Keep politics out of the courts

It’s not for judges to say whether witnesses should have answered MPs’ questions

Should you face up to two years in prison — and an unlimited fine — if you refuse to answer MPs’ questions? That’s what the House of Commons privileges committee is provisionally proposing in a much-delayed report. It was published over a bank holiday weekend while parliament stood prorogued: though dated Monday 3 May, it was released on Sunday. If implemented, the committee’s recommendations would change the constitutional relationship between parliament, the people and the courts.

Select committees of parliament are excellent institutions. Many of them shadow specific government departments. Some committees draw their members from the Commons, some from the Lords and some from both houses. They may be chaired by a member of an opposition party and they are staffed by impressively brainy officials. These committees produce authoritative reports and ministers respond to their recommendations.

Committees obtain their information by taking evidence from witnesses, sometimes in writing and sometimes orally. Witnesses are privileged: they can say what they like without the risk of a defamation claim. And giving oral evidence is not too much of an ordeal because witnesses know what they are likely to be asked — though Commons committees won’t give you the precise questions in advance.

Most witnesses are flattered to be invited. Some though, are unwilling to appear. If they do appear, they may be unwilling to answer questions. If they do answer, their answers may be unhelpful, misleading or simply untrue.

What can MPs and peers do about this? Despite all the bluff and bluster, the answer that emerges very clearly from this report is very little.

The last time the House of Commons imposed a fine on non-member was in 1666. Nobody has been sent to prison by the Commons since 1880 (although members of the public who misbehave may be detained for a few hours). It was in 1957 that the last person was summoned to apologise at the bar of the house.

True, a non-member was formally admonished for refusing to attend a select committee as recently as April 2019. But admonishment is no bar to preferment. Less than four months later, that same individual was given a senior advisory role in the prime minister’s office. He was even issued with a parliamentary pass, showing his name as Dominic Cummings.

What, then, should MPs do about the fact that some people are simply unwilling to answer questions from parliamentary committees? The privileges committee has identified three options:

  • do nothing;

  • approve new standing orders; or

  • pass legislation.

Doing nothing is rejected because witnesses know — and if they were in any doubt before publication of this report they certainly understand now — “that they can treat committees with disdain, and by extension the house, without any fear of meaningful penalty”.

Passing resolutions or making new standing orders is rejected because such a process cannot add to parliament’s powers. It might also breach the European convention on human rights.

So that leaves legislation, in effect to put contempt of parliament onto a statutory footing. One way of doing this would be to give the courts power to enforce a sanction ordered by parliament. But that would clearly allow the courts to question whether parliament had been right to compel the attendance of an individual witness, breaching article 9 of the Bill of Rights 1688.

So the privileges committee recommends an alternative: the creation of a new criminal offence of failing to comply with a summons issued by a Commons select committee. Even that, it concedes, would encroach on article 9, which says:

that the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

Draft bill

How would the new offence work? The committee has helpfully drafted a one-clause bill (with a second clause to deal with the technicalities).

It says:

1 Failure to comply with summons

(1) It is an offence for an individual to fail without reasonable excuse to comply with a summons issued by a Select Committee of the House of Commons—

(a) to attend the Committee to answer questions, or

(b) to provide information or documents.

(2) An individual guilty of an offence under subsection (1) is liable on conviction on indictment to imprisonment for a term not exceeding two years, a fine or both.

(3) A written certificate of the Speaker that an individual has failed to comply with a summons as referred to in subsection (1) shall be taken to be conclusive of the matters specified in the certificate.

(4) In determining the matters specified in subsection (5) a court—

(a) may consider the nature and purpose of the Committee’s summons, but

(b) may not consider any other aspect of the Committee’s proceedings.

(5) The matters referred to in subsection (4) are—

(a) whether a person had a reasonable excuse; and

(b) what punishment to impose.

(6) Rules of court may make provision about proceedings under this section (including about timing and forum).

This is how I read the bill:

  • Refusing to attend a committee would be an offence under clause 1(1)(a).

  • Refusing to answer questions from the committee would be an offence under clause 1(1)(b) because it amounts to refusal to provide information.

