Written evidence submitted by the Counsel for Domestic Legislation
COUNSEL FOR DOMESTIC LEGISLATION
Committee of Privileges
Draft Parliamentary Committees (Witnesses) Bill
- I am asked to advise the Committee on a number of issues raised during consultation on the draft Bill attached to the Committee’s First Report on Select Committees and Contempt published on 2 May 2021.
- This note should be read together with my earlier notes.
- A large number of offences across the statute book are qualified by a defence of reasonable excuse.
- The courts are used to determining the application of these qualifications as a matter of fact and degree.
- It is true, of course, that it is only reasonable to expect the courts to operate qualifications of this kind where the statutory context gives sufficient indication of the legislative intent behind the qualification.
- In my opinion, there is sufficient guidance on the face of the clause as drafted for the courts to be able to apply this qualification in accordance with their normal practice. I would also expect the senior courts to feel able to give guidance in decided cases on the meaning of the term in this particular context, should confusion or difficulty arise.
- Taking subsections (1) and (5) together, I would expect the courts to consider that a reasonable excuse might be constituted by matters arising out of a person’s personal circumstances, such as illness or domestic emergency. I would also expect the courts to be prepared, relying on subsection (4)(a) to consider whether the arrangements around the Committee’s summons provided a reasonable excuse: for example, summoning somebody at short notice without giving them a reasonable opportunity to make alternative arrangements to cover their trade or professional commitments.
- In accordance with subsection (4)(b), I would expect the courts to decline to consider whether the Committee’s inquiry was reasonable. But in reliance on subsection (4)(b) I would expect them to be prepared to consider whether in the context of an inquiry it was reasonably necessary to summon a particular witness. So, for example, the CEO of Facebook might claim a reasonable excuse where the Committee’s summons indicated that the kind of information they sought to acquire was information that could readily be given by a junior employee, and the CEO considered that the summons had more to do with a grand-standing opportunity to make headlines than with a genuine desire to question him or her on matters as to which they had special knowledge.
- Again, this would be a matter of fact and degree for the court. In so far as it represents an interference in the Committee’s decision-making process – which it clearly does – it is the inevitable price to pay for attaching a criminal sanction to a requirement to attend a Committee. As I have explained before, it is inconceivable today that the public would accept an unconditional and unregulated right to attach a criminal sanction to attendance (nor would it be compatible with the European Convention on Human Rights). The courts are the appropriate gatekeeper in this context, and I am confident that they would be able to operate it in accordance with their established practices and procedures, without being drawn into unacceptable politicisation (which the judges generally wish to avoid as much as or mor than anyone else) and without permitting themselves to interfere in the substance of Parliamentary proceedings.
- In accordance with established criminal practice, it would be for the defendant to raise a plausible issue as to whether they had an excuse, and once they were able to do that it would become part of the burden for the prosecution to rebut the defence in order to obtain a conviction.
- It would be sensible for explanatory material (or, possibly, guidance – as to which see below) to set out examples of circumstances in which Committees would certainly consider that a person had a reasonable excuse for non-attendance.
- Consideration should also be given to the likely role of prosecutorial discretion in the application of the clause – something on which the Committee may wish to take separate evidence.
- As to subsection (4)(a) and the phrase “nature and purpose”, it should be noted that this is tied to the summons, and expressly excludes consideration of wider aspects of the Committee’s proceedings. That should be sufficient to support the judges in their natural inclination to avoid being drawn into political and Parliamentary questions.
- Of course, it is theoretically possible that the courts might seek to use subsection (4)(a) as a way of pushing the boundary towards regulation of Committees’ substantive proceedings. As well as being extremely unlikely, in the event that the courts had any wish to do this, they would have an opportunity even if this were a simple criminal offence without any qualification of reasonable excuse or defence whatsoever, by invoking the applicable provisions of the European Convention on Human Rights, in the way that I have explained in previous evidence to the Committee.
- Ultimately, of course, if Parliament felt that the qualification was being relied upon to permit the courts to interfere in Parliamentary proceedings, the remedy would lie in amending legislation.
- For the reasons given, and in accordance with my previous evidence to the Committee, I am satisfied that the clause as drafted in this respect represents an acceptable and lawful criminal sanction for attendance or non-attendance upon a Committee.
- The Committee’s draft enables the Speaker to certify the facts of failure to comply with a summons, and requires the courts to accept that certificate as final.
- It is not unprecedented for a decision of the Speaker to be given statutory authority; the most obvious example being certification of a Money Bill under the Parliament Act 1911.
