Parliamentary Privilege - Joint Committee on Parliamentary Privilege Contents


3  Penal powers of the Houses

The issue

48.  Chapter 7 of the Green Paper asks whether there is a need to address select committees' powers to summon witnesses, documents and records. While committees have powers to call for evidence and summons witnesses delegated to them, the power to punish contempts remains a matter for each House as a whole. The expansion of the work of select committees since the 1970s means questions of contempt are most likely to arise in the context of select committees and their witnesses, but these powers cannot be considered apart from the powers each House possesses to deal with contempt.

49.  The Green Paper says:

"The Houses' power to punish non-members for contempt is untested in recent times. In theory, both Houses can summon a person to the bar of the House to reprimand them or order a person's imprisonment. In addition, the House of Lords is regarded as possessing the power to fine non-members. The House of Commons last used its power to fine in 1666 and this power may since have lapsed".[53]

Against this backdrop, the House of Commons Liaison in 2012 noted that "long-standing uncertainties about the extent and enforceability of select committees' powers were brought to the fore" by events in 2011. The Clerk of the House of Commons had told the Committee:

"Recent events have shown to a wider audience what all insiders always knew; that there were considerable doubts about whether the House could really impose its will on those whom a committee wished to summon, or punish those who gave (unsworn) false or misleading evidence to a committee ... It is sometimes alleged that the process is unclear. It is not. What is unclear is how far it can be taken".[54]

50.  There are two impediments to either House imposing its will on a contemnor. The first is institutional reluctance to take action which may seem oppressive. Well over a century has passed since either House last used its penal powers. In 1978 the House of Commons agreed its penal jurisdiction should be exercised "(a) as sparingly as possible and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its Members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions".[55] It has abided by that decision since.

51.  The second impediment is fear of successful legal challenge. While domestic courts may be unable to consider proceedings in Parliament, the European Court of Human Rights has asserted its jurisdiction, relying on Article 6 of the European Convention on Human Rights which provides for the right to a fair trial "by an independent and impartial tribunal".[56] Article 6 provides that:

"Everyone charged with a criminal offence has the following minimum rights:

a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b) to have adequate time and the facilities for the preparation of his defence;

c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

52.  Nigel Pleming QC said, "As soon as you introduce a regime of penalty, if it is going to be a prison system, it is clearly criminal because it will apply to the non-Members of the House".[57] The significance of this observation is that such a regime would thus engage Article 6 of the European Convention on Human Rights, which provides that "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The Deputy Leader of the House of Commons, Rt Hon Tom Brake MP, told us:

"The Government does not believe that the current arrangements provide the kind of safeguards that individuals have a right to expect of any body with the power of prosecution ... in order for the defendant in any such proceedings to be given a fair hearing, the House would have to significantly change its current procedures and practices".[58]

Other jurisdictions

53.  Other jurisdictions have approached the need for a parliament to compel evidence and deal with contempts in a variety of ways, ranging from delegation to the courts to assertion of Parliament's right to proceed against and punish contempt itself.

54.  While the United States Congress claims an inherent power to punish contempts, in practice the House and the Senate and their committees rely on the legal authorities to prosecute and the courts to enforce their power to subpoena. Moreover, the separation of powers and the provisions of the US constitution impose practical restrictions on the power to demand evidence. For example, witnesses can plead the Fifth Amendment to justify refusal to give potentially incriminating answers to questions, and the Attorney General has declined to prosecute cases where Executive privilege was claimed.[59]

55.  In Australia the Parliamentary Privileges Act 1987 created a criminal offence of contempt of either House, and gave each House the power to deal with such contempts, and to impose fines or imprisonment. Each House has set in place extensive provisions to ensure that it has fair procedures to consider alleged contempts, through Resolutions in the Senate and Standing Orders in the House of Representatives. There is a review power for the courts, but this is limited to assessing whether the type of conduct complained of meets the test of section 4 of the Act, namely that it "amounts or is likely to amount to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member."

