Privileges

John Redwood Excerpts

Tuesday 2nd April 2019 Commons Chamber

[Damian Collins]

As I said to my hon. Friend earlier, I think there is a basic principle and a presumption that witnesses, be they a Minister or not, should attend Committees conducting inquiries. Select Committees conduct such inquiries on behalf of the House, with powers delegated to them by the House. I also believe that if a Member of the House of Lords chose to use their special privileges as a parliamentarian not to be summoned in front of a Committee, that would not be appropriate if that Member of the House of Lords held an important public position, as many Members of the House of Lords do.

Other options are available to question Members of Parliament and Ministers that are not available to question a private citizen. The only forum we have to question a private citizen as part of a parliamentary inquiry is to invite them to appear before a Select Committee. That power is incredibly important, because the role of a Select Committee is not just to scrutinise the work of a Government Department or a public body, but to scrutinise other matters of public interest, where a Committee believes there is a case for Government intervention, new rules or new laws on something important. It is for the Committees to determine the scope of their inquiries, and witnesses should attend when required. It is very rare that witnesses choose not to attend.

[John Redwood (Wokingham) (Con)]

Of course, Mr Cummings cannot be with us today—and did not want to be with us on another occasion. Did he give any indication that he thought there was some legal reason why it would be better if he did not attend?

[Damian Collins]

The correspondence between me as Chair of the Committee and Mr Cummings is published in full in the Committee’s report, so any Member can read that and make their own judgment as to the case that Mr Cummings made. Obviously, the matter was also reviewed by the Privileges Committee, which also invited Mr Cummings to speak to it as part of its inquiry, which he declined. Mr Cummings stated that other cases were involved, and that he had been guided by the people he had spoken to not to appear, but there was no reason in law for that. He was not under personal investigation; he was not likely to be charged with an offence. He may have all sorts of private grounds for not wanting to do it, but unless there is a particular legal reason why witnesses should not appear, I do not believe it is good enough for them to create reasons why they would rather not give evidence; that would undermine the whole process. If a witness declines to give evidence simply because it is unsatisfactory to him to do so, I do not think we should accept it.

--- Later in debate ---

[Damian Collins]

That is absolutely right. I was a member of the Committee when Rupert Murdoch came to give evidence, in response to a summons of the House. That was right in the middle of the phone-hacking scandal, with legal cases left, right and centre—massive challenges for that business—and yet he considered that it was his responsibility and the proper thing to respond, give evidence in person and answer all the Committee’s questions. If it is good enough for someone of the stature of Rupert Murdoch, surely Dominic Cummings could find time in his busy schedule as well. There was no reason why he should not have done so.

There have been other times when my Committee has struggled to get witnesses to attend and they have attended at the last minute. We are going through that process now with some companies. We may wish to call other organisations as well. We saw during our inquiry that other political campaigns, such as the shadowy Mainstream Network, which was advertising last year on Facebook, were seeking to get members of the public to lobby their MP on what they should or should not do on the Brexit withdrawal agreement. Other organisations, such as We are the 52% and Britain’s Future, are doing that right now. We might want to call in such organisations in future as part of investigations, but they could look at the behaviour of Dominic Cummings and say, “We are disinclined to come, and there is not much you can do about it.”

People often cite the ancient powers of the House to lock people up in a prison under Big Ben or in the House, and those powers technically still exist, but they would rightly be considered to be unenforceable. The House must therefore debate and decide what we want to do when witnesses decline to attend. There should be a proper process; it should not just be down to the arbitrary summons of 11 Members of Parliament. There should be a proper process to check—as the Privileges Committee has done—that the Committee was following due process, that it had good grounds, and that there was a public interest in the witness attending. Then, when they fail to attend, there should be some clear sanction. In other Parliaments in the world, there are rules in such cases—a referral to court or some other body that makes the final decision and imposes a sanction. I believe we now need clearly codified rules, on both summoning witnesses and ordering papers.

