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

3Fair treatment of witnesses

Overview

113.In reopening our call for evidence at the start of the present Parliament we asked the following question:

How can select committees effectively exercise their powers to summon witnesses and call for papers, while at the same time treating potential witnesses with fairness and due respect?194

Throughout our inquiry, we have been concerned to ensure that, whatever model is adopted to modernise the House’s penal powers, the procedures accompanying the use of those powers deliver fairness and provide clarity for Members, witnesses and the public. We have also taken into account the explicit legal standards which need to be considered, most notably Article 6 of the European Convention on Human Rights.195 This chapter outlines the House’s current arrangements for fair treatment, considers evidence we received regarding fair treatment, and sets out our recommendations.

Current arrangements for fair treatment of witnesses before committees

114.The fair treatment of witnesses before committees is of central importance to the reputation of the select committee system, and of the House. Even if not always explicitly stated, ensuring fairness to witnesses is implicitly a consideration in the daily work of committees. Although committees rightly see delivering robust scrutiny as a key part of their work, this should never involve witnesses being treated unfairly or bullied. The current Clerk of the House explained:

It is vital to the reputation of committees, the House and to public confidence in their processes that Members treat witnesses fairly and with courtesy. Public opinion is often part of the soft influence which persuades witnesses to attend or provide papers, but a committee is being scrutinised itself by the public. It is not inconceivable that egregious behaviour by a committee could reverse that influence.196

Sir David Natzler, the previous Clerk of the House, similarly stated:

The treatment of witnesses should be of concern both because it is self-evidently right that an individual should be treated fairly and also because any subsequent action in respect of the evidence given by that witness, whether through the courts or within Parliament, is likely to consider the treatment of that witness.197

In the great majority of cases witnesses work closely with committees and no issues of unfair treatment by the committee or recalcitrance on behalf of the witness occurs.

115.Committee staff seek to ensure fair treatment by making sure that witnesses know what is expected of them before they appear to give evidence.198 In addition to talking through practicalities, this frequently includes discussion of likely lines of inquiry in the evidence session. Committee staff can reassure a witness that they can reasonably expect the questions asked to be clear, to be treated with courtesy, and that the overall procedure of any evidence session will be fair. If witnesses have good reasons not to attend that is, in the vast majority of cases, accepted by the committee.199

116.Comparison is sometimes made between select committee evidence sessions and judicial hearings, particularly with regards to treatment of witnesses. However, despite being ostensibly similar in some regards, select committees operate in a political rather than judicial context; as such, they are not bound by the same rules for fair treatment as apply in the courts, for example when faced by a recalcitrant witness.200 Mark Hutton, former Clerk of the Journals, explained that committees tend to operate in different “modes” depending on the nature of their inquiry.201 Whilst committees most often operate in an evidence-gathering mode, at other times they are seeking to act as agents for change with a clearly set-out agenda, or seeking to undertake forensic examination when investigating a specific issue. In each case the experience for the witness is very different.202 Due to their political context, although relations between witnesses and select committees are usually constructive and cooperative, there are occasions where the relationship can become combative and even hostile. Such instances of hostility are most likely to arise in instances when the witness has been initially reluctant, or has refused, to appear.

117.The House of Commons publishes a guide for witnesses giving written or oral evidence to a select committee (last updated in February 2016).203 This guide provides a short section on the “Powers of select committees, and parliamentary privileges”, in addition to providing practical advice about oral evidence sessions. There is also a high-level guide on the UK Parliament website providing guidance to witnesses on how to submit evidence to an inquiry.204

118.Although it does not strictly-speaking apply to the conduct of Members in proceedings (which is exclusively regulated by the Chair), Members of Parliament are also expected to adhere to Parliament’s Behaviour Code, adopted in 2018, which applies to anyone visiting or working in Parliament and sets out clear guidelines on “how you should be treated, and how you should treat others”.205 As set out in the Code of Conduct for Members, MPs are “expected to observe the principles set out in the Parliamentary Behaviour Code of respect, professionalism, understanding others’ perspectives, courtesy, and acceptance of responsibility”.206

119.The House of Commons’ Select Committee Team provides additional guidance and training to staff with regards to safeguarding, particularly in relation to inquiries that might engage with vulnerable adults or young people. A Witness Working Group has also recently been set up to review current arrangements and the experience for witnesses working with select committees.