56.  Although the New Zealand House of Representatives' privileges are based on statute, those privileges and the means by which they are to be exercised are not spelled out in statutory form. Instead its privileges are defined as those enjoyed by the United Kingdom House of Commons in 1865.[60] The House of Representatives has retained its jurisdiction, and has recently asserted its right to fine.[61] As in Australia, its Standing Orders contain provisions intended to ensure it treats witnesses fairly.

Options for the United Kingdom Parliament

57.  In evidence[62] to the House of Commons Liaison Committee the Clerk of the House of Commons set out three options for addressing the perceived inability of the two Houses to exercise their penal powers:

  • doing nothing;
  • legislation (which could take various forms, discussed in more detail below);
  • internal measures, such as amending Standing Orders or agreeing resolutions—in effect, parliamentary re-assertion of existing powers.

All three options carry significant risk.

DOING NOTHING

58.  As the Green Paper notes, questions about the effectiveness of penal powers arise most pressingly in the context of committees. In considering this problem, it is important to have a clear idea of the range of activities which committees undertake. While their primary function is to scrutinise government, even that task can only be properly addressed by taking a broad view, as the requirement for Commons departmental select committees to consider where existing policy may be deficient acknowledges. In fact, committees have a legitimate role in extending their scrutiny beyond government. The recent Liaison Committee report notes the many different functions committees fill.[63] Committees have become a key arena in which Parliament fulfils its historical role as the grand inquest of the nation.

59.  Most committee inquiries call on willing witnesses, and use the evidence-taking process as a means to explore an issue from a number of points of view. In such instances, there is little trouble in securing evidence. The Clerk of the House of Commons and the Clerk of the Parliaments, put the problem in perspective:

[Clerk of the House of Commons] "In the Commons over the years, we have had thousands and thousands of select committee inquiries and tens of thousands of witnesses in which absolutely no problem has arisen. I do not say that when a select committee finds itself in difficulty, it should not have effective recourse to means of getting out of that difficulty. I would ask the Committee only to put the stated problem in a very broad context."

[Clerk of the Parliaments] "All I need add is that, in principle, the position is pretty much identical in the Lords, but it has been less of an issue ... on the whole, if witnesses are so unwilling to come that they resist coming, one is not going to get very useful evidence out of them".[64]

60.  There are however occasions when witnesses do not wish to supply material or to appear themselves and a committee considers it cannot do without the material or the witnesses. In these cases, the fact that the power to send the person's papers and records is not limited has allowed committees to obtain the witnesses or information needed. Committees have used such powers to obtain privileged material,[65] or to ensure committee advisers could use confidential information to assess the quality of the Financial Services Authority reports into the collapse of RBS and HBOS.[66] These actions, in turn, have improved the information available to committees, and have provided valuable material for Parliament as a whole. We consider that it is in the public interest to ensure that committees have the powers they need to function effectively.

61.  The Liaison Committee considered that "at the very least Parliament should set out a clear, and realistic, statement of its powers"[67]. Like that Committee, we reject the option of doing nothing to clarify Parliament's penal powers. While committees have been able to function effectively up until now, the growing, and increasingly public, doubt over each House's penal powers means there is a real risk that potential witnesses will be tempted to test those powers. The two Houses must be prepared for that eventuality. It will be too late to consider these matters when a crisis arrives.

62.  There is therefore a need to address Parliament's penal powers. The question then arises whether legislation is necessary either to create, or to enforce, powers that might be used to punish contempts against Parliament. This might involve transferring jurisdiction over allegations of contempt to the courts, either in whole or in part. The alternative is to consider whether Parliament can realistically assert existing powers to punish contempt and set out how they might be applied in a modern setting. Nigel Pleming QC called it "a fork in the road": "Your practices of many years ago of penalisation have not been cancelled by legislation; they just have not been used. So you then have to consider who can, within both Houses, create an article 6-compliant system to compel evidence that is truthful and punish evidence that is either untruthful or not provided".[68]

LEGISLATION ON PENAL JURISDICTION

63.  There are advantages and disadvantages in dealing with contempt powers through legislation. Sir Malcolm Jack KCB, a former Clerk of the House of Commons, considered that a "modern statute" was more likely to convince the European Court of Human Rights than the current mix of "seventeenth century cant" and common law.[69] The Lord Chief Justice considered the powers to deal with contempt of court as a possible model, but also considered you could not "resuscitate the old process"—he considered that legislation would be required to underpin any enforcement mechanism.[70] But enshrining penal powers in statute would inevitably encroach on privilege, although the extent of that encroachment would depend on the model used.

