Liberal Democrats | Creative Commons

I was once, fairly briefly, a Liberal Democrat. I say that not to introduce a snarky remark about the LibDems, with whom I now rarely agree (except on Europe), but so you can decide whether my views on the Lord Rennard fiasco are motivated by bias against them. I think there’s been conspicuous unfairness – both to his accusers and to him.

According to what Lord Carlile has written in Rennard’s defence, he’s accused as follows:

Three women had alleged that Chris Rennard placed his hand on their knees or thighs, outside clothing, while sitting next to them.

The fourth alleged he put his hand down the back of her dress during a group photograph at a party meeting. It was said that by those four alleged acts, Chris ‘brought the party into disrepute’ and should be expelled.

At least some of these women have made the allegations in broadcast interviews. Channel 4 originally broadcast them almost a year ago. Bridget Harris (from 2 minutes 40 seconds into the piece) tells us Lord Rennard touched her knee or leg two or three times before inviting her up to his room (and that she reported the matter to her line managers at the time). An anonymous woman tells us (from 4 minutes 15 seconds) Lord Rennard “shoved his hand down the back” of her dress during a group photograph, and Alison Smith (from 5 minutes 30 seconds) tells us of an incident in which she says Lord Rennard placed himself between her and another woman, and “started moving his hands down our backs to places they had absolutely no business being”. She says she told two MPs, the then chief whip Paul Burstow and Jo Swinson. In addition, Susan Gaszczak has said

his (Lord Rennard’s) hand started to rub the outside of her leg. She claims that when she moved away he kept getting closer and was brushing parts of her that she ‘didn’t want to be brushed’.

When she excused herself to go to the toilet, she says he followed her and said: ‘Why don’t we get a couple more drinks sent up to my room, where we can continue this conversation?’

Caution in writing about this is necessary, since we don’t know what allegations have actually been formally made, and we don’t know what evidence has been given. It’s worth noting that the four allegations I’ve listed as being made in the media (two “hand on leg” and two “hand down back” accusations, to put it very crudely) don’t appear quite to marry up with Lord Carlile’s version of the case (three “hand on knee or thigh” and one “hand down back”). Everything might be clear if we knew the full detail of everything alleged.

To be as clear, and fair, as I can, Lord Carlile says

Chris has always denied that he touched the women at all.

Under the constitution of the Liberal Democrats in England, article 2.6 (page 68 of the pdf) and membership rules,

Membership may be revoked in accordance with the procedure laid out in the Membership Rules by the Liberal Democrats in England or a Regional Party or Local Party (or, where appropriate, a Specified Associated Organisation which acted as the enrolling body) on one or more of the following grounds: …

(b) conduct which has brought, or is likely to bring, the Party into disrepute

Paragraph 7 of the Membership Rules (page 96 of the pdf) sets out the disciplinary procedure. The procedure is initiated by the local, regional or English party after receipt of a “valid” complaint about a party member (presumably a complaint isn’t “valid” if, for instance, it does not identify the member complained about).

Under paragraph 7.6 (page 97 of the pdf), the party can appoint an investigator to

evaluate the strength of the evidence in support of the complaint

and whose report

shall either comprise a charge or list of charges against the individual concerned, together with a list of persons who can substantiate them and a copy of all of the written statements gathered during the course of the investigation, or it shall indicate that, in the view of the investigator, there is insufficient evidence to proceed.

If the investigator decides there is enough evidence to proceed, then the next stage is a “disciplinary meeting” of the local or regional party executive or committee, under rule 7.9 (page 97 of the pdf). Presumably the disciplinary panel deciding the case is a quorum of the relevant committee, and its members arrive at a verdict by secret ballot, presumably by a simple majority. What is clear is that they apply the criminal standard of proof: the member is only guilty of bringing the party into disrepute if proved to have done so beyond reasonable doubt.

That being the case, it follows that, although the rules do not say so explicitly, the investigator’s decision on whether there is sufficient evidence to proceed must refer in some way to the criminal standard. Whether the evidence is sufficient or not is a question of how likely a disciplinary meeting would be to “convict”, in other words. So it’s perfectly rational for the investigator appointed, Alistair Webster QC, to have adopted a “reasonable prospect of conviction” test. Is it likely that the meeting would find Lord Rennard guilty to the criminal standard?

