Liaison Committee - Select committee effectiveness, resources and powers Written evidence submitted by the Clerk of the House

Glendower:	I can call spirits from the vasty deep.
Hotspur:	Why, so can I, or so can any man.
	But will they come when you do call for them?
		King Henry IV, Part One, Act III, Scene 1

Bernard Jenkin, the Liaison Committee’s Rapporteur on Select Committee powers, has asked me to prepare this paper. I have had the benefit of discussing the issues with Mr Jenkin and with other Chairs at several meetings.

Is there a problem?

1. For much of the last century select committees have encountered little difficulty in securing the attendance of the witnesses, and the evidence, that they need. Since the hugely more active and demanding departmental select committee system was established in 1979, thousands of select committee inquiries have been concluded successfully, with tens of thousands of witnesses ready or even eager to participate by contributing written and oral evidence across a very wide range of subjects.

2. There have been occasional—but only very occasional—incidents where committees have been disappointed or frustrated by witnesses who have been unhelpful or unwilling to co-operate fully.1

3. Where the issue has been one of attendance, exposure has usually been effective—a witness realises quickly that attending is far preferable to a committee’s continuing criticism, often backed by the media.

4. Where credibility of evidence has been at issue, select committees frequently have to weigh up the evidence they have received. In doing so they may give greater credence to some witnesses than to others. Committees have never been scared of making strong criticism of unhelpful or evasive witnesses, or of those whom they suspect have not told the whole truth.

5. Whatever conclusions select committees come to, their comments may not be impeached or questioned in court. There is not even a right of reply, let alone a right of redress, for any damage done to the reputation of an individual or an enterprise by what may be published in a select committee report, or in the evidence accepted by a select committee. The corollary must be that due process of investigation and weighing of evidence needs to be all the more exacting, and it usually is.

6. So is there a problem?

High-Profile Events

7. Some recent events have given a higher profile both to the securing of attendance and to the veracity of witnesses. Irene Rosenfeld, CEO of Kraft Foods, did not agree to appear before the Business, Innovation and Skills Committee in March 2011 to answer questions about the takeover of Cadbury (although the Committee was able to question other witnesses from Kraft extensively).

8. In the Culture, Media & Sport Committee’s 11th Report of Session 2010–12, News International and Phone-hacking, HC 903-I, that Committee concluded that certain of its witnesses had misled the Committee, and on 22 May 2012 the House referred those conclusions to the Committee on Standards and Privileges.

9. The engagement between the Public Accounts Committee and HMRC in November 2011 was of a rather different character. The Committee put a witness on oath after the Chair expressed frustration that answers were not forthcoming. I think the circumstances were unfortunate. I would simply observe that administering the oath will not of itself produce answers; the discipline of having taken the oath may make a difference to the content, but a witness may also simply refuse to answer.

10. The issue of select committee powers has arisen pretty regularly during my forty years here. On almost every occasion either the committee has got what it wants (possibly after some straight talking) or it has decided not to pursue the matter.

11. However, recent events, and the reference of the CMS issue to the Standards and Privileges Committee, have now heightened expectations. The Government’s proposal for a joint committee on banking, explicitly as an alternative to a judge-led investigation, may also be a factor.

A paper tiger?

The process

12. Recent events have shown to a wider audience what all insiders always knew; that there were considerable doubts about whether the House could really impose its will on those whom a Committee wished to summon, or punish those who gave (unsworn) false or misleading evidence to a Committee. I deal separately with evidence given on oath.

13. It is sometimes alleged that the process is unclear. It is not. What is unclear is how far it can be taken.

14. If a Select Committee wishes to require the attendance of a witness, an informal request is issued. If the witness is unwilling, a period of negotiation usually follows. If it is clear that the witness is not willing to attend, and the Committee wishes to insist, an order for attendance is made by the Committee, signed by the Chair, and then served upon the witness by the Serjeant at Arms or the Serjeant’s representative.

