Q&A on the allegations against Lord Rennard. (My conclusion: it’s a mess.)

by Stephen Tall on January 17, 2014

Why are the Lib Dems in such a mess about the allegations of sexual impropriety against Lord (Chris) Rennard?

When a complaint is made against a Lib Dem member the party has a documented disciplinary procedure. You can read it here. In theory, it looks quite straightforward – there’s even a flow-chart. A complaint is made, an investigator is appointed, and they make a recommendation of whether action should be taken. Keen to ensure the process was (and was seen to be) fair and transparent, the party appointed an independent QC, Alistair Webster. He reported this week and concluded that under the party’s current rules no further action should be taken against Lord Rennard.

Does that mean he’s cleared Lord Rennard?

No. The party sets a high burden of proof for disciplinary charges brought against a member. It must be proved beyond reasonable doubt that they acted as is alleged, the same standard that would apply in a criminal case. This is a higher threshold than applies in civil cases such as employment tribunals where it need only be shown that the allegation is more likely than not to have happened based on ‘the balance of probabilities’. Alistair Webster concluded that there was a less than 50% chance that the allegations against Lord Rennard could be proved beyond reasonable doubt.

But didn’t Lord Rennard’s friend and counsel Lord (Alex) Carlile say on Channel 4 News that he’d been cleared even on the lower threshold of ‘the balance of probabilities’?

Lord Carlile did say that. He was wrong. In fact, Alistair Webster stated that ‘In my opinion, the evidence of behaviour which violated the personal space and autonomy of the complainants was broadly credible.’ This implies that if the party rules used the civil case definition of the burden of proof he would have recommended disciplinary action proceed against Lord Rennard.

So why doesn’t the party change its rules and lower the threshold of evidence needed?

It can do and I’d expect the next party conference to receive calls to do exactly that. However, to change rules to allow action to be taken retrospectively against an individual is contrary to natural justice.

But wasn’t Lord Rennard the Lib Dem chief executive? Why didn’t the party invoke disciplinary procedures then?

Good question. Most of the complaints that have been made public were first raised privately while Lord Rennard was an employee of the Lib Dems. The key failing of the party’s processes is not, in fact, what is happening now: it is what didn’t happen then. Too many people at the top of the party simply wanted a difficult problem to go away, and some at least of the women who made the complaints were understandably very reluctant to push their complaints in order to spare the party embarrassment. As a result, the outcome was fudged. Lord Rennard resigned as the party’s chief executive in 2009 on grounds of ill health without the allegations being resolved. From that point on, the only disciplinary action he could face was as a member (beyond reasonable doubt proof required) not as an employee (balance of probabilities suffices). And, of course, the more time that lapses, the harder it gets to substantiate allegations to that higher threshold.

Lord Rennard is a Lib Dem peer – can’t Nick Clegg as Lib Dem leader at least withdraw the whip?

Technically, no. That’s up to the Lib Dem chief whip and the leader of the parliamentary party in the House of Lords. However, the party leader can normally get their own way. The bigger problem Nick Clegg has is this: what would be his justification for withdrawing the whip? After all, Lord Rennard has not been found by the party’s own disciplinary processes to have committed an offence.

But didn’t Nick Clegg threaten to withdraw the whip from Baroness (Jenny) Tonge for comments she made about Israel?

Yes, he did. But Baroness Tonge didn’t dispute making the comments that she made (though their interpretation was a matter of controversy) and her track record of making inflammatory remarks on the subject had lost her friends even among those who agree with her on Israel. In contrast, Lord Rennard denies absolutely the actions he’s alleged to have committed and is also said to have the support of at least half the Lib Dem peers.

Surely Lord Rennard should at least do as Alistair Webster QC asked and apologise for the distress he caused the women who have made the allegations?

Here I take an old-fashioned view: Lord Rennard should only apologise if he really means it. Any apology extracted now is unlikely to be genuine and I’m not sure it would be accepted by the women concerned (and why should it be if it’s not sincerely intended?). And Lord Rennard will also have taken legal advice that he should be very careful about offering an apology, as it might weaken his defence in the event that any of the women bring a civil claim against him.

So are you really saying there’s nothing that can be done?

Quite a lot has been done. The party commissioned The Morrissey Report, with sound recommendations as to how to avoid getting into this mess again – and its author Helen Morrissey will soon be back to scrutinise progress to make sure they don’t get brushed under the carpet.

But what can be done about Lord Rennard?

It depends to what extent you believe in due process. Plenty will say the process (and the party) has failed the women concerned – and I’d agree. But overturning due process to right a perceived wrong is a very slippery slope, as liberals should be only too aware.

Is that it?

Believe me I’ve tried to think of a more constructive way to end this piece. But it’s a mess.