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

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1Options for the Committee

The “three options”

27.For at least the last decade the debate over how best to address the perceived inability of the House to exercise its penal powers has been framed around three options:

a)To do nothing; or

b)To reassert the House’s existing powers by amending Standing Orders or by Resolution; or

c)To legislate to provide a statutory regime, whether administered by Parliament or the courts.34

The options have also been considered by numerous committees, including successive Liaison Committees and two Joint Committees set up to review Parliamentary Privilege in 1999 and 2013. Despite both Joint Committees producing very similar diagnoses, each committee proposed a different cure.

28.The 1999 Committee recommended legislating to provide a statutory basis for Parliament’s penal powers. The Committee noted that the investigatory work of select committees was an increasingly important sphere of operation where sanctions needed to be available.35 It also presciently warned that:

unless a residual power to punish exists, the obligation not to obstruct will be little more than a pious aspiration. The absence of a sanction will be cynically exploited by some persons from time to time.36

The 1999 Committee made a series of recommendations relating to sanctions, arguing that a power to fine non-Members should be introduced to bolster the House’s existing power to admonish and that imprisonment should be abolished.37 Although it argued that Parliament should retain its own penal jurisdiction “rather than find itself beholden to the courts”, the Committee also argued that it was not practicable for Parliament “to provide, and be seen to provide, the procedural safeguards appropriate today when penalising persons who are not members of Parliament”.38 It therefore recommended that sanctions should be carried out by the High Court, “concurrently with Parliament”.39

29.The 2013 Committee recommended instead that the House should seek to reassert its existing powers by means of resolution and Standing Orders. It rejected the option of doing nothing but argued that the disadvantages of legislating outweighed the advantages.40 It noted:

It is unfortunate that Parliament’s restraint has led to doubt about the continuing existence of its powers. They are part of United Kingdom law and have been so for centuries.41

It urged both Houses to “rise to the challenge” of asserting parliament’s continuing jurisdiction over contempt.42 It identified two impediments that either House might need to overcome to enforce its powers: first, institutional reluctance to act in a way which might seem oppressive; and second, the fear of successful legal challenge in the European Court of Human Rights.43 It proposed a substantial set of changes to standing orders and by resolution to address these concerns, creating a clearer framework for the exercise of committee powers of summons that would ensure that such powers were exercised in a fair and consistent manner, in order to enhance their legitimacy.44 While the suggested changes have had some influence on the way select committees conduct their business, they were never formally adopted in either House.

30.Our Committee’s successive calls for evidence have continued to frame the debate based on the three options outlined above. The evidence we received varied in its assessment of what the most appropriate solution might be. We have therefore examined the arguments for and against each option and present our conclusions below.

Option (a): “Do nothing”

Arguments for

31.A primary argument for doing nothing is founded on the claim that the extent of the problem currently faced by select committees has been exaggerated. Although select committees were identified both by the 1999 Committee and the 2013 Committee as the most likely arena in which the House’s powers are to be tested, evidence has been taken from thousands of witnesses over the years without any difficulty.45 In 1978, the House resolved that its penal jurisdiction “should be exercised (a) as sparingly as possible” and “(b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its Members or its officers, or is likely to cause substantial interference with the performance of their respective functions”.46 Since then the House has only exercised its powers on a small number of occasions, and in the majority of these instances individuals and organisations have complied with requests. Given the relative rarity of the formal use of committee powers, and the even greater rarity of actual contempts, taking radical action on this could therefore be regarded as using a “sledgehammer to crack a nut”.47

32.Another argument put forward for doing nothing is to advocate that the threat of admonishment is still a severe one. In the debate on the referral of 27 October 2016, the then-Leader of the House, Rt Hon David Lidington MP argued:

Refusing to attend select committees as a witness or otherwise committing a contempt of Parliament itself causes reputational damage for the perpetrator. We should not underestimate that impact. Being designated as having committed a contempt of Parliament or having even been described as not a “fit and proper” person to hold a particular office or exercise a particular function can cause reputational damage to the individual and can cause commercial damage to the organisations they represent.

