Conduct of witnesses before a select committee: Mr Colin Myler, Mr Tom Crone, Mr Les Hinton, and News International Contents

2Procedural submissions

28.The inquiry subjects or their legal representatives made repeated submissions on procedural grounds objecting to all stages of parliamentary activity in relation to this matter. We and our predecessors have considered these submissions carefully throughout the inquiry. Before setting out our analysis and conclusions on each of the allegations made by the CMS Committee, we first deal with the points raised on procedure.

The CMS Committee inquiry

29.We received submissions that, in the words of Tom Crone, “the process and practices by the CMS Committee in conducting its inquiry and reaching its conclusions were manifestly flawed, unfair and unjust”.22 Mr Crone cited in support of this assertion a list of failings in relation to giving notice of allegations, lack of right of reply, lack of clarity in allegations, treatment of evidence (misrepresentation or reliance on “uncorroborated and obviously suspect evidence”), lack of recognition of a legal or professional duty not to reveal information and lack of opportunity for legal or other advice or representation.23

30.Similarly, Morrison Foerster asserted on behalf of Mr Hinton that by investigating and reporting on whether it considered that it had been misled by witnesses, the CMS Committee was “converting itself into prosecutor, judge and jury” and therefore adopting an approach which “was grotesquely unfair”.24 They also argued that Mr Hinton was not accorded the rights he would have had in a fair criminal trial of a specific charge setting out the allegations, disclosure of evidence and representation by a lawyer with rights of cross-examination of other witnesses.25 Simmons & Simmons, acting on behalf of Mr Myler, also made objections to the “fundamentally flawed” proceedings of the CMS Committee and submitted wide-ranging criticisms of the Committee’s conduct.26

31.The assumption behind these objections is that the CMS Committee is required to act as a court or a tribunal. That assumption is fundamentally misplaced. Select committees conduct inquiries which proceed on an inquisitorial basis and do not operate according to court rules of disclosure and legal representation. They do not sit in judgment and have no powers to enforce their conclusions or recommendations. While they should be fair in their treatment of others, as the Joint Committee on Parliamentary Privilege stated in 2013 any standards of fairness applied to normal select committee inquiries “must recognise that a Committee is not a court “.27

32.Turning to objections to the CMS Committee’s treatment of evidence, it is inevitable that the evidence in a select committee inquiry will be built up piecemeal over a period of time. Committees also have to make decisions based on the evidence before them which may not be complete, although we note that this is the same for courts or tribunals. We recognise that in this particular case the CMS inquiry was concerned to avoid prejudicing ongoing criminal proceedings and for that reason could not examine some potential witnesses. Having considered all the evidence, including facts which came to light as a result of those criminal proceedings, we do not consider that CMS Committee’s findings were in any way undermined by this factor. We have taken into account the ability of witnesses to have access to certain documents in our own consideration of the evidence as set out in the next chapters of this Report.

33.The 2013 Joint Committee on Parliamentary Privilege recommended that witnesses should be given an opportunity to respond to any potentially damaging allegations made by other witnesses.28 In this case, once it appeared that witnesses might have been misleading the Committee, the Chair of the CMS Committee invited those concerned to reconsider their evidence. Witnesses were given an indication of the evidence which appeared to cast their earlier evidence into question and transcripts were provided where relevant, even though these had already been published.29

34.The CMS Committee then made its report to the House, noting that it was for the House to determine whether a contempt had been committed.30 In no sense did it act as either “judge or jury” in its own case.

35.A second set of submissions on the CMS Committee centred on its impartiality and the influence on its work of individual members of the Committee. For example, Morrison Foerster raised what they referred to as to “The systemic difficulty of ensuring that Select Committees remain impartial, independent and, in particular, free from the taint of apparent bias”.31 They questioned the presence on the CMS Committee of a Member who had a “long running, well publicised campaign against News International and [who asserted] that he has himself been a victim of underhand and possibly illegal acts by NI to discredit him”.32

