Select committees and contempts: clarifying and strengthening powers to call for persons, papers and records Contents

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Introduction and background

Select committees and contempts

1.Parliament has powers and privileges which enable it to discharge its responsibilities, and without which it could not function. These include historic powers to punish Members and non-Members for contempt of Parliament. The precise nature of these powers, and the range of sanctions available to both Houses, have evolved over time, as has the context in which they can be exercised.

2.Both Houses routinely delegate powers to select committees, including powers to send for “persons, papers and records” (sometimes referred to as “PPR powers”). These powers, subject to some limitations, allow committees to require named witnesses (although not Members of either House) to attend in person to give oral evidence and to require that specified papers be provided to them. If a person refuses to give evidence or provide requested material, they could ultimately face sanction. Historically, the sanctions available to Parliament have included admonishment (at the bar of the House or by resolution), fines and imprisonment.

3.Most select committees obtain the information they need through voluntary agreement, and without direct recourse to these powers and sanctions. However, the sanctions are intended to ensure that, as a last resort, committees can compel individuals to provide them with the information they need. If an individual fails to comply with an order made under PPR powers then the Committee can raise the matter within the respective House, which will in turn determine whether the individual has committed a contempt and what sanction, if any, to impose.

4.Parliament’s powers form part of its rights and immunities that are commonly referred to as “parliamentary privilege”. Parliamentary privilege is defined in Erskine May as the

the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.1

Parliamentary privilege exists to “allow Members of each House to contribute effectively to the discharge of the functions of their House”.2 It also exists for the “protection of Members and the vindication of [Parliament’s] own authority and dignity”.3

5.Contempt of Parliament is not defined in statute but is defined in Erskine May as any actions which “obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers”.4 Examples of contempt in the context of a select committee might include refusing to comply with an order of either House to attend one of its committees, lying to a select committee in evidence, leaking of a draft committee report or any other form of obstructing a Member from conducting their business.5

6.The enforceability of the penal powers of Parliament was considered by Joint Committees of both Houses in 1999 and 2013. The 1999 Joint Committee on Parliamentary Privilege (the “1999 Committee”) explained that:

Parliament’s disciplinary and penal powers are part of the control exercised by Parliament over parliamentary affairs. Conduct, whether of a member or non-member, which improperly interferes with the performance by either House of its functions, or the performance by members or officers of their duties, is a contempt of Parliament.6

The 2013 Joint Committee on Parliamentary Privilege (the “2013 Committee”) commented:

While committees have powers to call for evidence and summon witnesses delegated to them, the power to punish contempts remains a matter for each House as a whole. The expansion of the work of select committees since the 1970s means questions are most likely to arise in the context of select committees and their witnesses, but these powers cannot be considered apart from the powers each House possesses to deal with contempt.7

The two joint committees reached different conclusions regarding the best solution to address the issue of enforcing select committee powers. The 1999 Committee supported legislation, while the 2013 Committee preferred the option of reasserting select committees’ powers by resolution and standing orders. The findings of both committees are examined in detail later in this report.

Referral of 27 October 2016

7.On 27 October 2016 the House passed a Resolution that the matter of “the exercise and enforcement of the powers of the House in relation to select committees and contempts” be referred to the Committee of Privileges.8

8.The immediate circumstance that led to the passing of this resolution was the publication of our predecessor Committee’s report, Conduct of witnesses before a select committee, which considered allegations that Mr Colin Myler, Mr Tom Crone, Mr Les Hinton and News International misled the Culture, Media and Sport (CMS) Committee during successive inquiries into privacy and phone hacking.9 The Committee found two instances of contempt, concluding that Mr Tom Crone and Mr Colin Myler misled the CMS Committee by answering questions falsely about their knowledge of evidence that other News of the World employees had been involved in phone hacking and other wrong-doing.10 The House, on the basis of the Committee’s recommendations, resolved to admonish the two witnesses.11

9.The Committee’s inquiry at that time highlighted questions relating to how the House deals with allegations of contempt of Parliament, including the imposition of sanctions. The Committee stated:

While we are satisfied that the processes we have followed in this case have been fair and robust, we believe that the House’s procedures for enforcing the exercise of the powers of select committees and for investigating, adjudicating on and imposing sanctions in relation to allegations of contempt should be put beyond doubt and publicly stated […] This includes how the House may impose its will on reluctant witnesses as well as how to exercise its powers over those who are alleged to have given false or misleading evidence to a committee. It is time that that this work was taken forward.”12

10.The referral of 27 October 2016 also sits within a broader context of concerns about the powers available to Parliament, and in particular select committees.13 Although the vast majority of select committees are able to gather evidence without needing to resort to coercive powers, the issue of recalcitrant witnesses has become an increasing problem for the House, with a notable increase in the number of summonses in recent times (see Annex 1 for a list of recent summonses).14 Concurrently, there have been an increasing number of questions asked about the enforceability of the Houses’ powers in relation to non-Members.15

11.The Houses’ inherent powers to punish non-Members for contempt by fine or imprisonment are untested in recent times; the House of Commons last imposed a fine in 1666, last used its power to imprison in 1880, and last summoned a non-Member to the Bar of the House in 1957 (see Annex 2 for background on the historic use of sanctions). Various select committees - notably in 1967, 1977, 1999 and 2013 - have touched upon the need to review and bring clarity to the exercise of Parliament’s penal powers.16 In 2012 the Liaison Committee noted the “long-standing uncertainties about the extent and enforceability of select committees’ powers”, after being told by the then Clerk of the House as part of its inquiry into select committee effectiveness that

