The investigation of my client Keith Vaz by the parliamentary commissioner for standards and the House of Commons Committee on Standards and Privileges has reminded me of the amazing ability of even the most serious journalists to be infected by mass hysteria.
Kafka might have told the story along these lines: KV is accused of wrongdoing six years ago. He protests his innocence. The press feed the prosecutor with allegations over several months until there are altogether 23 separate accusations, some going back 12 years. He denies them all. The prosecutor says: “I will not tell you what laws you are accused of breaking and I will not tell you the evidence against you. I may choose to do so later. Meanwhile, you must help me to prove your guilt by answering all my questions.”
KV answers hundreds of questions. After repeated requests, the prosecutor identifies the allegations and discloses some of the evidence. After ten months, KV says: “I believe I have answered everything. Take me to the court. I will answer more questions, but only if the judges tell me to.” The prosecutor then drops most of the allegations, but reports the rest to the court.
KV is given two and a half weeks to comment on a lengthy draft of the report, which discloses for the first time evidence of witnesses who make yet more accusations of crime against KV, his mother and others, going back 17 years. KV asks for these to be removed, since he has no time to answer them. His request is refused.
The court finds none of the allegations proved except one – the least serious. It criticises him for prolonging the investigation and, at the same time, for curtailing it by demanding to go before the court. The court points out that KV has failed to prove his innocence of some charges.
The media are disappointed: “Evidence, proof and natural justice are the evasions of lawyers. We know KV must be guilty of something, so we have invented a new crime. We call it ‘obstructing a police investigation by defending oneself against false accusations’. We convict KV of this in his absence without charge or trial. We sentence him to loss of reputation, employment – and to jeers and racism for life.”
Does this scenario resemble what happened? I believe it does.
There are objections. This was not a criminal prosecution. The parliamentary commissioner for standards is not the police and the Committee on Standards and Privileges is not a court. This is a system of self-regulation protected by parliamentary privilege.
It is true that, throughout history, parliament has largely succeeded in controlling its own procedures and excluding the courts and the obligation to meet judicial standards. The Court of Appeal has held that a decision of the Committee on Standards and Privileges cannot be judicially reviewed but it may still be amenable to challenge under the Human Rights Act.
Keith Vaz faced allegations of criminal conduct. Adverse findings on those allegations would have destroyed his reputation and career. It cannot be right to deny MPs the safeguards given to other citizens faced with similar allegations.
The attitude of the commissioner and the committee is equivocal. Elizabeth Filkin says, for example, that “this investigation is a fact-finding exercise not a judicial process with a prosecution and defence”. But she also says that “having regard to the seriousness of some of the allegations against Mr Vaz, I have decided that in this case I should adopt a stricter standard of proof than the balance of probability”.
In April 2000, two months after the Vaz investigation started, the committee endorsed and published her statement of the procedures that she follows when investigating complaints. These describe a quasi-judicial process that leads to a conclusion in which the commissioner decides whether or not to uphold a complaint. Outside parliament, the rules of natural justice would undoubtedly have to be applied to this process.
Justice requires clear and fair procedures, yet much here remains cloudy. For example, the committee says in its report that it is considering only two complaints. Both of these were rejected by the commissioner. What about all the other allegations? Most but not all were eventually labelled by the commissioner as complaints – but who made them?
Am I being far too legalistic? Certainly, the involvement of lawyers may sometimes have gone too far in this case – but should we accept what one MP said to Vaz: “All we need to do is to talk to MPs, establish the truth, and produce a report.”
That might be tolerable if the complaints were only about registration of members’ interests and the only issues were whether the member had failed to register through oversight or misunderstanding.
The committee understood perfectly well that accused members might wish to seek legal advice. When accusations of corruption are made, is there any one of us who would not do so?
On behalf of Keith Vaz, I submitted detailed recommendations for tightening up the investigation process. These did not include increasing the commissioner’s powers. The committee already has full power to demand the production of persons, papers and records, and the commissioner can ask the committee to exercise that power at any time. She did not feel the need to do so in the Vaz case until she submitted her final report. I now think that, in more serious cases, self- regulation is not working fairly. Either the committee or the accused member should have the right to refer the matter for investigation to an independent tribunal chaired by a High Court judge.