A similar argument was put forward by Lord McFall of Alcluith, Senior Deputy Speaker, House of Lords, who suggested that in the House of Lords the threat of “naming and shaming” a non-cooperative witness has tended to be enough to ensure attendance.48 Committees in both Houses currently have the power to make detailed findings of any behaviours amounting to contempt of Parliament, and to publish these in reports that cannot be challenged or questioned by the courts owing to the protections afforded by Article IX of the Bill of Rights 1689.49

33.The power of “naming and shaming” has been acknowledged by chairs of select committees and led one chair in the previous Parliament to suggest to us that the current arrangements are adequate. Frank Field, Chair of the Work and Pensions Committee in the last Parliament, noted how in its joint inquiry with the Business, Innovation and Skills Committee into the collapse of British Home Stores (BHS) the committees were confident in asserting their expectations of cooperation from those involved, based on the reputational damage caused by not attending.50 Frank Field (now Lord Field) told us that the high-profile witnesses identified by the committees, including Sir Philip Green, Dominic Chappell, Lord Grabiner and senior executives of Goldman Sachs all attended, in spite of repeated prior assertions that they would not, and without the committee needing to issue any formal summonses.51 Frank Field concluded that “it is not apparent that any select committee has failed to carry out its work because witnesses refused to appear”.52 He also expressed concern that any “apparent extension of powers could paradoxically weaken select committees by making a political process more legalistic.”53

34.Further arguments for doing nothing include concerns that any recalibration of committee powers might add unnecessary bureaucracy and legalistic process and hinder the effective working arrangements of committees; and concerns that statutory options risk eroding the exclusive cognisance of Parliament. We revisit these arguments later in the consideration of the arguments for and against a statutory solution.

Arguments against

35.It is in the public interest to ensure that select committees have the powers they need to function effectively and to uphold the reputation, dignity and authority of the House. Select committees play an essential part in our parliamentary democracy holding the powerful to account. They are at the forefront of facilitating effective scrutiny and debate, opening the House up to and involving the public, and securing Parliament’s future as the “grand inquest of the nation”.54

36.We are conscious that doing nothing would leave unaddressed the concerns raised by the Liaison Committees in 2012 and 2019, the Joint Committee in 2013, and the Committee of Privileges in 2016 and in 2019 about the effectiveness of select committee powers. The 2013 Committee noted that:

While Committees have been able to function effectively up until now, the growing, and increasing public, doubt over each House’s penal powers means that there is a real risk that potential witnesses will be tempted to test those powers. The two Houses must be prepared for that eventuality. It will be too late to consider these matters when a crisis arrives.55

The 2013 Committee accordingly rejected the option of doing nothing.56 Apart from the exceptions cited above, this has also been the majority view in the evidence submitted to our Committee. In a letter submitted in 2018 the Liaison Committee acknowledged that although there were differences of opinion as to the best way forward, there was clear agreement across the Committee that “the situation cannot be allowed to remain as it is”.57

37.There is also evidence to suggest that the issue of recalcitrant witnesses is becoming an increasing problem for committees, and by extension the House. Between 1992 and 2007, only one summons was issued, however since 2007 there have been 13 summonses (see Annex 1).58 It is likely that this is in part due to the increasing prominence select committees play in public life.59 Nigel Pleming QC stated that the greater activism and increased media coverage of select committees has led more witnesses to challenge the authority of select committees by refusing (temporarily or permanently) to appear before them, with notable examples being Rupert Murdoch, Mike Ashley and Sir Philip Green.60 The Clerk of the House has also suggested that the “nature of the reluctance has changed” moving from general “confusion” into “open defiance” with the case of Mr Cummings.61 In 2019 the Liaison Committee concluded in its report into the effectiveness and influence of the select committee system that

