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

Annex 3: Summary of international comparator models

The Committee received 52 responses from other legislatures to its questionnaire on committee powers and contempts. The questionnaire was circulated primarily through the ECPRD (European Centre for Parliamentary Research and Documentation) and CATS (Clerks-at-the-Table) networks. We are grateful to everyone who responded. We have published a selection of the responses on our website. The following table provides summaries of some of the models we examined in more depth.


Summary of committee powers to require attendance of witnesses and the production of documents

Parliament of Australia (House of Representatives and the Senate)

Both the House of Representatives and the Senate have the power to summon witnesses and request the production of documents set out in Standing Orders.252 There are some limitations on these powers: for example, Members of either House cannot be summoned and there are limitations in relation to evidence that is sought from various classes of witnesses, such as public officials and parliamentarians from Australia’s states and territories.253 If witnesses refuse to comply with an order from a Committee then there are sanctions available to it by the authority of either House.

The Australian Parliamentary Privileges Act 1987 sets out the penalties that may be imposed by a House of Parliament for an offence against that House.254 These include imprisonment for a period not exceeding 6 months, or imposition of a fine (up to $5,000 for a natural person or up to $25,000 for a corporation). In practice, neither House has ever exercised these powers under the Act, including in relation to non-compliance by a witness summoned to give evidence to a committee.255

Parliament of Canada (House of Commons and the Senate of Canada)

The powers of Parliamentary committees in Canada to send for persons, papers and records are set out in Standing Orders.256 In both Houses, should witnesses refuse to appear before a committee or provide evidence the committee could adopt a motion ordering the individual to comply.257 Standing committees do not have the power to punish a failure to comply with their orders but can report the matter to the respective House. The House can then act in a manner it considers appropriate. Among the options are to endorse the committee’s summons, thus making it a House order rather than just a committee order, and to declare the witnesses guilty of contempt. Historically, the offence of contempt has carried sanctions including reprimand before the Bar of the House and imprisonment until the end of the session, although these sanctions have not been used recently. In 2015 a report by the Senate’s Standing Committee on Rules, Procedures and the Rights of Parliament highlighted the need to review the Parliament’s disciplinary powers.258

European Parliament (EP)

The EP has “a right of inquiry” under Article 226 of the Treaty on the Functioning of the European Union (TFEU); the EP at the request of a quarter of its component Members can set up a temporary Committee of Inquiry to investigate “alleged contraventions or maladministration in the implementation of Union law”.259 The detailed provisions governing the exercise of the right of inquiry are determined by the EP after obtaining the consent of the Council and the Commission.260 An EP committee of inquiry does not have the power to subpoena witnesses but it can request the attendance of officials or servants of the relevant Member State or institution to appear before the Committee.261 The sanctions available for non-compliance depend on the “category of witness”. For example, if a Member State fails to co-operate with an EP committee of inquiry by failing to designate an official to appear before the committee then the EP in principle may, if all the necessary conditions are met, request the Commission to initiate infringement proceedings against that Member State. This theoretical possibility has never been used by the EP.262

French Parliament (National Assembly and Senate)

A legal framework for committees was set out in 1958 as part of the establishment of the Fifth Republic, and provides rules for the creation of committees, their remit, their powers, general proceedings, and criminal sanctions against specific offences.263 All the rules and powers are common to both Houses. Since 1996 the powers have applied to standing committees as well as ad hoc investigative committees. In 2011 the law was changed to allow the powers of Committees to be exercised against Government in certain instances. Legal literature considers parliamentary committees as “quasi-judicial bodies” since they can summon anybody to testify before them and require the use of public force against reluctant witnesses, and offences are of a criminal nature like those relative to judicial proceedings. Committees have the right to summon any person; non-compliance is an offence liable to a fine of up to €7500. There are different sanctions depending on the type of offence; for example, conviction of perjury can be met with up to 5 years imprisonment and a €75000 fine.264 These sanctions are not exercised by the Committee or either House. The offence triggers a judicial inquiry at the request of the Committee’s Chairperson, and the matter is referred directly to the Prosecutor General and a criminal lawsuit is initiated. The most recent example of a referral to the Prosecutor General dates from March 2019 when a committee of the Senate laid charges of perjury against 3 witnesses, including the Chief of staff and a former aid of President Emanuel Macron, in relation to the “Benalla Case”.265

