Conduct of Mr Dominic Cummings Contents

Conduct of Mr Dominic Cummings

Introduction

1.On 28 June 2018 the House referred to the Committee of Privileges the matter of an alleged contempt of Parliament by Mr Dominic Cummings, campaign director of Vote Leave in the 2016 referendum on the UK’s membership of the EU. The allegation was that Mr Cummings had committed a contempt by refusing to obey an Order of the House that he should attend a meeting of the Digital, Culture, Media and Sport (DCMS) Committee, he having previously refused to comply with an order of the Committee itself to attend.

Background

2.On 5 June 2018 the DCMS Committee published a Special Report concerning the conduct of Mr Cummings. The Committee reported that Mr Cummings had been first invited, then ordered by the Committee to attend it to give oral evidence as part of its inquiry into “Fake News” and that he had failed to comply with that order.1 The Committee set out its reasons for considering that the evidence it sought from Mr Cummings was relevant to its inquiry, and stated that his failure to attend “in our view […] constitutes a serious interference with the ability of this Committee to discharge the task assigned to it by the House”.2

3.On 7 June the House ordered as follows:

Resolved, That this House takes note of the Third Special Report of the Digital, Culture, Media and Sport Committee (HC 1115);

Ordered, That Mr Dominic Cummings give an undertaking to the Committee, no later than 6pm on 11 June 2018, to appear before that Committee at a time on or before 20 June 2018. − (Damian Collins.)3

4.On 20 June the Committee Chair, Mr Damian Collins, reported to the House that the Committee had directed him to report that Mr Cummings had failed to comply with the Order of 7 June.4

5.On 28 June 2018, following a brief debate,5 the House ordered as follows:

Resolved, That this House notes that the Order of the House of Thursday 7 June has not been complied with;

Ordered, That the matter be referred to the Committee of Privileges. − (Andrea Leadsom.)

Process of inquiry

6.On 17 July 2018 we agreed a formal Resolution setting out how we proposed to conduct this inquiry. This was communicated to Mr Cummings, published on our website and is set out as an annex to this Report. The Resolution is based on a similar one agreed by our predecessor committee, the Committee on Standards and Privileges, in 2012 as part of an inquiry into allegations that witnesses had misled a select committee.6 The Resolution aims to follow good practice for select committees in their handling of evidence and witnesses in a way that is compatible with principles of openness, fairness to all parties and natural justice.7

7.In accord with the House’s 1978 declaration that it will exercise its penal jurisdiction sparingly,8 in our Resolution we stated that “should the Committee find any allegations arising from the matter of privilege referred to it on 28 June 2018 to be proved, the maximum penalty it will recommend the House to impose is admonishment”.

8.We invited Mr Cummings to submit written evidence explaining why he had not complied with the Order of the House of 7 June 2018. We also sought written evidence from the Chair of the DCMS Committee, the Electoral Commission and the Information Commissioner’s Office (ICO). We have received responses from all whom we approached and these are published with this Report. The evidence from the ICO contains an annex which is published in a redacted form, at the request of the ICO, in order to remove confidential information such as personal email addresses. We also requested, and received, further written evidence from the DCMS Committee Chair on a specific issue.9 In accordance with our Resolution, all the written evidence (other than the redacted information in the ICO annex) has been shared with Mr Cummings and published on our website.

9.On 3 December 2018, having reviewed the written evidence and considered some legal matters which had arisen in the course of the inquiry, we contacted Mr Cummings by email to invite him, if he wished, to give oral evidence to us, offering him a range of dates in January 2019. Mr Cummings responded by email on 4 December stating that he could “probably” attend on 31 January though there was a small chance he might be abroad, and that he would confirm before Christmas. Mr Cummings also raised an issue relating to the giving of evidence under oath. He stated that:

“[…] it is important that everybody is UNDER OATH.

If MPs are happy to be under oath, then so am I.

