7 Select committee powers
129. During 2011, long-standing uncertainties about
the extent and enforceability of select committees' powers were
brought to the fore by a series of unusual inquiries. In March,
Irene Rosenfeld, Chief Executive Officer of Kraft Foods, based
in the USA, refused to appear before the Business, Innovation
and Skills Committee to discuss the takeover of Cadbury. In July,
the Culture, Media and Sport (CMS) Committee summoned Rupert Murdoch
and others to attend to give oral evidence on News International
and Phone-Hacking, giving rise to widespread media discussion
about what would happen if they refused. As the witnesses complied
with the summons, the question was not put to the test. When the
CMS Committee concluded that certain witnesses had misled its
predecessor committee, there was uncertainty — within the
Committee and in the outside world — about what could be
done about it. The CMS Committee reported that:
The integrity and effectiveness of the Select Committee
system relies on the truthfulness and completeness of the oral
and written evidence submitted. The behaviour of News International
and certain witnesses in this affair demonstrated contempt for
that system in the most blatant fashion. Important lessons need
to be learned accordingly and we draw our Report to the attention
of the Liaison Committee which is considering possible reforms
to Select Committees.[121]
On 22 May 2012[122],
the House of Commons resolved to refer the matter to the Standards
and Privileges Committee: while its inquiry continues, it would
be premature to come to any conclusion on the lessons to be learned.
130. Other questions about select committee powers,
and their appropriate use, were raised by the decision by the
Public Accounts Committee to put a witness from HM Revenue and
Customs on oath on November 2011. The power to put a witness on
oath was not in doubt; the questions were more about the implications
of its use. What would happen if a witness was thought to have
lied under oath? Would a case be brought before the courts, and
would this lead the court to question how the committee had gone
about its business — in conflict with the principle of parliamentary
privilege as set out in Article IX of the Bill of Rights?
131. In April 2012 the Government published a Green
Paper on Parliamentary Privilege for consultation.[123]
Among other matters, it notes the questions about the enforceability
of select committee powers and explores two legislative options:
legislating to give the two Houses enforceable powers by codifying
their existing powers, perhaps giving the House of Commons a clear
power to fine non-members; or creating criminal offences for committing
contempts of Parliament, in order to allow Parliament's powers
to be enforced through the courts.
132. The Clerk of the House of Commons, Robert Rogers,
has provided us with a comprehensive memorandum explaining the
extent of committees' powers and their limitations, and setting
out the pros and cons of possible courses of action. We have published
this on our website as an aid to understanding of these complex
issues and to inform further debate.[124]
This paper canvasses three options:
a) Do nothing
b) Proceed by standing order or resolution to
clarify the powers of select committee
c) Legislate to make select committee powers
enforceable through the courts.
133. We are expecting a joint committee of both Houses
to be established to consider the options set out in the Parliamentary
Privilege Green Paper. We expect to be represented on that joint
committee, and do not wish to prejudge its conclusions, but it
may be helpful if we give an indication here of our thinking.
We are
persuaded that the disadvantages of enshrining parliamentary privilege
in statute would outweigh the benefits. A
Privilege Bill might undermine the centuries old principle that
Parliament and the courts should operate independently, threatening
the fundamental tenets of our constitution as set out in the Bill
of Rights. In practical terms, we are concerned that — if
the courts were involved in deciding if someone should be punished
for refusing to appear before a committee, or lying, or refusing
us written information — they would be drawn into questioning
how Parliament and its committees operate ("proceedings in
Parliament"), and would be unlikely to enforce parliamentary
privilege unless Parliament and its committees followed the kind
of standards of process and evidence that apply in the courts.
This would be both wrong in principle and impractical. MPs would
have to be displaced by lawyers trained to conduct impartial cross-examinations.
Select committees are not courts of law. Their effectiveness rests
upon the direct involvement of their members and upon their ability
to act swiftly and informally.
134. There are two points of view on whether it is
now necessary to take some action: either
a) doing nothing is no longer an option: it is
only a question of time before our powers are challenged; or
b) recent problems have not been severe and either
possible solution would bring more disadvantages than advantages.
On balance, we
conclude that, at the very least Parliament should set out a clear,
and realistic, statement of its powers — and perhaps also
its responsibilities — in a resolution of the House and
set out in more detail in Standing Orders how those powers are
to be exercised. We
note the Clerk of the House's view that this might not be fully
effective, but this would at least show Parliament's determination
to retain the powers it has within the "exclusive cognizance"
of Parliamentary Privilege. Evidence of such determination is
altogether lacking at present. We look forward to the Joint Committee's
conclusions.
121 Culture, Media and Sport Committee, Eleventh Report
of Session 2010-12, News International and Phone-hacking, HC 903-I,
para 279. Back
122
HC Deb, 22 May 2012, col 990 ff. Back
123
Parliamentary Privilege, Cm 8318, April 2012. Back
124
http://www.parliament.uk/business/committees/committees-a-z/commons-select/liaison-committee/news/select-committee-paper/;
Ev w78. Back
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