Mr Trevor Phillips: Allegation
1. On 10 February 2010 the Joint Committee on
Human Rights (JCHR) published its 7th Report of 2009-10, Allegation
of Contempt: Mr Trevor Phillips.
This report alleged that on 8 February, the day before the JCHR
was to consider a draft report directly relevant to the work of
Mr Phillips as Chair of the Equality and Human Rights Commission
(EHRC), he had spoken to and sought to influence members of the
Joint Committee. The report concluded that Mr Phillips' actions
"could constitute a contempt of both Houses", and recommended
that they "be subject to investigation by the Privileges
Committees of both Houses."
2. On 25 February the House agreed a motion to
refer the report to the Committee for Privileges. Two days earlier
a similar motion had been agreed in the House of Commons, referring
the report to the Standards and Privileges Committee.
BACKGROUND TO OUR INQUIRY
3. Erskine May states that "joint
committees are formally composed of separate select committees
appointed by each House to work together". While they work
together as one committee, they are "defined in procedural
terms as two committees".
It follows that, in procedural terms, interference with a Lords
member of a joint committee is a contempt of the House of Lords,
and interference with a Commons member a contempt of the House
4. Thus both Privileges Committees had a direct
interest in investigating the alleged contempt. However, we did
not consider that it would be either efficient or fair to Mr Phillips
for two investigations to be taken forward concurrently. As the
Commons committee had already launched its investigation by the
time we met on 1 March, we decided to take no action until that
committee had completed its work.
5. The Commons committee took written evidence
from Mr Phillips himself, from the Chairman of the JCHR, Mr Andrew
Dismore, and from staff of the Joint Committee. Mr Dismore's evidence
included memoranda from all members of the Joint Committee who
had spoken to Mr Phillips, including the Lords members. These
memoranda were published online at the end of the last Parliament.
6. Although it published the memoranda, the Commons
committee did not make a report on the allegations. However, the
then chairman, Sir Malcolm Rifkind MP, wrote to the Chairman of
Committees on 30 March, outlining his committee's thinking. He
noted that one factor dissuading his committee from publishing
a substantive report was the "perceived need to avoid pre-empting
the outcome of any inquiry that may be undertaken by the Committee
for Privileges of the House of Lords." At the same time he
indicated that his committee "was unable to conclude on the
basis of the evidence received thus far that there had been any
contempt of the kind alleged in the Joint Committee's Report".
It appears unlikely that the successor Commons committee will
take any further action in the matter, unless another complaint
is made by the JCHR and referred by the House of Commons.
7. Although the Commons committee has no jurisdiction
in respect of interference with a member of the House of Lords,
which would be a contempt of this House, in practice the evidence
collected by the Commons committee comprises all the relevant
and readily available information with regard to both Houses.
We have therefore drawn heavily on this published evidence in
reaching the conclusions and recommendations set out in this report.
EVENTS LEADING UP TO THE ALLEGATION OF CONTEMPT
8. The evidence shows that from early January
2010 there were concerns within the EHRC about the impending JCHR
report, in particular about the way in which oral and written
evidence (some of which might be defamatory) would be handled.
On 4 February, Mr Phillips discussed these concerns with senior
staff, and it was agreed that he would contact members of the
committee directly, in particular those whom he "knew personally",
to raise these concerns. Six members of the JCHR were suggested,
though in the event Mr Phillips only succeeded in speaking to
three of these, Fiona Mactaggart MP, Lord Dubs and Baroness Falkner
9. Then on 6 February 2010, two days before the
alleged contempt occurred, Mr Phillips received an email from
an un-named member of the EHRC staff. The member of staff reported
that they had been "talking to someone who had had sight
of the current draft of the JCHR report". Although this person
had not read the report in detail, "he had read the exec
summary pretty comprehensively", and was able to convey a
sense of the key conclusionswhich included criticism of
Mr Phillips and of decision making within the EHRC. It appears
therefore that a leak occurred between 4 and 6 February.
10. Mr Phillips' conversations with Fiona Mactaggart,
Lord Dubs and Baroness Falkner of Margravine took place on 8 and
9 February (though Fiona Mactaggart's evidence shows that the
call had in fact been booked on 4 February, in other words before
the apparent leak of the draft report). The accounts given of
these conversations by the members concerned are broadly consistent.