15. Provided the witness is “within the jurisdiction”—that is, within the UK or the Dependent Territories (or, in strict theory, on UK diplomatic premises)—the order can be effectively served. If the witness does not comply, the Committee can report the matter to the House, and can ask the Speaker to give the matter precedence over the scheduled business. A motion may thereby be debated which either immediately expresses a view about the witness’s conduct, or which refers the matter to the Committee on Standards and Privileges. (The House has agreed that a separate Committee of Privileges shall once again be appointed after lay members have been added to a separate Committee on Standards.) The Committee inquires into the matter, and reports its view to the House. The House considers the report on a debateable (and amendable) motion, and may at that stage decide that a contempt has been committed.

16. False evidence is treated in broadly the same way (most recently in the phone-hacking case). A Committee reports that it believes that it has been lied to or deliberately misled, seeks reference to the Committee on Standards and Privileges, and that Committee’s judgement is considered by the House, which may decide that a contempt has been committed.

How can a contempt be punished?

17. It is important to remember that there is no such thing as an “automatic” contempt. Something is a contempt only if the House finds it so, which is why Erskine May’s examples are of behaviour which has been found in the past to have been a contempt. And although this paper is about contempts which arise in the proceedings of Select Committees, there are many other ways in which a person or a body may be found to be in contempt, such as obstructing or threatening a Member or Officer in his or her Parliamentary duties, improper influence, and so on.

18. In the nature of things, most people who fall foul of a Select Committee will be people in public life, or who in some way carry public responsibilities. The finding by the House of Commons, after due inquiry by the Committee on Standards and Privileges, that an individual is in contempt, and making specific criticisms of the individual’s conduct, must be hugely damaging to that individual. The finding by the Culture, Media and Sport Committee that “Rupert Murdoch is not a fit person to exercise the stewardship of a major international company”2 was deeply damaging to him, and probably had financial implications far beyond what any tribunal would have imposed as a fine.3

19. But is that enough? What else can the House do? What are its present powers?

Calling to the Bar of the House

20. This was last done in Session 1956–57 (the Junor case4) and I think must be regarded as having fallen—I would say unregretted—out of use. In modern circumstances, as a televised proceeding, it would risk being a pantomime. Consider: the miscreant is brought to the Bar, accompanied by the Serjeant with the Mace, and is admonished by the Speaker in front of the House. Even assuming that the miscreant is prepared to come (and a refusal would be a further embarrassment) the proceedings are not controllable, and the House would risk looking like a lynch mob. The Speaker stands and delivers a rebuke, at a range of some thirty yards. Then what? The individual at the Bar, in prime TV time, may decide to have a go at the House and the treatment he or she has received. If the individual really does have a case, or perhaps produces some surprise piece of evidence which makes it clear that the House has got it wrong, the result could be a reputational disaster.

Fining

21. The Commons has not imposed a fine since 1666, and its power to do so as “a court of record” is doubtful; in 1762 it was held in terms no longer to exist,5 and the Supreme Court recently described it as “theoretical”.6 Select Committees in 1967 and 1977, and the Joint Committee on Parliamentary Privilege in 1999, have recommended that the House should have a statutory power to fine.7

Imprisonment

22. This was a power freely exercised by both Houses in the 16th, 17th and 18th centuries, and by the House of Commons until late in the 19th century (there were 80 cases of committal between 1810 and 1880). The last case of committal of a Member was of Bradlaugh in 18808 and, of a non-Member, of Grissell in the same year.9

23. The Commons are regarded as not having the power to imprison beyond the end of a Session.10

24. Were the power to imprison to be used in modern times, the objections would be several and powerful. Could a process acceptable to the House—in effect, a full adversarial trial by a House of Parliament—be devised to meet the requirements of fairness in a procedure which could end with someone being deprived of liberty? And would it be possible for the House to take any such step without speeches being made which would be taken to demonstrate predetermination (as was certainly the case in the debate on whether to refer the CMS findings to the Standards and Privileges Committee)?

25. Although the Human Rights Act 1998 would not apply (there being a specific saver for Parliamentary process) the prospect of breaching the requirements of Articles 5 and 6 of the European Convention on Human Rights, and the high probability of the United Kingdom being taken to the Court of Human Rights11 is a substantial reputational risk, most of all for a Parliamentary institution all of whose Members would support the fair and equal treatment of citizens as a fundamental requirement of modern society.

