Written evidence from Richard Gordon QC (SCC0003)

Pt 1: Introduction

1. This Memorandum is structured as follows. The remainder of Pt 1 sets out my qualifications in constitutional matters generally and, specifically, my expertise on the subject of select committee powers.1 Pt 2 contains an Executive Summary of my views in respect of the four questions identified by the Committee of Privileges (‘the Committee’). Pts 3-6 set out my reasoning in relation to each of these questions in turn.

2.   I am a Queen’s Counsel practising in administrative law and fundamental rights with a predominant focus on constitutional law. In that respect, for example, I advised the Electoral Commission in relation to the 2016 EU Referendum. I was also Leading Counsel for Wales in the recent high-profile ‘Brexit case’ decided earlier this year by the Supreme Court (R (Miller) v. Secretary of State for Exiting the EU). I have acted for each of the main political parties (including UKIP) in relation to constitutional issues. I have frequently given evidence to select committees on constitutional questions and in 2014 I was appointed as a special adviser to the Public Administration Select Committee (as it then was) in relation to its inquiry into civil service impartiality.2

3.   I have written several papers on constitutional issues including, most relevantly for the Committee, ‘Select Committee Powers: Clarity or Confusion’ (co-authored with Amy Street and published by the Constitution Society in 2012). Our analysis was adopted by the then Clerk of the House of Commons Sir Robert Rogers (now Baron Lisvane) and he kindly acknowledged the influence of our paper on his thinking in his evidence to the Liaison Committee on select committee powers in 2012.

4.   My preferred approach to the questions posed by the Committee is anecdotal. Since co- authoring the paper on select committees in 2012 my practice has included advising witnesses who are required to appear before select committees. The same questions arise time after time and suggest that the present set of arrangements could usefully be improved. However, they also suggest that wholesale reform carries with it dangers that

it would be wise to avoid unless and until they have to be confronted.

1 A more detailed cv is provided on my website at Brick Court Chambers www.brickcourt.co.uk/

2 ‘Lessons for Civil Service impartiality from the Scottish Referendum’ Fifth Report of Session 2014-15.

Pt 2: Executive summary

5.   The Committee has identified four questions on which it welcomes views:

(i)              What are the benefits and drawbacks of the options for change? Is change necessary (‘Question 1’)?

(ii)              What are appropriate sanctions for non-compliance or other contempt on the

part of witnesses? How should these be applied (‘Question 2’).

(iii)              What protections or safeguards are necessary for witnesses within either a changed or the current system (‘Question 3’)?

(iv)              Are there any other issues which the Committee should consider (‘Question 4’)?

6.   As to Question 1, there are clear benefits in clarifying the powers and procedures of select committees. Doing nothing leaves the present somewhat illogical set of arrangements in place. Not only do these arrangements lack adequate safeguards for witnesses and third parties, they can also detrimentally the work of select committees thereby operating to prevent some inquiries from being as effective as they might otherwise be. Real and difficult questions arise as to whether change should be by way of legislation involving the courts or whether the current standing orders need to be rationalised, more carefully drafted and made clearer. However, some form of change is necessary. Incremental change rather than wholesale reform may be the better way of making progress that can later be consolidated.

7.   As to Question 2, Devising appropriate sanctions for non-compliance or other contempt is, necessarily, dependent on the nature of the body imposing the sanctions. A scheme whereby the House imposed sanctions that affected fundamental or other constitutional rights is, in my view, fraught with risk and runs the danger of unwelcome court involvement. There is much to be said for, at least initially, the creation of a clear and reformed process whereby formal admonishment with attendant publicity would automatically be imposed by the House following if certain and easily understood conditions were satisfied. My experience suggests that this would be an improvement on the present uncertainty that prevails but would not place Parliament and the courts in tension with each other. This could be achieved by reform of standing orders and a resolution of the House. Only legislative reform could achieve sanctions such as fine or imprisonment but the reform that would be needed would probably have to be rather wider than simply creating new criminal offences. It would also be likely to involve the courts more in scrutinising the conduct of Parliamentary proceedings which would create undesirable tension with Article IX of the Bill of Rights.

8.   As to Question 3, witnesses appearing before select committees need, even under the current system, greater clarity. Identifying a contempt of Parliament is, at present, not at all easy. There are no criteria that I have found other than those referred to in the 1998-9 Inquiry chaired by Lord Nicholls.3 It is therefore very difficult for witnesses to know whether, and if so when, they may reasonably refuse to answer a question. It is no answer to say that witnesses must respond to every question since this may place a witness in an impossible position. Nor is it an answer to say that witnesses are covered by parliamentary privilege since the cloak of parliamentary privilege neither protects third parties not appearing before committees and may not protect a witness from offending against the law of the land even if not liable to criminal penalty. Nor does Parliamentary privilege necessarily prevent against a violation of fundamental rights. If the current system were to be changed, much would depend upon the changes. For example, if the House were itself to be able to impose sanctions, then a hearing before the House would have to comply with the guarantees accorded by Article 6 of the European Convention on Human Rights (‘ECHR’).

9.   As to Question 4, if any option other than incremental change were to be adopted it would be necessary to consider more wide-reaching questions. In particular, the relationship between fundamental rights and parliamentary process would need to be legislated for (whether in terms of new standing orders or primary or secondary legislation). This would have to embrace the rights of third parties not appearing before select committees as well as witnesses appearing before such committees.

Pt 3: Question 1 –  options for and desirability of change

10. I would suggest that the Committee look at the question of change quite broadly. It ought not simply to be a question of enforcing contempt violations and/or ensuring that contempt does not occur or frustrate a select committee’s work. A narrow approach of that kind begs too many questions that need to be resolved by clearer processes. What is a contempt of Parliament? Who decides? What, if any, limits are there to the questions that may be asked? What respect must select committees pay to the fundamental rights of witnesses and third parties alike?