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.62

38.This conclusion has been further supported by submissions from current select committee chairs; all of the submissions we received from them suggested that at least some action needed to be taken, several suggesting that the current powers to summon witnesses were “inadequate and lack teeth”.63 Huw Merriman, Chair of the Transport Committee, raised concerns that the high profile failure by Mr Cummings to appear before the DCMS Committee in the last Parliament “may embolden more witnesses to ignore invitations or formal orders by select committees to give evidence”.64 He noted that in the current Parliament his committee had already had a company refuse to give oral evidence, despite multiple requests and proposed dates. The committee chose not to pursue the matter further either formally or informally knowing that there was no guarantee that the company would attend; the Chair submitted that “we ultimately felt powerless in this situation”.65

39.Such concerns rebut the view that the issue of recalcitrance has not prevented committees from carrying out their work. Lord Tyrie, former Chair of the Liaison Committee and Treasury Committee, listed examples from across the last twenty years, to suggest that at the moment when powers of compulsion were most needed “they have often been found to be wanting”; examples listed included investigations by the Defence and Foreign Affairs Committees into the Iraq War and the Culture, Media and Sports Committee’s inquiry into Press Standards, Privacy and Libel.66 He told us:

If we arrive at the point where appearance is voluntary, and denial of papers can be fought out endlessly in exchanges with lawyers, I think that Parliament and its position as a representative of the people that is there to obtain consent will be sharply diminished. We just cannot reduce all this to an appearance of the fearful and the willing […]67

The Clerk of the House stated that “there have been a number of other cases in which Committees have struggled to secure the attendance of potential witnesses”, noting the recent example of Mr Jeremy Kyle declining an invitation to appear before the Digital, Culture, Media and Sport Committee as part of its inquiry into reality TV.68

40.In response to the arguments outlined above regarding the severity of an admonishment from the House, it has also been argued that the threat of admonishment has become increasingly less effective as a deterrent for uncooperative, evasive or even insolent behaviour before a Committee. Paul Evans, a former Clerk of the Journals and Clerk of Committees, stated that the admonition of Mr Tom Crone and Mr Colin Myler in the News International case was “widely felt not to meet the crime” and noted that it was unlikely that “the guilty parties would have got off so lightly if the misleading statements had been made to a court”.69 Sir Malcolm Jack, a former Clerk of the House, has similarly argued that admonishment is no longer a punishment that “frightens people”.70 Lord Tyrie commented that

the only practical consequence of refusing to comply with a Committee summons, or a call for papers, is reputational. And that cost will vary, depending on the individual concerned. For some, […] to be held in contempt may bring about the end of their careers. For others, particularly those whose anti-establishment credentials may be burnished by a finding of contempt, it may do the opposite.71

The argument that a finding of contempt of Parliament, and subsequent admonishment by the House, might damage someone’s career or financial prospects has been cast into considerable question by the example of Mr Dominic Cummings.

41.Contrary to the view expressed by the then Leader of the House in 2016 that being designated as having committed a contempt of Parliament can cause reputational damage to the individual, there is no evidence that witnesses necessarily suffer any great harm from being so designated. It is not clear that anyone who has been recently admonished by the House has been prevented from continuing in their existing jobs, or taking up new posts. Most notably, Dominic Cummings became a senior adviser in Downing Street after having been found to have committed a contempt of Parliament. He was even afforded a Parliamentary pass. It seems that for some potential witnesses the question is what they can get away with.

42.A further argument against doing nothing is that, regardless of the enforcement of powers, the House should at least clarify the current arrangements for due process and fair treatment of witnesses;72 in 2012 the Liaison Committee considered that “at the very least Parliament should set out a clear, realistic, statement of its powers”.73 That task is yet to be completed, and is becoming increasingly important given the intense media environment that select committees are operating in.

