(SCC0045)

Written evidence submitted by Alexander Horne

 

This submission is an expanded version of an article first published by Prospect entitled Should select committees be able to compel attendance? That article argued that the Privilege Committee’s proposals risk blurring the line between Parliament and the courts. This submission also considers some technical issues with the proposed draft Bill itself.

Parliament’s select committees are one of its success stories. Committee hearings can be both enlightening and great theatre, and they can sometimes throw light on serious issues that have been overlooked by the government or regulatory agencies. Nonetheless, the question of whether committees have adequate powers has been considered repeatedly over the last few decades, including by two joint committees in 1999 and 2013.

On 3rd May, the Commons Privileges Committee published a new report on select committee powers, looking to strengthen the ability to call for persons, papers and records. One of the reasons for this is a number of high-profile cases in the Commons in which individuals have been reluctant, or have simply refused, to appear before a committee (recent examples include Mike Ashley and Dominic Cummings­though the former did eventually attend and the latter has since agreed to appear at high-profile hearings in a different context).

The Privileges Committee has proposed a Parliamentary Committees (Witnesses) Bill, which would introduce new criminal offences of refusing to attend a summons, and failing to provide information or documents, without a reasonable excuse. These offences would be sanctioned by a court, with a sentence of up to two years imprisonment or a fine.

These are important proposals and, clearly, a desire to be able to call witnesses to inform an inquiry is a reasonable one. But this does not mean that recalcitrant witnesses should be threatened with criminal sanctions and, in my view, new legislation is not justified.

Parliament’s main functions are to legislate and to hold the government to account. The second of these rightly involves the interrogation of witnesses by committees. However, it has been a troubling feature of recent years that select committees are increasingly perceived as a way to hold famous, often unpopular, individuals to account where there have been regulatory failures, rather than ministers and other government decision makers. The new proposals risk reinforcing this focus on rogue individualsand creating a lot of constitutional trouble in the process.

Parliament was once a court as well as a legislatureuntil 1948, members of the House of Lords could opt to be tried by their peers. The Appellate Committee lasted rather longer, until it was replaced by the Supreme Court in 2009. Today, references to the High Court of Parliament are archaic and the Chair of the Privileges Committee, Chris Bryant MP, has recognised that longstanding concerns about committee powers are now sufficiently well understood that some individuals have point blank refused to appearhaving been told by their lawyers that Parliament has no real powers to enforce attendance.

Yet Parliament does not currently possess the legal capacity to run the type of fair hearing that would be needed to forcibly examine the conduct of private individuals. It employs only a small number of lawyers with knowledge of human rights and criminal law. Nor is it a venue that is well suited to investigate the conduct of individuals or businesses: it runs on a political, rather than a legal, timetable; there would be real questions about fairness; and a risk of usurping the legitimate functions of independent regulators and the courts.

For all their merits, committees are political venues where politics and public opinion can count as much as the evidence that is presented. The report accepts that committees are a political arena, noting that “due to their political context, although relations between witnesses and select committees are usually constructive and cooperative; there are occasions where the relationship can become combative and even hostile.” Potential witnesses may well have legitimate concerns about their treatment by what have sometimes been dubbed celebrity chairs, who may be looking to feature in the news headlines.

MPs would need significant guidance to run investigative hearings, where witnesses could be compelled to give evidence. There is no right of appeal from a select committee, and individuals are precluded from challenging committee conclusions in the domestic courts, even if they feel that they have been defamed. This is a result of parliamentary privilege and Article IX of the Bill of Rightswhich provides that proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliamentand was affirmed in 2003 by the European Court of Human Rights in the case of A v UK. While committees may be unable to impose any direct penalty on individuals, their findings may be reputationally damaging and lead to subsequent difficulties for those in regulated industries.

The new proposal is said to contain two safeguards. First, a gatekeeper decision maker” (which it is suggested should be the Privileges Committee) to consider applications by committees to use the power to summon. This may stop the most egregious abuses, but is still a weak form of self-regulation which allows for political decision making. If there were to be a gatekeeper function, it is arguable that it should be conducted by the impartial Speaker’s Office rather than by another select committee.