26. The fact that the House’s power to imprison, being until the end of the Session, is indeterminate (that is, no-one can say, when a penalty is imposed, for how long exactly it will run) also has a human rights implication, and would be open to challenge on grounds of arbitrariness.

27. The possibility of directly securing attendance of a witness (sending the Serjeant at Arms physically to enforce a Committee’s order to appear) falls at all these fences, and one other; the police might not intervene (save to avoid a breach of the peace) but he would be at risk of civil proceedings for assault and false imprisonment, from which it is very unlikely that a claim of Parliamentary privilege would protect him.

Evidence on oath

28. I conclude this survey of the current situation, and its practical implications, with a consideration of the taking of evidence on oath. This is rarely done in investigative select committees, but is routine in private bill committees.

29. The debate on 5 July on the method of investigating LIBOR rate fixing and related matters demonstrated in some quarters a confidence that the taking of evidence on oath in Parliamentary proceedings avoids all the difficulties I have so far touched upon. It does not.

30. The Parliamentary Witnesses Oaths Act 1871 empowers the House of Commons and its committees to administer oaths to witnesses, and attaches to false evidence the penalties of perjury. Section 2 of the Perjury Act 1911 provides maximum penalties on conviction of a false statement on oath, otherwise than in a judicial proceeding, of seven years penal servitude, or imprisonment for two years, or a fine (or a fine combined with one of the other two penalties).

31. On the face of it, this looks like a solution. But there are problems. The first is that, however cross or frustrated a committee may be, the decision whether to prosecute rests not with Members but with the prosecuting authorities outside the House. If, applying the normal tests, they decide that there is insufficient prospect of a prosecution succeeding, they will not waste public funds by proceeding. This would probably be a damaging and very public setback for the committee concerned.

32. Second, the prospects of a successful conviction will depend on the degree of fairness that a committee is able to demonstrate in the proceedings that led to the alleged perjury. Did the witness know in advance, before coming to the committee, that he or she would be put on oath? Were the questions asked clear, and designed to elicit fact and not opinion? Did the Committee at any stage badger or harass the witness? Was the witness under any constraint or duty that made it difficult to answer? Did the witness have access to advice (possibly legal advice)? The failure of a prosecution, once embarked upon, would be embarrassing to the committee and to the House.

33. Third, the committee may think that the false evidence was on a material issue. The court may disagree: and s1(6) of the Perjury Act explicitly gives to the court the duty of deciding whether or not an allegedly untrue statement is material.

34. Fourth, the trying of a case of perjury would mean that the court had to examine Parliamentary proceedings—something explicitly prevented by Article IX of the Bill of Rights.12 Erskine May says that this obligation upon the courts “is statute law and, unless there has been amending legislation, the protection it confers cannot be waived or not insisted upon by either House”.13 However, May also says that the passing of the Perjury Act “impliedly” amends the Bill of Rights. There is of course a difference between using Parliamentary proceedings as a means to establish a fact14 and exploring the details of the questions and answers in evidence before a select committee. It would be for the court to decide how far it could consider such material.

35. These considerations may have been factors in there having been no prosecutions for perjury in respect of Parliamentary proceedings since the passing of the 1911 Act.

How did we get into this situation?

36. The simple, if unsatisfying, answer is “lapse of time”. During the period since the House ceased regularly to exercise effective penal jurisdiction, the world has changed. Modern administrative law has brought with it profoundly different expectations of due process and natural justice, and adherence to the European Convention on Human Rights has buttressed those changes.

37. There are also broader, perhaps more philosophical considerations. The Select Committee on the Army before Sebastopol (1854–55) is usually considered to be the first “modern” select committee inquiry. It put reputations on the rack, and led to Lord Aberdeen’s resignation, but it was at heart an inquiry into policy and administration.

38. By contrast, the select committee inquiries into the Jameson Raid and the Marconi scandal at the end of the nineteenth and the early years of the twentieth century were about wrongdoing. The inquiries were both disasters for the House because the committees divided fiercely on party lines, and the development of the role of select committees was set back by some fifty years.15

39. At the heart of the scrutiny role of the House of Commons is calling to account the Government of the day. The Orders of Reference of the Departmental Select Committees give them the task of examining the “expenditure, administration and policy” of Government Departments.16

40. That is, emphatically, not to say that there should not be effective means to hand if a committee is lied to or obstructed, but it does suggest a centre of gravity. The broader changes I referred to in paragraph 36 have widened the gap between the work of Parliament and the authority of the courts, not least in the expansion of judicial review, and that at least poses the question of whether there are, or should be, limits to what select committees see as their role.

