The Lord Rennard debacle reads like a case study on how a large organisation or company should not handle a reputational threat. Kate Macmillan, a lawyer and brand management expert with Collyer Bristow, outlines some of the advice the Liberal Democrat Party ("the party") could have expected had it sought specialist advice at the outset of the scandal.
- If serious allegations are made, put a small, competent, properly advised team in place to deal with them.
The Rennard matter started off in the hands of a committee - the party's Regional Parties Committee, which oversees disciplinary procedures under the English party membership rules. Given the scale of the reputational threat (as evidenced by the damage that has been caused), the matter should have been in the hands of Nick Clegg and the party leadership from the start. On 20 January 2014 Lord Rennard said that he had not spoken to, met with or heard from Nick Clegg in eleven months. As Dan Hodges put it so perfectly in the Telegraph, Nick Clegg's statement: "I don't think it is my job as party leader to micromanage this" wasn't so much an abdication of responsibility as the political equivalent of removing his uniform, donning a dress and making a dash for the lifeboats.
- If serious allegations are made, start an inquiry early
The first step is to issue a short statement, stating that a thorough internal investigation has been started and making clear that until it is concluded it would be premature and inappropriate to comment. The second step is to get on with the investigation promptly. In Lord Rennard's case, allegations started to emerge as long ago as 2008 about his alleged behaviour in 2003-2007. The Police undertook a seven month inquiry into allegations in 2013, which ended in them stating that there would be no charges (without even considering it necessary to seek the view of the Crown Prosecution Service on the strength of the case, which indicates that the Police considered the case to be very weak). And yet, the party did not complete its internal investigation until January 2014. All far too late, plenty of time for the complainants to feel that nothing was being done, for their anger to increase and for rumours to run wild. Hard to avoid the inference too that the party ducked an investigation whilst Lord Rennard was at his most useful to it during the 2010 General Election campaign.
- Ensure that the internal inquiry has rigour and that its conclusions are clear
An internal inquiry should review all relevant evidence carefully and against any contemporaneous documents, such as photos or texts, particularly if a long time has passed since the alleged incidents. This is particularly important if the inquiry will not have the opportunity to test the evidence of witnesses under cross examination.
It should also make clear whether it is considering whether the case against the alleged wrongdoer would meet the civil standard of proof (the "balance of probabilities" test - where a judge or jury has to be convinced that it is more likely
than not that the wrongdoing occurred) as opposed to the criminal standard of proof (the "beyond reasonable doubt" test - where the jury has to be "sure" that the wrongdoing occurred). There is a huge difference between the two tests.
The conclusion of the inquiry should be unambiguous. In this case, the conclusion, published on 15 January, was "No Further Action". (The alternative outcome would have been for the Party to list the charges and ask Lord Rennard to attend a hearing.)
The publicly available documents referring to the inquiry's conclusion are the "Statement of Alistair Webster QC's conclusions", published on Wednesday 15 January 2014, and the "New Statement issued by Alistair Webster QC" on Sunday 19 January 2014.
The 15 January statement made clear that there was a less than 50% chance of the charges against Lord Rennard being proved "beyond reasonable doubt" - the standard required by Rule 7.6 of the English Liberal Democrat Party Rules (and the criminal law). It stated that Webster considered it "unlikely that Lord Rennard had intended to act in an indecent or sexually inappropriate way" and that "without proof of such an intention" he did not consider that "such a charge would be tenable".
So far, so good. But the 15 January statement quotes Webster as saying: "The evidence of behaviour which violated the personal space and autonomy of the complainants was broadly credible" and "I am not finding that the evidence of the complainants was unreliable". If you were a client considering bringing civil proceedings, would these statements allow you to form a clear view about the likely outcome at trial? No. Did Webster specifically address whether the civil standard of proof might be met? The answer is not clear from the two Statements.
This lack of clarity allowed Lord Carlisle to write in the Mail on 18 January 2014: "Mr Webster was correct in finding the allegations were so weak that there was a less than 50 per cent change of the charge being proved to the criminal or even the (lower) civil standard " (emphasis added).
The statements of 15 and 19 January should have been crystal clear on the civil standard of proof or the issue should have been left well alone.
- When you have as clear a conclusion as any internal inquiry can deliver, try to negotiate a win-win outcome before saying anything publicly.