[John Redwood]

I am interested in this point. What kind of sanction does my hon. Friend think would be appropriate and might make a difference?

--- Later in debate ---

[John Redwood (Wokingham) (Con)]

Along with many colleagues, I think that the Select Committee system is a good one, and it can only operate if we invite witnesses to give evidence. If they do not want to appear, we can summon them, so I think the debate is timely. It should not just be about one particular case or person but encompass the important issues alluded to by some of the previous speakers that revolve around the question of what is a compelling invitation and what is a sanction for those who refuse the invitation or the requirement that they should attend and answer questions.

[Michael Fabricant]

I am sorry to interrupt my right hon. Friend so early in his speech, but I want to probe him on this. Earlier in the debate, Members discussed what happened in other countries—for example, the United States, where there are sanctions if someone does not appear before a House Committee. Then we get into a position whereby witnesses say to the Committee, “I am sorry, I won’t answer that because it might incriminate me.” Does my right hon. Friend think that we have to be careful lest we end up with that situation? It is about getting the balance right.

[John Redwood]

I agree that it is about balance. My hon. Friend has invited me to reach my conclusion before I have made my argument. However, cutting to part of the conclusion, yes, we do need to look at sanctions, and it would be good if as a result of this debate the relevant Committee considered practice in other good, democratic institutions around the world and looked at which were most effective. We need to be seen, as we are, as a serious body with every right to require any UK citizen to come here and explain themselves, and we need to be able to enforce that in a sensible and proportionate way. I do not think that our current enforcement is proportionate if someone has no good reason to refuse or deny.

I want to develop one or two exceptions to that rule. At the heart of this particular case is the issue of whether or not legal proceedings are under way that could in some way be prejudiced if the witness came here and spoke too widely about the things that the authorities were investigating. There is a sub judice rule. It is always a matter of judgment for any individual who faces that kind of proceeding, and it is also a matter of judgment for lawyers involved in prospective cases. I do not think that we should ignore that, as it could be an important part of this particular case, and can certainly be a crucial part of any future case. If someone has to answer because there is a general worry about their past conduct—I am not talking about Mr Cummings; I am talking about a future case—it is quite likely that there could be a legal inquiry, as well as the wish to have a parliamentary inquiry.

If we are going to have higher sanctions, as I suspect we should, we need to be even clearer about what are the legitimate legal grounds. That brings me to my next point. When people do something that is contentious for the wider public and for Members of Parliament, and which splits opinion in the country, there is a danger of too many inquiries. Suddenly, they are all across the media, and are on the front pages of the newspapers. Everyone is talking about them, and people chase the ambulance—they want to chase the excitement. There is a danger that there will be several Committees in this House wanting to conduct an inquiry into largely the same thing from different departmental perspectives. They may want to home in on the same key witnesses, because they are so newsworthy at the moment. We may then be in a position where we overload potential witnesses, and get in the way of conducting a fair inquiry that can add to our understanding, rather than just adding to glamorous media reports of our involvement.

[Damian Collins]

I know that my right hon. Friend is talking in general terms about a future case, but for the record, in this particular case involving Mr Cummings, Select Committees were not competing to ask him to come and give evidence. We were the only Committee that sought to invite him to appear, and we took advice from the House authorities on whether or not the concerns raised about other cases were relevant to our request.

[John Redwood]

I understand that, and I explicitly said that I was not talking about Mr Cummings in that part of my speech. This is about how we enforce in general, as well as being about the sanction that the House wishes to confirm in the motion against a particular individual. Certainly, Mr Cummings, Vote Leave and all the rest of it might have been subject to other inquiries, because there has been huge political interest in that both outside and inside the House, and it is a contentious matter. It is the kind of thing where there could be inquiry overload, with more heat but not a lot of light. We need a period of calm reflection, as I know the Committee Chairman and others are undertaking, to think about a range of possibilities.