36.Linklaters also asserted that “The CMS manifestly failed to comply with the principle of impartiality”, citing legal precedents.33 They introduced this point earlier in their response, stating that “the conclusions reached by the CMSSC are flawed because one member of the CMSSC was biased against NI and senior executives of NI and News Corp and in any event gave the appearance of bias, infecting the proceedings of the CMSSC as a whole”.34 Mr Crone made similar points regarding the same member of the Committee.35

37.These submissions again fail to engage with the nature of a select committee which is composed of individual Members with an interest in a particular area, who are members of political parties, and whose views on a range of issues are public knowledge and form part of their candidacy at elections. The House of Commons has strict rules about conflicts of interest, including where a Member should declare an interest or where he or she should stand aside from proceedings. In this case one Member did declare an interest at the start of consideration of the Report which was recorded in the formal minutes.36 The formal minutes also set out how the Committee reached agreement on each paragraph of the Report. While individuals may have been particularly active in proposing amendments, the final wording of the Report, as in all such instances, reflects the views of the majority of the Committee and the final Report was the responsibility of the whole Committee, not of any individual member.

38.Finally, we received submissions about the clarity of the Report itself and especially about its conclusions. For example, Linklaters objected that the conclusions in Chapter 8 of the CMS Committee’s Report were undefined and ambiguous and contained various irrelevant criticisms and observations.37 We have borne these submissions in mind in considering the individual allegations.

39.Linklaters also made assertions about the particular matter of corporate liability in the context of the CMS Committee’s allegations. We deal with these points in considering that allegation later in this report (chapter 7).

Parliamentary privilege and jurisdiction of the House

40.In a letter sent to the CMS Committee before the debate referring the matter to this Committee, Simmons & Simmons wrote on behalf of Mr Myler: “our client made clear in his comment immediately upon the publication of the Report that he respects the work of the Committee and we do not seek to challenge the House of Commons’ powers to punish non-members for contempt”.38 Mr Myler told us in February 2015: “that remains my position and nothing that I or my advisers have said or written since in any way detracts from that statement”.39

41.Despite this assertion, many objections to the exercise of parliamentary privilege and the jurisdiction of the House were raised throughout our inquiry by all parties. For example, Morrison Foerster in August 2012 suggested that “Most fundamental of all, Parliament needs to confront the issue of whether reliance on Erskine May as the source of authority that ‘the law of Parliament’ enables Parliament to try, convict and punish a citizen for a criminal offence can live with modern notions of due process and the separation of powers”.40 They added: “we do not accept that the House of Commons possesses any kind of penal jurisdiction which entitles it to find individuals guilty of criminal offences and to mete out punishment to them whether by way of a sentence of imprisonment, a fine or merely an admonishment”.41 Simmons & Simmons put forward similar objections.42

42.Our attention was drawn by several parties to the Government’s Green Paper on Parliamentary Privilege published in April 2012, to the evidence provided by the then Clerk of the House to the Joint Committee on Parliamentary Privilege in 2013, to the reports from that Joint Committee and from its 1999 predecessor and also to a paper by Richard Gordon QC and Amy Street for the Constitution Society (2012).43

43.It is a fact that the House possesses penal jurisdiction over contempt. The 1999 Joint Committee on Parliamentary Privilege noted:

Parliament’s disciplinary and penal powers are part of the control exercised by Parliament over parliamentary affairs. Parliament has long held these powers, over non-members as well as members. Most institutions exercise a degree of discipline over their members. [ … ] Parliament is unique in also possessing its own inherent powers of punishment over non-members. This penal jurisdiction derives from the status of the High Court of Parliament and the need for each House to have the means to carry out its functions properly. If non-members improperly interfere with Parliament or its members or officers in discharging their public duties, Parliament for its own protection must have power to take appropriate action in response.44

44.Making similar points, the 2013 Joint Committee on Parliamentary Privilege noted:

It is unfortunate that Parliament’s restraint has led to doubt about the continuing existence of its powers. They are a part of United Kingdom law and have been so for centuries.45

It continued:

The first and most important challenge is to assert the continuing existence of each House’s jurisdiction over contempt. This is, fundamentally, a test of institutional confidence. We urge the two Houses to rise to this challenge. As the Clerk of the House of Commons has said, the question is not whether the Houses’ penal powers exist; it is whether they can be enforced. Desuetude is not a legal doctrine in England and Wales, and there is no need for statute to confirm what already exists.46