120.There has been little dispute in the evidence we have received over the need to ensure that committees behave fairly towards witnesses. The Clerk of the House suggested that

Regardless of the route chosen [in determining a solution to the issue of the exercise of Parliament’s powers], a prior task may be to clarify what is expected of Members and witnesses regarding their behaviour, what happens under current processes and what would happen if there was a breach of these arrangements.

The lack of clarity regarding current arrangements was reflected in our evidence. Richard Gordon QC raised several issues with current protections for witnesses noting that “there is no body of ‘law’ that will inform those advising the witness” and suggests that some committees have in questioning witnesses “pushed at the boundary of what many lawyers would regard as legitimate questions”.207 Nigel Pleming QC commented that, whilst there are advantages to committees retaining a “flexible” approach to briefing witnesses, there is a “lack of transparency (and fairness)” in instances where the “rules of the game” are not put clearly to a witness before evidence is given.208

121.Maria Miller, former Chair of the Women and Equalities Committee, told us that lack of clarity about process impeded that committee’s inquiry into the use of non-disclosure agreements (NDAs).209 The Committee wanted to hear from representatives of the Arcadia group, after it was disclosed that Arcadia had made use of NDAs in handling allegations of sexual harassment and racial abuse of employees by Sir Philip Green. After trying to engage co-operatively, the Committee was forced to issue a summons for the attendance of Sir Philip Green and Ian Grabiner (CEO) due to lack of progress with negotiations over their attendance. In April 2019 lawyers acting for Sir Philip replied noting that neither Sir Philip nor Ian Grabiner intended to comply with the Committee’s Order. Reflecting on this episode, Maria Miller commented:

During our correspondence with lawyers acting for Arcadia, the Committee was mindful of the need to treat them fairly, both in terms of the process of issuing the invitation and seeking a date and in terms of the content of the evidence session. A clearer understanding of the process and reasonable timescales would help provide clarity to both potential witnesses and committees about what was reasonable. It was certainly the case that without this defined process, the Women and Equalities Committee felt the need to proceed with great caution. While fairness and due respect to witnesses should be a key part of any process, reluctant witnesses should not be allowed to use a committee’s wish to act fairly against them, in order to frustrate and delay what are often vitally important committee inquiries.210

Recommendations of the 1999 and 2013 Joint Committees on fair treatment

122.Both the 1999 and 2013 Joint Committees commented on the treatment of witnesses before select committees and made recommendations. Neither set of recommendations was adopted wholesale but the draft proposals annexed to the 2013 Committee’s report have gone some way to modernising Parliament’s approach to witnesses.

123.The 1999 Committee recommended that “the disciplinary procedures of both Houses should be revised to bring them into line with contemporary standards of fairness, including rights guaranteed by the European Convention of Human Rights”.211 It considered it essential that committees of both Houses should follow procedures providing safeguards “at least as rigorous as those applied in the courts and professional disciplinary bodies”.212 In relation to the risk of legal challenge in the European Court of Human Rights, the Committee remarked:

The existence of this jurisdiction is a salutary reminder that, if the procedures adopted by Parliament when exercising its disciplinary powers are not fair, the proceedings may be challenged by those prejudiced. It is in the interests of Parliament as well as justice that Parliament should adopt at least the minimum requirements of fairness.213

124.The 1999 Committee identified “minimum requirements of fairness” for a Member accused of contempt as being:

125.The 2013 Committee sought to build upon the recommendations of the 1999 Committee. It recommended that each House should agree a series of resolutions and Standing Orders to ensure fairness. Although the Committee argued for Parliament to assert its powers rather than legislate, it acknowledged that “if it were decided simply to put the power to punish for contempts on a statutory footing, Standing Orders or Resolutions of the House should set out the minimum requirements for fairness”.215 The Committee recommended:

Where a Committee is simply seeking evidence as part of the normal inquiry process, the standards of fairness should include the opportunity for witnesses to ask for matters to be dealt with in private, to give a clear account of their side of the story and to respond to any potentially damaging allegations made by other witnesses. In most cases, this is already common practice, but we recommend that such good practice should be formalised as part of Standing Orders.”216

126.The 2013 Committee provided draft Standing Orders and Resolutions for the House of Commons to adopt in two annexes: the first annex provided a set of draft House of Commons resolutions outlining actions which might be treated as contempts;217 the second annex provided a set of draft House of Commons Standing Orders codifying general provisions for powers, rights of witnesses, the exercise of penal powers, procedural fairness and the role of the Committee of Privileges.218 The 2013 Committee’s draft Standing Orders were broadly modelled on equivalent Resolutions and Standing Orders adopted in the Australian and New Zealand Parliaments.

