Written evidence submitted by Lord Carlile of Berriew CBE QC
In my view it is important to distinguish clearly between the respective roles of a Parliamentary committee and a court of law. They are utterly different. Muddying the waters inevitably would invite challenge.
Parliamentary committees by definition are political, customarily made up of parliamentarians in approximate proportion to the Government’s majority in the House of Commons: therefore, they cannot be defined as neutral. A court, in the context of public law the Administrative Court (part of the High Court), is made up of judges and it is by definition (and general practice) neutral. This key difference is the classic and recognised illustration of the separation of powers.
A primary role of select committees is to examine the merits of the issues upon which they are reporting, hearing evidence by reference both to the law and government policy for the time being. They do so in a relatively structured way, but the members of the committee are not obliged to construct or limit their questioning under any clear set of legal rules, can use Parliamentary Privilege to evade the law of defamation, and may deploy questioning standards that would not be permitted in a court. In addition, there are no rules of disclosure comparable to those in a court, so an individual may have justifiable concerns about the fairness of the procedure, especially if there has been considerable media attention to him/her or the issues prior to giving evidence.
One can understand the reluctance of some witnesses to testify or provide material. They would fear a ‘Star Chamber’ atmosphere, which could be far from a merits-based approach. It would be naïve to suggest that MPs are entirely innocent of using questioning for constituency reasons or other oblique and trenchantly political motives.
In my view the report underestimates the effect of criticism made by committees against individuals if they appear to have refused to appear for doubtful reasons, even if such criticism falls short of citing the individual for contempt of Parliament.
Those of us who have conducted independent reviews in various spheres are well aware of the power to ‘name and shame’, without any recourse to court orders; and are sometimes surprised that parliamentary committees do not criticise more and with great force the non-appearance of witnesses, saying inter alia that refusal means that the committee has to reach conclusions on the evidence heard, not what they do not have. Plainly this is likely to lead to uncomfortably adverse findings against a witness who has refused to attend.
Forceful criticism of the kind described above undoubtedly has the potential to, for example, lead to the dismissal of an individual from office or employment.
I believe that the powers of select committees are broadly sufficient; and that bringing the courts into any part of the procedures of committees as suggested in the report runs the risks of (a) trespass on the separation of powers, and (b) clashes with the courts of a kind comparable with the prorogation issue prior to the 2019 General Election.
For a very long time the summons to attend to give evidence has not been enforced by any coercive process.
Over a great many years committees have not reported failures to comply with a summons to attend as a potential contempt of Parliament. The sanction of being found in contempt of Parliament remains a sufficient sanction. Anything further such as is proposed by the Committee runs the risk not only of undermining the separation of powers, but also of putting committees on a collision course with the Human Rights Act.
I do understand that what is proposed in the consultation document likely would be deployed as a last resort against only the worst recalcitrants. However, any such proposal would attract immediate challenge, trenchant criticism, and exactly the same objections as to undermining the separation of powers as a power intended for everyday use.
The Committee might consider replacing the term ‘summons’ with ‘requirement’.
It will be seen from section 3 above that I do not share the committee’s analysis of the options, and oppose a legislative solution.
For the reasons given above, I do not regard the draft Bill as appropriate. I believe that present processes are adequate to deal with all witnesses. Indeed, I am concerned by the inference that refusal to provide evidence or material is too easily regarded as recalcitrance; and that there is little or no opportunity for an individual to demonstrate that they are not being unjustifiably obstructive by their refusal.
I suggest that those who do not comply should be requested to provide reasons, and in appropriate circumstances should be subject to severe criticism by the committee for failing to supply such reasons, or for the reasons themselves.
The whole concept of formal sanctions sets Parliament on a collision course with judges, who would have to consider at the very least Judicial Review principles before imposing any penalty.
It follows from the above that I consider that such legislation would be overreach by Parliament.
All parliamentary committees, in both Houses, with the power to call witnesses should be subject to new, simple and non-statutory Committee Appearance Rules [CAR], so that witnesses can understand before giving evidence the structure of questioning and the arrangements for the disclosure of documents material to their appearance. The CAR should be a living instrument, so that it can be amended in the light of experience.
I can see no good reasons, certainly none that the public would understand, why parliamentarians should not be required in appropriate cases to attend committees to give evidence.
Committees considering such a course carefully should take advice on issues of parliamentary privilege before issuing such a requirement.
25 June 2021