43.There is clearly a need for greater clarity about the language, process, and nature of a summons, which makes the option of doing nothing unattractive. The confusion has only seemed to increase in light of recent cases. Tom Hickman QC and Harry Balfour-Lynn recalled press reports in 2018 that the Serjeant at Arms was sent to the hotel of Mr Ted Kramer, founder of tech company Six4Three, demanding that he hand over a cache of confidential documents including communications between Facebook and Cambridge Analytica, that the DCMS Committee considered relevant to its inquiry into fake news.74 The reports suggested that Mr Kramer was threatened with imprisonment if he did not comply.75 Hickman and Balfour-Lynn stated that regardless of the facts of the case “it demonstrates how unsatisfactory it is for Parliament to have such vague and uncertain powers”.76 In their view, if Parliament tried to enforce its powers in such a case it faced a “real risk that such a person could raise the matter in court and seek a ruling on what their obligations to a parliamentary committee are and what sanctions could be imposed upon them”.77

44.The arguments presented to us have therefore made it clear that “doing nothing is not therefore in reality doing nothing”.78 We agree with Paul Evans that doing nothing would in practice be a “concession/confession” that the House’s theoretical penal powers no longer exist and an endorsement of the present situation.79

45.There have been significant developments in the exercise of select committee powers even since the referral of this matter to us on 27 October 2016. Recent cases–such as the refusal of Mr Dominic Cummings to appear before the DCMS Committee–have revealed the impotence of the House to enforce the powers it delegates to select committees.

46.The problem of recurring recalcitrance, or simply open disregard of a Committee summons, is no longer a hypothetical one. Individuals invited to give evidence know that they can treat committees with disdain, and by extension the House, without any fear of meaningful penalty. Their lawyers can advise them that the House effectively has no powers to enforce a summons. In many instances a potential witness may stall in response to a committee invitation in the hope that the Committee will move on. We acknowledge that examples of witnesses point-blank refusing to attend or provide information are rare. When this occurs, however, it can have serious consequences for the committee and its work, and for the reputation of the House.

47.We therefore reject the option of doing nothing and agree that the current uncertainty cannot be allowed to continue.

Option (b): “Reassert the House’s existing powers by amending Standing Orders or by Resolution”

Arguments for

48.It has been argued that it would be preferable for the House to reassert its existing powers by amending Standing Orders or passing Resolutions. The main argument put forward for reasserting the House’s powers in this way is that new Standing Orders or Resolutions could also make the House’s procedures and processes clearer and fairer to those subject to them. It is also an action that the House itself could take without the involvement of any external bodies such as the courts. The House could for example pass a resolution to affirm its continuing powers to punish contempts, to illustrate the types of actions or behaviours that would be likely to amount to contempt; and to confirm and clarify the House’s resolution of 6 February 1978, regarding the instances when the House would exercise its powers.80 This approach also would involve setting out by resolution or in standing orders new provisions for fair treatment of witnesses. By comparison to passing new legislation, assertion of this kind would be an easily achievable step.

49.Providing greater clarification was part of the argument put forward by the 2013 Committee.81 It rejected the option of doing nothing on the basis that “at the very least Parliament should set out a clear, and realistic, statement of its powers”.82 The 2013 Committee proposed a set of draft resolutions for the House setting out the actions which may be treated as contempts and setting out the House’s approach to the exercise of its penal jurisdiction.83 To ensure due process the 2013 Committee also proposed setting out in Standing Orders the procedures that committees and the House should follow in cases where the exercise of powers was contemplated, although it suggested that this would confirm arrangements that “in most cases, [were] already common practice”.84

50.A separate strand of the 2013 Committee’s case for reassertion was the argument that the House’s penal powers, including to fine and imprison, still existed and simply needed to be exercised:

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. The power to fine (based on the power possessed by the United Kingdom House of Commons) has only recently been asserted and used in New Zealand. The mechanisms for committal by warrant from the Speaker to the governor of a prison have not been rescinded.85

The 2013 Committee’s arguments for reassertion were based upon the disadvantages of legislation confirming Parliament’s powers, most notably the reduction in exclusive cognisance.86 It argued that the exercise of Parliament’s penal jurisdiction was “fundamentally, a test of institutional confidence” that required the two Houses to be confident and certain in the assertion of their existing powers and the circumstances in which they would be prepared to use them.87