As you will be aware there remain multiple legal actions underway and it is important everybody, including me, does nothing to spread fake news […].”10

10.We received no further confirmation from Mr Cummings in relation to the timing of the evidence session, and on 10 January the Chair wrote to him in the following terms:

I am writing to follow up the email exchanges between you and the Clerk of the Committee of Privileges last month. On 4 December you indicated, in response to the Committee’s request to take oral evidence from you, that “I could probably do 31 January though there is a small chance I will be abroad, I will be able to confirm pre-Xmas.” Are you now in a position to confirm that this is a convenient date? The suggested time for the meeting to start would be 10.30 am, in one of the committee rooms at the House.

11.In her letter the Chair also addressed Mr Cummings’ comments about giving evidence under oath:

I thought it would be helpful to clarify the position on taking the oath in a select committee evidence session. As you may be aware, it is not normally the custom for evidence to be given under oath. However, on a very small number of occasions this has happened. I believe that all instances in recent years have been at the request of the witness, rather than as a requirement imposed by the committee. That being the case, the Committee of Privileges would be content for you to take the oath at the commencement of your oral evidence, if that is at your own request.

I’m not sure whether your reference to “if MPs are happy to be under oath” refers to MPs who may also be called as witnesses in this inquiry, or to the MPs on the Committee. If the former, I can inform you that at present the Committee has no plans to take further oral evidence on this matter; if that situation changes, I will let you know. If the reference is to the MPs on the Committee, then it arises from a misunderstanding: in select committee proceedings, just as in court proceedings, only witnesses may take the oath. There is no procedural option for members of a select committee engaging in questioning a witness to take the oath themselves, any more than there is an option for the judge or counsel in court proceedings to take the oath.

I look forward to hearing from you so that we can finalise arrangements for the evidence session.11

12.No response having been received to the Chair’s letter of 10 January, the Clerk of the Committee followed this up with an email to Mr Cummings on 23 January which stated that “the Committee would be grateful to receive confirmation that you be able to attend to give oral evidence on Thursday 31 January, as you had provisionally agreed to. If for any reason this is not now possible, the Committee would be grateful if you could suggest alternative dates on Mondays to Thursdays before mid-February as the Committee is keen to bring its inquiry to a conclusion as soon as practicable.” Mr Cummings replied by email on 28 January: “helo ive just seen this, I will reply this afternoon”. No further reply was received.

13.We therefore did not proceed with the session scheduled for 31 January. We notified Mr Cummings of our intention to bring our inquiry to a conclusion. After a further exchange of correspondence relating to written evidence, we received an email from Mr Cummings on 26 February in which he argued that he was still willing to appear before the Committee. We considered this matter on 27 February. The Committee authorised the Chair to write to Mr Cummings, setting out a timeline of events, correcting certain inaccuracies in Mr Cummings’ email, and concluding that “in the light of this history of events, the Committee has decided that it is not willing to offer you any further dates for an evidence session, but will proceed to conclude its inquiry”. This letter was sent on 28 February.12

14.We have accordingly brought our inquiry to a conclusion by assessing the written evidence we have received (paragraphs 15 to 32 below) and setting out our overall finding (paragraphs 33 and 34 below).

The alleged contempt

15.The factual circumstances of the alleged contempt are not in dispute. Mr Cummings was first invited, then ordered by the DCMS Committee to attend an oral evidence session, and was then ordered by the House to give an undertaking to attend that Committee by a specified date. He failed to comply with either order.