In each case Mr Phillips raised the issue of publication of evidence,
and the possibility that certain evidence might be redacted. He
also touched on the personal criticisms directed against him,
and accused the Chairman of the JCHR, either explicitly or by
implication, of unfairness.
DID MR PHILLIPS' ACTIONS CONSTITUTE A CONTEMPT?
11. The reactions of the three members to their
conversations with Mr Phillips diverged widely, demonstrating
the lack of a common understanding of the boundary between, on
the one hand, legitimate engagement and persuasion, and, on the
· Fiona Mactaggart's evidence says that
"In view of the colossal damage to Mr Phillips' reputation
in this whole process, I frankly would not think him worthy of
the well-paid and responsible position he holds if he did not
seek to influence, in a wholly proper way, the outcome of this
enquiry by drawing attention to evidence and to the importance
of due process."
· Lord Dubs' comments are neutral: "I
had no reason to think that he had seen a copy and I assumed that
he was simply expressing a general concern based upon the evidence
the committee had received from witnesses."
· Baroness Falkner of Margravine got the
impression that Mr Phillips had "either seen the report or
was familiar with its contents". She told Mr Phillips in
the course of the conversation that she "could not have a
discussion about the committee's work with a 'concerned' party";
her evidence also describes the conversation as "deeply inappropriate".
12. We accept that Mr Phillips' actions could,
in certain circumstances, be judged to constitute a contempt.
Erskine May notes that "attempts by improper means
to influence Members in their parliamentary conduct may be considered
contempts", before indicating that improper "pressure"
may be applied by means of "a positive and conscious effort
to shift an existing opinion in one direction or another."
Mr Phillips' actions could certainly be deemed to have been an
attempt by improper means to influence Members in their parliamentary
13. However, it is clear from the wording of
Erskine May that each House enjoys considerable discretion
in applying these general principles to individual cases. The
House "may" consider particular actions to be contempts,
but it is not bound to do so. We therefore sought, before determining
whether or not Mr Phillips' actions should be considered a contempt,
to put them into context.
14. First, we note that Mr Phillips met senior
staff of the EHRC on 4 February, before the draft report was apparently
leaked, to discuss concerns over the handling of written and oral
evidence. These concerns were entirely legitimate. However, it
should have been obvious to Mr Phillips that the proper way to
have raised such concerns would have been to call or write to
the Chairman or clerk of the JCHR, not to ring up individual members
of the JCHR with whom he was personally acquainted. Mr Phillips'
behaviour in ringing individual members of the JCHR, in order
to raise his concerns over the handling of evidence, was inappropriate
15. Having given Mr Phillips an opportunity to
comment on this report in draft, we note that he does not consider
it reasonable, in the circumstances, that he should be criticised
in these terms (see Appendix). However, notwithstanding his comments,
we remain of the view that for Mr Phillips to telephone individual
members of the JCHR with whom he was personally acquainted was
an inappropriate and ill-advised course of action.
16. Between the meeting on 4 February and the
conversations on 8-9 February, it appears that the JCHR report
was leaked to a member of the EHRC staff. So by 8 February Mr
Phillips was aware that the draft report criticised him personally,
and his sense of grievance, of being unfairly treated, came out
very strongly in the conversations themselves. This compounded
Mr Phillips' mistake in making the calls in the first place.
17. In passing we note that the leak itself,
if there was one, may well have constituted a contempt of both
Houses, in that, in the words of Erskine May, it tended
to "obstruct or impede"
the work of the Joint Committee. But the leak was not the responsibility
of Mr Phillips or the EHRC, but of the person who divulged that
information. Moreover, given that the JCHR report made no complaint
regarding a leak, it falls outside the remit of our inquiry. We
have therefore not investigated the leak further.
18. However, in considering whether Mr Phillips'
actions constituted a contempt, we have also taken into account
other circumstances, which help to explain Mr Phillips' behaviour.
First, we note that the conversations that took place on 8-9 February
were, as Mr Phillips' published memorandum states, part of a series
of contacts between EHRC staff and the JCHR in late 2009 (when
Mr Phillips and colleagues appeared before the Joint Committee)
and early 2010. Most of these contacts were unobjectionable, and
no complaint has been made in regard to them.