45.Although the House has not proceeded to punish contemnors in recent years, there have been cases in the last few years where inquiries have been conducted and concluded in relation to alleged contempt by non-members. For example, the Committee of Privileges has recently dealt with a complaint relating to the actions of Sussex Police,47 and in Session 2009–10 its predecessor, the Committee on Standards and Privileges, dealt with the case of John Hemming and Withers LLP. In its Report in the latter instance, the Committee concluded “Withers LLP were in contempt of the House when on 4 August 2009 they threatened Mr Hemming with legal proceedings in respect of statements he had made outside the House concerning their client’s behaviour, were he to repeat those statements in the House”. No further action was taken, as Withers LLP apologised unreservedly to the House and to Mr Hemming.48

46.Linked to the question of jurisdiction is that of sanctions. The sanctions available to the House include imprisonment, fines and admonishment. The 2013 Joint Committee on Parliamentary Privilege considered that the proper process for investigating a complaint of contempt may depend on the punishment considered appropriate, arguing that “If the Committee [on Privileges] considered it would at most admonish contemnors, it would be dealing with a fundamentally different type of inquiry from one in which fines or imprisonment were contemplated”.49 Following this logic, the Joint Committee put forward separate draft standing orders for these two different sets of circumstances. Our predecessors determined at the start of the current inquiry that admonishment was the only sanction available to the Committee and the processes followed throughout the inquiry have been fully in compliance with those recommended by the Joint Committee for this type of situation.

Application of Article 6 of the ECHR

47.Representatives for the inquiry subjects pointed out correctly that the House of Commons is not subject to the Human Rights Act 1998 but does fall within the scope of the European Convention, and the Court, of Human Rights. Article 6 of the Convention enshrines the right to a fair trial. Morrison Foerster asked for clarification about “the purpose and scope of the S&P Committee’s inquiry in order to determine whether the process it adopts is compatible with common law and ECHR fair trial standards”.50

48.Representatives for the inquiry subjects repeatedly drew our attention to the ECHR judgement in the case of Demicoli v Malta where the Court found against the Maltese Parliament. 51 There is a crucial difference between that case and the one before us now. In Demicoli v Malta the Maltese Parliament took action against insulting words published outside the House and having no direct connection to parliamentary proceedings. In contrast, the matter before this Committee arises from, and is directly related to, proceedings in Parliament, over which only the House has jurisdiction. Unlike the Demicoli case this is a matter relating to the internal regulation and orderly functioning of the House.

Fairness

49.Linklaters made further assertions in relation to the right to a fair hearing under Article 6, including the need for a properly detailed explanation of the allegation which its client had to meet.52 Similar points were made by Simmons & Simmons on the part of Mr Myler, arguing, inter alia, that the Committee of Privileges could not be said to be an independent and impartial tribunal and concluding that “we do not believe it is now possible to devise a process that is fair”.53 Morrison Foerster made a wide range of criticisms of the fairness of the process on behalf of Mr Hinton.54

50.The 1999 Joint Committee on Parliamentary Privilege suggested that “in dealing with specially serious cases [of alleged contempt by Members], we consider it essential that committees of both Houses should follow procedures providing safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies”.55 The Joint Committee identified “minimum requirements of fairness [for the accused Member]” as being:

A prompt and clear statement of the precise allegations

Adequate opportunity to take legal advice and have legal assistance throughout;

The opportunity to be heard in person;

The opportunity to call relevant witnesses at the appropriate time;

The opportunity to examine other witnesses

The opportunity to attend meetings at which evidence is given; and

To receive transcripts of the evidence.

51.This approach was further refined by the 2013 Joint Committee which recommended that each House should agree Standing Orders to ensure fairness. We note that the recommended standing orders are largely reflected in the process set out in the Resolution followed by ourselves and our predecessors, which the Joint Committee described as “fair”.56 Morrison Foerster told us that “we do not accept that the procedure identified in Annex 3 to the Joint Committee’s Report satisfies the requirements of Article 6 ECHR in the context of an inquiry into a charge of contempt of Parliament by lying to a Select Committee”.57 We disagree. Although we do not accept that Article 6 applies, our procedures have been designed to ensure that they meet that standard of fairness and we are satisfied that they do so.

