Rennard “sex scandal” is a fox that will run and run

 Amongst the 90% of the population who do not wish the Liberal Democrats well, many will have been delighted by the mess they have made of the investigation into the alleged sexist behaviour of the of the party’s former Chief Executive and psephological Svengali, Lord Rennard.

The police quickly completed a criminal investigation into the allegations and decided to bring no charges.

Normally that would have been the end of the matter but the Liberal Democrats have always prided themselves on openness, fairness and justice. The Party therefore carried out its own inquiry, led by the distinguished Liberal Democrat barrister Alistair Webster QC.

It has been been widely criticised as secret, unfair and unjust.

Almost as bad, far from producing finality or “closure” it appears to have set the scene for further legal wrangling for months and perhaps years to come.

Lord Rennard has refused to apologise for his behaviour and, apart from a brief statement thanking his legal team and expressing a wish to “resume his roles within the party” has otherwise largely maintained a silence that, depending on your point of view, could be described as either dignified or cowardly.

According to his barrister, Lord Carlile QC, the LibDems procedure “makes the North Korean legal system look benign.” Lord Carlile can be forgiven a little exaggeration and we can at least be sure that Lord Rennard will not be stripped naked and fed to starving dogs. But at least the 7400 words of the North Korean Constitution possess a certain clarity that is lacking in the 123,000 words of the Liberal Democrat equivalent. One would have guessed that a document designed by Liberal Democrats would facilitate indecision and fence-sitting, and so it has proved.

The procedure that Mr Webster was required to follow is set out in paragraph 7.6 of the membership rules of the English Liberal Democrats. These are the parts that matter:

7.6 The relevant Party body may appoint an investigator to investigate the complaint in accordance with its internal procedures. That investigator must be independent and must not be a member of the same Local Party as the person being complained against,

(i) The investigator shall be responsible for gathering written statements from all

of those who are able to substantiate or undermine the complaint,

(ii) The investigator shall also be responsible for seeking to conciliate between the

parties where possible and appropriate,

(iii) The investigator shall then evaluate the strength of the evidence in support of

the complaint,

(iv) Within four weeks of their appointment, the investigator shall send

a report to the Chair of the Party body pursuing the Disciplinary Procedure.

(v) That report shall either comprise a charge or list of charges against the

individual concerned, … or it shall indicate that, in the view of the investigator, there is insufficient evidence to proceed.

…

In short, Mr Webster had to decide, on the basis of written statements alone, whether there was sufficient evidence to proceed with a specific charge, or charges, against Lord Rennard. It was a decision which is similar to that performed by the Crown Prosecution Service in deciding whether to bring criminal charges. The practice of the CPS is that unless they think there is a “better than even” chance of a conviction, they do not prosecute. Sensibly, Mr Webster decided to adopt the same test. If there was a reasonable prospect of conviction, he was required to identify the charges, if there was not he was required to say so.

Rather surprisingly the LibDems have not found space for a specific offence of sexual misconduct or harassment within their novel-length constitution. Instead, the offence for which Lord Rennard was investigated was the broad one under paragraph 2.6 (b):

“Conduct which has brought, or is likely to bring, the Party into disrepute;”

“Bringing the Party into disrepute” is potentially a vague and ill-defined concept, even though the rules are clear that in order to discipline somebody for doing so the charge must be proved “beyond reasonable doubt.”

We have not been told precisely what is alleged against Lord Rennard but according to the original Channel 4 News report it involved sexual impropriety towards female party members at a time when he was either the Chief Executive or at least a highly influential party official.

Thus, Bridget Harris, a former adviser to Nick Clegg alleged that she spoke to Lord Rennard over coffee at a Swansea conference in 2003:

“As we carried on talking he was touching my legs and my knees and he did it two or three times, and the first time I thought it was an accident and I crossed my legs. Then the second time I realised he was actually doing it. Then when he tried…the third time I basically had to physically move away from him,” she told Channel 4 News, adding that he went on to invite her to his room, “clearly not noticing the signals”.

An unnamed woman described chatting at a party event when:

“Chris [Lord Rennard] was stood next to me, he shoved his hand down the back of my dress. I felt really humiliated, and very undermined and very shameful.”

Another woman – a LibDem activist – was allegedly invited back with a friend to dinner at Lord Rennard’s house when the noble lord:

Just very suddenly got up and plonked himself between us and then he started moving his hands down our backs and places where they had absolutely no business being.”

It was presumably behaviour of this sort that Mr Webster had to consider, although none of the formal statements of the complainants have been made public.

He expressly said that he found these statements “broadly credible” and he went out of his way to dismiss the suggestion that “the incidents had been invented as part of a political campaign against Lord Rennard.”

So, if the complaints were credible and not part of an organised campaign to discredit Lord Rennard, why then did he not decide to bring a charge of bringing the party into disrepute?

One reason might have been that in his opinion such behaviour was not in fact disreputable at all. Some crusty QCs of the old school, though I fancy not many these days, would perhaps be prepared to take the robust view that the allegations, whilst credible, related to such trivial behaviour that they could not warrant any disciplinary charges. However, that would have been very hard to maintain, especially in a party as devoted to the cause of sexual equality as the LibDems. Unsurprisingly Mr Webster did not take that line.

