For centuries Parliament has used committees of members to conduct particular investigations, but it is only recently that individuals and organisations beyond Westminster have started to take note of the increasing power and influence of select committees. Now, for many clients, giving evidence to a select committee is fast becoming a necessary part of their obligations. This article discusses the evolution of select committees, their powers and, finally, what to do if you are called to give evidence before one.
Since 1979, select committees have played a central role in the operation of Parliament, although they date back much further than that. Today, there are three types of select committees: House of Commons select committees; House of Lords select committees; and Joint committees. This article focusses in particular on House of Commons select committees, albeit that many of the issues discussed below are of wider relevance. Accordingly, references to ‘select committees’ should, unless otherwise stated, be read as a reference to House of Commons select committees.
The basic idea behind the current House of Commons system is that a committee of MPs should be established to scrutinise the policy, spending and administration of each Whitehall department and its associated public bodies, and conduct oversight and investigative work. House of Lords select committees complement the House of Commons’ committees; the main difference being that each Lords’ committee is responsible for a broad subject area rather than a government department, which allows them to be more flexible in their investigations. Further, the focus on subject area and the ability of Lords to devote more time to academia means they are usually specialists in their areas. Joint committees, as the name suggests, are committees comprising of a mixture of MPs and Lords with similar powers to select committees.
Membership of select committees is broadly proportional to the party balance in the House of Commons. Similarly, the policy scope of departmental select committees will usually change when the responsibilities of Government departments change - either due to a change in Government or because of a cabinet reshuffle.
According to the Liaison Committee, which comprises all individual House of Commons select committee chairs, the general function of select committees is “holding to account individual departments and the Government as a whole”. Select committees are expected to achieve this aim by undertaking ten core tasks which include examining the implementation of legislation and major policy initiatives, scrutinising major departmental appointments, examining bills published in draft and considering departmental proposals in white papers and green papers. The core tasks were introduced as a result of Robin Cook’s Modernisation Committee inquiry into the operation of select committees in 2002, which, amongst other things, sought to broaden and formalise the range of activities undertaken by select committees.
The independence of select committees has been strengthened further by a number of recent changes. Most notably, following the implementation of the 2009 Wright Committee recommendations:
- chairs are now elected on a free (and secret) ballot of all MPs;
- backbench members, not whips, determine who should represent their party on each committee; and
- a Backbench Business Committee gives committees greater opportunity to place items on the agenda of the House.
Making the position of chair elected appears to have reinvigorated select committees and changed the dynamic. MPs can now carve a role, voice and career for themselves by being an effective chair: indeed, several of today’s select committee chairs can rival Government ministers in terms of public profile and media coverage. It is unsurprising, therefore, that membership of the committees has become more attractive and is pursued by MPs with ministerial ambitions or even as an alternative career path to the cabinet.
With increased independence and influence both within and outside the Government, there is no doubt that, in theory at least, select committees are now better equipped than ever to meet the challenge of scrutinising Government departments and associated public bodies. In this context, it is worth noting that the scope of select committee activity appears to have been extended over recent years and in practice many of them are starting to stray beyond their formal remit of examining Government departments and associated public bodies. Indeed, the Government accepts that select committees should be able to look at non-departmental public bodies and non-Ministerial departments and the Cabinet Office has suggested that the broad test is “whether there is a significant degree of ultimate Ministerial accountability for the body in question”. As a result, select committees are now examining and carrying out investigative work in respect of a wider range of public bodies and other organisations. Nevertheless, questions and confusion persist over the extent to which the powers of select committees can be enforced in practice.
Can Select Committees compel attendance / production of documents/ provision of information?
The powers of individual select committees are set out in various Parliamentary standing orders, which should be your first port of call if you receive a request from one of them. For example, the powers of the Public Accounts Committee are principally set out in Standing Order of the House of Commons No 148, which provides that “The committee shall have power to send for persons, papers and records…”.
At first glance therefore, select committees have a wide entitlement to ask any questions and seek any witness or information that they choose. However, the power to send for “persons, papers and records” does not appear to confer an enforcement power on select committees in the event that such a request is refused: a power to send for persons, papers and records is not the same as a power to compel attendance or the provision of information. Where Parliament wishes to confer an enforcement power on a select committee by standing order it has previously done so in express terms.
What are the possible consequences of failing to comply?
The apparent absence of an enforcement power does not mean that refusing a request to appear at, or provide information to, a select committee is without consequence. In particular, as select committees act under the powers delegated to them by Parliament, refusing such a request arguably runs the risk of a finding of contempt of Parliament. Whether or not there has been an act of contempt is a matter for Parliament (as a whole) to decide and is not a finding that a particular select committee can make itself. The following behaviours (among others) are likely to be considered a contempt of Parliament:
- Deliberately attempting to mislead the select committee (by way of statement or evidence);
- Without reasonable excuse failing to attend the select committee after being summoned to do so; and/or
- Without reasonable excuse refusing to answer a question or provide information or produce papers formally required by the select committee.
As a result, it is particularly important to ensure that you are seen to act ‘reasonably’ in the eyes of Parliament. For example, it may be reasonable to refuse to provide answers which are commercially sensitive in a public hearing, but it may be unreasonable not to provide the answers at all if the relevant select committee agrees to a private hearing and to keep any information provided confidential. It should also be borne in mind that acting reasonably is no guarantee that a finding of contempt will not be made: ultimately this is a question for Parliament to decide.
If a select committee considered it was being obstructed in one of the ways set out above it could make a special report to the Privileges Committee (“PC”). The PC would then consider the matter and make a recommendation to Parliament as to whether there has been a contempt. A reference to the PC would itself be quite damaging to reputation and a recommendation by the PC that there had been a contempt even more so. However, the matter would be unlikely to escalate further - a formal sanction imposed by the modern House of Commons is very unlikely. It has been over a century since Parliament last exercised its penal powers (it last imposed a fine upon a non-member in 1666) and in 1978, the House of Commons resolved that it should do so sparingly and only if it was essential in order to protect the House and its members from improper obstruction.
