(SCC0059)

Written evidence submitted by Paul Evans

 

Introduction

1.              This submission responds to the Privileges Committee’s consultation on its proposal in its First Report of Session 2019-21 for legislation relating to the power of committees to call for persons, papers and records. I believe that the Committee’s proposed legislation to create a criminal offence of failure to comply with an order to attend a select committee or surrender documents is a sensible if limited approach to the challenge of clarifying and strengthening the powers of committees in this respect.

 

2.              I have responded to each of the Committee’s questions below. I have also appended a draft standing order to deal with some of the issues raised.

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)?

3.              Clearly, the primary role of select committees is to hold the government to account in detail for its policies, its use of public money and its administrative effectiveness, on behalf of the whole House and the electorate. But the state is not the only actor which holds sway over the lives of citizens and their health, wealth, happiness and even freedom. Paragraphs 16-18 of the Liaison Committee’s September 2019 report on the Effectiveness and Influence of Select Committees seems to me to deal with this well, and express what members of those committees see as their role.  The conclusion that committees should and must address the holders of power in the private sector as well as in government is not new. Indeed, the report quotes a 2012 report from the Liaison Committee which sums up the case very well:

… in a growing number of cases, third parties—including private sector bodies—can be the focus of committee inquiries. Increasingly, the private sector is involved in delivering public services, and committees have a legitimate interest in scrutinising how taxpayers’ money is spent. And some private sector services are of such concern that the public expect the committee to intervene, filling the accountability gap.

The Liaison Committee in 2019 went on to suggest an amendment to Standing Order No. 152 to capture this point. Although the Government response did not consider this necessary it did note “As the Liaison Committee itself recognises, select committees are already able to interpret their own remit”. In other words select committees’ secondary role in holding non-government actors to account is inherent in their primary role. It is for the House to support them in that.

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

4.              I believe the Privileges Committee gave a balanced consideration to the options and rightly concluded that a legislative solution was the neatest and most convincing solution, and that the acknowledged risks of potential conflict between Parliament and the courts were entirely manageable.

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

5.              Yes, insofar as it goes. It is wise not to be over-prescriptive in an area where the particular circumstances of any case are unpredictable. In particular, clause 1(4) seems to me to be an elegantly laconic way of expressing the important point that the courts should not seek to interpose their views on the political appropriateness of a committee’s choice of witness or on a committee’s internal proceedings when coming to a judgement.

 

6.              It is not entirely clear to me that attending a committee but refusing to answer questions without reasonable excuse would be an offence under the bill as presently drafted.

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

7.              The sanction proposed in subsection (2) of clause 1 of the bill seems to me appropriate. In particular, I think an unlimited (either minimum or maximum) fine provision is right, given the very different circumstances that are likely to pertain to the economic situation of recalcitrant witnesses, as well as to the degree of unreasonableness of their defiance. The courts should be trusted to pitch a fine at an appropriate level to discourage others contemplating defying a committee summons while not being oppressive to individuals. I believe the courts would only have resort to imprisonment in the very gravest of cases, or very rarely where a short, sharp shock seemed to them the most appropriate response.

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?

8.              There are two very distinct parts to this question.

 

9.              On the matter of whether the law should be extended to committees of the Lords, that is a matter for that House to decide. Even if the bill were introduced as it stands, the Lords could amend it to include their committees if they wished. I can see no objection of principle to such an extension.

 

10.              On the question of extending the provisions to other contempts, I think the issue is finely balanced. The most obvious case is punishment for false witness – the issue which gave rise to the original reference of this matter to your Committee. The challenges around proving such a contempt are much greater than those for simple non-compliance with an order compelling evidence. Even if you took the same approach of certifying that an offence had occurred, I think it would be hard for the courts to reach any judgement on punishment without re-examining the nature of the alleged lie or lies. It may be wise to get on with this much simpler legislation and leave that question for further deliberation.