The second safeguard is said to be the fact the courts would take the enforcement role. This risks getting the courts entangled with essentially political questions. It is notable that the report highlights a need to “limit scope for the court to consider wider questions about internal House or committee processes, or the merits of the summons.” Yet this is exactly the type of question that a court might be asked to consider and it could go to the heart of whether a summons is legitimate and whether an individual’s human rights have been breached. Clause 1(4)(b) looks suspiciously like an ouster clause, designed to retain the substance of Article IX. It could potentially place the courts in some difficulty. While Parliament and persons exercising functions in connection with proceedings in Parliament are not public authorities for the purposes of section 6 of the Human Rights Act 1998, the courts are and could be placed in an invidious position in circumstances where it appeared that a committee was acting oppressively.

An aggrieved party could also potentially bring a claim to the European Court of Human Rights since Article IX only binds the domestic courts.

There are other practical hurdles. A number of the well-known cases in which witnesses have either been reluctant, or have simply refused, to attend involve people outside the jurisdiction (for example in the Kraft/Cadbury case; Rupert Murdoch and Mark Zuckerberg). People in this category are unlikely to be caught by the new powers.

While clause 1 of the draft Bill applies to “individuals”, it is not clear how the legislation would apply to ministers and officials. At present, it is not possible for a committee to summon a Member of either House. While it is, in theory, possible to summon officials, the Government will often seek to rely upon the Osmotherly Rules which restate the primacy of the principle of ministerial accountability and set out a number of restrictions on civil servants’ engagement with select committees. It would be remarkable if the new powers made it easier for committees to hold private citizens to account, while leaving ministers and senior officials in a separate, privileged, category.

Compelled witnesses might bring their legal team to hearings and it would be important to clarify whether individuals would have a right of protection from self-incrimination, or would be required to disclose legally privileged material. Further questions are likely to be raised about personal data subject to the requirements of the GDPR. These issues may all be caught by the “reasonable excuse” defence – but the absence of clarity risks costly litigation.

Moreover, there have been a number of cases which demonstrate that committees are not always respectful of other disclosure regimes. These include an incident in 2011 when the Public Accounts Committee forced HMRC lawyer Anthony Inglese to give evidence under oath and suggested that taxpayer confidentiality should be overruled by parliamentary privilege. More bizarrely, in 2018, the DCMS Committee asked the serjeant-at-arms to seize papers relating to Facebook. Facebook had argued that materials obtained by the DCMS committee were subject to a protective order from a court in the United States restricting their disclosure. Neither incident showed Parliament in a particularly good light.

Given that Article IX of the Bill of Rights appears to preclude the use of evidence obtained by committees in any court or place out of Parliament, there could also be some limitations on its utility.

Finally, the Bill only applies to witnesses summoned by the House of Commons. It is not clear why the Lords have been excluded from its provisions (since select committees in the Lords may conduct equally important work). Perhaps it is perceived that Lords committees do not face the same challenges summoning witnesses. However, this raises a technical issues: it is far from clear whether clause 1 of the Bill would apply to witnesses who are summoned by a joint committee of both Houses.

This proposal has the potential to open a can of worms, without leading to better outcomes. Politicians and the public will draw their own conclusions if a proposed witness repeatedly refuses to attend a select committee hearing. A former clerk of the House of Commons, David Natzler, rightly observed while in post that softer powers are available, including “the pressure of public opinion; the requirements on individuals to demonstrate that they are ‘fit and proper persons’; [and] the risk that failure to co-operate will be interpreted against them.” Natzler’s position is presumably predicated on the fact that it is impossible to turn back the clock and stop committees from pursuing private individuals for alleged misconduct.

Parliament should not be turned into a court of public opinion. Rather than trying to chase down a reluctant individual who they anyway do not have the right tools to investigate, often the time and attention of a committee would be better used holding ministers and executive agencies to account to ensure that problems do not recur. I would urge parliamentarians to think again about implementing new legislation.

Alexander Horne is a barrister. He worked in Parliament for a variety of committees between 2003-2021, including the Joint Committee on Human Rights. Most recently he was the legal adviser to the European Union and International Agreements Committees. This submission is sent in a personal capacity.

 

7 May 2021