127.Whilst neither the draft Resolutions nor Standing Orders have been formally adopted by the House, they have influenced the work of committees and continue to inform House practices regarding procedural fairness.219 In the absence of the House’s agreement to the Joint Committee’s recommendations, the Liaison Committee agreed in January 2014 that the annexed provisions relating to fair procedure for witnesses should be applied as a code of practice.220 The 2013 Committees recommendations have also informed the procedures of the Committee of Privileges. Our predecessor committee’s report Conduct of witnesses before a select committee (the News International case) commented on the need for fair treatment and drew attention to the draft Standing Orders annexed to the 2013 Report. The Committee agreed to a resolution on procedure that set out the maximum penalty it could impose (admonishment) and the procedure for different stages of the inquiry.221 Similarly, in our predecessor Committee’s investigation into the conduct of Mr Dominic Cummings the Committee explicitly agreed a resolution on process for the inquiry to ensure fair treatment.222 The stated aim of the resolution by the Committee was 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”.223

128.During our inquiry, several clerks criticised the 2013 Committee’s draft Standing Orders. Sir David Natzler commented on the 2013 Committee’s draft Standing Orders:

They can be read as a checklist of the circumstances in which a witness could reasonably claim to have been treated unfairly. But, as Standing Orders, they would introduce a rules-based and inflexible approach which might not serve either witnesses or committees well.”

This view was further articulated by Mark Hutton, then Clerk of the Journals:

For me, one of the drawbacks of the Standing Orders at the end of the 2013 Joint Committee report was that you could see that they had been drafted with the idea that someone was being really critically examined in front of a Committee. But you could also see that if they were put in front of someone who was being invited to a Committee to share their knowledge, they might make them feel even more intimidated than they would otherwise be. It was creating a bureaucracy around a process that does not need one.

129.Sir David recommended that a better approach for Parliament would be to adopt principles-based guidance endorsed through a resolution of the House, with the drawing up of more detailed rules devolved to the Liaison Committee.224 The current Clerk of the House, Dr John Benger, has suggested that Parliament’s Behaviour Code would be a good set of principles on which to base such guidance.225 Alternatively, Paul Evans, a former Clerk of the Journals and Clerk of Committees, has suggested that the paragraphs of Article 6 of the European Convention on Human Rights might also provide a sensible model.226

Legal standards of fairness

130.In addition to making explicit the usual practice of fair treatment of witnesses in principles-based guidance, the House would also need to ensure its processes would meet explicit legal standards of fairness. Although the House is unlikely to face any challenge in the domestic courts due to Article IX protections under the Bill of Rights and the principle of exclusive cognisance, the House is potentially vulnerable to challenge in the European Court of Human Rights. Article 6 of the European Convention on Human Rights sets out the standards required for the determination of civil rights and obligations, and for those charged with a criminal offence. Any decision by the House determining whether someone was required to attend would therefore determine a right or obligation, and any penal consequence would require the safeguards applied to criminal offences.227

131.The 2013 Committee heard evidence from the Government at the time that:

The Government does not believe that the current arrangements provide the kind of safeguards that individuals have a right to expect of any body with the power of prosecution … in order for the defendant in any such proceedings to be given a fair hearing, the House would have to significantly change its current procedures and practices.228

Greater due process in instances where the House might wish to exert its powers would therefore be essential for the credibility of any legislative solution. Eve Samson, current Clerk of the Journals, advised “the fairer the House’s internal processes, the less there will be a danger of review of decisions to summon individual witnesses”.229

132.One solution considered by the Committee to deliver greater due process would be to introduce a “gatekeeper” to act as a check on the use of any powers to compel witnesses by a select committee. Equivalent provisions are included in some of the international models we examined. In the New Zealand Parliament a witness summons has to be signed and served by the Speaker, and can only be done so once the Speaker is satisfied that the evidence, papers or records sought by the Committee are necessary to its proceedings and the Committee has taken reasonable steps to obtain them.230 In the Houses of the Oireachtas committees must first seek consent in writing from the Committee on Procedure and Privileges in order to exercise its powers to send for persons, papers and records.231 Notably, in the case of Ms Kerins, the Committee on Procedure and Privileges declined a request by the Public Accounts Committee (PAC) to summon Ms Kerins, explaining that it believed the examination to be “ultra vires”.232 Paul Evans suggested that the gatekeeper role would provide a “desirable check” for the House:

The powers [to call for persons, papers and records] are delegated to a committee from the House–the House as a whole has a direct interest in ensuring that they are used proportionately and appropriately. This double lock also has the benefit of giving better assurance to the world at large, and to the courts if necessary, that the powers have been used only carefully and with forethought.233

Conclusion

133.Ensuring fair treatment of witnesses is a central consideration in the daily work of committees. In the great majority of cases witnesses and committees co-operate and issues of recalcitrance do not arise. However, in any instance where a Committee might be seeking to exert its powers to compel attendance, there needs to be clear and robust procedures to ensure the minimum requirements of fairness are met.