64.  As the Green Paper suggests, there are several possible approaches to legislation to ensure that contempts could be punished. Such legislation could simply provide a statutory framework for and clarification of the existing powers of Parliament. Alternatively, legislation could criminalise contempt of Parliament in general terms, or creating specific criminal offences relating to contempt. These approaches would transfer jurisdiction to the courts. As Lord Justice Beatson noted, Parliament would in effect give up some of its privileges: "You either give up a little bit of your exclusive cognisance and you get enforcement, or you stay pure and are faced with the difficulty that you so vividly put about how on earth you are going to enforce it".[71]

A) Criminalising contempt

65.  Contempt is, as the Green Paper sets out, a broad concept, extending to any matters which constitute material interference with the effective working of a House or one of its Committees. The Green Paper canvasses the possibility of bringing greater certainty to the concept of contempt by creating specific offences, such as:

  • failure or refusal, without reasonable excuse, to appear before a committee of either House;
  • failure or refusal, without reasonable excuse, to answer questions asked by a committee of either House;
  • failure or refusal, without reasonable excuse, to produce documents requested by a committee of either House; and
  • altering, suppressing, concealing or destroying documents requested by a committee of either House.

66.  If the Government's approach of criminalising specific contempts were followed, only certain tightly defined contempts would be punishable by the courts, and Parliament's power to punish other contempts would remain in doubt. Indeed, the existence of legislation giving the courts jurisdiction over defined contempts would increase the doubt over how other contempts could be dealt with.

67.  Where offences were created, the courts would also have to determine whether a contempt had in fact been committed. A court might be given power to evaluate the fairness of the process for compelling evidence, either in Committee or by the House as a whole. Was adequate notice given? Was the witness physically able to attend on the day chosen? Was questioning reasonable, or was it oppressive? Such a jurisdiction would be far more extensive than that given to the Australian courts.

68.  Other types of judicial evaluation of proceedings could be still more problematic. The Green Paper envisages that information might be withheld because it was not relevant, or because it to give it would breach a duty of confidentiality, or legal professional privilege. As Nigel Pleming QC said: "it is fundamental to the working of both Houses that you have the fullest information with which to make your decisions".[72] Currently Parliament and the courts each respect the other's right to decide what information is necessary in an individual case. Although Parliament sets the legislative framework, and may, in principle, be prompted by legal proceedings to consider whether that framework is appropriate, each House goes to great lengths to prevent interference with specific cases. Not only do they observe the sub judice rule, but Committees are careful to avoid actions which could prejudice legal processes, even when investigations are too early a stage for sub judice considerations to apply.

69.  Permitting the courts to decide whether a Committee should have access to certain information would be a significant reduction in exclusive cognisance. Indeed, in this area at least, it would destroy the concept of "two constitutional sovereignties"[73] and replace it with an asymmetric system in which the courts had power to evaluate Parliamentary proceedings while Parliament was, quite properly, unable to interfere in individual cases before the courts.

70.  We reject the approach of criminalising specific contempts. It would entail a radical shift of power between Parliament and the courts. It would introduce delay. It would increase uncertainty about how contempts which were not covered by criminal statute could or should be dealt with, and remove the flexibility which is the chief advantage of the current system.

B) Legislative confirmation of penal powers

71.  Sir Malcolm Jack recommended legislation on the Australian model, in which an indicative definition of contempt is set out in statute—in effect, a threshold test—along with specific penal powers (such as the power to fine up to a prescribed limit). The application of the threshold test in specific cases, and the exercise of penal powers, is left to each House. Under the Australian model the courts are precluded, as far as possible, from oversight of the exercise of parliamentary powers, although they do possess a limited power of review—specifically, the courts can consider whether the behaviour complained of is sufficiently disruptive to constitute contempt.

