(SCC0067)

Written evidence submitted by the Counsel for Domestic Legislation

 

 

 

 

COUNSEL FOR DOMESTIC LEGISLATION

 

 

 

 

 

 

Committee of Privileges

 

 

 

 

_________________________________________________

 

Draft Parliamentary Committees (Witnesses) Bill

______

 

Distinguishing Between Normal and Statutory Summons

________________________________________________

 

 

 

 

Introduction

 

  1. In evidence to the Committee this morning Joshua Rozenberg QC and others mentioned the possibility that introducing penalties for non-attendance on Committees might change the general atmosphere of informal collaboration between the public and Committees. 

 

  1. It occurs to me that this potential chilling effect could be significantly reduced if the legislation were drafted so that it applies only to a summons that specifically invokes it.


 

  1. This would be similar to the approach of section 1 of the Parliamentary Witnesses Oaths Act 1871 (Examination of witnesses on oath by the House of Commons and committees of the House) which I discussed in my note to the Committee of 23 October 2019 (SCC0021).  Committees proceed with business as normal, asking questions without attracting any powers of compulsion to answer truthfully, unless and until they wish to invoke the statutory procedure at which point the oath is administered.  So far as I am aware, there is no general feeling that the use of the power by the Public Accounts Committee in 2011 when examining Anthony Inglese, General Counsel and Solicitor, HMRC has exercised any chilling effect in the case of witnesses generally or made people less inclined to cooperate with Committees.

 

  1. Under this model most summonses would issue as at present and would be formal but not enforceable.  If a Committee took the view that a particular witness was being contemptuously evasive, at that point it could choose to increase the pressure by issuing a summons under a separate Standing Order, expressly invoking the statutory provision about failure to comply.

 

  1. An additional advantage of this model would be that the gatekeeper function would be exercised before the informal summons was converted into a statutory summons, giving the House greater control over the overall policy of compelling witnesses.

 

  1. (I mentioned this idea informally after this morning’s session to Joshua Rozenberg QC and he agreed that it would significantly modify the potential chilling effect; Professor Alison Young was also attracted to it on the basis that it advances the gatekeeper process to the stage before Parliament decides to invoke potential criminal liability.)

 

 

Daniel Greenberg CB

26 October 2021

 

 

 

COUNSEL FOR DOMESTIC LEGISLATION

 

 

 

 

Committee of Privileges

 

 

 

_________________________________________________

 

Draft Parliamentary Committees (Witnesses) Bill

______

 

Prosecution of Offences

________________________________________________

 

 

 

 

Introduction

 

  1. I am asked to advise whether the new offence provided for in the Committee’s draft Bill could be prosecuted before the courts of Scotland and Northern Ireland and, if so, how the appropriate venue will be determined in particular cases.

 

 

UK wide jurisdiction

 

  1. Clause 2(3) expressly provides that the clauses extend to the whole of the United Kingdom.

 

  1. So the courts of Scotland, and of Northern Ireland, will be able to prosecute offences under clause 1, as well as the courts of England and Wales.


 

 

Choice of venue

 

  1. Since all the criminal courts in the UK capable of hearing charges on indictment will have jurisdiction in respect of clause 1, it will be a prosecutorial decision as to where to initiate proceedings in any particular case.

 

  1. This is not uncommon in relation to offences with UK-wide extent, and over the years the prosecutorial authorities have developed criteria for determining venue including: location and interests of the victim; location and interests of witnesses; and location and interests of the accused[1].

 

  1. In the case of the new offence, where a potential witness who lives and works in Scotland is summoned and refuses to attend a Select Committee meeting in London, it is likely to be thought appropriate for the case to be brought in Scotland.

 

 

Conclusion

 

  1. I will be happy to expand on this note if helpful.

 

 

Daniel Greenberg CB

8 November 2021

 

 


[1]               See Crown Prosecution Service, Legal Guidance on Jurisdiction, 26 July 2021.