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"Will they come when you do call for them?": Should select committees have real power to compel evidence?

10 Jun 2021
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Screenshot from ParliamentLive.TV

In a recent report the House of Commons Privileges Committee recommended the creation of a new criminal offence to deal with the rare problem of recalcitrant select committee witnesses. The proposal is narrow and looks workable. However, it remains controversial, and the Committee has invited further views, with final proposals expected later in 2021.

Paul Evans, Former House of Commons Clerk
,
Former House of Commons Clerk

Paul Evans

Paul Evans
Former House of Commons Clerk

Paul Evans CBE retired in August 2019 from the post of Clerk of Committees in the House of Commons, after 38 years working there. He was made a CBE in 2019.

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Glendower: I can call spirits from the vasty deep. Hotspur: Why, so can I, or so can any man; But will they come when you do call for them? Shakespeare, Henry IV, Part 1, Act 3, Scene 1

The Privileges Committee proposal, in a report published in May 2021, is the latest in a long series trying to find a way to make the penalties for committing a contempt of Parliament real and potentially effective.

The story behind the Privileges Committee report goes back to April 2012, when the Commons’ then-Culture, Media and Sports (CMS) Committee reported that it believed that during an earlier inquiry, in 2009-10, witnesses from News International had lied to it about their knowledge of the prevalence of illegal phone-hacking within that organisation’s newspapers. (The CMS Committee’s report came at the end of an inquiry which had famously seen Rupert Murdoch assaulted with a ‘custard pie’ during one of its public evidence sessions.) If proven, the CMS Committee’s claim would amount to a ‘contempt of Parliament’. In May 2012, the Commons agreed to refer these allegations to what was then its Standards and Privileges Committee.

The combination of the 2015 general election and the Standards and Privileges Committee’s decision to await the outcome of several related court cases meant that it was not until 2016 that what was now the Privileges Committee was able to publish its conclusions: that two of the three witnesses named by the CMS Committee had indeed deliberately misled that Committee. In October 2016, the House duly agreed to the Privileges Committee’s recommendation that it admonish the two malefactors. At the same time, it referred the matter of select committees and ‘contempts’ back to the Privileges Committee for further consideration.

That broader inquiry was first interrupted by the 2017 ‘snap’ election. Then, the now Digital, Culture, Media and Sport (DCMS) Committee invited the former campaign director of Vote Leave, Dominic Cummings, to give evidence in its ‘fake news’ inquiry. He declined. The Committee then invoked the power delegated to it by the House to ‘send for persons, papers and records’ – PPR powers, as they are known in the trade. Mr Cummings refused to respond to the Committee’s formal order to attend. After Mr Cummings was then ordered by the House itself to attend the Committee (the first such order made in nearly a century), and after he had failed to do so, the House referred Mr Cummings’s conduct to the Privileges Committee, in June 2018. The Privileges Committee reported in March 2019, finding that Mr Cummings had committed a contempt, and on 2 April the House voted formally to admonish him. Less than four months later he was appointed as the Prime Minister’s chief political adviser.

This was the context in which, after the 2019 election, the Privileges Committee yet again picked up its wider inquiry into select committees and contempts (to which the present author provided written evidence).

The problem the Committee was required to address was essentially that:

  • On the one hand, Parliament laid claim to unlimited powers to compel anyone within its jurisdiction to give evidence or submit documents.

  • On the other hand, Parliament had no power of enforcing its claims in the event of defiance or false witness.

Some readers may remember the opening chapters of Treasure Island. A disreputable old sea dog takes up residence in ‘The Admiral Benbow’. He is patently a man seeking to escape scrutiny. The ‘Captain’ as he is known, begins to mutter to himself about a ‘black spot’ and young Jim Hawkins, the narrator of the tale, asks him what this is. “That’s a summons, mate,” he explains, not particularly helpfully. One day a rough-looking fellow, Blind Pew, delivers just such a ‘black spot’ to the Captain. We later come to understand that the summons requires the Captain to surrender a map drawn up in the past by a certain Captain Flint. However, before he can decide whether to obey the summons or flee before (unspecified but seemingly scary) sanctions are imposed for non-compliance, the Captain drops dead forthwith, through a combination of fright and over-indulgence in rum.

The ‘black spot’ seemed to have power. However, later in the adventure, now on the eponymous island, Long John Silver also receives a ‘black spot’ from his estranged crew of pirates. This time, the magic fails to work. “I thought you said you knowed the rules,” Silver responds contemptuously, and continues, “Leastways, if you don’t, I do … your black spot ain’t worth a biscuit …”.

