The effectiveness and influence of the select committee system Contents

5Powers, privileges and contempts

Introduction

170.This chapter reviews issues relating to the powers delegated to select committees by the House. It considers first the power to send for persons, papers and records and the challenge provided by recalcitrant witnesses. In connection with the “papers” it receives, it goes on to consider the need for a more concise understanding of the immunity given to publications of select committees, so that they are free to communicate their findings in a variety of ways that are more accessible to different audiences and through wider channels of communication. Finally, it considers the powers of committees to work together with other UK legislatures.

Persons, papers and records

The problem

171.The House delegates to almost every select committee the power to “send for persons, papers and records”. The exercise of these powers is generally done informally, and even when the powers are formally invoked, they are rarely resisted. By and large committees have been successful (ultimately, and often sometimes after protracted negotiations) in securing both the persons and the papers they want. But even when witnesses attend they may not give proper answers and may even deliberately mislead a committee.

172.There are two important constraints on the power to send for persons. The first is that Members of neither House can be compelled—so ministers are collaterally exempt. So far as the attendance of ministers is concerned this has not proved to be a very significant problem, with one or two exceptions, within the conventional assumption that ministers do not normally appear before committees other than the one scrutinising their own department. If a point were to be reached where ministers were regularly declining the invitations of committees the House would need to take action. Although there have been some tensions, the problem has not reached a point where action is required.

173.There is, however, a different problem with Members of the House of Lords who hold public office or positions of private power who might be able to assist committees. There would be real problems associated with lifting this immunity or privilege, but there is a feeling (expressed most forcibly by the Chair of the Foreign Affairs Committee) that peers who are asked to give evidence on matters unrelated to their membership of the House of Lords should be subject, in the last resort, to the power to order the attendance of persons. We invite the Privileges Committee to consider the issue of the extent of the immunity of Members of the House of Lords, if it considers that it can tackle this subject within the framework of its existing inquiry into the House’s exercise and enforcement of its powers in relation to select committees and contempts.

174.Although the attendance of Members of this House has not been the subject of contention in living memory, we note that Paragraph (9) of Standing Order No. 149 provides that:

The committee [on Standards] shall have power to order the attendance of any Member before the committee or any sub-committee and to require that specific documents or records in the possession of a Member relating to its inquiries, or to the inquiries of a sub-committee or of the Commissioner, be laid before the committee or any sub-committee.227

and we conclude that, should the co-operation of Members of this House in the future arise as an issue, it would be open to any committee to seek an ad hoc order of the House to secure the attendance or documents of any reluctant Member. Any Member disobeying such an order might be regarded as having committed a contempt and might therefore be subject to sanction by the House, including potentially a severe sanction such as suspension.

175.The second issue of longstanding dispute is over the status of civil servants. Successive governments have conceded that civil servants are subject to the powers of the House, and that if ordered to attend they will. But under the Haldane Doctrine, civil servants are only emanations of the minister they serve, so they cannot say anything to a committee that their minister has forbidden them to say (though if they deliberately misled a committee they would be as guilty of a contempt as anyone else). This has been a vexatious point of debate for at least a century, and the Liaison Committee has pointed out on numerous occasions that the so-called “Osmotherley Rules” (formally known as “Guidance for Civil Servants: Giving evidence to select committees”),228 which purport to govern the relationship between civil servants and select committees, have never been endorsed by the House. Since they were last revised in 2014 there have been no irresolvable disputes between committees and ministers over requests for named civil servants to give evidence, though there have been some struggles.

176.However, the key issue before us at present is the powers and sanctions available to the House and its committees in relation to private individuals rather than ministers and their officials. On 27 October 2016, after resolving to admonish two employees of News International for contempt in deliberately misleading the Culture, Media and Sport Committee about their knowledge of phone hacking, the House resolved to refer the matter of “the exercise and enforcement of the powers of the House in relation to select committees and contempts” to the Committee of Privileges.229

177.Since then the question of the power of committees to enforce the attendance of reluctant witnesses has continued to grow in salience. Much of this can be put down to the increasing tendency, noted in chapter 2, for committees to focus their attention on individuals who exercise or have exercised power in society but who are not ministers or public servants. Professor Meg Russell described this as “a nice problem to have”, observing that “it is an illustration of you entering a next phase as a set of select committees, and it is another new challenge. You are victims of your own success … there are people not wanting to come because they are aware of the level of exposure that they will get if they do”.230 In particular, on 28 June 2018 the House referred to the Committee of Privileges the matter of an alleged contempt of Parliament by a witness who had refused to obey an Order of the House that he should attend a meeting of the Digital, Culture, Media and Sport Committee, having previously refused to comply with an order of the Committee itself to attend.231

178.The Privileges Committee reported on 27 March 2019 its conclusion that the individual in question had committed a contempt and recommended that the House should admonish him by resolution.232 The House did this, following a short debate, on 2 April 2019, and on 21 May 2019 the Privileges Committee announced the resumption of its inquiry into select committee powers. On 8 July it took oral evidence from two members of the Liaison Committee (Chris Bryant and Sir Bernard Jenkin).