- It is true that this element of the Committee’s proposal makes this an offence of strict liability in some respects, and is unusual (although of course the whole clause is “unusual”). It is necessary, however, in order to protect Parliamentary independence in relation to core issues of fact and process.
- One of the key defects in the alternative draft bill submitted to the Committee by Professor Tom Hickman QC (there are others) is that it requires the courts to determine, as part of the factual components of the offence, the adequacy of compliance with the summons in general and, in particular, whether purported answers to a Committee are in fact sufficient answers and whether certain kinds of concealment are deliberate (notoriously difficult to prove). In that and other ways, the alternative draft clause inevitably involves the judges in determining aspects of the operation of Committees that should be within the exclusive cognisance of Parliament. Politicisation of the judges in this respect, something that the judges generally deprecate as much as Parliament, can only be avoided by ensuring that the objective facts of compliance with the summons are determined by Parliament alone in accordance with clear and objective criteria set out on the face of the clause and operated in accordance with procedures as discussed below.
- This does go beyond the strict liability of other offences: but it is not entirely without parallel. In the field of regulatory law there are offences of failing to comply with notices issued by regulators where those notices themselves turn on the regulators’ assessment of earlier facts and events. Put another way, if this offence were crafted by allowing the Speaker to issue a warning or enforcement notice to a recalcitrant witness, and making it an offence to comply with the warning or enforcement notice, the facts underpinning the notice would effectively have been withdrawn from the courts in the same way as for other regulatory offences. The provision is not crafted in this way for reasons of simplicity and transparency; but as a matter of jurisprudential policy the principle is the same.
- On that basis I am satisfied that the clause as draft is compliant with Article 6 of the ECHR, primarily because it makes culpability a question for the courts and the courts alone, as a result of the qualification of reasonable excuse defence. (I am additionally influenced by the fact that a statutory statement of finality along the lines of clause 1(3) is not absolute, and will itself be subject to oversight of the courts in accordance with established administrative law principles.)
Witnesses’ personal privileges
- In his alternative draft bill Professor Hickman introduces a protection whereby witnesses may not be compelled to give evidence or provide information that they could not be compelled to produce in civil proceedings in the High Court. This is said to be aimed at protection against self-incrimination, but it would also cover legal professional privilege which could be a very significant limitation in the context of Committee proceedings.
- At present, Parliament does not accept any excuse from a witness for failing to answer a question by reference to self-incrimination, legal professional privilege or any other matter. There will be occasions on which Parliament feels inhibited from asking questions for reasons of that kind or for other reasons (including sub judice); but in its Sovereignty, Parliament denies that it is bound by legal inhibitions of that kind.
- The question is, if Parliament requires the support of a criminal offence, does it also have to lose that degree of potential breadth of action?
- In my view, this is one of the most difficult aspects of the proposed law: on the one hand, a simple qualification of the kind proposed by Professor Hickman (which is drawn from regulatory and other precedents) could render the entire process effectively nugatory. In this respect, I am more concerned about the potential extent of legal professional privilege than I am about self-incrimination: although even there, so long as it remained possible for a witness to claim self-incrimination protection rather than for Parliaments to apply self-denying ordinances as at present, the qualification could be used significantly to undermine the effectiveness of the provision.
- On the other hand, there are ECHR compatibility and general justice considerations about permitting questioning without any constraints at all.
- In my view, this is an area which should be explored with witnesses at this point not as a question of drafting but as a question of policy. Judges and others should be invited to comment on the importance of different aspects of privilege as presently operated before the courts. The Committee can then take a policy view as to how far those privileges should be extended before Select Committee proceedings. Finally, it can be determined whether those privileges, if they are to be applied, should be applied by express inclusion within the reasonable excuse defence, or in some other way.
- I understand that a number of consultees have expressed interest as to how the practical arrangements for Speaker’s certification and other matters would work. As I have said before, public acceptance, ECHR compatibility and wider justice considerations will all depend largely on the practical arrangements for the operation of this law, and not by the terms of the clause itself.
- In particular, having an authoritative gatekeeper process for the application of the law within Parliament will mitigate the risks of individual rogue Chairs or Select Committees seeking to apply this in ways that would be difficult to justify on any dispassionate grounds.
- With this in mind, I believe that the Committee will wish to begin to draw up internal guidance and practice notes for the operation of this clause as soon as possible, so that the developing statutory provisions can be considered against the Standing Orders and other quasi-legislation that would be used to operate them (and which could, in principle, be placed on a statutory basis – something the desirability of which can again only be considered once the proposed extent of the quasi-legislation is known).
- I would be happy to be involved in that process.
- I will be happy to expand on any matter on this note that would be helpful.
Daniel Greenberg CB
21 October 2021