16.Our task is to assess whether Mr Cummings’ conduct amounts to contempt of Parliament. It might seem obvious that to disobey an order of the House amounts to a contempt. The 2013 Joint Committee on Parliamentary Privilege appended to its report a draft resolution for the House of Commons on “Actions which may be treated as contempts”. This included the following statement:

Without derogating from its power to determine that acts constitute contempts, the House declares, as a matter of general guidance, that the following conduct is likely to amount to an improper interference with the free exercise by the House or committee of its authority or functions, […] and consequently may be treated as contempts:

[…] Refusing to […] give evidence to a committee when ordered to do so.”13

17.Although this draft resolution has not been formally agreed by the House, the wording cited above can be taken as reflecting a current understanding of the procedural position. We note that the Joint Committee does not baldly state that refusing to give evidence to a committee is a contempt, rather that it “may be treated” as such. Ultimately it is for the House itself to determine whether particular conduct amounts to a contempt, and in coming to that determination the House − and the Committee of Privileges as the House’s principal source of guidance on these matters − will take into account the specific circumstances of a case. It is not impossible that, in exceptional circumstances, a prospective witness might have good reasons for refusing to give evidence, for instance if he or she had been treated unreasonably or unfairly by a committee, and that the House might therefore not choose to regard that conduct as constituting a contempt.

18.We have considered the arguments put forward by Mr Cummings to assess whether there are extenuating circumstances that might have justified his refusal to appear before the DCMS Committee and to obey the Order of the House of 7 June.

19.Those arguments were set out by Mr Cummings in his email of 3 September 2018, which included a link to further explanations given in his blog.14 The arguments may be summarised as follows:

a)That the Committee was unreasonable in failing to accept that there were legitimate reasons why Mr Cummings could not appear before it on the dates suggested.

b)That, in particular, the Committee did not take due account of “legal complications” in the form of investigations by the Electoral Commission and the Information Commissioner’s Office and of the possibility that criminal charges might be brought against Mr Cummings.

c)That the Committee was biased in its approach to its inquiry and therefore could not be expected to give Mr Cummings a fair hearing.

20.We consider each of the above arguments in turn.

21.Argument (a): that the Committee was unreasonable in failing to accept that there were legitimate reasons why Mr Cummings could not appear before it on the dates suggested. Mr Cummings states he had originally wished to give evidence and wanted to co-operate, but when it proved difficult to arrange a suitable date, he was alienated by receiving “a series of aggressive emails threatening me with a formal Summons”; after a summons was issued it had become clear that the Committee Chair “was not interested in cooperating sensibly or behaving properly”. Mr Cummings concluded that “It is clear that every time this committee meets it makes the problems worse rather than better so I have informed him I will not attend. I will not change my mind about this.”15

22.Mr Cummings considers that “the issues around data, digital marketing and the referendum should be properly explored by Parliament. […] I therefore remain keen to help in principle. I have offered to give evidence to an ad hoc committee of the House that could include, if members wish, Collins. I do not mind what balance of Leave/Remain such a committee has. I mind only that it is not another platform for spreading errors and lies.” Mr Cummings proposed that any such hearing before another select committee should involve all concerned being heard on oath.

23.The chain of contacts between the DCMS Committee and Mr Cummings is set out in that Committee’s Special Report. The impression that the Committee received was that Mr Cummings was “stalling” in his responses to the invitation to give evidence. On 9 April, having declined to attend on the date first offered because he would be abroad, Mr Cummings was offered the alternative date of 8 May. He replied that he could not commit to that date but could attend in the first half of July.16 He was offered a further alternative of 22 May to which he replied “i already answered this a month ago”. After a further exchange of emails the Committee issued a formal summons to attend. This led to a comment from Mr Cummings that “I withdraw my offer of friendly cooperation, given you will have shown greater interest in grandstanding than truth-seeking, which is one of the curses of the committee system”. In a further email sent on 24 May, and in comments on his blog, Mr Cummings made a series of intemperate comments about the DCMS Committee and its handling of the ‘Fake News’ inquiry.

24.We note that the DCMS Committee offered Mr Cummings a series of alternative dates for a hearing, but this did not result in a date being agreed. Readers can inspect this correspondence which is set out in the DCMS Committee’s Report. A key issue is whether the Committee was right to conclude that Mr Cummings’ request for a deferral of giving evidence on the grounds of continuing investigations which might lead to criminal charges was an “excuse”, “not made in good faith, and […] no more than a tactic to obfuscate and delay”.17 We consider this next.