Options

179.The 2013 Joint Committee on Privilege rejected a legislative solution to this issue but proposed a more robust assertion of the House’s penal jurisdiction, suggesting some codification by the House of what constituted a contempt; and a clearer specification (in standing orders or through resolutions) of what due process committees had shown they had followed before alleging a contempt (for example giving witnesses reasonable notice of attendance and an explanation of the matter on which they were being examined, and sticking to relevant questions; allowing witnesses to respond to findings before they were made public; allowing for a right of reply).233

180.This contrasted with the recommendations of the 1999 Joint Committee on Privilege which had recommended legislation on a number of related topics, including the definition of ‘proceedings in Parliament’ and contempt of Parliament, legislation to confirm that both Houses had the power to levy fines but not to imprison, and a concurrent jurisdiction with the courts to punish non-Members for contempts such as failing to attend proceedings or to answer questions.234 Each House debated these recommendations, but its proposals for legislation never attained sufficient priority to be included in any government’s legislative programme.

181.The use of legislation to enforce a parliament’s powers via the courts is not unknown in the UK. Sections 22 to 25 of the Scotland Act give power (with some savings restricting this to matters within the Parliament’s competence and jurisdiction) for the Scottish Parliament to order the attendance of a witness or the production of documents and make it an offence to refuse to comply with an order. Similar powers were given to the National Assembly for Wales. In both cases, enforcement and punishment (by fine) lie with the courts. These powers have never been invoked, so whether they have been effective in ensuring compliance or have proved unnecessary cannot be demonstrated. But as Dr Hannah White of the Institute for Government remarked:

Both the Scottish and Welsh legislatures have a legal basis for their power to call witnesses, and the sky has not fallen in …. I am inclined towards thinking that the sky would not fall in if we legislated to provide for the power that we think select committees should have.235

182.Overseas, the 2014 New Zealand Parliamentary Privileges Act, in section 22, gives the Parliament a power to fine but transfers enforcement to the courts. Section 7 of the Australian Parliamentary Privileges Act 1987 gives the Federal Parliament power both to fine and to imprison, though the enforcement mechanisms are left rather vague. As Dr Ruth Fox of the Hansard Society noted:

Other Parliaments, including Commonwealth Parliaments on the Westminster model, have legislated and the sky has not fallen in. The price to pay for that will be that the Committee system will have to think quite carefully and in detail about the fall-out, which includes issues such as procedural fairness and so on … At the moment, you do not have to pay much attention and spend much time and resource on that, so it is about the cost-benefit analysis of the value to you and how important you think it is to take those measures and expend those resources to get those one, two, three or four witnesses—however many it may be per Session—before you.236

183.Essentially then, the issue boils down to this: do the House and its committees need a weapon of last resort if a private (that is, non-governmental) witness simply refuses to obey an order to attend or submit papers; and what do we do to punish those who have defied such an order or who have refused to co-operate with or are found to have lied to or otherwise deliberately misled a committee? In all such cases there would be little question that a contempt of Parliament had been committed (though, for a variety of reasons, in the News International case it took nearly nine years to establish this). But in the opinion of most commentators (and it seems the Committee of Privileges) the only available punishment for contempt is admonishment in absentia, because if a contemnor refused to come and be admonished at the bar of the House there is nothing the House could do to compel them to appear there.

184.The key question for the House is whether the admonishment of those who have defied a committee or lied to it has made it less or more likely that future witnesses will consider that the risks attached to defiance or deliberate deceit are high enough to deter them from that course. For those with a lack of a sense of public obligation and perhaps without a reputation or a share price to defend or protect they may not be. And, from this perspective, the stakes for defying an order to produce papers are similarly low.

Conclusions on penal powers

185.The options before the House are essentially to do nothing, to seek to reassert its claim to penal powers or to legislate to put those powers on a statutory footing in compliance with the expectations of current constitutional and juristic principles. We do not intend to pre-empt the Privileges Committee’s findings and report here. Indeed, opinion within this Committee is divided. In June 2018 the Chair of this Committee wrote to the Privileges Committee in the following terms:

There is not a consensus in the Liaison Committee on which of these two routes (statutory or non-statutory) is the right one to follow, although there is probably a majority in favour of the former (and it is the solution I personally support). While there is some scepticism within the Committee about the effectiveness of a non-statutory solution there are also significant anxieties about the risks of involving the courts in the proceedings of the House.