“As sparingly as possible”

41. The House has responded to the changing world. Its current practice of punishing contempts follows the recommendations of the Select Committee on Parliamentary Privilege in 1966–67, which concluded that the House should exercise its penal jurisdiction (1) in any event as sparingly as possible and (2) only when satisfied that to do so was essential in order to provide reasonable protection for the House, its Members or its officers from improper obstruction, or attempt at or threat of obstruction causing, or likely to cause, substantial interference in their respective functions.

42. Until 2006 it was the practice of the House on the day of the State Opening to pass several Sessional Resolutions, including the following in relation to Witnesses:

That if it shall appear that any person has been tampering with any witness, in respect of his evidence to be given to this House, or any Committee thereof, or directly or indirectly has endeavoured to deter or hinder any person from appearing or giving evidence, the same is declared to be a high crime and misdemeanour; and this House will proceed with the utmost severity against such offender.

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.

43. The then Procedure Committee’s rationale for dropping the Sessional Orders was principally that they were unnecessary.17 The Witnesses (Public Inquiries) Protection Act 1892 provides penalties for those who intimidate witnesses before Committees of the House, and perjury in evidence given under oath was thought to be able to be dealt with under the Perjury Act 1911.

44. But we have come a long way from the antique “high crime and misdemeanour” and proceeding “with the utmost severity against such offender” to “as sparingly as possible and only when...”

45. It may, of course, also be the case that the House’s powers have survived in the form they have precisely because the use of them over the last century has been restrained.

Should something be done and, if so, what?

46. The options may be considered under three headings — do nothing, proceed by Standing Order or Resolutions or legislate.18 As I said when I first discussed these issues with Liaison Committee Chairs, the tests should in my view be those of efficacy, proportionality and hazard. I have suggested in the grid below how each might score

	Efficacy	Proportionality	Hazard
Do nothing	Difficult to tell at this stage: S&P on CMS may give an indication	Acceptable?	Difficult to tell at this stage: S&P on CMS may give an indication of hazards of no action
Standing Orders or Resolutions	Would bring clarity	Easily achievable	The “paper tiger” problem: would this be seen as enough?
Legislate	Select Committee processes would have to meet demanding standards of fairness	Depends on the answer to the “is there a problem?” question	Risks changing the nature of Select Committee proceedings

47. I now test each of the possible courses against the three criteria.

Do Nothing

Efficacy—will it work?

48. The evolution of select committees over the past 40 years has been remarkably successful. The election of Chairs and Members in the present Parliament has given them an added legitimacy, and their collective confidence has in my view never been higher. The “do nothing” judgement must in effect ask: “will this change if coercive powers and penal jurisdiction, such as they are, remain undisturbed?”

49. A useful indication may be given by the outcome of the Standards and Privileges Committee’s consideration of the possibility that witnesses before the CMS Committee gave false evidence. S&P has already decided that, if it finds the allegation proved, it will not recommend that the House exercise any power of committal to prison, and that the maximum penalty it will recommend is admonishment19 (which does not imply calling to the Bar; it could be done more effectively by Resolution of the House endorsing the S&P Report).

Proportionality and Hazard

50. Both proportionality and hazard will probably depend on other events. If the S&P investigation finds that the allegation of giving false evidence to the CMS Committee is not proven, then the question of penal jurisdiction will become—perhaps only for the moment—much less important. On the other hand, if it is found that false evidence was given, the “do nothing” option will be under pressure.

51. But, CMS aside, it is possible that any Select Committee inquiry could encounter difficulties at any time, and thrust the issues into the spotlight once again. The course of the inquiry to be undertaken by the proposed Joint Committee on Banking may be relevant.

52. Also relevant is the Constitution Society’s recent study by Robert Gordon QC and Amy Street, one of the best considerations of the issues I have seen. Gordon and Street argue that “In the context of select committees, whose powers and practices may be subject to change, there is a strong case for ensuring clarity and certainty by more specific rules rather than through reliance on informal and often uncertain past practice or development of any system of constitutional conventions (which currently do not exist) in relation to select committees”.20

53. Authoritative comment of this sort from outside the House is bound to keep up pressure against the “do nothing” option.