72.  The Green Paper explored whether the doubts over Parliamentary jurisdiction could be settled simply by clarifying the House of Commons' right to fine. David Howarth, a former MP and now Reader in Law at Cambridge University, and Nigel Pleming QC suggested a little more might be needed to make it clear that Parliament itself had a power to deal with contempts.[74] David Howarth drew a parallel with contempt of court, arguing that "there are processes that can be set up by statute that give Parliament jurisdiction, quite broadly, and the courts would find it quite difficult to intervene"; he continued, "there is no reason why Parliament should give itself fewer powers than the magistrates court".[75]

73.  Whatever the difference in emphasis, the Australian approach would give each House statutory authority to exercise penal powers directly, thereby clarifying and, conceivably, increasing those powers. But this approach was opposed both in the Green Paper[76] and subsequently in the evidence provided to this inquiry by the Government:

"It is clear that a threshold test would provide uncertainty about what would constitute a contempt. It would also not prevent the courts from potentially questioning parliamentary procedures.

Giving such proceedings a statutory footing would require a definition of contempt to be established in order to alleviate uncertainty. The consequence however, is to invite the courts to examine proceedings in Parliament, which would be a clear departure from the principles of the exclusive cognisance of Parliament. It would also change the nature of proceedings; potentially limiting what witnesses would otherwise disclose to a Committee and how the Committee would question a witness and lead to witnesses taking legal advice and/or appearing with legal advisers".[77]

74.  The Green Paper also raises what is, in our view, a further objection to statutory confirmation of Parliament's penal powers, by canvassing the possibility of statutory provisions to ensure the fair exercise of such powers.[78] We consider it would be perverse to safeguard privilege by retaining Parliament's jurisdiction while at the same time setting out the internal processes of Parliament in statute. Either the courts could review those processes, thus setting aside exclusive cognisance in such cases, or exclusive cognisance would render the statute unenforceable. If it were decided simply to put the power to punish for contempts on a statutory footing, Standing Orders or Resolutions of the House should set out the minimum requirements for fairness.

75.  We consider that the disadvantages of legislating to confirm Parliament's penal powers outweigh the advantages. We accordingly recommend against such legislation.

PARLIAMENTARY ASSERTION OF POWERS

76.  It is unfortunate that Parliament's restraint has led to doubt about the continuing existence of its powers. They are a part of United Kingdom law and have been so for centuries. In this section we consider the third option, which would involve the two Houses re-asserting their historic penal jurisdiction and setting up procedures for exercising that jurisdiction.

77.  The first and most important challenge is to assert the continuing existence of each House's jurisdiction over contempt. This is, fundamentally, a test of institutional confidence. We urge the two Houses to rise to this challenge. As the Clerk of the House of Commons has said, the question is not whether the Houses' penal powers exist; it is whether they can be enforced.[79] Desuetude is not a legal doctrine in England and Wales, and there is no need for statute to confirm what already exists. The power to fine (based on the power possessed by the United Kingdom House of Commons) has only recently been asserted and used in New Zealand.[80] The mechanisms for committal by warrant from the Speaker to the governor of a prison have not been rescinded.

78.  The second challenge is to ensure that the process for using those powers is fair. Modern concepts of fairness in the judicial process have radically changed since either House last used its penal powers. While there is an external imperative, in that the United Kingdom could potentially be challenged in the European Court of Human Rights, we consider that this is a secondary consideration. Parliament itself would expect to comply with modern expectations of fairness and due process, which are very different to those which applied in the late nineteenth century.

79.  The remainder of this section explores the procedures that we consider the two Houses should follow in exercising their penal jurisdiction. The likelihood is that the two Houses would define these procedures in different ways: the House of Commons typically relies upon detailed rules set out in Standing Orders, while the House of Lords uses Standing Orders to articulate general principles, leaving detailed implementation to guidance prepared by committees, and subsequently agreed by the House. Moreover, House of Lords Committees have seldom raised allegations of contempt: the only such allegation to be referred to the House of Lords Committee for Privileges in recent times, relating to Mr Trevor Phillips, derived from a Joint Committee.[81] The following paragraphs are accordingly predicated on Commons procedures. If the House of Commons were to adopt our proposals on how its penal jurisdiction should be exercised, we would expect the House of Lords to adopt similar procedures, adapted to the conventions prevailing in that House, in due course.