Despite the differences of opinion described above, there is clear agreement across the Liaison Committee that the situation cannot be allowed to remain as it is. Addressing themselves to the Joint Committee which was then considering these issues, our predecessor Committee concluded in November 2012 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”, and that “this would at least show Parliament’s determination to retain the powers it has”, noting that “Evidence of such determination is altogether lacking at present”. Despite these urgings, the recommendations of the 2013 Joint Committee have not been debated in this House, let alone acted upon.

… In the meantime, we would urge your Committee to initiate the process of drafting legislation relating to exercise and enforcement of these powers, so that it may be carefully and thoroughly considered in draft and consulted upon—not least with our colleagues in the other House of course. The range of statutory solutions would seem to run from a full–dress Parliamentary Privileges Act to a limited provision engaging the criminal justice system solely in the enforcement of the order of a committee. We are aware that there are a number of international examples on which to draw.

186.In its 2012 report our predecessor committee had declared itself unpersuaded by the arguments for a statutory solution, but also rejected the option of doing nothing.237 Since then, nothing has been done. Events since the letter from the Chair of this Committee was submitted to the Committee of Privileges in June 2018 have only served to further convince us that the option of doing nothing is unacceptable. What enthusiasm there was for implementing the recommendations of the 2013 Joint Committee on Privileges’ middle way of an “assertion” of the House’s penal powers seems if anything to be waning, and it may be that the Privileges Committee will be forced to choose between recommending that the House simply abjures its claim to the power to compel attendance and penal powers to punish contempts or finds a way to give them at least some element of statutory force.

Papers

187.The delegated power to call for papers enjoyed by most select committees does not extend to papers held by the Government, in a similar way (though for different reasons) to the way in which ministers are technically immune from the power to call for persons. Although there are not infrequent private wranglings between committees and ministers over access to papers, in general these matters are resolved by compromise. There is, however, a reserve power held by the House to compel the production of papers through the use of a motion for an Address. This power has achieved an unexpected prominence recently as it was used on no fewer than ten occasions by the opposition during the current Parliament. On six of those occasions the motion was so framed as to require the papers in question to be submitted to a select committee.

188.The Procedure Committee recently reported on this topic. It broadly concluded that the power remained a valid and useful procedure but noted that where a motion for return engaged a select committee, the consent of that committee ought to be secured before the motion is debated and recommended:

… where any motion for a return of papers requires papers to be provided to a select committee, the consent of the chair of the Committee, or another Member speaking with the authority of the Committee, ought to be signified on the Order Paper or in the Chamber before the Chair may propose the question on the motion.238

189.We welcome this provision and trust it will achieve the status of House practice or be embodied in standing orders. We further note that recourse to an Address would be available at the initiative of a committee, but the main issue would be the ability of the government to refuse to find time for a motion for an Address to be debated. We believe that, as it is tantamount to a matter of privilege, should any committee feel obliged to have such resort to seeking a motion for an Address, it should become the clear practice of the House that time would be found urgently to debate its motion.

190.We urge government to be more forthcoming in releasing papers that set out the evidence on which decisions are made, even if this involves redacting sections which are formal advice to ministers. There is no excuse for withholding evidence gathered at public expense which should rightly be in the public domain so that it can be subject to scrutiny.

Publishing unconventional material and the Parliamentary Papers Act 1840

191.We discuss at various points throughout this report the need for select committees to be able both to receive and to publish material in ways appropriate to the digital era. This includes (as discussed in chapter 4) receiving submissions in unconventional formats and then for the committees to be free, if they so choose (as discussed in chapter 6), to publish their findings in unconventional formats.

192.The protection from criminal or civil action for material published under the authority of the House is provided by the Parliamentary Papers Act 1840. That Act is an egregious example of the obscurity that could sometimes be achieved by Victorian drafting, and could well be made more accessible to the modern reader. But the key issue for select committees is the extent to which they can rely on the courts, on the rare occasions when it might be necessary, to conclude that the protection it affords extends to unconventional material received by or published by a committee.

