After a protracted inquiry, begun originally in 2016 by its predecessor committee, the Commons Select Committee of Privileges has produced its report, entitled ‘Select committees and contempts: clarifying and strengthening powers to call for persons, papers and records’, (1st Report Session 2019-21 HC 350) on 27th April 2021.
The main recommendation of the report is radical, advocating the need for codification, something which was proposed by the Joint Committee on Parliamentary Privilege 1999 but was brushed aside by the Joint Committee of 2013. Such a measure would deal in particular with the refusal of witnesses to attend select committees and the failure of committees to secure papers. (Paragraph 71).
The Committee considers that any attempt to exercise the historic powers of the House to fine or imprison for offences of refusal either for witnesses to attend or papers to be provided for select committees would contravene the Human Rights Act 1998, as well as other international obligations. (Paragraph 55). Nor would it provide a workable solution to the problems facing select committees. (Paragraph 57).
Prior to any legislation regulating how contempts should be dealt with, the Committee recommends that the House formulates ‘a clear internal framework establishing due process and ensuring fair treatment of witnesses.’ (Paragraph 112). That objective will be achieved through Standing Orders or Resolutions of the House. To ensure fairness, it must be accompanied by comprehensive guidance on how witnesses should be treated. (Paragraph 135).
In coming to its main conclusion on the need for codification, the Committee has considered the practice in Commonwealth and other legislatures. It notes that though sanctions exist in most examples of codification, they are seldom deployed but ‘the threat of sanctions is recognised as an important aid to compliance.’ (Paragraph 97).
Recognising that codification may involve the courts interfering in matters of exclusive cognisance, the Committee nevertheless considers that it is the only option for the House to ensure the effective discharge of select committee functions. Moreover, it expresses its belief that ‘it is possible to draft legislation that simultaneously strengthens the powers of Parliament, encourages compliance from witnesses, is consonant with human rights legislation and maintains the careful constitutional balance between Parliament and the courts.’ (Paragraph 98).
The Committee intends to consult widely on what form codification should take, posing a number of questions about the nature of the legislation and the treatment of witnesses, before it produces a final report to the House; but it considers that both those measures must, in principle, be put in place. (Paragraph 144).
Sir Malcolm Jack was Clerk of the House of Commons from 2006-2011. He is also an academic historian and President of The Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.