Fairness

80.  One of the requirements of fairness is that the public have reasonable access to the rules and expectations of each House. For this reason, we suggest that the two Houses not only assert their continuing penal jurisdiction but set out formally and publicly the kinds of behaviour likely to constitute contempt. There are already suggestions as to a fair process in the Resolutions and Standing Orders of the Australian and New Zealand Parliaments, and in the current proceedings of the House of Commons Committee of Privileges.[82] We recommend this approach and the draft House of Commons resolutions and standing orders in Annexes 2 and 3 to this Report draw upon these requirements. They contain much more detail than is contained in this report, and are presented as a preliminary outline of a fair system.

81.  All those participating in proceedings need to know about these safeguards. Sending copies of resolutions, guidance and Standing Orders to witnesses, the great majority of whom appear willingly, may appear unduly threatening. Instead, the key points should be included in guidance for witnesses, together with information about where the full text can be found.

Procedure in Committee

82.  Although we recommend that Standing Orders should be far more explicit about the standard of fairness for normal committee inquiries, those standards must recognise that a Committee is not a court and the consequences of a committee inquiry for the individual or organisation whose evidence may be sought will be limited. In many cases, that individual or person may need simply to supply information, and the inquiry will not be directly concerned with them. The Resolution we attach makes it clear that an outside body which sought to penalise a witness for evidence given to a Committee would be committing a contempt.

83.  Even when a Committee's inquiry results in criticism of an individual or an organisation, the inquiry process should give them an opportunity to put their case. While a Committee's findings may be uncomfortable reading for those criticised, a Committee will not take direct action against them. A Committee report may suggest that illegal conduct has occurred, or that specific conduct should be culpable; it cannot of itself create any legal liability. If a report prompts a disciplinary body to take action, that action will have to comply with the body's own powers and processes. The fact that proceedings in Parliament cannot be questioned in courts or similar bodies outside Parliament provides further protection for witnesses, whether or not they appear willingly.

84.  Moreover, although Committees generally conduct their work transparently, they are willing to keep material confidential when that is appropriate. For example, the House of Commons Public Administration Select Committee took evidence in private from the police and the Crown Prosecution Service when it was assessing whether it could conduct an inquiry into the so-called "cash for honours" affair without compromising criminal investigations.[83]

85.  Where a Committee is simply seeking evidence as part of the normal inquiry process, the standards of fairness should include the opportunity for witnesses to ask for matters to be dealt with in private, to give a clear account of their side of the story and to respond to any potentially damaging allegations made by other witnesses. In most cases, this is already common practice, but we recommend that such good practice should be formalised as part of Standing Orders.

Exemptions from the power to summon

86.  The Green Paper asks whether there should be exemptions from any power to summon for MPs, civil servants and judges. Although we consider legislation inappropriate, we address these points briefly here, since it would be possible for each House to restrict Committees' ability to summon certain categories of witness. Indeed, such a restriction already exists. Constitutionally, Ministers cannot be compelled to attend by an individual Committee, because as Members of one or other House of Parliament they can be compelled only by the House to which they belong. In practice, political pressure is likely to be effective in ensuring attendance, although there have been occasions on which Committees have unsuccessfully sought to secure attendance from MPs or members of the House of Lords who are not Ministers.

87.   Reducing Committees' powers to call for civil servants would rebalance the relationship between the legislature and the Executive in the Executive's favour. The Osmotherly rules, which guide officials in their dealings with Committees of the two Houses,[84] are a creation of the Executive, not of Parliament. As a matter of principle, we see no reason why civil servants should be in a different position from other members of the public.

88.  As far as judges are concerned, Committees have respected the independence of the judiciary, and there is no reason to expect this respect will diminish. We see no reason formally to exclude the judiciary from Parliament's power to summon.