Before looking at the investigator’s decision, it’s important to make a couple of points about the evidence. First, that we don’t know what it is. And secondly, that Lord Carlile claims the investigator saw evidence which undermined the complaints:

In relation to the fourth woman’s allegation, we have the picture, and the photographer provided a statement: neither supported the claim.

In relation to one of the other three women, we provided a devastating item of contradictory evidence that it would not be appropriate to publish.

In relation to another, we were in possession of totally contradictory potential witness evidence that we held back out of respect for requested privacy.

Of course it’s also fair to say that Lord Carlile does not explicitly argue that either the photograph or the photographer actually contradict the “hand down dress” allegation; just that they don’t give it support. We can make nothing of the “devastating item” of contradictory evidence without knowing what it is, and the other potentially contradictory evidence seems not to have been before Alistair Webster at all.

Alistair Webster’s report hasn’t been published, so all we have is this statement which explains the decision in his report. The key passages seem to me to be these:

the evidence suggests that Lord Rennard’s behaviour has caused distress to a number of women …

I have not made any findings of fact, but rather I offer my considered view on the likelihood that the allegations against Lord Rennard could be proved beyond reasonable doubt. …

My view, judging the evidence as a whole, is that there is a less than 50% chance that a charge against Lord Rennard could be proved to the requisite standard.

In my opinion, the evidence of behaviour which violated the personal space and autonomy of the complainants was broadly credible. However, it is my judgment, considering all of the evidence collected, that it is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way. Without proof of such an intention, I do not consider that such a charge would be tenable. …

It is my view that Lord Rennard ought to reflect upon the effect that his behaviour has had and the distress which it caused and that an apology would be appropriate, as would a commitment to change his behaviour in future.

I’ve stressed several times already how hard it is to comment on this without having seen the written evidence – and without having seen Alistair Webster’s actual report, of course. Had Alistair Webster simply said he thought the evidence too weak to enable a disciplinary meeting to be sure of guilt, I’d simply have had to accept that. But Webster goes beyond that.

He says

the evidence of behaviour which violated the personal space and autonomy of the complainants was broadly credible.

But if the evidence was credible, that means members of a disciplinary panel could have believed it. Only a simple majority seems to be required, remember: not a unanimous verdict or even a heightened majority, as in a jury case. And remember, Lord Rennard apparently denies touching the women at all. So once you form the view that the evidence of touching is credible, in spite of his denial, how can you go on to conclude that the majority of a panel probably wouldn’t think the touching happened? I think credible evidence of touching gets this particular allegation quite a long way, if I have a reasonably accurate understanding of the evidence on either side.

Ah, you might object: the question isn’t whether a disciplinary meeting would believe the women’s stories, but whether it could be sure beyond reasonable doubt. Yes, that’s a fair point. But I’m not sure the standard of proof makes as much difference here as it first appears. Is there all that much difference between believing a man probably touched a woman (in spite of his denials) and feeling sure he touched her? An excessive focus on the epistemological difference between the two as decisive can amount to simply being spooked, in an abstract way, by the criminal standard of proof.

Alistair Webster also threw the complaint out because

it is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way

but it’s not clear to me why he thought such an intention would have had to be proved. No such intention is even required for a conviction for sexual assault under section 3 of the Sexual Offences Act 2003. It seems to me the investigator’s decision is open to serious criticism on this ground alone.

Of course I bear in mind the important caveat that I haven’t seen the evidence myself. Still, Alistair Webster’s conclusion seems difficult to understand based on what he says about that evidence. I can’t help feeling that considering the evidence “broadly credible” would have been more consistent with allowing the complaint to proceed to the disciplinary panel than with concluding it was insufficient to go forward. And it seems to me he’s imported an excessively high requirement of intention into his analysis.

It took a long time for these women’s complaints to be taken seriously, and now there must be doubt about whether the evidence has been dealt with satisfactorily. They, certainly, have been dealt with unjustly.

And they’re not the only ones. Lord Rennard has I think seen all the evidence against him, but he hasn’t seen Alistair Webster’s report itself. The explanation we’ve been given is that lawyers have advised to do so would breach the Data Protection Act 1998. I imagine the advice must be that the report contains sensitive personal data under section 2 of the Act, because it relates to someone’s “sexual life” – although it seems a stretch to see allegations about touches on knees, legs and so on as being really about anyone’s sexual life. If that’s the view LibDem lawyers take, though, then they’re probably right that consent is necessary for disclosure under Schedule 3 of the Act, the only applicable paragraphs of which seem to require consent. We’re left to wonder who might be withholding consent, assuming it’s been asked for.