Consider what the outcome may have been had there been a short pause after 15 January - had the party approached Lord Rennard in confidence, explained that the inquiry had concluded that the case against him did not meet the criminal standard of proof but that both sides had a serious problem in relation to how their attitude and conduct towards women was perceived. Lord Rennard could have said what he eventually said on 21 January: "If ever I have hurt embarrassed or upset anyone, then it would never have been my intention and, of course, I regret that they (the complainants) may have felt any hurt, embarrassment or upset." As atonement goes, this is not bad. The party could have announced new standards of conduct in relation to such matters it expected everyone, without exception, to meet, making clear that the sanction for failing to meet them would be expulsion from the party. Both sides
would have come out looking determined to draw a line under the past and to do things better in future. It would have been hard for the party, the public and even the women concerned to argue with that.
- Ensure that the inquiry's findings are communicated effectively.
Any "summary" of the inquiry is a minefield, which needs to be handled with great care. Having dragged its heels on the inquiry itself, the party appears to have acted overhastily in relation to publishing a "summary" of the inquiry, contained in its two statements of 15 and 19 January. It was reported in the Guardian that Lib Dem peers discussed the issue of Rennard for just four minutes on 15 January and only 30 minutes after Webster had published his report. The Guardian also reported that Lord Ashdown urged his fellow peers to spend at least a week digesting the report before deciding how to act, but he received a "hostile response".
Ideally, any summary should be written by the person who conducted the inquiry in close consultation with the person in charge of managing the reputational threat internally. Lord Rennard's statement of 20 January questions the genesis of the 15 January statement. He says that Webster spoke to him at 11am on 15 January and "told him that the words accompanying the "No Further Action" statement were not his responsibility and that if I objected to them, then I had to take them up with the party and not with him" and that Rennard advised Webster "that the proposed press statement in his name was entirely inappropriate."
The party's greatest error was to include in the statements Webster's comment: "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."
As Ibsen said, "the great secret of power is never to will to do more than you can accomplish." Here, the party was attempting to force through something it had no power to obtain - namely an apology - making it highly likely that Lord Rennard would decline to apologise, creating a big row and storm of negative publicity, making the party look powerless. He would be foolish in the extreme to apologise for something he claims not to have done, opening himself to such an apology being used as an admission of liability in a raft of civil claims against him.
The first statement triggered a battle between Rennard and the party being played out in the media in the most unseemly manner.
In particular it allowed Lord Carlisle to refer, selectively and in opaque terms, in his article in the Mail on Saturday 18 January 2014 to evidence before Webster in the inquiry: a picture and statement from a photographer that allegedly did not support the fourth woman's claim, an allegedly "devastating item of contradictory evidence that it would not be appropriate to publish" in the case of another woman and allegedly "totally contradictory potential witness evidence that we held back out of respect for requested privacy" in the case of another. The public is likely to have found these statements highly unattractive - and the article is likely to have incensed the complainants.
- Steer clear of issuing civil proceedings
One of the complainants, has said she would not rule out legal action against the peer. Lord Rennard has threatened to sue the Party and talked of seeking injunctions. There have been references to a "potential legal bloodbath." Sometimes one has no option but to sue - when the allegations have the capacity to destroy one's ability to earn a living, for example, such as in the instance of a nursery school teacher accused falsely of paedophilia. However tempting proceedings might be in this case, the individuals concerned should think long and hard before adopting such a course. Civil proceedings are time-consuming, stressful, expensive and the media coverage surrounding them, which is often unbalanced and always hard to control, notwithstanding that it should be "fair" and "accurate", often does more harm than the issue which led the parties to court. Remember too that it is damaging to one's credibility to threaten to issue proceedings if you have no real intention of following through, if necessary.
As things stand, no-one comes out of the whole affair well. There is a risk that Lord Rennard may be remembered as the man alleged to have the worst chat up line ("I'd like to give you the complimentary chocolate in my hotel room as I'm diabetic and can't eat it") or, worse: "that fat Lib Dem who groped some women." Similarly, the Liberal Democrat Party may be remembered as the party which managed to create a huge sex scandal, without anyone actually having sex, and has mismanaged the whole matter from start to finish, casting doubt upon its fitness to make decisions which affect the electorate's lives. Everyone involved would be best placed to move on constructively with trying to create a legacy which obliterates this unhappy episode in the party's history.