25.Argument (b): that, in particular, the Committee did not take due account of “legal complications” in the form of investigations by the Electoral Commission and the Information Commissioner’s Office and of the possibility that criminal charges might be brought against Mr Cummings. In Mr Cummings’ email exchanges with the DCMS Committee, he referred to “multiple legal cases involved with these issues” and stated that “I will let you know when lawyers suggest I could usefully give evidence to you without prejudicing other actions”.18 In a further email he stated that:

“There is a third investigation into possible legal action. This unfortunately puts us all in a bind – until threats of criminal prosecution are lifted I’m sure you appreciate that I cannot risk saying things that will cause trouble on that front, and given I have no idea who may be prosecuted for what, or who is a witness to what and so on, I have been told by multiple teams of lawyers for different parties that I must keep my trap shut.”19

26.There is a common-law privilege against self-incrimination in relation to legal proceedings. It entitles a witness to refuse to answer a question, or to refuse to provide documents or information, in circumstances which might incriminate him or her. It does not entitle a witness to refuse to attend a hearing at all. It also does not entitle a witness to refuse to answer a question on the grounds that it would incriminate another person (and therefore would not entitle Mr Cummings to remain silent on matters concerning other people and companies, as he suggests in his email he is being advised to do).

27.Privilege against self-incrimination applies in the context of proceedings before the courts, and there is no direct parallel in proceedings in Parliament. No criminal charges have been brought against Mr Cummings, and therefore the House’s own sub judice resolution is not engaged.

28.Further, anything said by Mr Cummings in the course of proceedings would of course be privileged, and therefore could not be used directly in evidence in criminal proceedings against him or any other person. However, the fact that something is privileged does not mean that saying it might not have consequences. A witness might reasonably have a legitimate concern that although the police could not use anything he or she said to a select committee directly, he or she might inadvertently give them information that would support their case, and which (once they knew of its existence) they could take steps to obtain from elsewhere through a channel that was not privileged.

29.If the risk of criminal prosecution was real, therefore, it might be held that Mr Cummings was not being unreasonable in declining to give evidence, even if the tone and manner of his refusal might be considered highly inappropriate.

30.Mr Cummings has not supplied us, nor did he supply the DCMS Committee, with any evidence that suggests that he has been at significant risk of criminal prosecution. The ICO has not served an information notice on him, and neither the ICO nor the Electoral Commission (as they told the DCMS Committee, and have confirmed to us) saw any difficulty with his giving oral evidence to the DCMS Committee. If a witness seeks to argue that he or she cannot give evidence because of the risk of prosecution, the onus is on them to demonstrate that that risk is a significant one. Mr Cummings has not supplied us with any such evidence.

31.Argument (c): that the Committee was biased in its approach to its inquiry and therefore could not be expected to give Mr Cummings a fair hearing. Mr Cummings has described the DCMS Committee in his blog in highly derogatory terms. He has accused it of “grandstanding” and of being a “platform for spreading errors and lies”. In his evidence to us he has made serious allegations against the Committee Chair, stating that he has “acted with complete recklessness”, that he has “spread confusion and errors” and “spread libellous claims in the media”. He claims that “his report” (referring presumably to the “Interim Report” on “Fake News” published by the DCMS Committee in July 2018) “makes errors of fact and law that show a lack of seriousness and regard for the truth”. He adds that the Chair “totally failed to interrogate the so-called whistleblowers about their claims and by indulging them has helped spread misunderstanding globally”.20

