(SCC0043)

Written evidence submitted by the Northern Ireland Assembly

Introduction and Background:

In 2016 the House of Commons asked its Committee of Privileges to examine “the exercise of the powers of the House in relation to select committees and contempt”. This referral followed an inquiry by the Committee of Privileges into the behaviour of witnesses before a investigative committee, which highlighted questions over the ability of the House to enforce its right to summon witnesses and impose appropriate sanctions.

In December 2016, the Committee made a request to the ECPRD – 3266, Powers of Investigative Committees or Parliament – to draw upon the experience of other Parliaments regarding Committee powers.

The Committee of Privileges’ long-running inquiry into Select Committee Powers and Contempts has since been interrupted by two General Elections. The inquiry was also suspended during the last Parliament for the duration of a separate inquiry into an alleged contempt by Mr Dominic Cummings arising from his failure to obey orders of the House and of a select committee to attend a committee hearing. The Committee reported on this in March 2019 and the House subsequently admonished Mr Cummings by formal resolution.

The Committee’s inquiry into powers and contempts has now been resumed in the new Parliament. To assist its work, the Committee of Privileges would like to again draw upon the experience of other Parliaments, in particular any relevant recent cases. The Committee would therefore greatly appreciate your response to the questions below. We intend to use any responses provided as evidence for our inquiry and will redact any contact details of submitters.

NORTHERN IRELAND ASSEMBLY

Questions:

1. What powers do investigative committees in your Parliament have to summon witnesses and call for the production of documents? Are these powers set out in legislation or in standing orders?

Under section 44 of the Northern Ireland Act 1998 (‘the 1998 Act’), a statutory/standing/ad hoc* committee of the Northern Ireland Assembly may call any person to attend the committee’s meetings or to produce documents that are in their possession or under their control that relate to transferred matters or which statutory functions are exercised by a Minister of a Northern Ireland department. This power cannot be used to compel a current or previous Minister or employee of the Crown.

The powers of the Assembly committees to call for persons and papers are also reflected in Standing Orders 47 and 53 – 60.

(*Note: The Assembly has established nine statutory committees to advise and assist each Minister in the formulation of policy with respect to matters within his/her responsibilities as a Minister (Standing Orders 46 to 49B). These statutory committees are established for the duration of an Assembly unless the Assembly determines otherwise.

Statutory committees have the powers and responsibilities described in paragraph 9 of Strand One of the Belfast Agreement (Standing Order 48(2)). These powers are:

• to consider and advise on departmental budgets and annual plans in the context of the overall budget allocation;
• to consider relevant secondary legislation and take the Committee Stage of relevant primary legislation;
• to call for persons and papers;
• to initiate inquiries and make reports; and
• to consider and advise on matters brought to the committee by its Minister.

The 1998 Act and Assembly Standing Order 51 provide for the establishment of a number of standing committees and for ad hoc committees to be established when required. Standing committees are permanent committees of the Assembly.  Like statutory committees, all standing and ad hoc committees have the power to call for persons and papers.)

2. Are there any recent examples from your Parliament of contempts relating to investigative committees, including non-compliance of witnesses summoned to appear before a Committee?

No recent examples to note.

3. What sanctions are available to your Parliament in cases of non-compliance or other contempts on the part of witnesses?

Under section 45 of the 1998 Act a person who refuses/fails to comply with a notice issued under subsection (7) of section 44 of 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.’

4. What rules and guidelines do you have to ensure witnesses and potential witnesses before select committees are treated with fairness and due respect?

The Guide for Witnesses appearing before Assembly Committees sets out general information and advice for witnesses/potential witnesses which includes, for example, provision for witnesses to be briefed by committee staff in advance to assist them in preparing for their appearance before a committee (e.g. see paragraph 16). Also, the Assembly’s Code of Conduct for Members includes applicable principles of conduct and rules of conduct (e.g. see Respect Principle on page 4 and Rule 15 on page 6).

In terms of the exercise of the section 44 power, in practice, witnesses normally attend meetings and produce documents when requested to do so. If it is necessary for a committee to exercise this power the Speaker shall notify the person in writing specifying the time and place at which they are to attend and the particular matters on which they will be required to give evidence. If required to produce documents, the Speaker will notify the person of the documents, or type of documents, to be produced, the deadline to produce them and the matters to which they should relate.