German Bundestag

The German Bundestag has the power to set up investigative Committees under the Committees of Inquiry Act “on the motion of one quarter of its Members”.266 These are separate to standing committees, which do not have equivalent powers. The appointment decision must determine the subject of the inquiry. A committee of inquiry can take public evidence and “the rules of criminal procedure shall apply mutatis mutandis to the taking of evidence”. Committees of inquiry can call for persons, papers, and records, and can also request the presentation of evidence by the Federal Government, federal authorities, corporations, and public servants. The powers of Committees of Inquiry are set out in the Act and sanctions for failure to comply include “administrative” fines of up to €10,000 or imprisonment.267

Irish Parliament (Houses of the Oireachtas)

The committees of the Oireachtas have the power to compel witnesses and the production of documents. These powers are set out in both legislation and Standing Orders, which are engaged depending on the type of witness appearing before the committee. There are effectively 3 categories of witness that can appear before Oireachtas committees: voluntary witnesses; accountable witnesses; and compelled witnesses.268 Voluntary witnesses come before the committees pursuant to the Standing Orders. Accountable witnesses are persons who are legally accountable to the Oireachtas committees pursuant to legislation. Compelled witnesses are compelled pursuant to legislation. Most committees do not have powers to call for Persons, Papers and Records (PPR). The committees that do have PPR powers must seek consent to use them in writing from the Committee on Procedure and Privileges, which acts as a gatekeeper. Committees that have PPR powers can seek to run a “Part 2 Inquiry“, which is a statutory inquiry pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.269 Failure to comply with an order made by a Committee pursuant to the Act may amount to an offence, with sanctions including fines and imprisonment.270

New Zealand House of Representatives

Apart from the Committee of Privileges, which has “quasi-judicial” status, standing committees in the New Zealand House of Representatives do not have the power to send for persons, papers and records.271 Committees must apply to the Speaker under Standing Order 197 for the issue of a summons. The Speaker acts as a gatekeeper and must be satisfied that the summons is necessary to the committee’s proceedings and that all other reasonable steps to obtain evidence have been taken. Ad hoc committees, with PPR powers, can be established by resolution of the House, as occurred with the Epidemic Response Committee established in March 2020.272 The House has a range of sanctions available to it that may be applied to witnesses found to be in contempt including formal censure (written or verbal), fines (not exceeding NZ$1000) and imprisonment.273 These powers are confirmed in the Parliamentary Privilege Act 2014.274

Northern Ireland Assembly

Committees in the Northern Ireland Assembly, whether standing, statutory or ad hoc, have powers under the Northern Ireland Act 1998 to call for persons, papers and records.275 These powers are reflected in Standing Orders.276 A person who fails to comply with a notice issued pursuant to the 1998 Act is “guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a period not exceeding three months”.277 The Assembly sets out a Guide for Witnesses appearing before Assembly Committees.278 The Assembly’s Code of Conduct for Members includes applicable principles of conduct for Committee proceedings.279

Scottish Parliament

Under Section 23 of the Scotland Act 1998 the Scottish Parliament and its committees have the power to call witnesses and documents; these powers can be exercised against the Scottish Government and other Scottish public authorities.280 The powers only apply to evidence or documents which relate to a subject for which the Scottish Government has general responsibility.281 The powers are also included the Parliament’s Standing Orders.282 A person guilt of an offence without reasonable excuse under Section 25 the 1998 Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale (up to £5,000) or to imprisonment for a period not exceeding three months.283 The same applies where a person deliberately alters, suppresses, conceals or destroys any document which is required to be produced by a section 24 notice.284