11. In order to function properly and to maximum effect those appearing before select committees need to understand that there are limits to what they may be asked as well as procedures in place to ensure that they may not behave unreasonably without being sanctioned. There is a necessary relationship between the limits that need to be placed upon the kind of questions that a select committee may ask a witness as well as the

obligations that lie upon a witness where appropriate questions are asked.

3 Joint Committee on Parliamentary privilege session 1998-9.

12. The present situation is unsatisfactory. I am frequently asked to define a contempt of Parliament for potential witnesses so that they have a clear idea when they must answer questions put to them. I find myself unable to answer the question. There is no accessible definition of the nature of a contempt of Parliament, or when questions may reasonably not be answered or where questions are inappropriate.

13. Nor does the decision as to whether an act or omission constitutes contempt rest with a select committee. As I have understood the position, the select committee may consider that an act or omission amounts to a contempt but has then to prepare a report for the Committee of Privileges which, in turn, makes a recommendation to the House.

14. There is an element of Kafka in all this, at least from the perspective of a practising lawyer. As if this were not unsatisfactory of itself, there is uncertainty as to what powers the House has in the face of an act or omission that it considers may constitute a contempt.

15. This lack of clarity has adverse knock-on effects as far as: (i) the select committee, (ii) witnesses, (iii) third parties affected by evidence given before select committees, (iv) the work of select committees, (v) the legitimacy of the House's consideration of whether contempt has taken place and (vi) the relationship between Parliament and the courts are concerned.

16. I would be happy to spell this out in more detail in oral evidence. However, put simply, if select committees believe, as I infer some do, that they may ask any question without limits and that parliamentary privilege is sufficient protection for witnesses and third parties, such committees will not secure all the information that they need and will be met with recalcitrant witnesses. Third parties may, in extreme cases, seek to test the boundaries of the Bill of Rights and bring court challenges to particular select committee proceedings. The House will be brought into disrepute if it is seen as toothless in the face of real contempt but may equally provoke a court challenge if it seeks to punish a contempt by historical sanctions such as a fine or imprisonment.

17. It seems to me, therefore, that the need for change is undeniable. Yet caution should be urged. There the more that powers are strengthened in a way that may affect fundamental or constitutional (i.e. legal rights) the more is there a real prospect of conflict with the courts or of courts scrutinising what happens before a select committee in order to determine its compliance with hypothetical legislation. In my view, neither risk is worth running.

18. My view is that the changes that are necessary are, primarily, ones of clarity. The powers of select committees, the questions they may ask, the sanctions that may be imposed need to be spelled out. But they should be spelled out by Parliament in standing orders and/or resolution of the House. The sanctions should, at least initially, be ones

that it is uncontroversial in the modern age that Parliament may impose. Such sanctions

should not affect the fundamental or constitutional rights of witnesses or third parties.

19. The advantages of such an approach are threefold.

20. First, witnesses will know where they stand. They will know that if they fail to comply with reasonable conditions specified in standing orders they will (not may) be liable to sanction.

21. Secondly, members of a select committee will know the ground-rules. They will know that there are limits to what they may ask but equally that there are clear powers at their disposal if the witness fails to comply.

22. Thirdly, such changes will avoid the risk of tension, even constitutional clashes, between Parliament and the courts. Such changes will also have the merit of enabling stock to be taken of the improvements have resulted and whether or not further changes are needed.

Pt 4: Question 2 - sanctions

23. This Question answers itself once the analysis in Pt 3 is borne in mind. An appropriate sanction is one that may fairly and legitimately be applied without creating a tension or conflict between the courts and Parliament.

24. Some may feel that the appropriate sanction is a monetary penalty or imprisonment.

Yet a moment’s thought reveals why this is to move too soon and too fast. The fact that Parliament has not imposed a fine or imprisonment for hundreds of years whilst the select committee system has gone from strength to strength strongly suggests that such draconian measures are not necessary.

25. Yet, even if a case could be made out for the introduction of sanctions of this kind, the potential consequences need to be very carefully considered. There is a ‘catch-22’ in adopting either a legislative or Parliamentary solution to the question of monetary or custodial sanction.

26. A legislative solution would have the effect that a court could be required to investigate what had occurred in proceedings before a select committee where the question of contempt was raised. Such proceedings are now invariably on Parliament livestream and so the unedifying spectacle of the courts in the Strand looking at proceedings in Westminster would be highly likely. Yet, select committee proceedings are ‘proceedings in Parliament’ and protected from being questioned in any place outside Westminster.

27. True it is that legislation would permit precisely this but it seems to me that there would

for the first time be a cultural proximity between a court and Parliament that would make it much easier for courts in future cases to cross a borderline by treating what happens in Parliament as a variant of that which falls within the remit of the courts.

28. It also seems to me to be the position that some politicians have a mistrust of judges and see them as interfering with the work of Parliament. The introduction of judicial oversight into select committee proceedings would in my view tend to exacerbate this mistrust. I have long advocated the need for dialogue between Parliament and the senior judiciary. The former Lord Chief Justice Lord Judge was keen to improve this even if his successor Lord Thomas (shortly to retire) has, with his unprecedented, very explosive public criticism of the Lord Chancellor for not defending the judges, made things (in my view) more difficult.4  However, the simple point here is that creating legislation that open up select committee proceedings to judicial scrutiny needs very careful thought before it is introduced. Currently, I do not see the need for it if less radical improvements can be made and evaluated.