Liberal Democrat leader Nick Clegg has apologised and said his party “did not respond in the right way” to the allegations of inappropriate sexual behaviour against the party’s former chief executive Lord Rennard. Nick Clegg might be well advised to say nothing more. It is possible that the Lib Dems could be on the hook for this debacle – with the matter being bloodily and expensively fought out in court.
If the Lib Dems want to feel a particular chill running down their spine they might look at the recent Supreme Court De La Salle case (The Catholic Child Welfare Society and others  UKSC 56 Judgment (PDF) ) where vicarious liability for sex abuse was extended to a Catholic organisation, the Brothers of the Christian Schools, who supplied the head and other teachers to an approved school.
The organisation was deemed liable even though it did not employ those teachers – they were members, not employees, of the Brothers. The principle established was that liability for members’ actions may extend to an unincorporated society. Rennard is a member (not employee) of the Lib Dems and a political party is an unincorporated society, arguably with “corporate features, including a hierarchy of authority” as described in the De La Salle case. The position is further explained below, but some legal background is useful first.
The problem: Liberal Democrats’ disciplinary procedure
The legal key to the crisis for the Lib Dems is in the party disciplinary procedure that apparently fails to protect staff and party members from other members, particularly in situations like those alleged against Rennard.
Rennard, as Lib Dem chief executive, was not an employee so his case did not come within employment law where a disciplinary process can assess such allegations on the basis of reasonableness – and sack the perpetrator if necessary. A proper disciplinary procedure is required but no high standard of proof is needed since protection of other employees and the functioning of the organisation are paramount.
Rennard was instead covered by a disciplinary procedure for members that requires a criminal standard of proof for any allegations (“beyond reasonable doubt”) and doesn’t even envisage the possibility of inappropriate sexual behaviour directed against party staff or young political hopefuls. Disciplinary Flow Chart – The Liberal Democrats
Instead it talks of offences such as “bringing the party into disrepute” or members having “material disagreements” with the party or working for another party. Its notorious criminal standard of proof offers huge protection in cases of inappropriate behaviour to an accused perpetrator and little to a victim. It is arguable, in fact, that the party has no effective procedure to deal with sexual violations at all.
The party has not pursued Rennard under any disciplinary procedure. Instead it got a barrister, Alistair Webster, QC, to look at the affair based on documents (and no interviews or cross-examination). His report has not been published but even his short carefully worded statement on it raises significant questions.
The criminal standard of proof
Webster considered that Rennard’s accusers offered “broadly credible” evidence that Rennard’s behaviour “violated the personal space and autonomy of the [four] complainants”. But he goes on to say: “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.”
Webster’s report is not a finding. Yet it seems to have stymied any disciplinary action that might have been undertaken because of this one point: it is unlikely that a sexual motive to Rennard’s alleged behaviour could be proved.
Webster knew that the Metropolitan Police had dropped a criminal investigation in September 2013. The police said: “Following reports in the media in February, officers from the Specialist Crime and Operations Command launched an investigation into allegations of sexual touching … Those inquiries have now concluded that there is insufficient evidence to support a prosecution.” (Emphasis added.)
The term “sexual touching” suggests the police investigated this under Section 3 of the Sexual Offences Act 2003.
This defines the offence thus:
“1) A person (A) commits an offence if –
(a) he 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.”
So there are several defences inherent in this definition even if it is found as a fact that touching occurred: it wasn’t intentional; it wasn’t sexual; there was consent; the perpetrator did not know there was no consent (and his belief was reasonable).
That’s a whole lot of hurdles to jump and Webster looks as if he has used Section 3 as the template for his own report. Once the police had decided the standard of proof could not be met then one might think Webster’s view was pretty much a foregone conclusion.
An alternative approach?
But if he did not “consider that such a charge would be tenable” (ie a sexual one), could some other case have been pursued? That Rennard’s alleged behaviour was simply unacceptable as between the chief executive and employees of the party, for example? Whether any touching was “sexual” or not, touching women (without consent) is simply wrong. And unlawful (see below).
There is no specific mention of a category that inappropriate touching would fall under in the disciplinary procedure but it might well fall under “bringing the party into disrepute”. This is argued by Liberal Democrat MP David Howarth (who has a legal background). He has written:
“Bringing the party into disrepute has to mean acting in a way incompatible with the party’s aims and values. That would include, for example, abuse of power … The use of political power for seriously improper, including sexual, purposes should fall very firmly within the definition of bringing the party into disrepute.”
To argue this would have at least brought Rennard’s case within the parameters of the disciplinary procedure. If “inappropriate behaviour” or “inappropriate touching” had been the core of the disciplinary charge against Rennard (without needing to prove any sexual element), then Webster could have considered whether it might probably (ie with more than his self-imposed 50% probability) be proved beyond reasonable doubt (ie to the near 100% criminal standard). Without knowing of any internal wranglings, one might suggest the party could, and probably should (in fairness to the alleged victims), have put Rennard through a disciplinary process even if the outcome was his exoneration.
Touching can be intentional and unwanted without being sexual. That could amount to the criminal offence and civil tort of trespass against the person or “battery” (commonly known as “assault”, as explained here.
