(SCC0046)

Written supplementary evidence  from Sir Malcolm Jack KCB, Former Clerk of the House

1. In previous evidence to the Committee, I have suggested that the Australian Privileges Act 1987 would be a good model for the House of Commons to adopt, with necessary modifications as I have outlined in my memorandum (SC0022). My view is that the opportunity should be taken to codify privilege more widely rather than for legislation only to cover the narrow matter of witnesses’ non-compliance with Select Committee requests. Legislation should apply to Parliament as a whole.
2. I turn to answering the consultation questions:

• What is the primary role of select committees and what should be the practical limits of the application of their powers (as delegated to them by the House)?

While the reforms of the Select Committee system of the late 1970s focussed on their role as scrutinisers of government departments, increasingly Select Committees have broadened their scope to examine matters of public interest, for example into areas to do with climate change and sustainability. This is a return to the traditional, wide areas of Select Committee investigations of the nineteenth century, for example into slavery.[i] The new areas of interest will   involve summoning witnesses from outside Whitehall and Academe, less attuned to Westminster conventions and practices. Select Committees in any case report to the House; their terms of reference are set out in the Standing Orders.

• Do you agree with our assessment of the three options, and our conclusion that a legislative solution is the best available option?

Yes.

• Do you think the proposed draft Bill provides an appropriate solution to the issue of recalcitrant witnesses before committees?

It’s too narrow in scope. I would prefer that it was set in a broader privilege context as is the case in the Australian Privileges Act, 1987.

• What do you think the maximum sanction should be for an individual found guilty of an offence of failure to comply with a summons?

Fine to be determined by Court and imprisonment perhaps 6 months is adequate.

• Should the legislation be extended to encompass the enforcement of sanctions related to other contempts, or to make equivalent provision for House of Lords committees, or to deal with any other matters relating to parliamentary privilege?

Yes, I think I make my view clear in paragraph 1 above. Privilege extends to both Houses of Parliament and legislation should not be confined to the Commons alone.

• How should the House set out its internal processes and commitment to fair treatment in a way that provides sufficient due process, whilst maintaining the flexibility and effectiveness of the current select committee system?

A properly worked-out Code for fair treatment must be established and incorporated into Standing Orders so that witnesses know exactly what rights and duties they have. Protection of witnesses from interference should be incorporated in the legislation as it is in the Australian Act.[ii]

• The draft Bill provides a power to summon non-Members to attend or to provide information or documents to a committee. Should equivalent powers be included to summon Members of the House, or for a committee of one House to summon Members of the other House?

Both Houses have Codes regulating behaviour expected of Members and disciplinary powers. Therefore probably not necessary.

• Are there any other issues within the scope of the matter referred to us - "the exercise and enforcement of the powers of the House in relation to select committees and contempts" - that you think should be dealt with in our final recommendations to the House?

This takes us back to paragraph 1 above where my view is that codification of privilege is long overdue, and a Parliamentary Privileges Act is needed to provide an accessible, modern code as recommended by the Joint Committee on Parliamentary Privilege, 1998-99.[iii]

21 May 2021