House of Commons - Standards and Privileges

Select Committee on Standards and Privileges Sixth Report

APPENDIX 1: MEMORANDUM FROM THE CLERK OF THE HOUSE [BYERS.5]

Complaint relating to evidence given by Mr Stephen Byers MP to the Transport Sub-Committee of the Committee on Transport, Local Government and the Regions

Introduction

1. The Committee has asked for a memorandum on the complaint referred to it by the House on 'the matter of the evidence given by the Rt Hon Member for North Tyneside to the Transport Sub-Committee of the Select Committee on Transport, Local Government and the Regions on 14th November 2001.[93] The complaint was made by Mr Chris Grayling MP, who was a member of the Committee at the time, on the basis that an answer given by Mr Byers to a question asked by Mr Grayling has been demonstrated by subsequent disclosures to have been untrue. In the relevant question Mr Grayling asked Mr Byers whether there had been any discussion theoretical or otherwise in his Department before 25 July 2001 about the possibility of a future change in status for Railtrack. Mr Byers replied, 'Not that I am aware of'.[94]

2. During a court case, which I refer to in more detail in paragraph 14 below, Mr Byers admitted that this reply had been incorrect. On 17 October 2005, after the conclusion of the court case, Mr Byers made a personal statement to the House on this matter in which he stated,

It was pointed out to me in court that that answer was inconsistent with the documents that had been disclosed to the court. I must inform the House that my reply was factually inaccurate. However, I must also tell the House that I did not intend deliberately to mislead the Select Committee. I would like to explain to the House what happened.

On coming into office after the 2001 general election, I received a wide range of briefing papers covering all aspects of my Department's responsibilities. A number of these papers related to the railways. As a consequence, I asked for an options paper on the future of Railtrack to be drawn up. Initially, this was to be done solely by my Department but subsequently I asked that it be carried out jointly with the No. 10 policy directorate and the Treasury. At the time, I regarded the commissioning of this work as simply sensible contingency planning. However, it is my request for this work to be carried out that I now recognise could be interpreted as a discussion, and that would make my reply to the Select Committee factually inaccurate.

A critical meeting took place on 25 July when the chairman of Railtrack outlined to me the financial difficulties that the company faced. It was only after that meeting that substantive discussions began about the possibility of changing the status of the company.

Since the court hearing, I have thought long and hard about why I gave the answer that I did to the Select Committee. Having reviewed the documents that were put before the court, it would have been because I considered the meeting of 25 July to be the moment at which discussions began and that the commissioning of work to be carried out on the future options for Railtrack did not represent discussions in the true meaning of that word.

Mr Grayling put his complaint to the House on 19 October, making clear that he did not accept the personal statement and claiming to have evidence, other than the documents referred to in court, to demonstrate the falsity of Mr Byers's evidence.[96]

Nature of the contempt

3. Erskine May states, 'Witnesses who have … given false evidence, wilfully suppressed the truth or persistently misled a committee have been considered guilty of a contempt'.[97] Until November 2004, the House resolved at the start of each session,

That, if it shall appear that any person has given false evidence in any case before this House, or any Committee thereof, this House will proceed with the utmost severity against such offender.

Since then, following a report by the Procedure Committee,[98] the Sessional Resolutions, including the one above, have been dispensed with. The Resolution quoted above was one of two which affirmed the House's powers and intent with respect to witnesses.[99] The Procedure Committee emphasised in its report that, although the Resolutions 'have some value as statements of intent, … they do not add anything to the House's powers to deal with contempts'.[100]

4. In July 2004 the Parliamentary Commissioner for Standards initiated a consultation exercise on possible revisions to the Code of Conduct for Members. One of the questions which he raised was whether the Code should be amended so as to bring complaints that a Member had lied to or seriously misled the House within its scope. The result of that consultation exercise was a recommendation that no change should be made in the existing arrangements for handling such complaints. This recommendation, alongside the Commissioner's other recommendations for the Code, were endorsed by the Committee on Standards and Privileges of the last Parliament.[101]

5. Thus formal complaints that a witness has wilfully misled the House or a select committee are treated as contempts rather than as breaches of the Code of Conduct. Such complaints, however, have been and are very rare. In order for one to be sustained it must be demonstrated not only that the statement or evidence was incorrect, but also that there was a deliberate intention to mislead. In order to find that Mr Byers committed a contempt in the evidence session of 14 November 2001, the Committee will need to satisfy itself not only that he misled the Sub-Committee, but that he did so knowingly or deliberately.

6. In the past Committees of Privileges have commented on the difficulties of proving that witnesses deliberately misled a select committee, particularly when several years had passed since the alleged contempt took place. For example, in 1982 a complaint was made that two witnesses had deliberately misled the Select Committee on the Abortion (Amendment) Bill in 1975. The complaint was based on evidence from a libel case in which the witnesses had been defendants. Although they had initially filed a defence to the action, neither appeared or gave evidence at the trial itself. The result was a verdict in the plaintiff's favour and the two witnesses were ordered to pay damages in respect of certain statements claimed by the plaintiff to have been made falsely and maliciously. The complaint alleged that they had made these same statements in their evidence to the select committee. The two witnesses denied that they had lied to the select committee and claimed that they had offered no defence to the libel action only because they could not afford to. In its report, agreed in April 1983, the Committee of Privileges emphasised that it did not want 'to see any relaxation of the House's adherence to the sessional resolutions in which it declares its intention to deal severely … with those who are found to have given false evidence'.[102] But the Committee concluded that to examine the two witnesses in person would 'present difficulties in view of the lapse of time, limitations of the Committee in the context of cross-examination and the differing contentions of these persons and others as to the truth of their previous evidence'.[103] It took no further action to establish the truth of the complaint.