The Cummings case seemed to have demonstrated that the threat of sanctions for those who defied an order from a select committee also ‘wasn’t worth a biscuit’, if the contemnor simply refused to be impressed by Parliament’s claims. The spell had been broken. A power with no means of enforcement wasn’t much of a power. Could it be revived?

The problem of the status of ‘parliamentary privilege’ and the enforcement of what are known as the House’s ‘penal powers’ for breaches of those privileges (that is, contempts) had in the last 20 years been considered by two joint committees of the two Houses – first in 1999 and again in 2013. Unfortunately, the two committees had come to broadly contradictory conclusions:

  • the 1999 report had recommended legislation to underpin Parliament’s claims; but

  • the 2013 report had come down against a legislative solution, arguing that Parliament just needed to be more assertive about reclaiming its powers to punish contempts.

Other legislatures of a similar constitutional complexion to Westminster have legislated about their powers and privileges, most notably in Australia, New Zealand and Ireland. The three devolved legislatures of the UK each have relevant enforcement powers in their foundational statutes. So, what’s the problem? The issue that divided the two joint committees was the question of whether the courts should become involved in the question of determining whether a contempt of Parliament had occurred. Parliament (unlike the devolved legislatures) has no statutory basis. It is, in some senses, prior to and above and beyond the law. It lays claim to something called ‘exclusive cognisance’ over its own proceedings and affairs. Only it can decide what it does.

Parliament has, however, legislated in the past to shore up this claim – most notably in Article IX of the Bill of Rights of 1689 which asserts (to paraphrase) that the courts cannot question what Parliament has done. More constitutional theology may have been constructed around this 330-year-old sentence than it was ever intended to bear. However, it has come to stand as a totem for an important fundamental of the UK’s constitution: that Parliament and the courts operate in necessary but separate constitutional compartments, and that each needs to forebear from trespassing on the proper responsibilities and powers of the other.

In its May 2021 report, the Privileges Committee wrestles with this dilemma. It considered three options:

  • do nothing and leave the PPR powers mysterious, awesome but unenforceable;

  • reassert the currently theoretical penal powers which Parliament has to enforce the PPR powers in cases of defiance; or

  • legislate to give the PPR powers unambiguous effect.

In its report, the Privileges Committee concedes that doing nothing would amount to abandoning the claims of privilege. It further concludes that too much water has passed under this particular bridge in the last decade for reassertion of its powers by Parliament to carry any real conviction. It would be in danger of looking like an empty gesture.

The Committee therefore comes down on the side of creating a criminal offence of failure to comply with the order of a select committee. Whilst it acknowledges the risks that such a course poses to the purity of the doctrine of Parliament’s ‘exclusive cognisance’, it concludes that this may be the only way to give the compellability powers of committees real teeth.

The most significant risk involved in creating a statutory criminal offence of defying an order from a committee is that the courts would feel obliged to satisfy themselves that the committee had not acted in an arbitrary or oppressive manner. Acknowledging this, the Committee stresses the need for the internal processes of select committees to exemplify due process and the right to a fair hearing for witnesses.

draft bill is appended to the Committee’s report, setting out what the legislation might look like. In this draft, the Committee has taken the narrow remit given to it by the House of Commons (“the matter of the exercise and enforcement of the powers of the House in relation to select committees and contempts”) and narrowed it still further. It has offered a solution (which looks workable) to the Cummings problem, but says little or nothing about the problem of witnesses lying to committees which gave rise to the original reference.

The Privileges Committee’s proposal has provoked some criticism. In an immediate reaction, the legal commentator Joshua Rozenberg said that he did not want:

“… to see MPs cross-examining the rich and powerful … to see them insisting that witnesses answer questions and threatening them with prison if they don’t reply … to see juries deciding whether the nature and purpose of a committee’s summons – inevitably, a political question – provided the defendant with a reasonable excuse …”

In an article for Prospect, the barrister and former member of parliamentary staff Alex Horne made some similar points:

“[The Committee’s] proposal has the potential to open a can of worms … Rather than trying to chase down a reluctant individual … the time and attention of a committee would be better used holding ministers and executive agencies to account …”

However, there are plenty of people who do want to see Parliament holding the powerful (who may also sometimes be rich) to account, and MPs certainly have an appetite for doing so. These are people whose actions can have a profound effect on the lives of citizens, although they are unelected and accountable to no-one (unless it is their shareholders). Indeed,

the first question to which the Privileges Committee invites responses, in its follow-up consultation on its proposal, is: “What is the primary role of select committees …?”

In any case, if you want Parliament to exercise powers responsibly, it is a good start to make the powers real rather than imaginary. That is likely to promote better behaviour by parliamentarians.