Arguments against

51.The primary argument against assertion by resolution or by changes to standing orders is that it fails to answer the question of whether the House’s penal powers can be enforced in practice. Sir David Natzler’s memorandum clarified that “assertion alone can neither add to the existing powers of the two houses nor require the compliance or co-operation of others”.88 Adding to the House’s existing powers would require legislation. The current Clerk of the House has made the same point, adding that Parliament cannot and would not expect other agencies, whether the courts or the police, to act to enforce its orders without explicit statutory authority.89 Sir Malcolm Jack, a former Clerk of the House, noted that “while doing nothing will lead to nothing; proceeding by Standing Order or Resolution without power of enforcement, will similarly have no real effect”.90 Eve Samson, the current Clerk of the Journals who acted as a Commons Clerk for both the 1999 and 2013 Committees, has suggested that “assertion of powers could have worked in 2013, but is probably not politically or practically possible now, since the House has demonstrated its lack of certainty in the interim”.91

52.Several legal arguments against assertion have also been presented.92 Daniel Greenberg, Counsel for Domestic Legislation, Office of Speaker’s Counsel, advised us that “to restore Parliament’s powers to fine or imprison directly for contempt of Parliament is not a realistically achievable proposition”, a primary reason being that it would “certainly be contrary to the European Convention on Human Rights (ECHR)”.93 He stated it would be regarded as a breach of natural justice for Parliament to “be seen to be the judge of its own cause against a citizen”.94 Some witnesses argued that it would be in breach of the UK’s international obligations under the International Covenant on Civil and Political Rights (ICCPR).95

53.Others have challenged whether Parliament’s powers to fine and imprison actually do continue to exist as “a matter of law”.96 Tom Hickman QC and Harry Balfour-Lynn argued:

Since the powers were last used or considered by the courts, the tectonic plates of constitutional law have shifted and the principle of the separation of powers has become accepted. Furthermore, in the nineteenth century the courts of law established that, whether or not each House could be considered a court, the penal powers and privileges of Parliament were recognised because and to the extent that they were considered essential to the proper functioning of each House, as opposed to being merely desirable. Since the power to commit has not been used for well over a century and in the case of fines for many centuries—and in either case never in the context of the work of select committees—it cannot in our view be said that such powers are essential to the modern Parliament in the strict sense in which that term is used in the authorities.97

Nigel Pleming QC has similarly stated:

Putting it in simple terms, if there is now no effective power to fine a person held to be in contempt, or imprison that person, asserting there is such a power by resolution will not create the power. It either exists in law, or it doesn’t exist.98

54.Tom Hickman QC and Harry Balfour-Lynn have argued that asserting the Houses’ powers would “simply add to the [current] uncertainty… and make it more likely that the courts would eventually be asked to rule on the question”. An assertion by the House of its penal powers would therefore be a high risk strategy and almost certainly lead to a successful challenge in the courts, either domestically or in the European Court of Human Rights.99 Such a challenge could risk undermining the “whole foundation of the House’s contempt powers” and result in significant reputational damage to the select committee system and the House.100

55.We agree that “assertion alone can neither add to the existing powers of the two houses nor require the compliance or co-operation of others”. We consider that any attempt to exercise the House’s historic powers to fine or imprison would contravene the Human Rights Act 1998 and the UK’s international obligations under the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).

56.The 2013 Committee urged the two Houses to “rise to the challenge” of asserting the continuing existence of each House’s jurisdiction over contempt, but they have failed to do so. Neither House has implemented the 2013 Committee’s recommendations. There was an opportunity to take this course of action in 2013, but the case for doing so now is much weaker. The 2013 Committee argued that this was a matter of institutional confidence, but that confidence has recently been shaken by the cases of recalcitrance we described earlier. As developments since 2013 have demonstrated, practical assertion of the Houses’ powers is now unlikely even to be considered, let alone implemented without significant reputational risk.

57.We conclude that reassertion of the House’s historic powers to fine and imprison by resolution or in Standing Orders no longer offers a workable solution to the problems facing select committees. The risk is that it would be regarded as an empty gesture and only add to the present confusion.

58.We recognise, however, that there are aspects of this issue that the House can and should address by assertion, including updated commitments to fair treatment of witnesses and provision for due process in the exercise of its powers.