11.              The other area which I raised in my original evidence to your Committee is the question of protection of witnesses from intimidation or bribery. My feeling is that a declaration that any such action would be punished effectively would be a good balance to the proposed power of compulsion. (How, for example, should we proceed if a witness’s excuse for refusing a summons was that they were told they would be sacked if they obeyed it?) I do not think the issues around proof and the need to protect parliamentary proceedings from being questioned by the courts are nearly so acute in this situation as they are in the circumstances of alleged false witness. Intimidation or other undue influence would by definition have taken place outside the committee room. Borrowing from Irish legislation, a clause along the following lies could be added to the bill without much detriment I believe:

( ) A person who threatens to inflict, or inflicts, injury, damage or loss on a witness, or who offers a reward, or rewards, a witness to a committee’s inquiry or other committee business—

(a) with intent to influence, or in a manner calculated to influence, whether any such witness will give evidence or the nature, extent, duration or content of the evidence any such witness may give, or

(b) without lawful excuse, in retaliation for, or in consequence of, the giving of evidence by any such witness … [is guilty of an offence]

12.              However, I can also see a good case for getting on with the proposed legislation rather than waiting on the resolution of this problem.

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?

13.              Mostly by guidance, perhaps reinforced by a standing order setting out the principles. (See the appendix.) I believe the senior management of the select committee service are perfectly capable of taking a sensible and proportionate approach to this issue in training staff and promulgating protocols, and the staff in turn in advising committees.

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?

14.              My answer is a firm no. Both Houses have power to punish their own Members for contempts, up to and including expulsion (making the offender liable thereafter to the proposed criminal law). Legislation is not necessary to achieve this – only political will. And subjecting recalcitrant Members of one House to the criminal law for defying a summons of the other House would be a very serious attack on the constitutional need for comity between the two Houses.

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?

15.              I have dealt with the issue of witness protection, which I believe is a non-fatal omission, above.

 

16.              The proposed legislation will need to be supplemented with standing orders. The Committee suggests that before issuing a summons a committee should be required to consult the Privileges Committee. I think this is a useful protection against over-hasty recourse to this power, but the Privileges Committee will rightly be reluctant to second-guess a committee. I would suggest as a further bridle on the power that, under the proposed architecture of the draft bill, before issuing a certificate the Speaker should be required to satisfy themselves that it is an appropriate exercise of the power.

 

17.              I append a draft standing order to deal with these points, as well as the issue of fair treatment. It is intended as a basis for discussion rather than a last word, and I have not attempted to check that every loose end and consequential has been dealt with.

4 July 2021

 

 

Appendix: draft Standing Order

Power to send for persons, papers and records

(1)              Any committee given power by standing orders to send for persons, papers and records may issue an order to any legal person requiring that they appear before the committee to answer questions or produce documents.

(2)              Any order made under paragraph (1) must state the purpose for which the evidence, papers, or records are required.

(3)              A committee which makes an order under paragraph (1), and following the compliance by a person with such an order, must act with due regard to:

(a) fair procedures, including adequate notice;

(b) the rights of any person who is the subject of an order to a fair hearing; and

(c) the rights of any other person affected by the order.

(4)              Before issuing an order under paragraph (1) a committee must seek the opinion of the appropriate committee or committees; that opinion must be given within five working days; and it must be published by the committee from which the request for the opinion came if that committee decides to issue the order.

(5)              The appropriate committees must have regard to the provisions of paragraph (3) when giving their opinion.

(6)              The appropriate committees for the purposes of this are;

(a)              the Committee of Privileges; and

(b)              the Liaison Committee.

(7)              Before issuing a certificate under section 1(3) of the Parliamentary Committees (Witnesses) Act 2021 the Speaker must be satisfied that the evidence, papers, or records sought by the committee may reasonably be considered to be necessary to the effective conduct of its proceedings, and that the committee had taken all reasonable steps to obtain them in compliance with the principles set out in paragraph (3) of this order.