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.17

12.By the time of the referral in 2016, Parliament’s powers to fine or imprison had been regarded as “theoretical” both by the Government in its 2012 Green Paper on Parliamentary Privilege and in constitutional case law.18 There had been recent high-profile cases where witnesses had publicly refused to co-operate with select committee inquiries, including the joint inquiry by the Work and Pensions and Business, Innovation and Skills Committees into the collapse of BHS, and the Business, Innovation and Skills Committee inquiry into working practices at Sports Direct. The lack of certainty had also encouraged lawyers acting on behalf of their clients to challenge the exercise of powers; our predecessor Committee’s report into the Conduct of witnesses before a select committee cited several submissions from lawyers acting on behalf of the News of the World journalists, who raised certain procedural and legal objections.19 For example, the law firm Morrison Foerster stated:

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.20

13.It is set out in Erskine May that the House possesses penal jurisdiction over contempt, and this has most prominently been reasserted in recent years by the 1999 and 2013 Committees. However, since at least 2016 it has been widely accepted that the House’s only practicable sanction for a non-Member found guilty of a contempt, no matter how severe, was admonishment by resolution. That position remains the case today.

14.During the debate on the referral to the Committee of Privileges on 27 October 2016, the then Leader of the House, the Rt Hon David Lidington, speaking for the Government, stated that it was “troubling” that questions were being raised by third parties regarding the use of Parliament’s powers and the proper jurisdiction of the House.21 In the debate, the then Leader of the House added that the Committee’s findings and recommendations mattered because:

Select Committees play an important role in parliamentary and national political life. Ultimately it is voters who lose out when witnesses fail to provide reliable evidence. Decisions that shape and affect our constituents’ lives are made by the businesses, organisations, and of course Ministers whose work is overseen by Select Committees. Scrutiny happens effectively only because of the powers and privileges afforded to Members of Parliament. Without them, the ability of MPs to serve their constituents properly is undermined.22

15.The then Leader of the House, agreeing with the recommendations of the Privileges Committee, advised the House that the right way to proceed was to ask the Committee to examine carefully the questions of the exercise of penal powers and then to

come back with a report and, if the Committee thinks appropriate, recommendations to the House, so that we could take a decision at that point, after serious examination of our traditions and practices, of the law in this country, including human rights law, and of the practice of other democratic jurisdictions.23

Timeline of our inquiry since October 2016

16.Our inquiry has been a protracted one, for several reasons including interruption by two general elections, an extended period of suspension while the Committee in the last Parliament awaited the views of the Liaison Committee, the Committee’s decision to prioritise another matter referred to it by the House relevant to the wider inquiry (the alleged contempt by Mr Dominic Cummings) and difficulties caused by the Coronavirus pandemic.

17.In January 2017, following initial informal briefings, the Committee published a memorandum on powers and select committees from the then Clerk of the House Sir David Natzler.24 The paper broadly set out three options: (a) to do nothing; (b) to assert the House’s powers by resolution or in Standing Orders; or (c) to legislate. The Committee published the paper from the Clerk as the basis of a call for evidence. The Committee also sought evidence from individuals and organisations with a specific interest or experience in this matter, namely select committee chairs, the Leader of the House, Members of the House of Lords, serving and former members of the judiciary and constitutional experts. The Committee received 12 submissions before the 2017 dissolution.25

18.Our predecessor Committee agreed to resume its inquiry after the 2017 general election. It decided in the first instance to seek the views of select committee chairs through a request for a memorandum to the Liaison Committee. Following extended discussions in the Liaison Committee, its then Chair (Dr Sarah Wollaston MP) wrote to our predecessor Committee in June 2018 to report that:

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.

19.Shortly after, on 28 June 2018, the House referred another matter to the Committee of Privileges - the alleged contempt of Mr Dominic Cummings. The alleged contempt related to Mr Cummings’ failure to obey an Order of the House that he should attend a meeting of the Digital, Culture, Media and Sport (DCMS) Committee as part of its inquiry into “Fake News”. Our predecessor Committee, following a precedent set during the News International case, agreed 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”.26

20.The present inquiry was suspended for the duration of the Cummings case. The Committee reported on that case in March 2019, concluding that Mr Cummings’ actions did amount to contempt and that the House should admonish Mr Cummings by way of resolution of the House.27 This was subsequently done. The Committee noted that “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”.28

21.In July 2019, our predecessor Committee resumed the present inquiry. It published further written evidence, and held two oral evidence sessions. It had planned to take further oral evidence but was interrupted by the 2019 general election.

22.In September 2019 the Liaison Committee published a report on The effectiveness and influence of the select committee system.29 This summarised the Liaison Committee’s involvement with our inquiry, and concluded:

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.30

23.After further delays caused by the time taken to establish new committees after the General Election, and subsequently by the Coronavirus pandemic, we resumed this inquiry in the current Parliament in June 2020. We issued a press release at that time setting out the issues we planned to consider.31

24.We have since received further written evidence and have conducted comparative research into the practices of equivalent democratic legislatures. This has included consideration of over 50 responses to a questionnaire sent to other legislatures primarily through the ECPRD (European Centre for Parliamentary Research and Documentation) and CATS (Clerks-at-the-Table) networks. We also held private briefings with representatives from four legislatures - the US Congress, the Parliament of Australia, the New Zealand Parliament and the Houses of the Oireachtas. We have since published all evidence referred to in this report on our website.32 We are grateful to all who have helped us with our inquiry.

25.Since the initial referral of 27 October 2016 the issue of the exercise and enforcement of select committee powers has become, in the words of the Clerk of the House, “of greater relevance and urgency” given recent high profile cases of non-Members refusing to appear before select committees or submit evidence.33

26.Our intention is to put forward a credible set of proposals as soon as possible. This report contains our preliminary proposals, on which we will consult, and then take further oral evidence before presenting a final report for agreement by the House.