Protection of a witness
- privilege
1. In the previous Session, the Committee reported
on the Children and Family Court Advisory Support Service (CAFCASS).[1]
In the course of the inquiry, the Committee had reason to reassure
informally some of the potential witnesses that they were protected
by parliamentary privilege from adverse consequences flowing from
giving evidence. One witness, Ms Judy Weleminsky, a CAFCASS board
member, on her own behalf and on her own initiative sent the Committee
written evidence which was extremely useful in supporting the
Committee's conclusions in the report, many of which were critical
of the management of CAFCASS. She received advice that she was
protected by parliamentary privilege when giving such evidence
to the Committee.
2. It was a central recommendation of the Committee
that a fundamental review of the board of CAFCASS should be undertaken.
The Government responded in October 2003 and accepted the criticisms
of CAFCASS.[2] After the
Committee's report had been published, Mr Anthony Hewson, the
Chairman of CAFCASS, resigned (he left the board on 10th October).
On 24th September he presented the Lord Chancellor
with a dossier detailing alleged breaches of Ms Weleminsky's duties
in her capacity as a board member. These allegations were reviewed
by Mr David Crawley, Head of Office, Scotland Office, Department
of Constitutional Affairs, who reported to the Lord Chancellor
on 9th October.
3. Soon after the Committee reported, ministerial
responsibility for CAFCASS was passed to the Minister for Children,
although formally the Lord Chancellor retained the legal responsibility
for Board appointments. This legal responsibility has now passed
to the Secretary of State for Education.
4. Subsequently, the Lord Chancellor invited the
rest of the CAFCASS board to resign. They all did so, with the
exception of Ms Judy Weleminsky, who refused. As a result of her
refusal to resign, the Lord Chancellor wrote to Ms Weleminsky
about the allegations, attaching Mr Crawley's review. A copy of
the letter from the Lord Chancellor to Ms Weleminsky and the attached
report on her conduct dated 9th October and referred
to in his letter to her are attached as Appendix 1 to this report.
As the supporting document shows, one of the grounds (the first
specific one) for disciplining Ms Weleminsky which Mr Crawley
examined was that she had given evidence to the Committee. There
are also other grounds named for proceeding against her.
5. On 17th December 2003 the Chairman
wrote to the Lord Chancellor in the terms set out in the letter
printed as Appendix 2. The Lord Chancellor's reply is printed
as Appendix 3. The Lord Chancellor agrees that it would be quite
wrong to discipline someone in her position for having given evidence
to the Committee and says that he would not do so. He adds that
his decision did not depend "wholly, or in part, on the fact
of her giving evidence to the Select Committee". He concedes,
however, that having regard to the reference in the supporting
paper to the fact of giving evidence to the Committee he should
have made it clear that this could not be the basis of disciplinary
action against her.
6. The Lord Chancellor's letter to Ms Weleminsky
of 9th October initially led us to assume (as did Ms
Weleminsky) that the fact of her having given evidence to the
Committee was a material ground for proceeding against her. Even
in the light of the Lord Chancellor's assurances in his letter
to the Chairman (set out in Appendix 3) that he had not used her
assistance to the Committee as a material ground for proceeding
against her, the papers clearly show that the process of examining
her conduct involved official criticism of her on the basis that
she had given evidence to the Committee.
7. In the view of the Committee, the process of
dealing with the complaints against Ms Weleminsky, starting with
the dossier prepared by Mr Hewson, continuing with the review
of the matter by Mr Crawley and ending with the letter from the
Lord Chancellor to Ms Weleminsky and the supporting document might
be regarded as a prima facie breach of privilege. Accordingly
we believe that the House should refer this matter to the Committee
on Standards and Privileges.
1 HC 614-I and II of Session 2002-03 Back
2
The Response of the Government and the Children and Family Court
Advisory Support Service to the Committee's Report on the Children
and Family Court Advisory and Support Service (CAFCASS) - Cm 6004 Back
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