  • Refusing to provide documents would also be an offence under clause 1(1)(b).

  • In deciding whether a person had a reasonable excuse for not complying with a summons — and when deciding what penalty to impose for refusing to comply — a court may consider the nature and purpose of the committee’s summons but not any other aspect of the committee’s proceedings (clauses 1(4) and 1(5), read together).

  • What’s meant by the nature and purpose of the committee’s summons will be for the courts to decide.

  • Clause 1(4)(b) is an ouster clause intended to stop parliament looking too closely at the committee’s work.

  • The privileges committee says: “Our proposal gives scope for the court to consider the nature and purpose of a committee’s summons, but only for the purposes of ensuring compliance with the UK’s international human rights obligations, in particular article 6 of the European convention on human rights (the right to a fair trial).” But that restriction is not mentioned in the bill. It’s hard to see how it could be covered by rules of court.

  • The committee also says that reluctant witnesses would be given several opportunities to change their minds. That’s not in the bill either.

Chair’s comment

Chris Bryant, the Labour MP who chairs the privileges committee, said:

The right of select committees to summon witnesses and hold the powerful to account cuts right to the heart of our parliamentary democracy.

For too long, the rich and powerful have been able to resist engaging with select committees and, in doing so, have shown contempt for parliament and the people. From billionaire high street moguls to unaccountable government advisers, the proposals we set out will make it tougher for such individuals to disregard parliament and the people.

These proposals will give select committees the necessary powers to compel reluctant witnesses to attend or provide information to investigations, while safeguarding and ensuring fair treatment of those giving evidence.

Reaction

There was a very different response from Alexander Horne, a former legal adviser to two House of Lords committees.

I have lightly edited Horne’s tweets:

Select committee hearings can be great theatre and can, sometimes, throw light on issues which have been overlooked by the government or relevant agencies. Moreover, the desire to be able to call witnesses to inform deliberations is a reasonable one.

But this does not mean that recalcitrant witnesses should be threatened with criminal sanctions. Parliament’s main functions are to legislate and to hold the government to account.

It is been a troubling feature of recent years — which has been exacerbated by the election of select committee chairs in the Commons — that some people perceive select committees as some kind of “court of public opinion” to hold high-profile individuals to account.

Yet committees are a political venue, where politics often counts as much as the evidence. And potential witnesses may well have legitimate concerns about their treatment by what one former colleague described as “celebrity chairs”.

There are few lawyers employed to advise parliament and yet, to run a fair hearing, members would need significant advice about the criminal law and human rights. There is no right of appeal against select committee findings and individuals are even precluded from going to the courts if they feel they have been defamed, due to parliamentary privilege and article 9 of the Bill of Rights.

While the proposal from the committee envisages the courts having a role, it is notable that the report acknowledges that the scope of the court to consider the merits of the summons should be limited. Yet this is the type of question that may go to the heart of whether a summons is legitimate and whether an individual’s human rights are engaged.

Finally, a few practical issues. Sometimes committees invite individuals who are not in the jurisdiction and make a fuss when they do not attend (for example, [the head of] Kraft [Foods]; Mark Zuckerberg) and even when they do attend (for example, Rupert Murdoch). Would individuals have protection from self incrimination? How would any evidence obtained from them be used by the authorities in the light of article 9 of the Bill of Rights?

In short, the proposal has the potential to open a can of worms. Often, the attention of a committee would be better spent holding ministers and executive agencies to account — to ensure that problems do not happen again — rather than investigating individuals without the right tools.

None of the above should detract from the good work done by many committees. And if they unearth evidence that someone is not a fit and proper person to run a regulated business, then the appropriate regulators should take action.

Comment

That all makes very good sense to me. I don’t want to see MPs cross-examining the rich and powerful. I don’t want to see them insisting that witnesses answer questions and threatening them with prison if they don’t reply. I don’t want to see witnesses accompanied by lawyers who advise them not to answer questions. And I don’t want 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 for not answering the committee’s questions.

So I’d pick the “do nothing” option. If people won’t answer questions, empty-chairing them is often far more eloquent.