193.Our advice from Counsel for Domestic Legislation is that section 1 of the Act probably does protect material in whatever medium it is received.239 The protection afforded by section 3 of the Act to extracts and summaries is slightly less certain. The whole Act, and particularly section 3, was discussed at some length in chapter 7 of the 2013 report of the Joint Committee on Parliamentary Privilege which, in contrast to its general opposition to legislation, agreed with recommendation of its 1999 predecessor240 that the 1840 Act should be replaced “by modern statutory provisions”.241 We agree with the general conclusions of both the 1999 and 2013 joint committees on parliamentary privilege that the Parliamentary Papers Act 1840 needs revision. So far as select committees are concerned, the mischief of the 1840 Act is obscurity and ambiguity. These factors are an unnecessary inhibition on select committees taking advantage of the breadth of modern means of communications both to gather evidence and to publish their findings in different ways which will engage different audiences.

194.In his submission to us, Daniel Greenberg, Counsel for Domestic Legislation, proposed a simple, “natural language” rewrite of the 1840 Act along the following lines:

Publishing Parliamentary proceedings

(1) Publishing all or part of Parliamentary proceedings does not give rise to any criminal or civil liability.

(2) Publishing a summary or description of Parliamentary proceedings does not give rise to any criminal or civil liability, if it is fair and accurate.

(3) [For the purposes of this section, a reference to Parliamentary proceedings includes a reference to any information or other material submitted to a Committee of either House.]

(4) For the purposes of this section it is immaterial what method of communication is used for publication.

195.No doubt more work may be required to achieve a simple, clear statement of the statutory protection that select committees (and other parliamentary proceedings) need to enjoy in order to be able to perform their functions in as up-to-date a way as possible. But, once again, no action has been taken on recommendations from joint committees of both Houses for two decades. We believe that the matter of the review of the 1840 Act should now be taken forward, either by a reference to the Committee of Privileges or through further work by ourselves.

Pre-appointment hearings

196.We published a report on pre-appointment hearings in June of this year.242 That set out our guidelines for the conduct of hearings but did not directly address the powers of committees in this connection. In a report on its pre-appointment hearing of the preferred candidate for Chair of the Charity Commission, published in February 2018, the Digital, Culture, Media and Sport Committee commented:

The Secretary of State’s immediate response to our initial post-hearing letter made us concerned about the Government’s regard for Parliament’s legitimate, well-established role in pre-appointment scrutiny. Cabinet Office guidance states “On receipt of the committee’s report, Ministers will consider the report before deciding whether to proceed with the appointment” … The Secretary of State’s quick response to our initial letter showed scant regard for both due process, and for Parliament’s role in public appointments … Select Committee advisory decisions have only rarely been set aside by appointing Ministers (three times out of nine negative committee reports over the course of the 100 or so hearings held since 2005). However, the most recent of these three cases—the July 2016 appointment of the Chief Inspector of Ofsted despite the Education Committee’s objection—was very similar to our own. The Government continued with the appointment regardless despite a unanimous negative Committee report. We must ensure this is not becoming a trend … The way in which the 2016 Grimstone Review was implemented gave extra powers to Ministers over public appointments, effectively awarding them an override power and the freedom, if they chose, to appoint people deemed unappointable …243

197.The Committee went on to note that the Liaison Committee had recommended in 2011 that for certain categories of posts the House as a whole should be able to exercise an effective veto in the face of an adverse report from a select committee on a preferred candidate,244 and stated its intention of consulting with other committees on this topic. We decided to refer the matter to the Public Administration and Constitutional Affairs Committee for investigation on behalf of the Liaison Committee as part of its wider inquiry on our behalf into pre-appointment hearings (the findings of which were reflected in our June report). That Committee concluded:

The evidence does not support the contention that Ministers invariably give serious consideration to negative reports from committees. The majority have been rejected, sometimes apparently out of hand. We support the DCMS Committee’s recommendation that if a Minister wishes to set aside a negative committee report there should be a mechanism that ensures there is a pause for reflection on all sides. Granting a power for committees to require Ministers to defend their decision in a ninety-minute debate on the floor of the House on a substantive motion within a reasonable time frame would require them to consider seriously the arguments made by a committee. It would also ensure that committees made a negative report only where they were confident that they had a good case to make … Therefore, committees should be given the right to choose to have a debate on a substantive motion if a Minister ignores a recommendation and where they consider that it merits the attention of the whole House. Committees will be aware that in any debate the strength of their arguments for opposing a candidate, and their fair handling of the pre-appointment hearing process, is likely to be as closely scrutinised as the Minister’s response to them.245

198.The Committee invited the Procedure Committee to look at this proposal, although that invitation has not yet been formally responded to. We concur with the Digital, Culture, Media and Sport and Public Administration and Constitutional Affairs committees that the time has come to build on the first ten years of pre-appointment hearings by introducing an enhanced degree of parliamentary scrutiny, involving the House, not just its select committees, where there is an unresolved conflict between a Minister and a committee. Such a step would not undermine ministerial accountability. Ultimately Ministers are accountable to Parliament. They must be willing and able to defend their decisions and persuade the House. We support the recommendation of the Digital, Culture, Media and Sport and Public Administration and Constitutional Affairs committees for a new standing order of the House to provide for committees to have a right to initiate a short debate in cases where Ministers propose to override a negative report of a committee following a pre-appointment hearing, and we include the version proposed by the PACAC in our Appendix of proposed changes to standing orders.