134.As a first step, and regardless of the adoption of any legislative model for penal powers, the House should adopt new principles-based guidance for fair treatment of witnesses before committees. These should be set out in standing orders or by resolution. The guidance must balance the need to provide clarity, fairness and due process for witnesses, against the need to avoid putting a new bureaucratic burden on committees which would impede their ability to take evidence swiftly and flexibly. We intend to consult fully with the Liaison Committee on how to strengthen the House’s internal processes in this way.

135.Fairness also requires that the public have reasonable access to the rules and expectations of each House. The key aspects of any new rules should be included in updated guidance for witnesses appearing before select committees.

136.Any legislative proposal will need to be accompanied by robust internal procedures to ensure compliance with the legal standards of fairness required in the determination of any offence and enforcement of any sanction. This is essential to satisfy the courts that the House’s internal processes are fair and robust, and to prevent any further examination of committee proceedings in their consideration of any sanction.

194New chair appointed and inquiry into select committees and contempts resumed”, Committee of Privileges press release, 1 June 2020

195 Eve Samson, (SCC0019) para 9

196 Clerk of the House [Sir David Natzler] (SCC0001), para 4.12

197 Clerk of the House [Dr John Benger] (SCC0016), para 25

198 Eve Samson, (SCC0019) para 8

199 Eve Samson, (SCC0019) para 8

200 Clerk of the House [Sir David Natzler] (SCC0001), para 4.14

201 Q5 [Mark Hutton]

202 Q5 [Mark Hutton]

205 UK Parliament, Behaviour Code

207 Richard Gordon QC, (SCC0003) para 32, para 36

208 Nigel Pleming QC (SCC0005), para 46

209 Maria Miller (SCC0017)

210 Maria Miller (SCC0017), p 2

211 Joint Committee on Parliamentary Privilege, First Report of Session 1998–99, HC 241-I, Executive summary

212 Joint Committee on Parliamentary Privilege, First Report of Session 1998–99, HC 241-I, para 281

213 Joint Committee on Parliamentary Privilege, First Report of Session 1998–99, HC 241-I, para 284

214 Joint Committee on Parliamentary Privilege, First Report of Session 1998–99, HC 241-I, para 281. The 1999 report defined the minimum requirements for fairness in relation to alleged contempts committed by Members. However, the Joint Committee also made clear that it would be “unwise to assume the requirements of fairness would be significantly less for members [than non-Members]” (para 283)

215 Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HC 100, para 74

216 Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HC 100, para 85

217 Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HC 100, Annex 2: Draft resolutions for the House of Commons

218 Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HC 100, Annex 3: Draft House of Commons Standing Orders

219 Erskine May, 25th edition (London, 2019), para 11.22

220 Liaison Committee, Formal Minutes of the Committee, Session 2013–14; Q5 [Dr John Benger]

221 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, Appendix

222 Committee of Privileges, First Report of Session 2017–19, Conduct of Mr Dominic Cummings, HC 1490, Annex: Resolution on process

223 Committee of Privileges, First Report of Session 2017–19, Conduct of Mr Dominic Cummings, HC 1490, para 6

224 Clerk of the House [Sir David Natzler] (SCC0001), para 4.15

225 Clerk of the House [Dr John Benger] (SCC0016), para 26

226 Paul Evans (SCC0023), para 6

227 Eve Samson, (SCC0019) para 9

228 Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HC 100, para 52

229 Eve Samson, (SCC0019) para 20

230 New Zealand Parliament, Standing Orders, para 196; See Paul Evans (SCC0023), paras 35–36

231 Section 76 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 provides that a committee wishing to issue a compellability direction must first obtain the consent of the “appropriate committee”, which is defined as the Procedure Committee of the Dáil (see also Standing Orders 97 and 119 of the Dáil Éireann).

232 See Houses of the Oireachtas (SCC0041)

233 Paul Evans (SCC0023), para 36




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