Written evidence submitted by Lord Carloway
“Select committees and contempts: clarifying and strengthening powers to call for persons, papers and records”
We deal in turn with the questions for consultation.
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)?
This is a matter for the House. We do not think it appropriate to offer a view.
Do you agree with our assessment of the three options, and our conclusion that a legislative solution is the best available option?
If the House considers that the status quo is not a tenable option and that change is required, then we agree that a legislative solution is preferable to the second option discussed.
Do you think the proposed draft Bill provides an appropriate solution to the issue of recalcitrant witnesses before committees?
The consultation paper discusses two possible solutions, the contempt of court model and the criminal offence model. Its preference is for the latter. In our view either model could provide an appropriate solution. The criminal offence model would require the co-operation of the relevant prosecuting authority (in Scotland, the Lord Advocate – who is, in addition to being the head of the prosecution service, a member of the Scottish Government). An advantage of the contempt of court model is that it would not depend on such co-operation. We also observe that the particular contempt of court model which the paper envisages (viz. a nominated officer of the House seeks an order from the court that the recalcitrant witness attends, with the witness being held to be in contempt of the court’s order if he does not comply) is not the only possible model. Another model which the Committee may wish to consider would be to legislate (i) to make the failure to attend a contempt of Parliament; (ii) to empower the court to deal with that contempt in the same way as it deals with a contempt of court. The officer could instruct the raising of contempt proceedings before the court. In Scotland there is a simple and familiar form of process known as a petition and complaint which is used for contempt proceedings. Once a petition and complaint is raised the officer would remain directly in control of the process as it progressed to a conclusion. The proceedings might be more expeditious than criminal proceedings. The alleged contemnor would, if he wished to defend the proceedings, require to state in writing the precise basis of his defence in advance of any hearing. The officer could provide the court with any information which was thought appropriate for the court to have in considering the matter as it developed. The alleged contemnor could do likewise. The officer could discontinue the proceedings at his own hand any time – for example, if the alleged contemnor had a change of heart and decided to co-operate with the Select Committee. Finally, in addition to punishing an established contemnor with a fine or (civil) imprisonment, the court would be able to award expenses (i.e. costs) so that the contemnor could be made to bear the costs of the proceedings.
What do you think the maximum sanction should be for an individual found guilty of an offence of failure to comply with a summons?
Determination of the appropriate maximum punishment is a matter for Parliament on which we prefer to express no view, other than to observe that it should be sufficiently serious to encourage compliance with a summons.
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?
The most obvious other contempts are a witness’s prevarication or refusal to answer questions without reasonable excuse, in relation to which there may be a strong case for legislative intervention. We do not propose to offer any thoughts on House of Lords committees. That is a matter for that House. Nor do we wish to raise any other matters relating to parliamentary privilege.
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?
It seems to us that there are a variety of ways in which this objective might be attained. As long as it is attained, the particular way chosen is ultimately a matter for the House: we do not think it appropriate for us to express a preference.
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?
Since these are quintessentially matters for Parliament, we prefer to express no view.
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?
We have some concerns about s 1(4) and (5) of the draft Bill which permit the court, in determining whether a person had a reasonable excuse for failing to comply with a Select Committee summons, and in deciding what punishment to impose, to consider “the nature and purpose” of the Committee’s summons, but not any other aspect of the Committee’s proceedings. The courts are very careful that they respect Parliamentary sovereignty. Arguably, s.1(4)(a) may be read as encouraging judicial evaluation of the propriety of a Select Committee summons in a way which might be thought unnecessary and inappropriate. On the other hand, s 1(4) and (5) might be thought to introduce an unnecessary restriction on the matters which the courts could take into account when determining the issues of reasonable excuse and penalty. The courts are well used to dealing with the concept of reasonable excuse and determining appropriate penalties in myriad different legal contexts. There is much to be said for the view that the evaluation of an excuse and the question of penalty are matters that might safely be left to the courts without imposing restrictions on the matters which they may take into account.
19 September 2021