52.We regret that the House has not found time to debate and implement (with any appropriate amendments) the “due process” recommendations of the 2013 Joint Committee. We believe it should do so.

Standard of proof

53.Our predecessors considered carefully the standard of proof to be applied in this case. The standard adopted is set out in the Resolution and is the higher standard of proof applied to MPs under the House’s disciplinary proceedings:

allegations to be proved on the balance of probabilities, namely, that they are more likely than not to be true. Where the Commissioner and the Committee deem the allegations to be sufficiently serious, a higher standard of proof will be applied, namely, that the allegations are significantly more likely than not to be true.58

54.This requirement for a higher standard of proof in serious cases is to the inquiry subjects’ advantage.

55.Morrison and Foerster, on behalf of Mr Hinton, argued that the standard of proof adopted by the Committee should have been the criminal (beyond reasonable doubt) not the civil standard, as even the penalty of admonishment with its reputational damage “is a penalty associated with criminal—not civil—justice”. 59 Linklaters made similar claims.60 We reject the assertion that our proceedings are in the nature of a criminal trial. Many decision-makers, including professional regulators and consumer champions and ombudsmen, are tasked with drawing conclusions as to the behaviour of others, without such processes being defined as criminal in procedure or penalty. It is sufficient that the same standard of proof is applied to Members and non-Members alike in considerations of contempt and of breaches of the Code of Conduct. It is also appropriate that it should reflect the nature of the possible sanctions.

Remit and role of the Committee of Privileges

56.We received further submissions on the remit and role of our Committee and its predecessors. For example, Linklaters interpreted our remit as to decide “whether there is material in the form of the evidence received by the CMSCC (and as expressed in its findings and conclusions identified in Chapter 8 of the Report) that the actions of a number of named individuals and the corporate body then known as NI should be the subject of a report to the House that a breach of privilege has been committed.”61 This interpretation led Linklaters to argue that our Committee had widened its scope to continue an investigation into the facts surrounding phone-hacking and/or to attempt to identify other possible breaches of parliamentary privilege on the part of NI outside those identified in Chapter 8 of the Report.62

57.Morrison Foerster, on behalf of Mr Hinton, also asserted that this Committee “is plainly straying well beyond its remit as previously announced on the basis that it can conduct a fresh investigation of the entire matter” as evidenced by our use of documents that were not before the CMS Committee when it produced its Report.63 In support of this view, they quoted a letter from the Clerk of the Committee that this Committee “is concerned with [the Chapter 8] conclusions, and those parts of the relevant Committee Report and associated evidence on which they rely” (emphasis added by Morrison Foerster).64

58.Similarly, Mr Crone argued that the process followed by this Committee is “deeply flawed” on the ground that “You seem once again to be raising all sorts of issues which are not connected to the CMS process. Documents are being produced (without being formally proved or adduced) from agencies unconnected to these parliamentary proceedings and your Committee seems to have adopted the roles of investigator and prosecutor as well as judge”.65

59.In all cases, these representations misinterpret the remit of the Committee which is to examine the allegations made by the CMS Committee.

60.The logic and fairness of our Committee’s interpretation of its remit is obvious: the role of our Committee is to investigate whether the CMS Committee was misled in the ways alleged. If there is evidence which has emerged since the CMS Committee Report was published which supports or refutes the allegations, then it is right that this Committee should seek out and examine that evidence.

61.Morrison Foerster also asserted that, informing their earliest submissions to the inquiry, was “a concern to understand the asserted role and jurisdiction which the Committee understood it was exercising (appellate, de novo re-hearing or merely review on quasi-public law principles)”.66 The use of these terms points to the failure of those representing inquiry subjects to accept that this is a parliamentary proceeding and not a court process. This lies behind complaints about the Committee’s policy on disclosure of documents, release of legal advice and case management meetings with legal representatives.