Complaints of contempt

89.  The new Standing Orders should also set out fair processes for dealing with complaints of contempt. There are concerns that under the current system the House, which is the aggrieved body, itself decides whether a contempt has been committed, and if it has, what punishment is appropriate. This is unavoidable: in the same way, the court system has to deal with instances of contempt of court. It is right that the House as a whole should continue to decide on whether a contempt has been committed and, if so, what punishment would be appropriate. The involvement of the House has indeed been a safeguard for those accused of contempt: the House of Commons has twice refused to uphold findings that journalists who published reports based on Committee proceedings should be punished.[85]

90.  There need to be safeguards to make sure that complaints of contempt are considered fairly. The first safeguard is the expectation that except in rare cases, analogous to contempt in the face of the court, the two Houses should exercise their powers only after investigation by the relevant Privileges Committee.

Process in the House of Commons

91.  The House of Commons already has specific procedures to deal with privilege complaints. There are safeguards against frivolous allegations of breaches of privilege: the Committee of Privileges does not have power to inquire at will, it can only deal with complaints which are referred to it; decisions as to whether to refer a matter of privilege to the Committee of Privileges are taken by the House as a whole; and Members require the permission of the Speaker to raise a matter of privilege. The exception to this process is that formal complaints of leaks from select committees are automatically referred to the Committee of Privileges.

92.  The current method of referring a matter to the Committee of Privileges puts hurdles in the way of frivolous or ill-judged complaints, but it also has disadvantages. It seems unfair that the decision is taken after a debate in which Members who will ultimately decide on the outcome if a contempt is found analyse the matter before the investigation takes place.

93.  Since most complaints are likely to relate to proceedings in select committees, we recommend that reports from select committees containing allegations of contempt should automatically stand referred to the Committee of Privileges. The House of Commons Liaison Committee should be consulted before any such complaint is made, as a means of checking a select committee which might agree a Report in haste, and subsequently decide that the behaviour complained of did not, on reflection, amount to a serious interference with the select committee's work.

94.  When the Speaker of the House of Commons considers it is appropriate to allow a matter of privilege to be raised in other circumstances, the House should continue to decide whether or not to refer a contempt alleged by an individual Member. Debate should be limited to the Member's complaint and, if appropriate, a single speech opposing the referral.

95.  If the Committee of Privileges finds that a contempt has been committed, members of the Committee to which the contempt related and Members of the Committee of Privileges should be barred from voting when the House comes to consider the matter, as should any member of the Liaison Committee consulted. The division results should not be announced until the lists have been checked and any improper votes discounted. The motions before the House should be amendable, but amendments to increase the penalty recommended by the Committee (which had heard the evidence) should not be admissible.

Committee investigations of complaints of contempt

96.  The processes for investigating a complaint of contempt should be more rigorous than those in normal committee inquiries, but the precise process required may depend on the nature of the complaint, and on the punishment which the Committee of Privileges considers appropriate. If the Committee considered it would at most admonish contemnors, it would be dealing with a fundamentally different type of inquiry from one in which fines or imprisonment were contemplated.

97.  Although Sir Malcolm Jack considered that "the possibility of hauling people to the bar of the House and admonishing them would provide a theatre of the absurd",[86] the present Clerk of the House noted that admonishment could be done by resolution and suggested that, if it was clear that it was based on fair processes, admonishment would have a considerable reputational (and in some cases, financial) impact.[87] Admonishment could take the form of a resolution of the House, without any requirement for the contemnor to appear in person. We note the House of Commons Committee on Standards and Privileges announced that it would only consider recommending admonishment in the case of the alleged contempt against the Culture, Media and Sport Committee. It has already developed fair procedures to deal with such cases, as set out in its minutes for 3 July 2012.[88] These involve sharing evidence with those under investigation; hearings in which witnesses may be accompanied by legal advisers; and an opportunity to respond to potential criticism by the Committee.

98.  If the Committee of Privileges wished to retain the option of imposing a stronger penalty than admonishment, then it would be appropriate to allow greater rights of intervention by legal advisers, and to ensure that the person investigated, or his or her legal advisers, had the opportunity to put questions to any witnesses. The draft Standing Orders in Annex 3 address these points.

Conclusion

99.  This Report itself begins the process of reasserting Parliament's penal powers, by clarifying our view on those powers and setting out fair procedures which can be followed if those powers need to be invoked.

