Written evidence submitted by the Scottish Parliament

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?

The power to call witnesses and documents is contained in section 23 of the Scotland Act 1998 (the 1998 Act), but should be read with sections 24, 25 and 26 which together confer upon the Scottish Parliament and its committees the necessary powers to hold the Scottish Government and other bodies exercising the functions of a Scottish public authority to account.

The power in section 23 of the 1998 Act to call witnesses and produce documents is applied to committees by section 23(8) of the 1998 Act and Rule 12.4.1 of the Parliament’s Standing Orders.

The power to require any person to attend the Parliament’s proceedings for the purpose of giving evidence or to produce document only applies to evidence or documents which relate to a subject for which the Scottish Government has general responsibility.

To exercise the powers, a notice would be issued by the Clerk under section 24 of the 1998 Act specifying (i) the time and place at which attendance is required and the matters upon which evidence is required, or (ii) the documents, or types of documents, which must be produced, the date by which they must be produced and the particular subjects concerning which they are required.

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?

There are no examples of a person refusing to attend proceedings for the purpose of giving evidence or failing to produce document under section 23 of the Scotland Act. A letter from the Public Audit Committee to the then Scottish Government Permanent Secretary in 2009 concerning the provision of information may be of interest. The letter stated:

I would also draw your attention to the powers of the Scottish Parliament under section 23 of the Scotland Act 1998. These powers, in conjunction with Rules 12.4.1 of the Parliament’s standing orders would enable the Committee to compel the production of this information. Clearly, it would be regrettable if the Committee was required to use these powers to gain access to this information, particularly as this would be the first occasion for the Parliament having to do so. The Committee accordingly invites you to take note of the foregoing comments and to review your decision in relation to the application of the Data Protection Act.

If, following review, you remain of the view that disclosure is prohibited under DPA the Committee has indicated that it would be strongly minded to overcome this obstacle by imposing a requirement for disclosure under Section 23.

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

Section 25 of the 1998 Act sets out the offences for not complying with a notice requiring a person to attend proceedings or produce documents:

15 (1) Any person to whom a notice under section 24(1) has been given who—

(a) refuses or fails to attend proceedings as required by the notice,

(b) refuses or fails, when attending proceedings as required by the notice, to answer any question concerning the subjects specified in the notice,

(d)refuses or fails to produce any such document,

is guilty of an offence.

A person found guilty under this section 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. 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. However, section 25 (3) provides that it is a defence for a person charged with an offence under subsection (1)(a). (b) or (d) to prove that he had a reasonable excuse for the refusal or failure. There are also a number of restrictions relating to the exercise of the section 23 power where it relates to a criminal prosecution, the criminal prosecution system or a situation in which a person would be entitled to refuse to answer or produce a particular document in court proceedings.

In addition, under Section 26 a person can be required to take an oath and, if they refuse to do so, they are subject to the same offence as the one set out in Section 25. Rule 12.4.2 of the Standing Orders provides for a Convener to administer an oath or a solemn affirmation to any person giving evidence in committee proceedings and requires that person to take an oath or make a solemn affirmation.

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

There are no specific rules or guidelines to ensure that witnesses or potential witnesses are treated with fairness and respect. The Standing Orders include the following requirement in relation to Order in the Chamber (Rule 7.3.1), which also applies to proceedings at meetings of committees and sub-committee:

“Members shall at all times conduct themselves in a courteous and respectful manner and shall respect the authority of the Presiding Officer.”

This requirement, as well as the Standing Order requirement that members must respect the authority of the Convener, are restated in the Code of Conduct for MSPs..

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

The letter quoted in response to question 2 provides an example of the powers being set out by a committee to support the request for the production of documents. This would suggest that the existence of these powers may be persuasive in encouraging a person to attend proceedings or produce documents.

Katy Orr

Clerk to the Standards, Procedures and Public Appointments Committee

10 July 2020