Standing Orders and Resolutions

Efficacy

54. These could play two roles.

55. First, a Resolution of the House could set out the duty of all within the jurisdiction to co-operate with Select Committees of the House; to deliver up papers and records requested by a Committee;21 to attend to give evidence when required; and to give evidence which is wholly truthful.

56. Such a Resolution would be of a character similar to those agreed by both Houses on Ministerial accountability to Parliament22 and by this House requiring Ministers to be as open as possible with Parliament.23

57. The case for such a course would be to give additional moral force and stated legitimacy to the activities of select committees.

58. Second, criticism of the Gordon/Street kind might be met by setting out in Standing Orders the process by which a committee secures the attendance of a witness:

If informal request does not suffice.

Order may be made.

Served upon the witness within the jurisdiction.

Non-compliance reported to the House.

Reference to Committee of Privileges (as it will then be).

Possibility of being found in contempt of the House.

59. But what punishment, other than one sanctioned by legislation, would be effective? I return to this point in paragraph 62.

60. Standing Orders might also set out the process whereby the Committee of Privileges might proceed if a case of alleged false evidence is reported to them, very much along the lines upon which the Committee on Standards and Privileges has said that it will proceed in the CMS case:

Invitation to witnesses to make written submissions in their defence.

Similar invitations to other relevant witnesses.

Opportunity of oral evidence, accompanied by legal adviser(s) (but answering in person, not represented by Counsel).

Oral evidence taken on oath.

Committee comes to preliminary conclusions.

Writes to a witness affected by those conclusions stating what the conclusion is, and the evidence upon which the Committee relies.

Response within a limited time from the witness.

Consideration by Committee.

Report to the House.

Consideration by the House of that Report.

61. Once again, the unanswered question at this last stage is: and then what?

62. One possible route would be to make more explicit use of the moral effect of a Resolution of the House of Commons. I said in paragraph 18 that the CMS judgement on Rupert Murdoch as being “not a fit person” would have had financial implications far beyond any fine.

63. Perhaps we should consider a “tariff of misbehaviour”:

Not a fit person to be a director of a public company.

Not a fit person to hold public office.

Not a fit person (depending on any statutory provision particularly applicable to the individual concerned).

and so on.

64. Such a conclusion would be a powerful moral condemnation. It would not have executive force because it would not directly engage disciplinary or disqualification process provided for in statute. It would be thus less likely to have ECHR implications and, as an expression of the view of the House of Commons, it could not of course be challenged in the courts.

65. The perceived fairness of proceedings in select committees might be enhanced by the adoption of a code along the lines of the New Zealand practice, where select committees have a formal responsibility to follow the rules of natural justice.24

Proportionality and Hazard

66. If the course of events shows that something more than “do nothing” is needed, this approach might be proportionate. It would have hazards: it could be seen as merely exhortatory if there were no effective punishment at the end.

67. There is a limit as to how far Standing Orders can go. The House of Commons agreed with the House of Lords in 1704 that “neither House of Parliament hath any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament”,25 and this has been amply recognised by the courts. It is therefore not possible to introduce by Resolution or Standing Order any new, certain, coercive or penal power.

Legislation

Efficacy

68. On the other hand, coercive and penal powers can be provided by legislation. The way in which such powers might operate needs closer examination.

Proportionality and Hazard

69. Chapter 7 of the Government’s Parliamentary Privilege Green Paper26 covers powers of select committees, and considers some of the issues. The Green Paper suggests that there should be no general offence of “contempt of Parliament,” enforceable by the courts, because the courts would then have discretion to decide what constituted such a contempt; and the uncertainty inherent in this would mean that it could not be made a criminal offence, because an individual would not know for certain that his or her behaviour was criminal.27

70. The Green Paper goes on to consider other possible offences of non-compliance and interference, drawing upon the Report of the Joint Committee on Parliamentary Privilege in 1998–99.28 They are:

Failure or refusal, without reasonable excuse, to appear.