There are two issues to deal with before we think of intensifying our sanction regime. First, can a witness give a really good reason, because of some kind of legal advice or legal inquiry? We do not want to get in the way of proper inquiries into possibly serious crimes. Secondly, can we make sure that we do not contribute to chasing excitement, and often false allegations, because an individual is in the media spotlight? Where there is a serious interest, perhaps a lead Committee should take it up and handle that particular person.

It is also important to be fair between the different possible categories of witnesses. We have to bear in mind that an individual will not have the back-up, support and cover for legal and other costs that may be involved in being on the wrong end of an inquiry, whereas a representative of a great company will have enormous support and will have people writing parts of their evidence and drawing on the back data that is needed, and they will obviously have cover for legal expenses.

[Michael Fabricant]

I am grateful to my right hon. Friend for mentioning the types of witnesses who appear before Select Committees. I simply want to put the record straight. Is he aware that Dominic Cummings’s father was an oil rig project manager, his mother was a special needs teacher and he went to Durham School? To categorise him, as the hon. Member for Edinburgh East (Tommy Sheppard) did, as some sort of “posh boy” is completely wrong.

[John Redwood]

It is always better to deal in facts than in general allegations or misdescriptions, so I thank my hon. Friend for his intervention.

The point I am making is that Committees should understand that an individual who does not work for a great corporation, who does not have a well-paid job or who is no longer part of an organisation does not have the same back-up and support as someone who is still the chief executive of a mighty company.

[Damian Collins]

My right hon. Friend is making an important point. The chief executive of a big company will have a team of people to help them prepare their evidence, but that is not required. Committees well understand that a submission from a company might be different from a submission from a private individual. There are many private individuals who submit written evidence and who freely come to give evidence to Committees without any of that support. All we ask them to do is to come and talk about themselves. In fact, when they seek to give evidence, they have the same legal immunity and protection as members of the Committee do, so they do not have to worry about potentially incriminating themselves or taking legal advice before speaking out.

[John Redwood]

I was not going to conclude that we should stop asking people who do not have a well backed up job, but we need to understand, as I am sure my hon. Friend does, that if we are asking an individual who was once in an important position, with all that back-up, to come and talk about events of a year or two years ago, and if they do not wish to mislead the Committee and they wish to be factually accurate, they will need somehow to get access to the records of their past institution and they will need to go through a lot of preparation, and they will have to do it all for themselves or spend their own money on getting advice and legal support.

[George Eustice]

Does my right hon. Friend agree that we need to be mindful of the unintended consequences if we were to introduce a stronger sanction on witnesses for failing to appear? What if, for instance, the Digital, Culture, Media and Sport Committee were holding an inquiry into phone hacking and decided it would be newsworthy to force the parents of a murdered schoolchild to appear before the Committee? That would clearly be inappropriate, and it would clearly be inappropriate to use such a sanction in that situation.

[John Redwood]

That is another hard case I had not thought of, and it needs to be taken into account as we pursue this general issue of what would be a relevant sanction.

The third category of people is senior officials and Ministers who receive salaries from the public via the Government. I think they should be more answerable than anybody else, because they are, by definition, primarily remunerated by and spend much of their lives working for the Government and the public. I would have difficulties if we found that Committees could not get access to senior officials who work full time for the Government and the wider public or if, in certain cases, as my hon. Friend the Member for Folkestone and Hythe (Damian Collins) mentioned earlier, Ministers did not think they should be answerable to elected Assemblies because they thought it might be inconvenient to give more background or detail on the policies they have been pursuing or the decisions they have taken.

I would want to weight things a bit more heavily in favour of this House having extremely strong powers to demand the presence of senior officials and Ministers, who should not be able to refuse to answer, unless it is a state secret or a matter of national defence, just because it is embarrassing or might reveal that the Government have made a mistake or wasted a lot of money—as if those things never happen. It is our job to tease out those things, and to do so we need direct accountability.