7. As Secretary of State at the time when he gave the relevant evidence, Mr Byers was also subject to the Ministerial Code and the 1997 Resolution of the House on Ministerial Accountability to Parliament. That Resolution states:

104

The above statement is repeated word for word in the Ministerial Code. Breaches of the Ministerial Code are a matter for the Prime Minister. But the inclusion of those words in it help to demonstrate the continuing force of the 1997 Resolution.

8. The Resolution was intended to be a clarification of the roles of Ministers in relations with Parliament. It was not intended to affect or derogate from the duties owed by a Minister to Parliament in his or her capacity as a Member of the House. Similarly the obligations placed on Ministers by the Ministerial Code, such as their additional duty to offer their resignation to the Prime Minister, do not affect the right of the House to proceed against them in a case of alleged contempt as it might against any other Member.[105]

9. Following any evidence session an uncorrected transcript of the evidence is sent to the witness. This allows the witness to correct any errors of transcription, by amendment of the record, but also any errors of fact, either through a footnote to the relevant passage or by a supplementary memorandum. The obligation imposed by the Resolution on Ministers and officials to correct any inadvertent error does not cease once the transcript has been agreed. The Committee may wish to cover this point in the course of its inquiry.

10. The motion referring the complaint to the Committee refers to the evidence session as a whole (rather than the specific question quoted by Mr Grayling). The Committee may therefore wish to look at other exchanges during the session. For example, in reply to a later question from Mr Donohoe, Mr Byers stated, 'As I think I said to Mr Grayling, the point about the 25 July was it was the beginning of a process'.[106] Mr Byers also stated, 'It was not until 25 July when John Robinson came in that it was clear that we would have to look at it [ie Railtrack] again. Either we would have to put extra money in or there would be a period where we would have to look at the possibility in due course, when it became clear, of railway administration'.[107]

Personal statements

11. Following Mr Byers's personal statement, Mr Grayling gave notice on a point of order that he was not satisfied with what he had heard. Personal statements are not subject to interventions or debate,[108] 'but if another Member is involved in the personal statement, he is generally allowed to give his own view of the matter and to say whether he accepts it or not'.[109] In 1948 the Chairman of Ways of Means made a personal statement about a matter which might have been thought to have called his impartiality into question. Mr Churchill (then Leader of the Opposition), whose letter to the Chairman on the point in question had led to the statement, responded by stating that the matter would 'require some consideration before it finally passes from the consideration of the House'.[110] The following day the House appointed a select committee to inquire into the statement.[111]

12. In this case Mr Grayling's complaint is founded upon his dissatisfaction with Mr Byers's personal statement. It will be for the Committee to establish the grounds of Mr Grayling's dissatisfaction. It may be that he has evidence from which to argue that Mr Byers deliberately misled the Sub-Committee which is unrelated to the content of Mr Byers's personal statement. It may be, however, that either he or others will challenge the content of the personal statement itself. It is the practice that the text of any personal statement must be agreed in advance with Mr Speaker.[112] That practice was followed in this case. But Mr Speaker's decision to allow the personal statement to be made and his agreement to the text of it do not imply any judgement on the accuracy or truthfulness of the statement.

13. In 1963 the House resolved that, by making a personal statement to the House which contained words which he later admitted to be untrue, Mr John Profumo, who was no longer a Member of the House, had been guilty of a grave contempt.[113]

Court proceedings

14. The Committee will be aware that the fact that Mr Byers had given inaccurate evidence to the Sub-Committee emerged from his cross-examination during the case of Weir and others v The Secretary of State and others before the High Court. Towards the end of that cross-examination Mr Byers was asked a series of questions about his evidence to the Sub-Committee and in particular his answer to Mr Grayling's question referred to at the start of this memorandum. These court proceedings were irregular and in breach of Article 9 of the Bill of Rights. They have not been referred to the Committee and do not form part of the subject of the complaint. I was, however, pleased to note that the judge (Mr Justice Lindsay) recognised that he should not have allowed the questions to have been asked as they were and that he apologised to Parliament for having done so.[114]

Conclusion

15. A formal complaint that a Member and a Minister has deliberately lied to a select committee is a very rare event. If the Committee finds that, in answering as he did, Mr Byers did not set out to mislead the Sub-Committee, it must find that no contempt has been committed. It may, however, wish also to consider whether more could have been done by Mr Byers and the Department for Transport, Local Government and the Regions, as it then was, to have the record corrected following the evidence session.

16. If the Committee is drawn to conclude otherwise, it should do so only on the basis of evidence that is at least as compelling as would be required to judge that a Member had committed a serious breach of the Code of Conduct.[115] The Committee will no doubt also wish to judge whether Mr Byers deliberately misled the House in his personal statement, which would be a particularly serious offence.

2 November 2005 Roger Sands