Power of committees to work together

199.In chapter 3 we discussed the importance, in the context of the UK’s future relationship with the EU, of facilitating inter-parliamentary working between the legislatures of the UK. While the development of “common frameworks” would give added urgency to the case for better and more joined-up scrutiny of inter-governmental action in the UK, as a recent report from the Scottish Affairs Committee illustrated, the need for better accountability for the Joint Ministerial Committee already exists.246 And, in its recent report on devolution in the context of Brexit, the Public Administration and Constitutional Affairs Committee remarked:

With the increase in the extent of inter-governmental relations which must inevitably follow the UK’s exit from the EU, it is imperative that mechanisms be developed to scrutinise properly the work done at the inter-governmental level. The importance of devolution within the UK’s constitutional architecture should be recognised by developing mechanisms and procedures for the different parliaments and assemblies of the UK to communicate formally with one another … In order to allow for effective scrutiny, the Governments of the UK should support changes to Standing Orders and, where necessary, bring forward legislation to allow committees of the UK’s parliaments and assemblies to meet jointly and establish inter-parliamentary committees. To help facilitate joint working and the work of inter-parliamentary committees, members of these committees from across the UK should have easy access to one another’s parliamentary estates for the purposes of committee meetings, assured through the mutual recognition of parliamentary passes. For the Houses of Parliament in Westminster we refer this issue to the Administration Committee.247

200.We discuss some further implications of inter-parliamentary working in the next chapter.

Conclusion

201.The proposals we make above are designed to remove some technical impediments to select committees which may inhibit innovation and collaboration and effective scrutiny. We commend them to the House. We await the outcome of the inquiry by the Committee of Privileges into penal powers and contempts with interest. With regard to the other two issues, we will consider what we can do as a committee to achieve early action to deliver these relatively minor changes.


227 : “A similar power is conferred on the Committee of Privileges (Standing Order No. 148A (6)).

228 Cabinet Office, Giving evidence to select committees: Guidance for Civil Servants, last updated October 2014

231 Digital, Culture, Media and Sport Committee, Third Special Report of Session 2017–19, Failure of a witness to answer an Order of the Committee: conduct of Mr Dominic Cummings, HC 1115

232 Committee of Privileges, First Report of Session 2017–19, Conduct of Mr Dominic Cummings, HC 1490

233 Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HL 30 HC 100, passim

234 Joint Committee on Parliamentary Privilege, Session 1998–99, Parliamentary Privilege, HL 43-I / HC 214-I, published 9 April 1999, passim, but in particular chapter 6.

237 Liaison Committee, Second Report of Session 2012–13, Select committee effectiveness, resources and powers, HC 697, paras 133–4

238 Procedure Committee, Ninth Report of Session 2017–19, The House’s power to call for papers: procedure and practice, HC 1904, para 81

239 Ref to Daniel Greenberg’s memo

240 Joint Committee on Parliamentary Privilege, Session 1998–99, Parliamentary Privilege, HL 43-I/HC 214-I, published 9 April 1999, chapter 8

241 Joint Committee on Parliamentary Privilege, Session 2013–14, Parliamentary Privilege, HL 30/ HC 100, published 3 July 2013, para 195

242 Liaison Committee, Third Report of Session 2017–19, Pre-appointment Hearings, HC 2307.

243 Digital, Culture, Media and Sport Committee, Third Report of Session 2017–19, Appointment of the Chair of the Charity Commission, HC 509, paras 49–51

244 Liaison Committee, First Report of Session 2010–12, Select Committees and Public Appointments, HC 830, para 50

245 Public Administration and Constitutional Affairs Committee, Tenth Report of Session 2017–19, Pre-appointment Hearings: Promoting Best Practice, HC 909, paras 46 and 54

246 Scottish Affairs Committee, Eighth Report of Session 2017–19, The relationship between the UK and Scottish Governments, HC 1586, published 7 June 2019

247 Public Administration and Constitutional Affairs Committee, Eighth Report of Session 2017–19, Devolution and Exiting the EU: reconciling differences and building strong relationships, HC 1485, paras 149–50




Published: 9 September 2019