Failure or refusal, without reasonable excuse, to answer.

Failure or refusal, without reasonable excuse, to produce documents.

Altering, suppressing or destroying documents requested.29

To this list might be added knowingly to give false or misleading evidence (unsworn), not separately dealt with in the Green Paper.

71. There would probably need to be a privilege against self-incrimination and a protection of legally privileged material, as in the Inquiries Act 2005.30 Witnesses would be likely to come “lawyered-up” to evidence sessions to protect their own positions.

72. The Green Paper warns of potential difficulties of creating statutory offences in this way: where for good reasons a person was unable to appear; where the information requested was personal and not relevant to proceedings; where someone was under a legal or professional duty of confidentiality not to reveal information; or where the release of information would prejudice prospective or continuing judicial proceedings. The Government also indicates a strong view that civil servants should not be covered by such provisions, on the grounds that, except in the case of Accounting Officers appearing before PAC, it is Ministers who carry the responsibility.

73. These potential difficulties are seen from the government’s standpoint and not from ours, and we might not agree that any of these should be allowed to impede a select committee inquiry, and that the select committee should be the judge of whether any refusal in these categories was reasonable.

74. Unfortunately, once the offences were in statute, neither a select committee nor the House itself would be the judge of reasonableness; it would be a matter for the courts.

75. I have discussed the practicalities in some detail with senior members of the judiciary. For obvious reasons I do not want to attribute views individually or collectively. However, it is clear to me that, even if there were no explicit test of reasonableness, a court would wish to satisfy itself on a number of issues of fairness.

76. On “refusal to appear”:

Was the witness “pertinent”31to the committee’s inquiry?

Did the Committee offer reasonable alternative dates?

Did the Committee give adequate notice, that would have allowed the witness to prepare properly for the oral evidence?

Did the Committee say exactly why it wished to take evidence from the witness?

Did the Committee offer the opportunity for the witness to be accompanied by advisers (including, depending on the circumstances, legal advisers)?

77. I think most committees would regard the possibility of their actions being second-guessed by a court in this way uncomfortable, to say the least. The possibility that the court might find that the committee had not in fact acted fairly, and throw the case out, would be no more welcome.

78. Similar considerations of “pertinence” and of fairness, attach to the production of documents, but it would be the assessment of fairness in connection with an allegation of giving false or misleading evidence that committees might find most intrusive and unwelcome.

79. For example:

Did the question fall into a category, or was on a subject, which the witness could not reasonably have expected?

Was it relevant to the committee’s lines of inquiry?

Did the question seek a factual answer?

Did the Committee ask its questions clearly and in an orderly way?

Did the Committee badger the witness? Were the proceedings in any way oppressive?

Did the witness have time to think before answering? If he wanted a short break to consider was he or she allowed it?

Was the witness allowed to take advice?

80. It is not hard to imagine that a court which had to determine whether or not the witness was treated fairly would want to see a DVD of the evidence session.

Conclusion

81. In this paper I have sought to set out possible courses of action, and the advantages and disadvantages that attach to each.

82. If no action is taken, and the Committee on Standards and Privileges finds that the witnesses named by the Culture, Media and Sport Committee are guilty of contempt—or if in due course a similar finding is made in respect of other witnesses before another committee, it is possible that the House and the wider public will be frustrated at the House’s lack of capacity to impose a proportionate penalty.

83. But it is also important to bear in mind that, if the House is to be given penal powers by legislation, it will not be enough to have high standards of fairness at what one might see as the appeal stage; in other words, when the matter is referred to the Committee of Privileges (although fairness at that stage might reduce the likelihood of an ECHR challenge). The standards of fairness—possibly even including adversarial process—would need to be there from the start, if a prosecution were to be successful.

84. It might be possible to designate certain inquiries as “high-risk” and conduct them in a different way; but the implications of having “first-class” and “second-class inquiries” might not be attractive.

85. It might be, of course, that simply to have those powers in statute might mean that they would be unlikely ever to be needed, and that their mere existence would be sufficiently salutary. The Liaison Committee will not need me to tell them that this would not be an easy judgement to make.

86. I would of course be very happy to assist the Committee further in any way they may wish.

Robert Rogers
Clerk of the House

9 July 2012