100.  We recommend that the two Houses should build on our work to set out clearly the powers they reserve the right to exercise, what is expected of witnesses, and the means by which they will consider allegations of contempt, including procedural safeguards to ensure that witnesses are treated fairly.


53   Cm 8318, paragraph 252 Back

54   Second Report from the House of Commons Liaison Committee, Session 2012-13, Select committee effectiveness, resources and powers, HC 697, Volume 1: paragraph 129 and Volume II: Additional written evidence  Back

55   Third Report from the House of Commons Committee of Privileges, Session 1976-77, Recommendations of the Select Committee on Parliamentary Privilege, HC 417; and Resolution of the House, 6 February 1978, CJ (234) 170 Back

56   Demicoli v. Malta [1991] ECHR 13057/87  Back

57   Q 48 Back

58   Written evidence from the Deputy Leader of the House of Commons, paragraph 2 Back

59   Q 3 Back

60   Q 124  Back

61   Q 141  Back

62   Select committee effectiveness, resources and powers, HC 697, Volume II: Additional written evidence  Back

63   Ibid., paragraphs 12 to 15 Back

64   Q 219 Back

65   House of Commons Culture, Media and Sport Committee, Formal Minutes, Tuesday 19 January 2010, published on the www.parliament.uk website Back

66   See House of Commons Treasury Committee correspondence with the Chair of the Financial Services Authority of 13, 15 and 17 December 2010 and 28 March and 11 July 2011, regarding FSA investigation of bank failures, published on the www.parliament.uk website  Back

67   Select committee effectiveness, resources and powers, HC 697, paragraph 134 Back

68   Q 48 Back

69   Written evidence from Sir Malcolm Jack, paragraph 8. In the course of our inquiry The Constitution Society published a paper by Sir Malcolm Jack and Richard Gordon QC, entitled Parliamentary privilege; Evolution or codification? (Constitution Society, 2013). Back

70   Q 284 Back

71   Q 282 Back

72   Q 48 Back

73   R v. Parliamentary Commissioner for Standards ex parte Mohamed Al Fayed [1998] 1 All ER 93 Back

74   Written evidence from David Howarth and Nigel Pleming QC Back

75   Q 52 Back

76   Cm 8318, paragraph 272 Back

77   Written evidence from the Deputy Leader of the House of Commons, paragraph 2  Back

78   Cm 8318, paragraph 262 Back

79   Select committee effectiveness, resources and powers, HC 697, Volume II: Additional written evidence Back

80   Q 141  Back

81   Mr Trevor Phillips: Allegation of Contempt, HL Paper 15 Back

82   See, for example, Australian Senate Resolutions on Parliamentary Privilege and, in New Zealand, the Standing Orders of the House of Representatives relating to Select Committees and Parliamentary Privilege. Back

83   Second Report from the House of Commons Public Administration Committee, Session 2007-08, Propriety and Peerages, HC 153 Back

84   The Cabinet Office guidance to officials on Departmental Evidence and Response to Select Committees ("the Osmotherly rules") is published by the Cabinet Office on the www.gov.uk website. Back

85   When the First Report from the House of Commons Committee of Privileges, Session 1975-76, HC 22, was debated on 17/18 December 1975, the House decided-by 64 votes to 55-that, while regretting the leakage of information from the Select Committee on a Wealth Tax and its publication by The Economist, no further action need be taken CJ (232) 64; in the debate on 20/21 May 1986 on the First Report from the House of Commons Committee of Privileges, Session 1985-86, Leak of Draft Report of Environment Committee on Radioactive Waste, HC 376, a motion to agree with the Committee of Privileges' recommendations was amended-by 158 votes to 124-so that the House took note of the Committee's Report, with the rider that the House believed that "it would be proper to punish an honourable Member who disclosed the draft report of a select committee before it had been reported to the House; but considers that it would be wrong to punish a journalist merely for doing his job" CJ (242) 374. Back

86   Written evidence from Sir Malcolm Jack, paragraph 11 Back

87   Select committee effectiveness, resources and powers, HC 697, Volume II: Additional written evidence Back

88   The Formal Minutes of the House of Commons Committee on Standards and Privileges are published on the www.parliament.uk website. Back


 
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