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

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Conclusions and recommendations

Introduction and background

1.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. (Paragraph 25)

2.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. (Paragraph 26)

Options for the Committee

3.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. (Paragraph 45)

4.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. (Paragraph 46)

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

6.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). (Paragraph 55)

7.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. (Paragraph 56)

8.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. (Paragraph 57)

9.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. (Paragraph 58)

10.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. (Paragraph 70)

11.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. (Paragraph 71)

12.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. (Paragraph 72)

Legislative possibilities

13.We note the following from our assessment of the arrangements and recent case studies in other democratic legislatures: (Paragraph 97)

• Most legislatures we have examined have legislated to give their investigative or scrutiny committees at least some statutory powers.
• Witnesses tend to comply with parliamentary committees in the vast majority of examples considered. Sanctions are rarely, if ever, deployed, although the threat of sanctions is recognised as an important aid to compliance.
• Where there is legislation outlining forms of non-compliance with a committee of parliament, the associated sanctions tend to be equivalent or close to the sanctions provided for contempt of court (namely, fines and imprisonment).
• Where legislatures have specifically legislated in the realm of parliamentary privilege, the provisions are necessarily supplemented by resolutions and Standing Orders, in order to preserve the principle of exclusive cognisance and to ensure due process and fair treatment of witnesses. (Paragraph 97)

14.We consider that analysis of various international models and equivalent arrangements in the devolved legislatures supports our conclusion that new legislation to provide Parliament with appropriate powers is the most desirable of the three options available to the House. We believe it is possible to draft legislation that simultaneously strengthens the powers of Parliament, encourages compliance from witnesses, is consonant with human rights legislation and maintains the careful constitutional balance between Parliament and the courts. (Paragraph 98)

15.We recognise that there is a range of legislative possibilities that can be considered and that different models carry different benefits and risks. (Paragraph 111)

16.We propose there are four key tests that any legislative option must pass:

• It needs to provide sufficient sanctions to enable Committees to undertake their work without fear of unreasonable obstruction or impediment.
• It must include provisions to reduce the risk of any unnecessary judicial oversight of parliamentary proceedings.
• It must be compatible with human rights law and with natural justice.
• It must be accompanied by a clear internal framework establishing due process and ensuring fair treatment of witnesses. (Paragraph 112)

Fair treatment of witnesses

17.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. (Paragraph 133)

18.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. (Paragraph 134)

19.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. (Paragraph 135)

20.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. (Paragraph 136)

Our proposal

21.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. (Paragraph 142)

22.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). (Paragraph 143)

Conclusion and questions for consultation

23.We put this report forward for consultation as a preliminary proposal, having carefully considered the issues and examined comparative arrangements in other democratic legislatures. The responses to the questions set out below will inform the next stage of our consideration. We intend to consult widely, including seeking the views of current and former Members of both Houses, legal professionals and members of the judiciary from across the different jurisdictions of the United Kingdom, academics, and current and former Clerks. We will be taking further oral evidence to explore others’ opinions of the strengths and weaknesses of our proposal, before presenting a final report for consideration by the House.

• What is the primary role of select committees and what should be the practical limits of the application of their powers (as delegated to them by the House)?
• Do you agree with our assessment of the three options, and our conclusion that a legislative solution is the best available option?
• Do you think the proposed draft Bill provides an appropriate solution to the issue of recalcitrant witnesses before committees?
• What do you think the maximum sanction should be for an individual found guilty of an offence of failure to comply with a summons?
• Should the legislation be extended to encompass the enforcement of sanctions related to other contempts, or to make equivalent provision for House of Lords committees, or to deal with any other matters relating to parliamentary privilege?
• How should the House set out its internal processes and commitment to fair treatment in a way that provides sufficient due process, whilst maintaining the flexibility and effectiveness of the current select committee system?
• The draft Bill provides a power to summon non-Members to attend or to provide information or documents to a committee. Should equivalent powers be included to summon Members of the House, or for a committee of one House to summon Members of the other House?
• Are there any other issues within the scope of the matter referred to us - “the exercise and enforcement of the powers of the House in relation to select committees and contempts” - that you think should be dealt with in our final recommendations to the House? (Paragraph 144)