62.The Committee’s policy on all these matters has been quite clear: documents were disclosed to those to whom they were of relevance but general disclosure was resisted on the grounds of confidentiality and to provide a degree of privacy to the victims of phone-hacking and persons not in the public eye whose personal data is included in the documents; case management meetings were refused because they are not applicable to parliamentary proceedings; and we have not released our internal legal advice because it is subject to parliamentary and legal privilege. The Committee has further been criticised for deliberating in private which is in fact a requirement for all parliamentary committees. Complaints that this approach is “bewildering”67 reflect the extent to which legal representatives have drawn false analogies with court processes to come to mistaken conclusions. The role of our Committee is quite clear. It is to consider the matter referred to us and to report to the House on our conclusions.

Right of appeal

63.There is no right of appeal against the decision of the House on our Report. Within the submissions from legal representatives were clear threats to apply to the European Court of Human Rights if the Committee upheld the CMS findings. Morrison Foerster asserted that in such an event “an application alleging multiple violations of Article 6 of the Convention would immediately be made” to the Court.68 This threat is reiterated towards the end of the same letter: “We make clear that an application to the ECtHr will certainly be made should such a finding be made following the Committee’s apparently intended process”.69 This attempt to influence the Committee’s deliberations by means of a threat of legal action verges on contempt of Parliament in itself. We have done our job thoroughly and conscientiously despite such ill-judged statements.


22 Tom Crone to CSP, 20 August 2012

23 Tom Crone to CSP, 20 August 2012

24 Morrison Foerster to CSP, 15 August 2012, para 16

25 Morrison Foerster to CSP, 15 August 2012, para 17

26 Simmons & Simmons to CSP, 15 August 2012 and submission of same date

31 Morrison Foerster to CSP,15 August 2012, para 92.7

32 Morrison Foerster to CSP, 15 August 2012, para 16

33 Linklaters to CoP, 18 April 2016, Lord Hope on test of impartiality in Porter v Magill [2002] 2 AC 357, 494, paragraph 103, and Lord Phillips in Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700, 729, paragraph 99.

34 Linklaters to CoP,18 April 2016, para 3.6

35 Tom Crone to CSP, 20 August 2012

37 Linklaters to CoP, 18 April 2016, para 3.5

38 Simmons & Simmons to Chair of the CMS Committee, 11 May 2012

39 Colin Myler to CoP, 9 February 2015, para 1.4

40 Morrison Foerster to CSP, 15 August 2012, para 11

41 Morrison Foerster to CSP, 15 August 2012, para 14

42 Simmons & Simmons to CSP, 28 June 2012

43 JCPP (2013–14), Ev 146–56; JCPP (2013–14); Joint Committee on Parliamentary Privilege, Report, Session 1998–99, HL Paper 43, HC 214 (JCPP [1998–99]); Richard Gordon QC and Amy Street, Select Committees and Coercive Powers—Clarity or Confusion?, Constitution Society (2012)

47 Actions of Sussex Police, First Report from the Committee of Privileges (2013–14), HC 1021

48 Privilege: John Hemming and Withers LLP, Ninth Report from the Committee on Standards and Privileges (2009–10), HC 373

50 Morrison Foerster to CSP, 15 August 2012, para 92.3

51 See, for example, Morrison Foerster to CoP, 2 February 2015, para 9

52 Linklaters to CoP, 18 April 2016, para 3.51

53 Simmons & Simmons to CSP, 28 June 2012

54 See, for example, Morrison Foerster to CoP, 15 August 2012

57 Morrison Foerster to CoP, 2 February 2015, para 10

59 Morrison and Foerster to CSP, 15 August 2012

60 Linklaters to CoP, 18 April 2016, para 3.5.3

61 Linklaters to CoP, 18 April 2016, para 2.3.

62 Linklaters to CoP, 18 April 2016, para 2.6

63 Morrison Foerster to CoP, 14 April 2016, para 5.

64 Morrison Foerster to CoP, 14 April 2016, para 4

65 Tom Crone to CoP, 2 April 2016

66 Morrison Foerster to CoP, 14 April 2016, para 5

67 Morrison Foerster to CoP, 14 April 2016, para 6

68 Morrison Foerster to CoP, 14 April 2016, para 6

69 Morrison Foerster to CoP, 14 April 2016, para 26




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13 September 2016