Another reason might have been that, though disreputable, the behaviour did not bring the Party into disrepute as it was not connected with Lord Rennard’s official duties. Given that all the women concerned were LibDem activists of one sort or another, and that many, if not all, of the incidents appear to have taken place either at Party conferences or in the context of other Party business, this would have been highly unconvincing; and Mr Webster did not take that line either.

He could have found that although the women were truthful about what happened, Lord Rennard reasonably believed that they were consenting to his advances. He made no such finding.

Instead, the reason he gave for believing that that there was “less than a 50% chance that a charge against Lord Rennard could be proved to the requisite standard” was 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.”

If what Mr Webster read bore even a passing resemblance to the accounts given to Channel 4 then this reasoning is very difficult to understand. He seems to have accepted that the behaviour was indecent or sexually inappropriate but not intended as such. Presumably he thought that Lord Rennard might have reasons other than sexual ones for sticking his hand down the backs of dresses or “plonking himself down” between two women and “moving his hands to places where they had absolutely no business going.” Perhaps he was simply adjusting their dresses, or other items of clothing.

But this explanation for not bringing charges, that he could not be proved to have acted in an intentionally indecent way, is not one that would cut much ice in a criminal court. The offence of “sexual assault” under S. 3 of the Sexual Offences Act 2003 is made out if:

1. A person (A) … –

(a) … intentionally touches another person (B)

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

As long as the touching itself is intentional, sexual and non-consensual, there is no additional requirement in the criminal law for proof of an intent “to act in an indecent or sexually inappropriate way”. It is unclear why Mr Webster felt the need to introduce this extra hurdle when deciding whether Lord Rennard should be charged with “bringing the party into disrepute.” One would have thought that the commission of a sexual offence punishable by imprisonment would in itself be quite sufficient. Indeed, under paragraph 7.2 of the Party rules there is a “rebuttable presumption that a person has brought the party into disrepute if they have been convicted of a … sexual offence of any description.”

Mr Webster was not actually required under the rules to do more than decide whether charges should be brought. He sits as a recorder, a part-time judge, and it is surprising that he ignored the precept that judges who decide things which they are not required to decide very often make fools of themselves.

And so it was here: having ruled – on rather strange grounds – that there should be no charges, he then took it upon himself to decide that Lord Rennard ought nevertheless to apologise for his behaviour.

“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.”

This, with the greatest of respect to the learned Queen’s Counsel, is quite absurd. In characteristic Liberal Democrat style it smacks of trying to please everybody, whilst in fact antagonising virtually everybody.

The Liberal Democrat Rules contain no provision for an “investigator” such as Mr Webster to demand an apology in this way. Moreover, as he himself had made clear, he had “made no findings of fact,” (nor could he fairly have done so untested written evidence). The only finding he was entitled to make was that there was a case fit to be considered by a disciplinary panel. It is rather as though a court should say “the evidence does not establish your guilt and you are found not guilty, but as it happens we believe the complainants and you must apologise anyway.”

What is it exactly, anyway, that Lord Rennard is meant to apologise for? Mr Webster does not say. Why should he apologise if he has done nothing wrong? Mr Webster does not say. Any apology worth having would be an admission of wrong-doing. And if he did admit doing wrong, it would be hard for him to dispute that he was guilty of bringing the Party into disrepute.

It is this attempt to extract a confession of wrong-doing without the need for a fair trial to which Lord Carlile was presumably alluding when he compared the Liberal Democrats’ disciplinary procedure unfavourably to the criminal law of North Korea.

In the absence of an apology from Lord Rennard, Nick Clegg has offered his own:

“I as leader of the Liberal Democrats want to apologise to each and every one of those women again.”

Since Mr Clegg has never been accused of any inappropriate behaviour towards any women, and certainly not these ones, his mea culpa is perfectly meaningless, even if he repeats it every day for the next six months (as he well might). Neither it, nor Mr Webster’s laughably inconclusive conclusion will be sufficient to satisfy the various women whom Lord Rennard is said to have harassed.

Nor, on the other hand, will Lord Rennard be happy with Mr Clegg’s demand, which appears to be entirely unlawful, that he should apologise before being allowed to re-take the Liberal whip in the House of Lords. Of course if he did apologise his apology would be taken as an admission of “inappropriate” behaviour which would require him to be barred from taking the whip anyway.

It therefore seems unlikely that we have heard the last of this saga. Lord Rennard and his supporters are already talking about taking legal action against the Party for demanding an apology when the Party’s own procedure has cleared him; while the aggrieved women are likely to be mystified why their “credible” evidence has been judged insufficient to bring Lord Rennard before a disciplinary panel.

Any glutton for punishment reading the Party’s 380 page constitution needs only to struggle to page 7 to learn that a core principle of the Liberal Democracy is a recognition that:

“… the quest for … justice can never end.”

That, at least, is a point upon which all concerned may agree.