(SCC0050)

 

Written evidence submitted by Sir Jonathan Jones KCB QC (Hon)

 

 

  1. This is a response to the consultation contained in the Committee’s First Report of Session, 2019-21 (HC 350) (“the report”).  It is provided in my personal capacity, but I draw on:

 

(i)                  my experience as a government lawyer for over 30 years, and latterly as Treasury Solicitor and Permanent Secretary of the Government Legal Department (2013-20), and

 

(ii)                experiences within Linklaters LLP, where I am now employed as a Senior Consultant, in advising clients who are asked to give evidence to Parliamentary committees.

 

Introduction

 

  1. Select Committees perform an important role – in holding the government to account, and in investigating and analysing issues and events of public interest and concern.  At a time when Parliament is at risk of being side-lined by the executive on some of the major policy issues of the day (see, for example, the limited ability of Parliament to scrutinise the large volume of secondary legislation made by Ministers to respond to the coronavirus pandemic; or the similarly limited opportunities to debate the Brexit deal or the consequences of EU exit), proposals to enhance the effectiveness of committees merit serious consideration.

 

  1. On the other hand, there will always be limits to what select committees realistically can and should do.  In particular they are not courts of law and it is not their job to determine criminal or civil liability.

 

  1. There is a strong argument that the first priority of select committees should be scrutinising the operations of government, holding Ministers to account, and upholding high standards of conduct on the part of Ministers and MPs.  These are areas where, I would suggest:

 

(a)   select committees are most likely to be effective given the knowledge, experience and tools they can bring to bear;

 

(b)   there is the most pressing gap in scrutiny given the side-lining of Parliament more generally, as mentioned, and given current concerns about standards of conduct in political and public life;

 

(c)    lack of enforcement powers is less likely to be a problem given (it must be assumed) Ministers and other parliamentarians will usually co-operate with committees voluntarily, and they are amenable to sanctions (e.g. suspension with or without pay) which are not available to non-members.

 

  1. Once select committees assert a jurisdiction going beyond Parliament and government, the problems discussed in this consultation arise, including the question of powers and sanctions (or their absence) against non-MembersNonetheless the practice of committees conducting such wider inquiries is well established and undoubtedly has made an important contribution to public debate and governance.  On the assumption that this will continue, my view is that priority should be given to taking forward the proposals set out in section 3 of the report, on fair treatment of witnesses – and that this should be done whichever of the three main options (a) to (c) is pursued.  (In that sense perhaps “do nothing” is a misleading label, because there are things than the House can and should do to improve its committee procedures, even if it decides to do nothing about its powers of compulsion and sanction.)

 

Fair treatment of witnesses

 

  1. Paragraphs 114-121 of the report set out the current arrangements for ensuring the fair treatment of witnesses.  Well-intentioned though they are, these arrangements do not amount to a clear or satisfactory code.

 

  1. Select committees are not courts: their members are not judges, and they do not benefit from any of the apparatus or procedures which would apply to a civil (let alone criminal) case – pleadings/statements of case, disclosure, rules of evidence and so on.

 

  1. Yet for some witnesses, appearance before a select committee can feel like a trial.  As noted in the report:

 

“committees tend to operate in different ‘modes’ … there are occasions where the relationship [between witness and committee] can become combative and even hostile” (paragraph 116).

 

  1. So while it is undoubtedly true that “select committees operate in a political rather than judicial context” (para 116 of the report), from the point of view of a witness who fears that he/she may be subjected to hostile examination, and that his/her conduct may be seriously and publicly criticised, this merely restates the problem. Even if there are ultimately no adverse findings against an individual, an appearance before a committee which is perceived (whether fairly or unfairly) to have gone “badly” for someone can be seriously damaging to their personal and professional reputation, their businesses or careers.

 

  1. What is needed therefore is a clear set of rules or code which covers the following:

 

    1. the scope and purpose of any given select committee inquiry or hearing – what it is, and is not, designed to achieve;
    2. what procedure will apply to any evidence session; and
    3. what protections are available to witnesses. 

 

  1. In other words, as Nigel Pleming QC has put it[1], witnesses need to know the “rules of game” before they give evidence.

 

  1. I do not attempt to set out here a comprehensive blue-print for such a code.  No doubt it would cover some of the areas already covered in the current guidance and practice mentioned in section 3 of the report.  But it needs to go much further, and cover as a minimum the following:

 

    1. It should be made clear that it is not the function of a select committee to determine any person’s civil or criminal liability.  In this respect, compare section 2 of the Inquiries Act 2005:


“No determination of liability

(1) An inquiry panel is not to rule on, and has no power to determine, any person's civil or criminal liability.

