Parliamentary committees have broad powers and can relate to a wide range of industry sectors. Until now private organisations called upon to participate have often found it difficult to establish exactly what their obligations are and what powers these committees hold. A recent report from the Joint Committee on Parliamentary Privilege recognises this concern and recommends that guidance should be provided to witnesses and that minimum standards of fairness be formalised.
- Parliamentary committees have wide ranging powers to compel the attendance of witnesses and the production of documents.
- These powers can, in theory, override usual rights of parties to litigation such as the protection of legal professional privilege.
- Material provided to a parliamentary committee is protected from use in subsequent court proceedings by the doctrine of parliamentary privilege.
- Refusal to comply with the select committee may be punishable as contempt of Parliament.
- A new report has looked at the issue of parliamentary privilege and recommends guidance and clarity on committee procedures and powers.
The powers of Parliamentary committees
Parliamentary privilege is the doctrine by which each House of Parliament controls its own proceedings and whereby those participating in Parliamentary proceedings, for example as MPs in debates or through private individuals participating in the proceedings of a Parliamentary committee, can speak freely without fear of legal liability or other reprisals. This means that evidence given to a select committee cannot be used in subsequent court proceedings and seeking to penalise a witness for the evidence they give could amount to contempt of Parliament.
Select committees are appointed by either House to perform a wide range of functions on behalf of the House. Their proceedings are therefore governed by the same rules as apply in the Houses of Parliament themselves. The most significant of these powers is the power to send for persons, papers or records, which enables committees to obtain written and oral evidence. This power is extremely broad and unqualified. In relation to documents there is no defence of privilege or confidentiality – all documents are subject to the powers of committees. The only exception to this is where there are active legal proceedings, in which case the active proceedings should not be referred to in public (although this does not stop the committee seeking evidence in private session). However, our recent experience suggests that even where there are related court proceedings on-going or anticipated select committees do still seek attendance of witnesses, which can put senior management in private organisations in a very difficult position. Clearly they must co-operate with the select committee but equally they will be anxious not to prejudice their position in related proceedings.
In practice the formal powers and penal powers of committees are rarely used and instead the committees issue invitations to give evidence or provide documents, which invitations are generally accepted. However, if they are declined without good reason a formal summons to appear as a witness can be issued. Similarly refusing to provide documents without good reason would be technically contempt of Parliament, although there may be some discretion exercised where the reason given was fear of self-incrimination or prejudice to on-going legal proceedings and it is possible to ask for material to be kept confidential or evidence to be heard in private. Giving false evidence to a committee also amounts to contempt of Parliament, and this would be more likely to be punished.
In modern times the penal powers of committees have very rarely been used and there appears to be reluctance to do anything other than state the committee's displeasure with a particular individual or organisation (which would of course give rise to significant reputational damage of itself).
Joint Committee on Parliamentary Privilege
The Joint Committee on Parliamentary Privilege was appointed in December 2012 to consider the Government's Green Paper on the issue and its report was published in July 2013 ("the Report"). It has made a number of recommendations, but has not suggested codifying the doctrine in legislation. The Report emphasises that committees must continue to have broad evidence gathering powers to properly fulfil their functions, which can be broad ranging and have become a key part of how Parliament fulfils its role as "the grand inquest of the nation". The number of recent select committees considering issues of public concern reinforces this point.
The Report acknowledges the reluctance to use penal powers, and takes the view that there are real risks that this will eventually lead to witnesses trying to test those powers by refusing to comply with the committees. In spite of these risks the Report does not recommend criminalising contempt of Parliament or legislating to confirm the penal powers.
Instead the Report encourages committees to assert their penal powers and to set out formally and publicly the kinds of behaviours that would constitute contempt. There is a recommendation that guidance for witnesses should be produced explaining the procedures and the procedural safeguards in place, including the doctrine of privilege which means that, for example, a committee report suggesting that illegal or improper conduct has taken place cannot of itself create any legal liability. This is said to be an important protection for witnesses who may be forced to give evidence unwillingly. Standards of fairness for witnesses such as the opportunity to respond to damaging allegations made by other witnesses and the opportunity to put forward their side of the story, although said to be "common practice", should be formalised.
Interaction with the Human Rights Act 1998
It is questionable whether the powers and procedures of select committees are compliant with the Government's obligations under the Human Rights Act 1998. For example, compelling the production of confidential privileged documents in a public forum may arguably amount of a breach of Article 8 (the right to privacy, which has been held to cover confidential information and correspondence).
If criminal sanctions were used to enforce the powers of the committee then Article 6 (the right to a fair trial) would also be engaged and a range of procedural protections would then need to be provided to witnesses. The evidence gathered by the Joint Committee included a statement from the Deputy Leader of the House of Commons that the procedures and practices would have to significantly change before a fair trial could be provided.
This may well be a reason why the committees seem to be so reluctant to use their formal powers.
Giving evidence to a Parliamentary select committee is fast becoming an unpleasant but necessary part of many private organisations' obligations, particularly those in heavily regulated sectors where there is significant public concern over any regulatory failures. The current position is unsatisfactory as the rules are often unclear and the ability to override privilege and confidentiality can be highly damaging to organisations who may already be anticipating regulatory or legal proceedings (although in practice organisations are unlikely to provide privileged material and will often ask for this to be protected).
The Report is helpful in at least recommending that the position be made clearer and that certain minimum standards of fairness be universally applied. However, the protection offered by Parliamentary privilege will be of little comfort to private organisations once their privileged and confidential documents enter the public domain. It remains to be seen whether the call for committees to assert their powers leads to more unreasonable positions being taken when a private body seeks to decline to answer questions on this basis.