Thursday, 14 July 2011

The Commons power to summon witnesses

Fascinating extract from the guide to Disciplinary and Penal Powers of the House

"A refusal by a witness to attend a Select Committee may be construed as a contempt.
If a witness is unwilling to attend, the committee can agree to order the attendance of a witness at a specified date and time. Such an order is signed by the Chairman of
the Committee and is either forwarded to the witness by registered post or served
personally by a member of the Serjeant at Arms' office. Similarly, an order may be
served upon a witness (not being a Minister, a Member of either House, or an officer
of a Government department) for the production of papers or records required by a
Select Committee.

If a Select Committee has issued a summons to a witness to attend, or produce
papers, and the witness has not responded, it is for the House to act (or not) on the
basis of a Report made to it by the committee. The House may order the Serjeant at
Arms as Warrant Officer of the House to serve a Warrant on the witness. Formerly,
the Serjeant would be sent with the Mace as the symbol of his authority, to order the
attendance of witnesses. However, by the end of the seventeenth century, it had
become accepted that the Mace was required to remain in place for the House to
meet. Therefore, the device of the Speaker's Warrant was invented. In serving the
Warrant, the Serjeant or his appointee may call on the full assistance of the civil
authorities, including the police.

The last use of the Warrant to summon witnesses was in January 1992 (when the
Maxwell brothers were reluctant to attend the Social Security Select Committee
inquiry into the operation of pension funds).

Refusal to answer the questions of a Select Committee is more complicated. In such
an instance the House would look to precedent. A series of options, mentioned
below, are available to treat contempt of the House; these would similarly apply to
contempt before a Committee.

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House
collectively as a constituent part of the High Court of Parliament, and by Members of
each House individually, without which they could not discharge their functions, and
which exceed those possessed by other bodies or individuals. Because neither House
could perform its functions without the unimpeded services of its Members, privileges
Disciplinary and Penal Powers of the House Department House of Commons Information
are required by each House for the protection of its Members and for the vindication
of its own authority and dignity.

(Memorandum by the Clerk of the House of Commons to the Report by the Select
Committee on Parliamentary Privilege, HC 34, 1966-67.)

Following the reports of the then Nolan Committee and the House's Select
Committee on Standards in Public Life (HC 637 1994/95), in 1995, the House of
Commons merged the functions of the former Select Committees on Members'
Interests and on Privileges into the Select Committee on Standards and Privileges: the House also appointed Sir Gordon Downey, KCB, as Parliamentary Commissioner for
Standards, now Mrs Elizabeth Filkin. Matters involving the declaration and
registration of Members' interests, or complaints regarding the more general conduct
of Members, are dealt with in the first instance by the Commissioner, who advises the
Committee on an appropriate course of action.

The House may consider a matter relating to privilege itself: more often, however,
matters arise, usually involving the conduct of non-Members, which need more
detailed investigation. In these circumstances, the House would refer the matter to
the Select Committee of Standards and Privileges. Although the Committee may
consider any matter relating to privilege referred to it by the House, the normal
practice is for such cases to be raised by individual Members by letter with the
Speaker, who has the authority to decide whether or not to allow the Member to
move a motion relating to the matter in the House. Such a motion has precedence
over other business. The usual course after the Motion has been moved would be for
a Member (often the Leader of the House) to move that the matter be referred to the
Select Committee on Standards and Privileges. The Committee would report its
recommendations to the House: these would be debated and the House would
decide whether or not to accept the recommendations.

In modern times, the House has shown increasing reluctance to exercise its powers
even when evidence of a contempt is clear. Indeed, in 1967, the Select Committee on
Parliamentary Privilege (a Committee specially set up to consider every aspect of
privilege) recommended that "the House should exercise its penal jurisdiction (a) in
any event as sparingly as possible, and (b) only when it is satisfied that to do so 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".

This recommendation was endorsed by the Committee of Privileges in 1977 and approved by the House and given immediate effect on 6 February 1978. This decision guides the Speaker, the House, and the appropriate Committee.

A new Joint Committee on Parliamentary Privilege was set up in the 1996-97
Parliament, to consider the current situation on privilege, given, especially, the
aftermath of the 'cash for questions' affairs and on Members' ability to waive
privilege. It reported on 30 March 1999 (HC 214 1998/99, available on the internet at:

The House debated the report on a motion for the adjournment on 27 October 1999,
but has not yet agreed to implement its findings. In the 2010-11 Queen’s Speech,
the Government announced its intention to publish a Draft Parliamentary Privilege Bill to build upon the Joint Committee on Parliamentary Privileges’ 1999 report.
If the witness is in attendance, he or she may be brought by the Serjeant at Arms to
the Bar of the House and before the assembled Members, to be admonished by the
Speaker. If not in attendance, the witness may be ordered into the custody of the
Serjeant, by use of the Warrant, to be brought to the Bar at a date and time specified by the House.

The last stranger (non-Member) to be brought before the Bar and admonished by the Speaker was John Junor on 24 January 1957, for an article
published in the Sunday Express casting doubt on the honour and integrity of
Members. Junor apologised and no further action was taken. Members are
admonished standing in their places. The last Member to be so admonished was Mr
Tam Dalyell on 24 July 1968.

On 6 February 1750, Alexander Murray was called to the Bar in connection with
malpractice at a City of Westminster election. Found guilty by the House, he was
ordered into custody at Newgate Prison until the end of that parliamentary session.
When hearing sentence, he refused to kneel at the Bar and was further found guilty of
a "high and most dangerous contempt of the authority and privilege of this House".
The House further ordered that while in Newgate, (Murray) "be not allowed the use of
pens, ink or paper; and that no person be admitted to have access unto him, without
the leave of this House". (HC Journal 6 February 1750)

The last fine imposed on an offender by the House was on 6 February 1666. Thomas
White was fined £1000 (£114,000 today): White absconded after being ordered into
the custody of the Serjeant at Arms, for causing Henry Chowne, the Member for
Horsham, to be arrested and prevented from attending Parliament. The power to fine
was denied in 1762 by Lord Mansfield in R v Pitt and R v Mead (3 Burr 1335) and the
House has not sought to revive the claim to fine since. In a report in 1967, the
Privileges Committee recommended that legislation be introduced to enable the
Commons to impose fines with statutory authority. The Committee repeated this
recommendation in 1977, but no action has been taken.

The last imprisonment by the Commons of a non-Member was of Charles Grissell in
1880 (breach of privilege in connection with the Committee on the Tower High Level
Bridge [Metropolis] Bill). The House no longer retains it right to imprison. Instead
the House uses a division of the Metropolitan Police based on the Parliamentary
Estate to detain and, if necessary, arrest individuals.

In the lower third of the Clock Tower, is a room in which unruly Members were
confined when committed to the custody of the Serjeant at Arms. Technically, a
Member so committed could be detained for the remainder of the Parliamentary
Session but one day was the general rule. The last Member committed was Charles
Bradlaugh (Northampton), who spent the night of 23 June 1880 in the room.
Bradlaugh had repeatedly refused to take the oath of allegiance required of every
newly elected Member and claimed the right to affirm. Over the next six years, he
was excluded from the House, unseated four times, and re-elected for the same
constituency every time. He finally took his seat in 1886 and remained a Member
until his death in 1891, having successfully introduced a Bill which led to the Oaths
Act 1888, which allowed an affirmation to be taken in all cases where an oath was
Disciplinary and Penal Powers of the House Department House of Commons Information

The former cellroom is now used for other purposes."

No comments:

Post a Comment