I’m not sure how Alistair Webster came to say

Lord Rennard ought to reflect upon the effect that his behaviour has had and the distress which it caused and that an apology would be appropriate

given that he also says he made no findings about Lord Rennard’s behaviour, and given that the investigator has no function except to evaluate the strength of the evidence. In my view, he or the Liberal Democrats should clarify whether he made that suggestion in his report and on his own initiative, or whether the suggestion of an apology was a political idea introduced by anyone else. The apology proposal introduced a dangerous “compromise” element into the case, which has been unhelpful to say the least.

But that would have been a minor issue, had it been left to Lord Rennard to make the apology or not, in his own time.

What is certainly unfair is to hang fresh disciplinary proceedings against Lord Rennard on his failure to give the suggested apology within a few days of Alistair Webster’s statement.

First, it’s an obvious attempt to have a second bite at the cherry. Lord Rennard has escaped censure on the complaints of disrepute by sexual harassment, and now the party is using the non-apology to reformulate the same complaint on collateral facts. Second, it effectively promotes what was only a suggestion, made in a statement going beyond the terms of the investigator’s task, into a form of compulsory sanction. That has to be wrong. It’s even more wrong unless Lord Rennard was expressly warned that there was a time limit within which he had to make his apology. If the party is using disciplinary action in order to enforce his apology, that would be an outrageous abuse of the disciplinary procedure.

Nor it is logical. The complaint must be that Lord Rennard’s failure to apologise brings the party into disrepute in the context of the allegations against him and what Alistair Webster has said. There’s a cloud hanging over the party, in other words, that, undispersed, brings disrepute.

The trouble is, Alistair Webster’s statement means there is no disreputable cloud in the first place. If a failure to apologise now means the party is in disrepute, that can only be because Lord Rennard’s conduct and failure to apologise together have that effect. But if you say x is disreputable unless y is added to or subtracted from it, then you must also be saying x – what’s left unapologised for – is disreputable in itself. Yet in respect of x, Lord Rennard has already been cleared.

The party can’t have it both ways. If the evidence against Lord Rennard suggested he’d brought the party into disrepute unless he apologised, then Alistair Webster was wrong, and the case should have gone forward to a disciplinary meeting. Putting it this way shows how the party has managed both to deal unfairly with the complaints, and now to deal unfairly with Lord Rennard.

It’s been suggested he could seek a judicial review – but I don’t think that can be right, procedurally speaking. The Liberal Democrats aren’t a body with public functions, and the question of Lord Rennard’s membership and conduct are private matters rather than questions of public law.

What he may be able to do is sue the party for breach of contract. The Liberal Democrats are I think an unincorporated association, which means the relationship between its members is governed by the law of contract, the terms of the contract being the party constitution and rules. Lord Rennard’s potential claim would be that the party has in effect breached its contract with him by failing to apply the rules properly (the investigator having wrongly exceeded his remit, and the party having unfairly taken fresh action on the basis of the investigator’s false step). He could conceivably seek an injunction to prevent the party from taking the fresh disciplinary case any further. None of this would be easy – but if I were advising the LibDems today, I don’t think I could tell Nick Clegg he’s safe.

Equally, the women who’ve accused Lord Rennard have the same contractual rights (assuming they’re all still members). They could sue too, if they think the party’s misapplied the disciplinary process.

Can this be solved without legal proceedings? My only suggestion is that Lord Rennard or his accusers (or both) should take their cases to the Appeals Panel for England under article 9.4 of the the constitution of the Liberal Democrats in England (page 88 of the pdf) on the basis that either the initial or the fresh disciplinary procedures (or both) were not properly carried out in accordance with the rules, so that a member’s rights under the constitution were breached. That’d have the advantage that the Appeals Panel’s powers appear unlimited – so it could even quash the original investigator’s report and order a reinvestigation from the beginning.

Politicians tend to favour political solutions to everything, which may explain why grandees like Lord Greaves suggest this can be settled by getting everyone to talk. But no political or presentational strategy can get the Liberal Democrats out of the hole they’ve dug.