Option (c): “Legislate to provide a statutory regime”

Arguments for

59.The primary argument in favour of legislation is that only legislation can add to the powers of the House or ensure the compliance and co-operation of others. It is clear from the analysis above that if the House believes that witnesses should potentially face fines or imprisonment for contempt of Parliament then this will require new legislation.

60.Noting the weaknesses of the option of reassertion, Paul Evans argued that the choice before the House is “effectively a binary one”. He concluded:

[The House] can either abandon its claim to possess penal powers or legislate to make them a reality. There is no real middle ground which could provide a solid foundation on which to build.101

For much the same reasons as the arguments provided above against doing nothing, Members and former Members have argued that a legislative solution should be considered.102

61.The 1999 Committee recommended new legislation. It first considered whether contempt of Parliament by a non-member should still attract any punishment at all, and concluded that it should.103 It stated that the “power to punish anyone” (original emphasis), whether a Member or not, for behaviour interfering substantially with the proper conduct of parliamentary businesses was a “principal privilege”.104 It argued that “powers must exist to ensure that committee investigations can proceed, that witnesses will attend and that papers will be produced”.105 It also argued that “to be effective as a last resort, the punishments themselves must be meaningful”; and accordingly recommended that alongside admonishment, there should be a power to fine non-members for a “grave contempt” (it recommended abolishing imprisonment on the grounds it had not been used for over a century).106 It also noted that in each of the devolved parliamentary bodies, equivalent legislation had been passed making failure to attend proceedings or answer questions or to produce documents a criminal offence.107

62.The 1999 Committee also observed that passing legislation of this kind was not without precedent, even in the Westminster system. There is already statutory provision relating to two specific types of contempt. The Witnesses (Public Inquiries) Protection Act 1892 created an offence of threatening or punishing any person on account of evidence given by them to a committee of either House, unless that evidence was given in bad faith, and provided for damages to be payable in certain circumstances. The Parliamentary Witnesses Oaths Act 1871, superseded by the Perjury Act 1911, created an offence of perjury before the House or a committee. In the case of the latter this power was last invoked by the Public Accounts Committee in 2011.108

63.Those of our witnesses who supported a legislative option argued that this is the only option that could provide the desirable clarity for Members, witnesses and the general public; and the only option that would secure the powers to enable select committees to carry out their functions, including summoning relevant witnesses and accessing the necessary evidence to conduct their inquiries, safely in the knowledge that sanctions were available if needed.109 In this sense powers provided in legislation could serve as a “weapon of last resort” - which even if they were never actually used would achieve the desired aim.110

Arguments against

64.The primary argument levelled against any legislative solution is that it would erode Parliament’s “exclusive cognisance” (its control over its own affairs) and encroach upon protections afforded to its proceedings under Article IX of the Bill of Rights.111 The 2013 Committee stated that permitting the courts to decide how Committees should act “in this area at least, would destroy the concept of “two constitutional sovereignties” and replace it with an asymmetric system in which the courts had power to evaluate Parliamentary proceedings”112 It also raised several specific concerns with criminalising specific contempts, concluding that it would “entail a radical shift of power between Parliament and the courts”.113

65.The first concern with a legislative solution is that it would necessarily give the courts a degree of jurisdiction–however small–over parliamentary proceedings. The Clerk of the House suggested that affording the courts any degree of jurisdiction might also turn out to be “the thin end of a wedge” in that a legitimate examination of proceedings in one context might encourage questioning of parliamentary proceedings in other contexts.114 The concern over judicial evaluation of parliamentary proceedings is linked to a wider anxiety over potential “judicial activism” with regards to Article IX protections (namely that the courts may be willing to call into question parliamentary proceedings in other contexts). In particular, evidence to our inquiry expressed concern over any legislative solution that would result in the courts questioning why witnesses were called to give evidence and whether it was reasonable that they should be summoned.115 Lord Tyrie suggested that this sort of judicial activism was a “serious risk”.116

