Rennard: Legal Options and Realities

by George_East on January 21, 2014

Chris RennardThe ongoing farce that is the Lib Dems’ handling of the Lord Rennard sexual harassment allegations has resulted, inevitably perhaps, in media reports of legal actions that he might bring against the party to restore his position.  These are reported, usually, from a position of supreme legal ignorance.  It is just assumed that as Rennard has been aggrieved by the outcome of the process, he will be able to pursue some kind of legal redress.   Sky reported earlier that proceedings had begun, only for the Guardian to say that this was not the case but all legal options were being explored.

We know that there is much legal talent on the Lords’ Lib Dem benches and that Rennard has been taking pro bono advice from Lord Carlile as to the disciplinary proceedings and their outcome.  Carlile is, of course, an eminent criminal QC (though from what we have seen so far not so great at the PR game) and will no doubt have advised his client fully on the options as he sees them.   The Lib Dems also have two of the foremost administrative lawyers on their benches in Lord Lester QC and Lord Pannick QC.

So let us assume for the moment that Rennard is getting the best advice.  What is that likely to be?   What are his options given what has happened?      This post explores this issue from a legal and procedural perspective.  It does not make comment on the moral or political aspects of the case.

The first thing to say is something that the media seem always to miss when talking about potential legal action:  there has to be a claim that the Courts have jurisdiction to hear.  The Courts have no power to impose injunctions just because someone has a grievance or feels they have been treated badly.   The first thing any lawyer will need to do is identify what causes of action there might be.

Before coming on to that though it is also important to think about outcomes.  What does Lord Rennard want out of this process.  From his statements he is not interested in damages, but instead is looking for reinstatement within the party, which he described as ‘like a family’ to him’

So Lord Rennard needs a cause of action that would enable him to have the suspension lifted and to be reinstated in the Lib Dems.

We can rule out a couple of possibilities that have been mentioned in the media straight away.  This is not a question of unfair dismissal.  Lord Rennard has not been removed from a position of employment with the Lib Dems, he has simply been suspended as a member of the party pending an investigation into ‘bringing the party into disrepute’.     

Secondly, contrary to what the Guardian originally reported, there is no question of Lord Rennard bringing a judicial review of the decision.  Judicial review is a remedy against public bodies and cannot be used against a private entity, like a political party.    Further, given that he wants to be reinstated into the party, a claim in libel (for defamation of character) will not take him anywhere, even in the unlikely event, it had any factual merit.

So what is Lord Rennard left with?   On the face of it the only realistic claim he has is a claim for breach of contract, on the grounds that the Lib Dems have misapplied their own rule book, which is, in effect, the governing terms and conditions of the organisation.       We need to be clear what has happened to understand Rennard’s status.    He has not had the whip removed in the House of Lords because the leadership believed that they would not be able to carry the necessary majority among Lib Dem peers.  Instead he has had his membership suspended, which temporarily has the same effect.

I have not looked at the rule book in any detail.  However, I understand the position (largely from Lib Dem Voice’s coverage of the fiasco) to be that the Regional Parties Committee is vested with the power to oversee party disciplinary matters.    It has suspended Rennard pending an investigation as to whether he has ‘brought the party into disrepute’ by failing to follow the recommendation of Alistair Webster QC that he apologise to the complainants.  

So the questions that arise from this are threefold:

  1. Does the Regional Parties Committee have the power to suspend members pending an investigation;
  2. If it does, is it entitled to do so in the circumstances of this case;
  3. If it was, has Lord Rennard brought the party into disrepute.

No one appears to be suggesting (or at least so far as I have read) that the Regional Parties Committee does not have the power, in principle, to suspend a party member pending an investigation.    The focus amongst the critics has been very much on the last of three questions:  is a refusal to follow a recommendation by Alistair Webster QC that he apologise to the complainants  ‘bringing the party into disrepute’?   Rennard’s defenders have suggested that, as it was only a recommendation, it cannot be so, or alternatively that the real reason for the suspension is defiance of Nick Clegg’s wishes, which equally cannot be bringing the party into disrepute.

However, it is fair to observe that the party has set up an investigation into the allegation that Rennard has brought the party into disrepute and a 6 week timeframe for that investigation has been suggested.   It is, I think, unlikely that a Court would want to second guess the outcome of that investigation.  It might faced with the outcome decide that the rule book has been breached, but to, in effect, prevent an investigation from taking place when the party itself vests disciplinary powers in that body, seems an unlikely outcome.    Within the boundaries of the general law, the Lib Dems (like any other membership club) are entitled to set their own rules.

That is unless the answer to question two is so overwhelming as to be obvious (‘the no real prospect  of success’ test in lawyers’ language) that the Regional Parties Committee did not have the power to suspend in the circumstances of the case.  This seems instinctively unlikely and does not seem to be suggested on what I have read, but would provide Rennard with a potential route to a quick determination.

If, as seems more likely, the real question is whether Lord Rennard has brought the party into disrepute, then any claim appears to be  premature before the outcome of the new investigation is known.   Plainly the resolution of this is some distance off.  If Rennard is then expelled from the party or some other sanction is imposed, he may have a different claim, but that would obviously be predicated on an outcome of the investigation.

This brings me on to a further point.  The Courts have jurisdiction to grant injunctions pending the outcome of proceedings.   However, it is a jurisdiction which is applied within relatively tight boundaries.   One general principle is that so called ‘interim’ injunctions will usually be granted to ‘maintain the status quo’ or ‘hold the line’ while the dispute is being litigated.  But here the status quo is the suspension.   If Rennard wants to get an injunction lifting the suspension he will, by definition, be asking the Court to reverse the status quo.   The Court has the power to do so, but will only exercise such a power sparingly.     

So is all the talk of an immediate injunction hot air?  Not necessarily.  Rennard’s high powered legal team may have come up with alternative causes of action to the ones above or there may be ways of applying or interpreting the Lib Dem rule book in a way that allows Rennard to obtain some form of early redress.    But as things look to me, he would appear to have something of an uphill task in formulating a credible basis for an interim injunction to reverse the current suspension of his membership, pending the outcome of the new investigation.

{ 5 comments… read them below or add one }

Mike Killingworth January 21, 2014 at 6:43 pm

Only a lawyer could suppose that there might be an iota of doubt as to whether Rennard has brought his party into disrepute.

Even if he never pinched a female bottom in his life, the fact that he is accused of so doing (or whatever it was) makes a politician disreputable (in a way that it wouldn’t you or I), surely? Leaders in any field must expect the test of good behaviour to be higher. Otherwise they have something for nothing.

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Charlie_East_West January 21, 2014 at 9:19 pm

Mike – you have a point. So, what about the antics of say, Francois Hollande?

Reply

Mike Killingworth January 22, 2014 at 6:37 am

I wasn’t aware that M. Hollande had been any more than an adulterous husband. Is that not de rigeur across the Channel? Je ne le comprends pas du tout

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George_East January 21, 2014 at 6:48 pm

Mike, I am not commenting on the merits of the position at all. That was not the point of the post. The point of the post was to counter what seems to be a media wide attitude that Rennard can and will bring a claim against the Lib Dems which will achieve his reinstatement. He might but, but I think it is far from easy for the reasons set out.

Also the question is not the broad one of whether he has brought the party into disrepute per se, as I understand it, but rather whether he has brought the party into disrepute for not apologising in accordance with the Webster Report recommendation.

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Ray_ North January 22, 2014 at 8:26 am

Superb post George – the best free legal advice that Mr Rennard et al will get!

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