US Congress

The US Congress has a variety of contempt powers, by which it can respond to certain acts that it considers to obstruct the legislative process.285 In recent times its contempt powers have been most often employed in response to non-compliance with a congressional subpoena, either summoning a person to give evidence or to request documents. Congress has three formal methods by which it can combat non-compliance, with each invoking the authority of a separate branch of government. First, there is criminal contempt of congress, which is set out in statute passed in 1857 and permits congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Second, it has “inherent” contempt powers, which permit Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with the demand (these powers are considered dormant). Third, it can appeal to the judicial branch to enforce a subpoena, seeking a judgement from a federal court that the individual in question is legally obliged to comply with the subpoena. Congress can also use its power of impeachment against an executive officer who refuses to comply with its subpoenas or interferes with its investigative authority.

Welsh Senedd

Sections 37–40 of the Government of Wales Act 2006 outline powers in relation to witnesses and documents. These powers are also set out in Standing Orders.286 Section 37(1) of the Act provides that the Senedd may require any person to give evidence or produce papers concerning “any matter relevant to the exercise by the Welsh Ministers of any of their functions … ”.287 The Senedd cannot impose requirements on a person who is not involved in the exercise of functions in relation to Wales. Under section 39 of the Act a person guilty of an offence is liable to a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding 51 weeks or both.288 The powers under the Act have not been used by a Committee or the Senedd as a whole, but the power to call for papers has been referenced by the opposition.289

252 House of Representatives, Standing Orders, standing order 236; Senate, Standing Orders, Standing Order 25(14)

253 Claressa Surtees, Clerk of the House Australian House of Representatives, (SCC0032), p. 2

254 Parliamentary Privileges Act 1987, Section 7

255 Claressa Surtees, Clerk of the House Australian House of Representatives, (SCC0032), p. 3

256 House of Commons, Standing Orders, Standing Order 108(1)(a); Senate of Canada, Rules of the Senate of Canada, Rule 12(9)(2)

257 Library of Parliament, Canada, (SCC0036), p. 2

258 Senate, Standing Committee on Rules, Procedures, and the Rights of Parliament, A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century, Seventh Report, 2nd Session, 41st Parliament, June 2015, p. 57.

259 Treaty on the Functioning of the European Union (TFEU), Article 226

260 Treaty on the Functioning of the European Union (TFEU), Article 226

261 AFCO Secretariat, European Parliament (SCC0038), p. 2

262 AFCO Secretariat, European Parliament (SCC0038), p. 2

263 French Senate (SCC0039), p. 1; see also National Assembly, The National Assembly in the French Institutions (November 2014), pp.345–347

264 French Senate (SCC0039)

265 See French Senate (SCC0039)

266 German Basic Law, Article 44(1); see German Bundestag (SCC0040)

267 German Bundestag (SCC0040) Q.3

268 Houses of the Oireachtas (SCC0041) Q.1

269 Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, Part 2

270 Houses of the Oireachtas (SCC0041) Q.3

271 David Wilson, New Zealand Clerk of the House (SCC0033), Q.1

272 David Wilson, New Zealand Clerk of the House (SCC0033), Q.2

273 David Wilson, New Zealand Clerk of the House (SCC0033), Q.3

274 New Zealand Parliamentary Privilege Act

275 Northern Ireland Act 1998, Section 44; for overview see Northern Ireland Assembly (SCCXXXX)

276 Standing Orders of the Northern Ireland Assembly, 47 and 53–60

277 Northern Ireland Act 1998, Section 45

280 Scotland Act 1998, Section 23

281 Scottish Parliament (SCC0044), Q.1

282 Standing Orders, Rule 12.4.1

283 Scotland Act 1998, Section 25

284 Scottish Parliament (SCC0044), Q.3

285 For an overview of Congress’ Contempt powers see Congressional Research Service (Todd Garvey), “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure”, (May 2017)

286 Welsh Parliament, Standing Orders of the Welsh Parliament, Standing Orders 17.50–17.51

287 Government of Wales Act, Section 37(1)

288 Government of Wales Act, Section 39

289 Clerk of the House [Dr John Benger] (SCC0016), Paras 10–14

Published: 3 May 2021 Site information    Accessibility statement