The report confirms that the standard of proof required to find a breach of the Code of Conduct is the balance of probabilities, not beyond reasonable doubt, but the Committee also shows that the Commissioner saw this standard as a floor not a ceiling and required cogent evidence before upholding the complaint. This is appropriate as it is an internal disciplinary process, not a criminal trial, and is the same standard used by a wide range of organisations including the Scottish Parliament, the Judicial Conduct Investigations Office and the Medical Practitioners Tribunals.