In its report, the Privileges Committee proposes that it might be a requirement that it, the Privileges Committee, give advance consent to another committee’s issue of a summons. That would be an ex ante restraint on oppressive use. If, before signing and submitting to a court a certificate that an offence had occurred, the Speaker were to be required to satisfy themselves that the summons was issued for legitimate reasons, that would provide a further ex post facto restraint on their capricious deployment.

In any event, the fears that we could see a spate of oppressive sallies by select committees against recalcitrant witnesses seem far-fetched. In none of the jurisdictions where such statutory powers exist – not least the devolved jurisdictions of the UK – has such a phenomenon occurred. (The lack of examples of the powers being invoked suggests that they work, rather than that they are unnecessary: the point of having a weapon is not to have to use it.) As the legal writer Nicholas Reed Langen put it in another blog responding to the Committee’s report:

“Using the Bill of Rights to justify ‘doing nothing’ is to ignore the fact that the constitution evolves … To do nothing is to accept the neutering of Parliament, and to suggest that while some parts of the constitution can evolve, other parts must be trapped in amber, left unable to respond to the exigencies of modern life. The principles enshrined in the Bill of Rights, important though they may be, are not immutable.”

In his post, Reed Langen argues that legislation is needed to make the executive more accountable to Parliament. But to be clear: compellability powers apply to individuals who are outside the direct jurisdiction of Parliament. In its follow-up consultation, the Privileges Committee invites views on whether compellability powers should be extended to cover individuals who are Members of either the Commons or the Lords (for these purposes, we are talking principally about Ministers). My answer would be probably not – or, at least, not yet. Not only would their inclusion guarantee that the government (any government) would oppose such legislation, it would raise the spectre of bringing the courts into the heart of politics.

Given the constitutional fact of the UK’s fused executive and legislature (the ‘Westminster model’), the idea that internal battles within Parliament should be settled by the courts is just a recipe for constitutional confusion. And to be fair, although there are moments of tension, Ministers generally recognise their obligation to present themselves before select committees. If it were to come to a complete breakdown of constitutional conventions, either House could resolve to compel one of its Members to attend a committee and, if they refused, expel them. Legislation is not necessary to enable this. If an unscrupulous executive were prepared to wield its majority to defeat a motion to expel a Member in such circumstances, then more radical solutions would be required.

The question of extending the reach of the proposed statutory offence to named civil servants is more vexed. But while the ‘Haldane Doctrine’ – that civil servants have no existence independent from the Ministers they serve – is occasionally strained, it is a fundamental element of our system of the executive’s accountability to Parliament. It would probably be wise to leave it undisturbed, and to focus on holding Ministers to account for the actions of their civil servants.

In its report, the Privileges Committee chose to dodge the problem that a witness could deliberately mislead a committee and still only face the prospect of ‘admonition’ if found out. However, creating a criminal offence of lying to a committee would inevitably involve the courts in examining what was said in a committee, both by MPs and by witnesses.

There is already legislation on the statute book making it an offence of perjury to give false witness before a select committee on oath (the Parliamentary Witnesses Oaths Act 1871, read together with section 2 of the Perjury Act 1911).

However, committees rarely put a witness on oath, and the offence has never been invoked. In any event, the bar for demonstrating perjury is very high. But if these provisions ever were to be invoked, it is almost impossible to work out how the courts and the prosecuting authorities could make them apply in the context of Article IX. It may be sensible to let a sleeping dog (or witness) lie.

The Privileges Committee report talks about the fair treatment of witnesses, but it says nothing about their protection. A witness may be recalcitrant out of fear, rather than bad faith or insolence.

There is, in theory, statutory protection for witnesses before select committees in the form of the Witnesses (Public Inquiries) Protection Act 1892, but its provisions have never been invoked. It is unquestionably a (non-statutory) contempt to disadvantage a witness on account of evidence given to a committee, and has been found to be so. However, the protection is vague and the sanctions unclear if the intimidator is not a Member of either House of Parliament. The Privileges Committee may be missing an opportunity to bring the law on this question up to date in the UK, as it has been elsewhere.

Overall, the Privileges Committee’s proposal to place PPR powers on a statutory footing is a fairly small step and a narrowly-framed compromise. The Committee has based its proposals on what seem to have been extensive and fruitful private consultations with officials from other jurisdictions (including not just Australia, Ireland and New Zealand but also the US Congress); and it has made a convincing case that the need for recourse to the use of the ‘black spot’ could be replaced with something better fitted to the purpose.

The Privileges Committee proposals are achievable and will not trigger a constitutional earthquake.

With the Committee expected to produce a final report perhaps in the autumn for agreement by the House, it will be interesting to see what responses its consultation produces.

Evans, P., "Will they come when you do call for them?": Should select committees have real power to compel evidence?, (London: Hansard Society), 10 June 2021