In practice, therefore, the most likely consequence of failing to comply with the requests of a select committee is reputational damage. In addition to the possibility of a reference to the PC for contempt, select committees have shown on a number of occasions that they are generally not averse to reprimanding witnesses they consider to be evasive (or even unprepared) and such incidents are likely to be picked up by the media. Therefore, we would usually advise compliance with the requests of select committees unless there is a bona fide reasonable excuse for resisting.
Appearing before a select committee - some practical tips
Set out below are a number of practical tips we can offer to clients who have been summoned to attend a select committee hearing to give evidence. The two main things to consider are: (i) who will be sent to answer the select committee’s questions; and (ii) what that person is going to say. When considering both of these, it is important for lawyers and PR teams to work closely together, particularly in light of the reputational damage which may be done to an organisation by a poor performance before a select committee.
Who should be sent to answer questions?
It is vital that you send an appropriate spokesperson who can strike the right balance between someone who is sufficiently senior to appear authoritative before the committee and someone who has the knowledge and ability to answer the committee’s questions. In previous select committee hearings, perhaps most notably those of the Public Accounts Committee, committee members have not hesitated to admonish witnesses who have been unable to provide answers to what the committee considered were simple questions.
Preparation, preparation, preparation…
When preparing for what the spokesperson will say, it is important to think not just about your agenda but also to ensure that you understand the select committee’s agenda and wider public opinion, as a committee’s questions will usually be driven by the latter. Following the press in the days prior to the hearing can be a useful aid to determine what the focus of the committee’s questions - and therefore your answers - might be.
While select committees generally do not give advance notice of their intended lines of inquiry, the staff or clerk of the relevant select committee should give some advance warning if the hearing might necessitate the gathering together of some information or views. With the agreement of the select committee in question, its staff may also be able to provide an informal indication of possible lines of committee inquiry, in order to assist preparation for the session. However, the select committee is unlikely to restrict itself to those lines of inquiry
Maintaining a constructive relationship with the staff or clerk to the relevant committee may also enable you to negotiate availability to attend the hearing, which is particularly important when select committees request attendance on short notice. In our experience, this can also be useful opportunity to lay the groundwork for any particular requests. For instance, some questions may require disclosure of confidential or privileged information, having a good relationship with the staff may facilitate making a request to provide certain information or documents in private or in writing to the committee, subject to confidentiality.
Giving oral evidence to a select committee
When giving evidence, it goes without saying that it is always best to emphasise what you do know in front of the select committee. It is particularly beneficial in this respect to have a few key messages to hand which a witness can refer back to throughout the hearing. Following the press in advance of a hearing will help to shape those messages and ensure that they are in tune with public sentiment - thus avoiding the PR pitfalls that have befallen some select committee witnesses.
If the witness does not have the information to answer a question immediately to hand s/he should be candid about this and offer to provide the answer in writing to the select committee subsequently. If the select committee hearing is taking place before an individual or organisation has been able to properly assess and understand a particular situation, that should be made clear to the committee and the committee should be informed of the steps being taken to find out the answers to the MPs’ questions.
Can you refuse to answer?
Refusing to answer the committee’s questions on the basis of commercial sensitivity has been discussed above. Other issues to be aware of include:
- Breach of a legal obligation of confidence: A select committee may ask a question, to which giving the answer would or might put an individual or organisation in breach of an obligation of confidence to a third party (whether statutory, contractual or tortious). While select committees might attempt to compel an answer on the basis that witnesses benefit from parliamentary privilege and, thus, are immune from civil or criminal legal action arising from the disclosure, this does not mean that the disclosure of the information would not still be unlawful. Depending on the particular question/answer concerned (e.g. the degree of sensitivity / confidentiality involved and perhaps also the relevance or irrelevance of the information requested), there may be grounds for being excused from answering or, at least, for being allowed to answer it in private.
- Related court proceedings are underway/imminent: The House of Commons has resolved that no matter awaiting or under adjudication by a court of law should be brought before it or debated and this extends to proceedings in select committees. Therefore, it is very unlikely that a select committee will intentionally ask questions relating to matters which are sub judice. If they do, the witness could respectfully remind the committee that the matter in question is subject to court proceedings and that to comment on it would be inappropriate.
- Legal Professional Privilege: It is possible that a select committee may request information or documents which are subject to legal professional privilege. A leading text on Parliamentary practice supposes that legal professional privilege is not a ground on which disclosure can be resisted. However, that view is not uncontroversial and there are other commentators who consider that the fact that the information is legally privileged may amount to a reasonable excuse for not answering the question, thereby negating a possible finding of contempt.
What the future holds
The rise of select committees over recent years and their increasing influence on high profile policy issues has led to speculation that a substantive challenge to their powers cannot be far away. Questions have also been raised around whether the powers and procedures of select committees are consistent with the Human Rights Act 1998 - for instance, requiring legally privileged documents to be produced in a public forum may constitute a breach of the right to privacy under article 8.
In light of these issues, as well as the confusion surrounding the scope of select committees’ powers, in July 2013, the House of Lords and House of Commons Joint Committee on Parliamentary privilege recommended that both the Houses reassert and confirm what their penal powers are, set out fair procedures which can be followed if those powers need to be invoked, and set out the procedures for considering allegations of contempt.
While these recommendations have not yet been implemented, it is arguably only a matter of time before they (or something similar) are if select committees are to continue conducting high profile, and sometimes controversial, investigations.