It requires no actual bodily harm, no inflicting of pain, no sexual motive – just the intentional application of “force” without consent – and force can be as little as mere touching. The law is intended to protect bodily integrity and dignity. As a tort it is actionable per se – no damage need be proved – because “every person’s body is inviolate” except for contact that is “generally acceptable in the ordinary conduct of life” (Goff LJ in Collins v Wilcock 1984). No motive, whether sexual or other, need be established as long as the perpetrator intended to touch (even if he did not intend to breach the law).
The civil tort of battery may be proved at a lower standard than a crime: “on the balance of probabilities” (broadly, on a more-than 50% chance of the allegation being true). This puts Rennard in what former Nick Clegg adviser Bridget Harris, one of the alleged victims, calls a conundrum. He cannot apologise since he says he has done nothing wrong – and apology could be seen as an admission, if not of the full Section 3-type offence, at least of some action that would be covered by the tort of trespass to the person (Webster’s “violation of personal space” perhaps). Harris has not said an apology would be enough for her to desist from legal action, telling Newsnight: “In terms of civil action how can I possibly say… what I would or wouldn’t do, depending on the circumstances?”
The “balance of probabilities” standard of proof coupled with the lack of a need to prove a (sexual or other) motive would put alleged victims in a far stronger position than the Lib Dems’ inadequate disciplinary procedure. However, no damages payment is guaranteed and it is uncertain what remedy could be sought. Additionally such a case may be time-barred since a tort claim is subject to a six-year limitation. Harris’s allegation goes back to 2003, for example.
De La Salle case
But there remains the danger for the Liberal Democrat party. Nick Clegg has said the party got it wrong and the De La Salle case (PDF) case might suggest a political party can be liable for its members’ behaviour.
This was about child abuse (so the facts are far worse than anything alleged against Rennard) many years before the case was brought. The judgment states:
“Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant [the Brothers] and the tortfeasor [the abusers] and the acts of abuse thus involves a strong causative link.”
To disentangle: the defendant is the Institute of the Brothers of the Christian Schools who supplied the head and other teachers to an approved school. The Brothers may be deemed to have shared vicarious liability for the individual acts of the staff against the children as long as there is a close connection between the body and the individual offenders. Furthermore it is possible for unincorporated associations (such as political parties) to be vicariously liable for the wrongful acts of their members – there does not have to be a contractual employment relationship. But the offences must occur within the context of work being done for the association – not in the perpetrator’s spare time or when he is “on a frolic of his own”.
It is complex law and of course depends on its being established on a balance of probabilities that Rennard was guilty of the actions alleged against him and which he denies. If that were established, it might still take some nifty legal footwork to bring the Lib Dems within the principles of De La Salle – and there are layers of defence against such vicarious liability claims there is no space (or time) to consider. The party’s guilt should not be inferred from what is written here. But Nick Clegg should be a bit more circumspect with his mea culpa from now on.
Update: Lord Rennard has now (29/5/2014) issued an apology: here
Note: This, along with all posts on this blog, should be considered a piece of commentary/analysis and speculation, not as an authoritative statement on the law or any sort of advice. In particular it only scrapes the surface of the vicarious liability issue.
This piece in the Guardian outlines in general terms allegations against Rennard: The allegations
The Catholic Welfare Court of Appeal case (ie the one appealed to the Supreme Court) is here
Police statement 26 September 2012
“Following reports in the media in February, officers from the Specialist Crime and Operations Command launched an investigation into allegations of sexual touching. Various inquiries were conducted – including meeting with officials from the Liberal Democrat Party – and a number of individuals were spoken to as part of the investigation. Those inquiries have now concluded that there is insufficient evidence to support a prosecution; a decision which has been made by police.
There was early investigative consultation with the Crown Prosecution Service (CPS), but in accordance with the DPP’s guidance on charging, the police did not refer the case for full CPS advice to decide the outcome. As part of the investigation a 52-year-old man voluntarily attended a south London police station by appointment on 16 June and was interviewed under caution.
It was agreed from the outset that any internal misconduct matters would be referred back to the Liberal Democrat Party for their consideration.”
Part of Webster’s statement on his report
“It is important to understand that I was required, by the rules, to consider the evidence in the form of written statements. As such 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.
I received witness statements from a large number of people, male and female, from all parts of the Party, this included both Lord Rennard and complainants.
I do not consider it appropriate to publish the evidence which I received, which was obtained on terms of confidentiality. However, given the public interest which this case has aroused, and out of fairness to all parties, I have asked that this statement of my conclusions be made public.
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.
I stress that I am not finding that the evidence of the complainants was unreliable. I have specifically discounted suggestions made during the investigation that the incidents had been invented as part of a political campaign against Lord Rennard.
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.”
Sanctions under Lib Dem rules against members:
(Membership Rule 7.10). You may:
(a) Revoke membership;
(b) Bar the person from any or any particular Party Office permanently, for a specific period or pending training;
(c) Bar the person from standing for any or any specific political office in the name of the Party permanently, for a specific period or pending training;
(d) Bar access to Membership data permanently, for a specific period or pending training;
(e) Reprimand the member.