66.The former Lord Chief Justice of England and Wales, Lord Thomas of Cwymgiedd, submitted evidence addressing the possible involvement and role of the courts in relation to any statutory regime drawn up by Parliament. He stated:

On reviewing the constitutional history of the interactions between Parliament and the courts on matters of privilege, it is clear that the principle of comity guides. In short, the settled position is that Parliament retains exclusive cognisance in relation to purely internal matters; however, where matters have an external quality, the courts may be called upon to adjudicate disputes and, as with any other statute, to determine the extent of the exclusion provided for in Article IX of the Bill of Rights… A Parliamentary Order for attendance or production against a non-Member is plainly an area with such an external quality. Therefore, whilst legislation might not be necessary, a statutory framework is much to be preferred to avoid any breach of comity.117

Although Lord Thomas noted in his conclusion that the issue “is one for Parliament to decide” he did suggest that a carefully drafted “two-stage approach”, where the courts are used as a last resort, could provide a “constitutionally balanced solution”.118

67.A second concern identified by the 2013 Committee is that any approach that criminalised specific contempts could increase doubt over how other contempts could or should be dealt with. Sir David Natzler explained:

While categorising contempts would provide clarity in some cases, and enable specific offences to be prosecuted, it would be extremely difficult to define all those types of action or conduct which might obstruct, or appear to obstruct, the work of the House, its committees or members in their parliamentary duties. Actions which did not fall within the statutory definition of contempt could not be prosecuted by the courts; the House’s own powers against the contemnor, if not effectively repealed by the passing of legislation, would remain at least as doubtful as they are now.119

68.A third concern is that it would introduce a bureaucratic process where one is not needed nor desired. A noted strength of the current select committee system is that it is flexible, adaptable and responsive.120 Additionally, as both the 2013 Committee and our predecessor committee made clear, select committees operate in a political, not a judicial, sphere and therefore should not be required or expected to act as a court or tribunal might.121 As the Clerk of the House has noted, were the courts to be given the power to evaluate the activities of a committee, they “might be obliged to satisfy themselves that the conduct of the committee in all its proceedings right up to the issue of the order had met the requirements of natural justice and human rights legislation”.122 Stringent requirements might also encourage the “aggressive” challenge from legal representatives “with a strong focus on procedural objections” which our predecessor committee experienced in the News International case.123 The 2013 Committee concluded that legislation would “introduce delay… and remove the flexibility which is the chief advantage of the current system”.124

69.The Clerk of the House summed up by saying that the question facing us is “whether the benefit of effective enforcement in those very few cases where a witness remains intractable outweigh the potential risks of subjecting some elements of parliamentary proceedings to inquiry and judgement by the courts”.125 He told us that his preference was for a legislative solution that criminalised the specific contempt of failure to comply with a summons.126 He concluded that

New statutory provision could provide a solution but will require detailed examination in order to establish a system which works for the House, committees, witnesses and the judiciary - not weakening the protections of Article IX while providing witnesses and third parties with checks and balances and protecting judicial independence and the rule of law. A limited intervention from the courts, focussed on enforcing orders after the House has certified a non-compliance might achieve this.127

70.There is no straightforward solution to the difficulty the House has faced in exercising and enforcing select committee powers. If there were it would have been adopted years ago. All the options on offer carry potential benefits and risks.

71.While recognising the risks in a legislative solution, notably the potential erosion of exclusive cognisance and the danger of weakening the status of other privileges, we conclude that legislation is now the only option that can provide the House with the enforceable powers it needs to summon witnesses and order provision of papers. The inability effectively to penalise, and therefore deter, a failure to comply with a summons is preventing the effective discharge of select committee functions. Only legislation can put the powers of the House to punish this form of contempt beyond doubt and provide the necessary clarity to MPs, officials, witnesses, and the public.

72.As we set out elsewhere in this Report, we also propose that, in the interim before the passage of legislation, the House proceeds by way of resolution and standing order changes to set up improved processes for ensuring the fair treatment of witnesses. This task was recognised and started by the 2013 Committee and needs to be completed.