19. The conclusion drawn from this by Mr Phillips,
in his memorandum, is that the dividing line between legitimate
engagement with committees and inappropriate interference, amounting
in some cases to contempt, is unclear. We have some sympathy with
his view. The guidance issued to witnesses does not explain the
concept of contempt, or provide any warning of the possible consequences;
nor does it provide clear instructions to witnesses as to the
appropriate means of communication with committees.
20. Many select committees encourage and thrive
on informal contacts with witnesses, as well as on formal evidence
sessions. In the absence of guidance as to the appropriate means
of communicating with committees, witnesses or other interested
parties may err through ignorance rather than design. Although
such ignorance does not necessarily excuse inappropriate behaviour,
in the present case, and in light of the background described
in the published memoranda, we accept it as an important factor.
21. Another relevant factor is whether or not
any harm was caused to the JCHR's work. The JCHR agreed its report
on the EHRC on 2 March,
notwithstanding the events of the previous month. The former Chairman
of the JCHR, Mr Dismore, states that "the constructive working
atmosphere in the committee was undermined". He further claims
that "it was difficult to escape the conclusion that some
Members had been influenced in their approach to the draft Report
by their private conversations with Mr Phillips." While we
give due weight to the comments of the Chairman, we note that
they are subjective, and that no firm factual evidence is presented
in their support; nor are they borne out by the submissions by
individual members of the JCHR. We therefore conclude that, however
inappropriate and ill-advised, Mr Phillips' actions did not significantly
obstruct or impede the work of the JCHR.
22. Therefore, taking all the circumstances into
account, we do not consider Mr Phillips' conduct to amount to
a contempt of the House.
23. Having considered the memoranda published
by the House of Commons Standards and Privileges Committee, we
conclude that Mr Trevor Phillips was not guilty of a contempt
of the kind alleged by the Joint Committee on Human Rights.
24. We recommend that the guidance issued
to witnesses appearing before Lords select committees should in
future state explicitly that any contact between witnesses and
the committees should be made through the clerk or Chairman.
25. The Joint Committee's report on the EHRC,
which appeared in March, contains strong personal criticism of
Mr Phillips. We are concerned that current procedure affords individuals
who are the subject of such personal criticism in a committee
report no formal opportunity to see and comment on a draft ahead
26. We note that the "Salmon principles",
which derive from the 1966 Royal Commission on Tribunals of Inquiry,
chaired by Lord Salmon, afforded extensive rights to witnesses
and other persons involved in such tribunals. More recently, the
Inquiries Act 2005 created a statutory requirement that the Chairman
of any tribunal of inquiry must act with "fairness",
while the Inquiry Rules 2006 set out a procedure whereby any person
subject to criticism in an inquiry is sent a "warning letter",
and given a "reasonable opportunity" to respond.
27. Moreover, the House's own disciplinary procedures
reflect, in accordance with the Code of Conduct, the principles
of "natural justice and fairness". Members who are subject
to adverse findings by the House of Lords Commissioner for Standards
not only have advance sight of such findings, but enjoy a formal
right of appeal against these findings to the Committee for Privileges
28. We believe that, in the interests of fairness,
persons who are subject to criticism of a damaging and personal
nature in select committee reports should have similar rights
to those afforded to persons who are criticised in inquiries.
29. We acknowledge that this general principle
is subject to a number of qualifications. Select committee inquiries
are almost always political in character, and therefore very different
from both tribunals of inquiry and internal disciplinary proceedings,
which are judicial in character. Moreover, the ability of committees
to criticise Ministers, when acting in a ministerial rather than
a personal capacity, must be protected. The position of senior
officials, or those responsible for public bodies (including the
EHRC) also requires further consideration. While there are examples
from other parliaments (for instance, New Zealand) of procedures
analogous to the "warning letter" procedure, further
work and consultation is needed before such procedures can be
introduced here. The proper body to undertake such work is the
30. We recommend to the House that the Procedure
Committee be invited to consider the procedure to be followed
in a case where a committee intends to make personal criticisms
of a named individual (other than a Minister).
1 HL Paper 56/HC 371. Back
Erskine May's Treatise on the Law, Privileges, Proceedings
and Usages of Parliament (23rd edn, 2004), p 837. Back
Erskine May, p 147.
Erskine May, p 128. Back
JCHR, Equality and Human Rights Commission (13th Report,
2009-10, HL Paper 72/HC 183).
Inquiries Act 2005, s 17(3). Back
The Inquiry Rules 2006 (S.I.2006/1838), rule 13. Back