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House of Lords: Code of Conduct

My Lords, I hope that your Lordships will hear, briefly, from another Member on the Cross Benches. In its briefing note mentioned in paragraph 72 of the report, the Hansard Society described the existing code as an uninspiring document—uninspiring because it is largely negative in character. The Eames group has met that challenge and has tried to make the code more inspiring by emphasising the positive aspects of our purpose in life as Members of the House of Lords. In this, the Eames group has largely succeeded and has made the code much shorter, so it is much to be welcomed. I venture to comment on two respects in which the new code differs from the existing code. One is the subject of the first amendment tabled by the noble Lord, Lord Stoddart of Swindon. Under paragraph 5 of the new code, Members will be asked, on taking the oath, to sign an undertaking to abide by the code. This is of great importance. When we debated the case of the four Peers on 20 May, it was necessary for us to rely on an implied undertaking to abide by the code in order to justify the sanctions that we imposed. This point was made by the noble Lord, Lord Foulkes, and by the noble and right reverend Lord, Lord Eames. What we did on 20 May was perfectly correct in law, for the reasons given at the time by the noble and learned Lord, Lord Mackay, with which I agreed, but how much better that in future we should be able to rely on an express undertaking, should the need arise. Therefore, I regret that I cannot agree with the first amendment tabled by the noble Lord. The second amendment deals with the commissioner. The point has been made that the appointment of a commissioner would undermine the principle of self-regulation. It would do no such thing. The appointment would be to carry out a preliminary investigation of complaints, make a preliminary finding of facts and report in due course to the sub-committee. Far from undermining self-regulation, it would assert it. Therefore, again with regret, I cannot support the second amendment. My second point about the code arises from paragraph 19, which deals with procedural safeguards. The existing code provides that safeguards must be, ""as rigorous as those applied in the courts and professional disciplinary bodies"." There was evidence that this test placed an almost impossible burden on the sub-committee. The Hansard Society briefing note describes the test as having become "a lawyers’ charter". Therefore the language has been changed to make the test less rigorous. Under the new paragraph 19, the sub-committee must act, ""in accordance with the principles of natural justice and fairness"." Fairness is the principle that underlies all procedural safeguards in the courts. The rules of natural justice have come to have a specific content in law. Nevertheless, I support the change in the wording if it will enable the sub-committee to proceed more expeditiously. My last point is that in paragraph 27 of its report the Eames group considered and rejected the idea of putting the code on a statutory basis, which, it was said, would open up the prospect of judicial review on matters of internal discipline. I entirely agree that a statutory code would have been disastrous, but we deceive ourselves if we think that, because of the change in wording, a lawyer will never be able to find something about which to complain—and they may still seek leave to apply for judicial review. To have excluded judicial review in express terms would have been fatal to our purpose, but we must remember that an application for judicial review lies only with leave. Our best protection, therefore, rests on the good sense of judges in refusing leave to apply for judicial review in unmeritorious cases and on our own good sense in ensuring that our procedures are as fair as we can make them. The proposed safeguards set out in paragraphs 111 to 116 of the guidance are a very good start. If difficulties arise, the safeguards can always be reviewed from time to time by the Committee for Privileges. That seems to be the great advantage of separating the code from the guidance. One is intended to be flexible, the other not—or, at any rate, less so. The Eames group has, in my view, done us a great service by proposing this separation of the code from the guidance. I hope that we will accept the thrust of the report and adopt the code today.