Persons are not obliged to answer any questions or produce any documents which they would be entitled to refuse to answer or produce in court proceedings.

5. What is your assessment of the effectiveness of your Parliament’s powers and sanctions to deal with contempts?

The Assembly has not undertaken either an assessment of the effectiveness of its power to call for witnesses and documents, nor of the offences for a failure to comply with its power. There is nothing to suggest there are any significant concerns.

Model Answer for the United Kingdom House of Commons:

1. What powers do investigative committees in your Parliament have to summon witnesses and call for the production of documents? Are these powers set out in legislation or in standing orders?

In the House of Commons, investigative committees have the powers to send for persons, papers and records. These powers are set out in Standing Orders. These powers mean that committees can demand that named witnesses turn up in person to give evidence and that the committees can demand that written evidence be provided to them. There are restrictions in that committees (except the Committee of Privileges and the Committee on Standards) cannot compel Members of the House to attend and no Commons committees can compel Members of the upper House (the House of Lords) to attend.

2. Are there any recent examples from your Parliament of contempts relating to investigative committees, including non-compliance of witnesses summoned to appear before a Committee?

On 28 June 2018 the House referred to the Committee of Privileges the matter of an alleged contempt of Parliament by Mr Dominic Cummings, campaign director of Vote Leave in the 2016 referendum on the UK’s membership of the EU. The allegation was that Mr Cummings had committed a contempt by refusing to obey an Order of the House that he should attend a meeting of the Digital, Culture, Media and Sport (DCMS) Committee, he having previously refused to comply with an order of the Committee itself to attend.

The Committee reported on this on 27 March 2019.[1] The Committee concluded that Mr Cummings committed a contempt both by his initial refusal to obey a Committee’s order to attend it and by a subsequent refusal to obey an Order of the House. The House found Mr Cumming in contempt, and subsequently admonished Mr Cummings by formal resolution communicated to him by the Clerk of the House.

3. What sanctions are available to your Parliament in cases of non-compliance or other contempts on the part of witnesses?

In theory, the sanctions available to the House are admonishment, either in person or by means of a motion; a fine; or imprisonment. However, in reality, the only sanction which is considered nowadays is admonishment. The House has not fined anyone since the 17th century, nor imprisoned anyone since the 19th century.

4. What rules and guidelines do you have to ensure witnesses and potential witnesses before select committees are treated with fairness and due respect?

The House of Commons does not set out comprehensive guidance for fair treatment of witnesses in its Standing Orders. A 2013 Joint Committee on Parliamentary Privilege recommended setting out guidelines for fair process and rights of witnesses in Standing Orders.[2] However, its recommendations were not adopted.

In practice, fair treatment of witnesses appearing before committees is taken very seriously. Fairness is not an externally imposed value of the courts, but a value of the House. House staff advise Members and witnesses on procedure and fair process to ensure that evidence sessions are conducted appropriately. In the majority of cases, relations between witnesses and investigative committees are constructive and cooperative. However, relations can sometimes be combative or even hostile. This is most acute in cases when a committee examines issues at the interface between private individuals or companies and ministerial or departmental responsibilities.

Regarding the context in which Committees operate, the former Clerk of the House explained in a memorandum to the Committee:

“Commonly, the comparison is made with judicial hearings and the conduct of courts in dealing with witnesses. However, select committees act in a political rather than judicial context and it should not be expected that a committee will be bound by the same rules as apply in a court when faced by a recalcitrant witness. Nevertheless, the reputation of select committees and the House as a whole could be at risk is if a witness were seen to be treated in an unfair or unreasonable manner.”[3]

5. What is your assessment of the effectiveness of your Parliament’s powers and sanctions to deal with contempts?

The ability of the House of Commons to enforce its powers over reluctant witnesses and the sanctions available where witnesses do not comply with orders or give misleading evidence have been the subject of a number of parliamentary reports, notably in 1999 and 2013. Different committees have considered there to be a problem but have disagreed on the appropriate option for reform.  The three options generally considered are: 1) to do nothing; 2) to reassert existing and historic powers; or 3) to legislate to provide a statutory enforcement regime. In recent times there has been a majority view that to do nothing is not a viable option.

Concern over the effectiveness of Parliament’s powers to deal with contempts has more recently been highlighted by the case of Mr Cummings.[4] The Committee concluded in its Report that the case “raised further questions as to the enforceability of the House’s powers and those of its committees to secure evidence”.

July 2020