Select committee effectiveness, resources and powers - Liaison Committee Contents

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; Ev w78. Back

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Prepared 8 November 2012