Chief justice criticises draft bill

Lord Burnett says depriving defendant of potential defence is “unusual”

I was invited to speak to MPs yesterday on whether MPs should be able to order people to speak to them. We had a lively discussion.

In May, I argued against the proposal that people who refused to answers questions from Commons committees should face up to two years in prison and an unlimited fine. I expanded on this in my written evidence to the House of Commons privileges committee.

Yesterday, five of us gave oral evidence to the committee. I was questioned alongside two extremely brainy lawyers: Professor Alison Young of Cambridge and Professor Tom Hickman QC of UCL and Blackstone Chambers. You can watch a recording online.

At one point, Hickman and Young were asked what the courts would make of the committee’s draft bill. I said there was no need to speculate because we knew the views of the lord chief justice of England and Wales, Lord Burnett of Maldon.

He had written a letter to the committee on 6 October that the committee had not yet published. However, a copy had been sent in confidence to the witnesses alongside written evidence from the lord president of the Court of Session.

The chair, Chris Bryant MP, allowed me to read out a paragraph from Burnett’s letter. This is what the lord chief justice said:

The proposal in the draft legislation that a certificate of the Speaker would be conclusive proof that a person failed to attend or provide documents etc would, at first blush, deny a potential defendant the opportunity of challenging one of the ingredients of the offence. It would determine a fact which would ordinarily be within the province of the court to decide upon as one of the ingredients of the offence. That is, at least, unusual. Moreover, to determine whether it was reasonable for a person not to attend etc. might well take a court into territory protected by Article IX [article 9 of the Bill of Rights 1689]. The implications of these provisions would have to be worked through in the usual way should there be any prosecutions.

I described this as a “pretty sniffy” response to the draft bill. Indeed, I have never seen a more critical response from Burnett in a document intended for publication. Questioned afterwards by the Scottish-born Conservative MP Alberto Costa, I readily accepted that the lord president’s evidence was less critical.

Two former House of Commons clerks gave evidence after us. One agreed with some of what I had said and the other shared the academics’ view that the committee’s proposal could be made to work.

Bryant conceded that the draft bill would need to be reworded. But the committee seems determined to press ahead with its proposals. It will then be for parliament to decide whether to pass legislation.

Some of those present yesterday thought the powers, if created, would never be used. But, as Lord Neuberger is fond of reminding us, beware the law of unintended consequences.

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