(2) But an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes.

 

    1. The scope and purpose of any given inquiry should be set out clearly in advance.  Advance notice should be given to witnesses, with as much specificity as possible, about the areas and topics to be covered in questioning.  That is particularly important where witnesses are to be asked about their own conduct (or omissions) and where there is any risk that they will be personally criticised.  Not only is this a requirement of basic fairness; it is also likely to lead to a better-prepared and more productive session. It should not be assumed that witnesses have perfect recall or complete knowledge of everything that happens in their organisations: advance notice will enable them to obtain the best information (or suggest other witnesses within the organisation who can provide it).

 

    1. Alongside that, it should be responsibility of the chair to ensure that questioning is kept strictly within the areas set out in advance – again in the interests of fairness to the witness and an effective process.

 

    1. The rules should provide clarity about the circumstances in which a witness can decline to answer questions or produce evidence, in particular on grounds of:

 

 

Compare section 22 of the Inquiries Act 2005:

 

“22 Privileged information etc

(1)   A person may not under section 21 be required to give, produce or provide any evidence or document if […] he could not be required to do so if the proceedings of the inquiry were civil proceedings in a court in the relevant part of the United Kingdom […]”.

 

    1. There may also be advantage in making clear how other categories of evidence are to be handled, for example evidence whose disclosure might be damaging to national security, the economy or other aspects of the public interest[2]; and what provision is to be made for hearing particular kinds of evidence in private.

 

  1. A code along these lines would greatly enhance confidence in the fairness of committee proceedings, and provide substantial reassurance to witnesses.  Indeed, such a code might go a considerable way to solving the problem of reluctant witnesses, who might otherwise be unwilling to appear before what they fear may be a “kangaroo court”.  Thus, even combined with option (b) (“doing nothing” on powers and sanctions), such a codification of procedures and protections could significantly enhance the effectiveness of committees and the willingness of witnesses to co-operate with them.

 

Options (a) to (c)

 

  1. On the basis that measures to improve the fair treatment of witnesses should be taken forward in any event, I agree broadly with the characterisation of the three options in the report namely (a) do nothing, (b) reassert the House’s existing powers, or (c) legislate – and with the analysis of the pros and cons of those options.

 

  1. I agree in particular with the decision to reject option (b).  For the reasons set out in the report, I consider that any attempt to assert penal powers against non-Members by standing orders or by resolution would be fraught with risk.  This would include a significant risk of legal challenge in the courts, on the basis that such an assertion of powers was of no legal effect, or that their exercise amounted to a breach of the European Convention of Human Rights or common law principles of legality or fairness.  Hence pursuing option (b) would be liable to lead to a position which was less clear and stable than at present, rather than more.

 

  1. As between options (a) and (c) I consider the position is quite finely balanced – particularly if, as I have suggested, improvements to the treatment of witnesses might encourage co-operation even in the absence of new powers. I agree also that there is no straightforward solution.  Again the report fairly sets out the pros and cons.

 

  1. From what is said above about option (b), it follows that doing nothing (option (a)) would involve accepting that select committees have no powers of compulsion or sanction against non-Members beyond “naming and shaming”. On the other hand, as the report recognises, option (c) would inevitably give the courts a role in examining proceedings in Parliament in a departure from the principle of “exclusive cognisance”, at least to the extent of assessing whether a witness had any reasonable excuse for failing to comply with a summons from a committee, and determining what punishment to impose.  In theory that could include seeking evidence from Members or officials.  However, I note that there are in any event historic precedents of the courts exercising supervision over the limits of Parliament’s powers to punish for contempt[3]If the legislation were crafted sufficiently tightly (as proposed in the draft Bill at Annex 4 to the report), in practice the degree of judicial intervention ought normally to be limited.  Finally, I note also the numerous examples of other legislatures whose powers are backed by statute, including those in Northern Ireland, Scotland and Wales.  On that basis, I can see that the advantages of option (c) might outweigh the disadvantages.

 

 

8 June 2021

 

 

 


[1]              Quoted in paragraph 120 of the report.              

[2]              Cf Inquiries Act 2005, sections 22(2) and 23.

[3]              See the discussion in the written evidence of Professor Tom Hickman QC and Harry Balfour-Lynn (SCC0031), paragraphs 59-64, and the cases cited there.