Parliament’s select committees are one of its success stories. Committee hearings can be both enlightening and great theatre, and they can sometimes throw light on serious issues that have been overlooked by the government or regulatory agencies. Nonetheless, the question of whether committees have adequate powers has been considered repeatedly over the last few decades.
On 3rd May, the Commons Privileges Committee published a new report on select committee powers, looking to strengthen the ability to call for persons, papers and records. One of the reasons for this is a number of high-profile cases in the Commons in which individuals have been reluctant, or have simply refused, to appear before a committee (recent examples include Mike Ashley and Dominic Cummings—though the former did eventually attend and the latter has since agreed to appear at high-profile hearings in a different context).
The Privileges Committee has proposed a Parliamentary Committees (Witnesses) Bill, which would introduce new criminal offences of refusing to attend a summons, and failing to provide information or documents, without a reasonable excuse. These offences would be sanctioned by a court, with a sentence of up to two years’ imprisonment.
These are important proposals and, clearly, a desire to be able to call witnesses to inform an inquiry is a reasonable one. But this does not mean that recalcitrant witnesses should be threatened with criminal sanctions, and in my view new legislation is not justified.
Parliament’s main functions are to legislate and to hold the government to account, and the second of these rightly involves the interrogation of witnesses by committees. However, it has been a troubling feature of recent years that select committees are increasingly perceived as a way to hold famous, often unpopular, individuals to account where there have been regulatory failures, rather than ministers and other government decision makers. The new proposals risk reinforcing this focus on rogue individuals—and creating a lot of constitutional trouble in the process.
Parliament was once a court as well as a legislature—until 1948, members of the House of Lords could opt to be tried by their peers. The Appellate Committee lasted rather longer, until it was replaced by the Supreme Court in 2009. Today, references to the High Court of Parliament are archaic and the Chair of the Privileges Committee has recognised that longstanding concerns about committee powers are now sufficiently well understood that some individuals have “point blank refused to appear”—having been told by their lawyers that parliament has no real powers to enforce attendance.
Yet parliament does not currently possess the legal capacity to run the type of fair hearing that would be needed to forcibly examine the conduct of private individuals. It employs only a small number of lawyers with knowledge of human rights and criminal law. Nor is it a venue that is well suited to investigate the conduct of individuals or businesses: it runs on a political, rather than a legal, timetable; there would be real questions about fairness; and a risk of usurping the legitimate functions of independent regulators and the courts.
For all their merits, committees are political venues where politics and public opinion can count as much as the evidence that is presented. The report accepts that committees are a political arena, noting that “due to their political context, although relations between witnesses and select committees are usually constructive and cooperative; there are occasions where the relationship can become combative and even hostile.” Potential witnesses may well have legitimate concerns about their treatment by what have sometimes been dubbed “celebrity chairs,” who may be looking to feature in the headlines.
MPs would need significant guidance to run investigative hearings, where witnesses could be compelled to give evidence. There is no right of appeal from a select committee, and individuals are precluded from challenging committee conclusions in the domestic courts, even if they feel that they have been defamed. This is a result of parliamentary privilege and Article IX of the Bill of Rights—which provides that proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament—and was affirmed in 2003 by the European Court of Human Rights in the case of A v UK.
The new proposal contains two safeguards. First, a “gatekeeper decision maker” (which it is suggested should be the Privileges Committee) to consider applications by committees to use the power to summon. Second, the fact the courts would take the enforcement role. This risks getting the courts entangled with essentially political questions. It is notable that the report highlights a need to “limit scope for the court to consider wider questions about internal House or committee processes, or the merits of the summons.” Yet this is exactly the type of question that a court might be asked to consider, and it could go to the heart of whether a summons is legitimate and whether an individual’s human rights have been breached.
There are other practical hurdles. A number of the well-known cases in which witnesses have either been reluctant, or have simply refused, to attend involve people outside the jurisdiction (for example in the Kraft/Cadbury case; Rupert Murdoch and Mark Zuckerberg). People in this category are unlikely to be caught by the new powers.
Compelled witnesses might bring their legal team to hearings and it would be important to clarify whether individuals would have a right of protection from self-incrimination, or would be required to disclose legally privileged material. Given that Article IX of the Bill of Rights appears to preclude the use of evidence obtained by committees in court, there could also be some limitations on its utility.
This proposal has the potential to open a can of worms, without leading to better outcomes. Politicians and the public will draw their own conclusions if a proposed witness repeatedly refuses to attend a select committee hearing. A former clerk of the House of Commons, David Natzler, rightly observed while in post that softer powers are available, including “the pressure of public opinion; the requirements on individuals to demonstrate that they are ‘fit and proper persons’; [and] the risk that failure to co-operate will be interpreted against them.”
Rather than trying to chase down a reluctant individual who they anyway do not have the right tools to investigate, often the time and attention of a committee would be better used holding ministers and executive agencies to account to ensure that problems do not recur.
The proposal is currently open to consultation. I would urge parliamentarians to think again about implementing new legislation.