32.In this Report we make no judgement about the issues being contested in the DCMS Committee’s “Fake News” inquiry; that is not our responsibility. However, we are able to conclude that Mr Cummings has placed before us no evidence that suggests any significant flaw in process in the DCMS Committee’s inquiry or in their handling of witnesses. The fact that a prospective witness takes a different view on policy or political issues from a select committee, or from what that witnesses considers the collective view of a committee is likely to be, does not constitute grounds to refuse to appear before that committee. It may often be the case that a witness takes a different view of a subject, even a radically different view, from some or even all of the members of a committee. Those differences can be explored through the process of questioning. A witness has the right to be heard politely, to be allowed to express his or her views, and a right not to be bullied or intimidated; but they do not have a prior right to refuse to give evidence because they suspect that committee members may take a different view from them on the issues at stake in the inquiry, or that they will be subject to questioning which challenges their view. We have no doubt that, had Mr Cummings attended a hearing of the DCMS Committee, he would have given robust and articulate responses to the questions put to him, and would have had no difficulty in communicating his standpoint to the public and the media. Attending the hearing and defending his position when called upon to do so would have been the right thing to do.

Conclusion

33.We accept the DCMS Committee’s views that the evidence they sought from Mr Cummings was relevant to their inquiry and that his refusal to attend constitutes a significant interference with the work of that committee. For the reasons set out in paragraphs 18 to 32 above, we reject the arguments adduced by Mr Cummings in defence of his conduct. We conclude that Mr Cummings committed a contempt both by his initial refusal to obey the DCMS Committee’s order to attend it and by his subsequent refusal to obey the House’s Order of 7 June. We regret the tone which Mr Cummings adopted in his dealings with the DCMS Committee and in the comments posted on his blog. This attitude did not serve the interests of civilised public debate.

34.We recommend that the House should admonish Mr Cummings for his contempt. We recommend that, following recent practice,21 the admonishment should take the form of a resolution of the House. This resolution, if agreed to, should be communicated to Mr Cummings by the Clerk of the House.

35.In accordance with our resolution on process, we gave Mr Cummings notice of our intention to criticise him in the terms used in the previous paragraphs, and asked for any response from him within 14 days. We have not received a response from Mr Cummings.

36.We shall shortly resume the inquiry commenced by our predecessor Committee in the last Parliament, into “the exercise and enforcement of the powers of the House in relation to select committees and contempts”. This matter was referred by the House to the Committee of Privileges on 27 October 2016. The case of Mr Cummings has raised further questions as to the enforceability of the House’s powers and those of its committees to secure evidence. We plan to take further written evidence as well as oral evidence, and to place our conclusions before the House as soon as possible.


1 DCMS 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); hereafter cited as “DCMS Special Report”.

2 DCMS Special Report, paras 9–14, 17

3 Votes and Proceedings, 7 June 2018

4 Votes and Proceedings, 20 June 2018, item 19

5 Official Report, 28 June 2018, cols. 1082–84

6 See Committee of Privileges, First Report of Session 2016–17, Conduct of witnesses before a select committee: Mr Colin Myler, Mr Tom Crone, Mr Les Hinton, and News International (HC 662), para 10

7 See, for instance, Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege (HL Paper 30 / HC 100), Annex 2 (“Draft Resolutions for the House of Commons”)

8 CJ (1977–78) 170, agreeing to paragraph 4 of Committee of Privileges, Third Report of Session 1976–77 (HC 417)

9 See correspondence dated 11 and 18 December 2018 respectively between the Chairs of the Committee of Privileges and the DCMS Committee: WE 7

10 WE 6

11 WE 8

12 WE 12

13 Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege (HL Paper 30 / HC 100), Annex 2 (“Draft resolutions for the House of Commons”)

14 WE 2

15 WE 2

16 DCMS Special Report, Annex (email of 12 April 2018)

17 DCMS Special Report, para 15

18 DCMS Special Report, Annex (email of 7 April 2018).

19 Ibid. (email of 10 May 2018)

20 WE 2

21 See Committee of Privileges, First Report of Session 2016–17, Conduct of witnesses before a select committee: Mr Colin Myler, Mr Tom Crone, Mr Les Hinton, and News International (HC 662), para 7.




Published: 27 March 2019