137.This chapter details our proposal for a legislative solution to address the issues raised in our consideration of the exercise and enforcement of select committee powers. A draft Parliamentary Committees (Witnesses) Bill is set out as Annex 4 to this Report. We seek to consult on our proposal before making final recommendations to the House in response to the referral of 27 October 2016.
138.Our proposal is for new legislation in line with the “criminal offence” model outlined in Chapter 2. A bill should be introduced to create a criminal offence of failure to comply with a summons to attend or to provide information, issued by a select committee, without reasonable excuse. To ensure harmonious operation, the provisions of our proposal would apply across the United Kingdom, as Parliament is a UK-wide institution. The offence would be construed by the courts of each jurisdiction (subject to the rules of forum determining which courts were competent to try allegations) in accordance with standard principles by reference to the context of Parliament. The House’s processes and commitment to fairness would be set out in accompanying Standing Orders and/or by resolution. They would clearly set out the requirements and steps taken in the enforcement of any summons, as well as establish the rights of witnesses. Our model bill only addresses the specific issue of recalcitrant witnesses in relation to House of Commons select committees; whether legislation should also encompass the enforcement of powers to sanction other contempts, or include equivalent provision in relation to House of Lords committees, is a matter for further consultation.
139.Based on the findings detailed in this report, we have identified the following working assumptions for the drafting of our legislative proposal:
a)Neither the House nor its committees is practically able to enforce attendance or production of information or documents from recalcitrant witnesses. They do not have the powers of a court of law to instruct police officers, or arrange for imprisonment or payment of a fine.
b)The House should have the power to enforce the attendance of, or production of information or documents by, recalcitrant witnesses. In practice, such enforcement will need to be carried out by a court of law. This requires legislation.
c)To ensure participants in parliamentary processes are treated fairly, and to minimise any risk of subsequent legal challenge (including to the ECHR), the House must be in a position to demonstrate due process before referring a case to a court.
d)The more decision-making takes place within Parliament rather than being transferred to the courts, the greater the need for Parliament to demonstrate due process.
e)Any proposal for enforcement must recognise that recalcitrant witnesses are a minority, and should not significantly curtail the flexibility and speed in setting up meetings which select committees value.
f)There should be a ‘gatekeeper’ decision-maker (which we suggest should be the Committee of Privileges) to consider applications from committees to use their power to summon. The gatekeeper should act as a check on the behaviour of committees to ensure any powers to summon are used proportionately and appropriately.
g)The question for the court to decide in relation to any sanction must be as simple and as clear-cut as possible, to limit scope for the court to consider wider questions about internal House or committee processes, or the merits of the summons.
140.The following steps set out what might happen in the case of a recalcitrant witness.
141.At various stages in the above process the individual would have the opportunity to change their mind about appearing or provide arguments for why they had a reasonable excuse for not appearing. The hope and expectation would be that the inevitable attention garnered by the above process and the risk of a criminal conviction would be sufficient to deter the witness from failure to comply before the application of any sanctions set out in legislation.
142.This proposal is the best amongst the range of legislative possibilities. It gives select committees the power they need to compel recalcitrant witnesses to attend or to provide information or documents, while balancing with this the need to ensure fair treatment of witnesses and preserve the protections afforded to House proceedings under Article IX of the Bill of Rights 1689.
143.We do not seek to disguise the fact that our proposal would encroach upon protections previously afforded to parliamentary proceedings under Article IX of the Bill of Rights. However, a limited reduction in the extent of exclusive cognisance is a price worth paying to secure effective enforcement. Our proposal gives scope for the court to consider the nature and purpose of a committee’s summons, but only for the purposes of ensuring compliance with the UK’s international human rights obligations, in particular Article 6 of the European Convention on Human Rights (the right to a fair trial).
234 See section 2(3) of the draft Bill in Annex 4. The draft Bill takes into account the existence of the three legal jurisdictions across the UK. The Committee intends to consult with representatives of each.