By Sir Malcolm Jack
Former Clerk of the House of Commons
Let me now turn to a series of dilemmas facing us in the modern context of privilege (including in the operation of select committees) and consider how we might deal with them. Firstly I need to consider, from the parliamentary side of the fence, breaches of privileges and contempts and what Parliament can actually do about them.
How does Parliamentary Privilege Work in 2021?
When any of the rights and immunities of Parliament are attacked or disregarded, the offence committed is known as a breach of privilege which the Houses have a right to punish. Each House also claims the right to punish contempts which, while not breaches of any specific privilege, in some way obstruct or impede Parliament in its proceedings. For a long time Parliament has adhered to the principle that its penal powers should be exercised sparingly; in the modern context that has become even more expedient since it is doubtful to what extent the Houses could exercise those powers.
One important aspect of the notion of contempt is that actions may be treated as contempts for which there have been no precedents. A modern example of this has been the referral of phone hacking to the then Committee on Standards and Privileges, following a complaint by a Member of the House that hacking was inhibiting him in his parliamentary work.
A difficult line has to be drawn in the matter of an MP’s constituency work since correspondence with constituents and matters pursued locally, unless related to proceedings in the House, are not covered by parliamentary privilege. In its conclusions the Committee came to the view that hacking, by creating an atmosphere of insecurity generally in the House or in one of its committees or among a group of Members could amount to a contempt. It invited the House to consider a definition of contempt in a new Parliamentary Privileges Bill.
The notion that the penal powers of Parliament must be used sparingly (re-iterated by the Joint Committee on Parliamentary Privilege in its landmark report of 1999) is a recognition that Parliament can no longer behave as a court, even the highest court in the land. But the other side of this dilemma is the real weakness of Parliament in the face of deliberate obstruction. Let me turn to the most striking and topical example – how do select committees deal with witnesses who refuse to attend or, turning up in a session, are reluctant to contribute fully to a Committee’s questioning?
At the simplest level things are not too difficult: if for example someone interrupts proceedings (with or without bags of foam) that person is simply removed from the room where the hearing is taking place. Under the existing Standing Orders of the House, the Serjeant-at-Arms has the power to take any offender into custody on instruction from the Chair of the Committee.
As I have said the offender is kept in custody for the rest of the day unless a criminal offence has been committed in which case he or she is handed over to the police. Under another of the Standing Orders of the House, a Committee may decide to sit in private. Such a decision will lead to the clearing of the room by everyone except parliamentary staff supporting the Committee. So far so good: but what about dealing with a witness who is deliberately obstructive or evasive or, even more seriously, gives false evidence?
Erskine May lists all sorts of behaviour in this kind of situation which may be regarded as contempts. Examples range from refusal to produce documents, through insolence (on one occasion, in 1852, fuelled by intoxication) to giving false evidence. But what power of enforcement does the Committee have?
The answer is, I fear, little? What the Committee has to do is to report the matter to the House; the House has then to decide whether a contempt has been committed and how to deal with it. In olden times (and I use the adjective deliberately) this could involve persons being summoned to the Bar of the House to be admonished or given some other punishment.
This last happened in respect of an outsider in 1957 although in 1968 a Member of the House was reprimanded for leaking a select committee report by Speaker Horace Mowbray King, decked up in black tricorn hat and full bottomed wig. This kind of theatre is unlikely to happen again. Nor is it held possible for the House of Commons to impose a fine this last having been done in 1666 and is therefore regarded as lapsed. The House of Lords has the theoretical power to fine, but the power has not been used since the nineteenth century.
There is also a legitimate concern of how Parliament could exercise any penal powers in the modern context of human rights. The latter point emerged most clearly in the case of A. v. the UK in the European Court of Human Rights (2002). The European Court did not hesitate to hear the case despite the fact that it constituted an intrusion into the area of parliamentary proceedings proscribed in the UK by Article 9 of the Bill of Rights (1689) and by constitutional provisions in the cases of other EU Member states involved in the defence. In the event the Court came to the conclusion that the use of parliamentary privilege on that occasion was not a disproportionate restriction on the right of access to a court or in respect of private and family life and that therefore neither of the two Articles of the Convention on Human Rights which were in question, had been violated.
On the whole, of course, it is much better that these matters are settled without confrontation. When some acknowledgment of error has been made or a letter of apology received, then it is both gracious and politic for the House to accept the gesture and move on. But what powers does the House have to take more drastic action if all else fails? The answer is precious little.
Because I think that the Emperor has no clothes – any ad hoc punitive action would probably receive a hostile public reaction – I think it is time that the House did have something in the armoury. The Australian Parliamentary Privileges Act gives the House of Representatives the power to imprison offenders for up to six months (with provision for such a decision to be rescinded). It also enables the House to impose fines on anyone trying to intimidate or in any way influence witnesses. The Committee of Privileges seems, at last, to be moving in the direction of the need for legal sanctions.