Our Ministers are normally very good, and they have to be, because Mr Speaker or the Deputy Speakers will grant urgent questions, or there will be a statement or a Question Time at which Ministers have to come and give answers. Ministers also normally come to Select Committees. The system is not perfect, but it is rather less satisfactory with senior officials, and there have been occasions when Select Committees have found it quite difficult to get access to very senior officials who know a great deal that is of public interest and should not be secret.

From my memory of my past life as a Minister, there was a bit too much secrecy in government, and there was a feeling in the official machine that everything that happened before a Minister made a statement was somehow private, whereas I felt it was often better to explain some of it. If I had made a 51:49 call but had a lot of sympathy with the 49%, because it was a collective decision, I found it helpful to explain to the House that I could see both sides of the argument, that we had to come down on one side or the other but that it was a marginal call. That is helpful to the House, but sometimes Ministers seem to think that the 51% call has to be put up as the only possible answer and all other answers are stupid, which does not make for good inquiries or for a good understanding of the difficult and sometimes messy business of government, in which Ministers often make imperfect decisions on insufficient information because a decision has to be made.

Something good can come out of this incident, which may be a more general recognition by this House that we need a stronger sanction for anyone in future who has no good reason for turning down a requirement to come as a witness. We need all UK citizens to feel they should come unless there is a compelling legal reason, but we need to be sensitive to the different categories of witnesses, and we need to have proportionate and sensible responses, according to how powerful a witness is and how much access they have to support and legal advice.

[Kate Green (Stretford and Urmston) (Lab)]

I am grateful to the Leader of the House for this early opportunity to debate the report of the Committee of Privileges, which we published last week, and for tabling a motion in the terms requested by the Committee. She was good enough to inform me that she is not able to be present in the Chamber this afternoon to move the motion, and I thank the hon. Member for Blackpool North and Cleveleys (Paul Maynard) for doing so and for supporting the Committee’s report.

This case has proved rather protracted, for reasons I will come to, but it is essentially a very simple matter, so I will try to keep my remarks as brief as possible. As the hon. Gentleman outlined, Mr Cummings failed to obey, first, an order of the Digital, Culture, Media and Sport Committee and, then, an order of the House itself to attend an oral evidence hearing. When the House referred this to the Privileges Committee as an alleged contempt, we agreed a resolution on process that is appended to our report. It is based on a resolution agreed by our predecessor Committee some years ago when considering the case of News International witnesses who were alleged to have committed a contempt by misleading a Select Committee. We have adhered strictly to the procedures set out in that resolution, even though it has had the effect of lengthening our inquiry.

We invited Mr Cummings to give oral evidence, but despite our giving him ample opportunity to agree a date, it proved impossible to do so. In an email to us, and again in his blog last week, Mr Cummings has made various mis-statements about this. I do not wish to detain the House unduly, but I want to put on public record a rebuttal of one or two of his assertions.

In his blog, Mr Cummings states, in relation to the date of a projected evidence session before the Committee of Privileges, as agreed in December:

“We tentatively agreed 31 Jan”

but

“they cancelled the hearing in January and declined to reschedule it”.

Our report sets out what actually happened. At the start of December we offered Mr Cummings a selection of dates for a hearing in January. In response, Mr Cummings told us that he would “probably” come on 31 January—the latest of the dates we offered—but that he would confirm before Christmas. He did not.

I wrote to Mr Cummings on 10 January, seeking confirmation. I received no reply. The Committee’s Clerk emailed him on 23 January, also seeking a response. He replied on 28 January:

“helo ive just seen this, I will reply this afternoon”.

There was no further reply. On 29 January, with two days to go until the proposed evidence session, and having had no confirmation that he would attend, the Committee met and decided that it had no alternative but to cancel the session and bring our inquiry to as rapid a conclusion as possible.

In his blog, Mr Cummings states:

“My last letter to the Committee of 26/2 is below. I got no answer...”

That is quite untrue. On 28 February, two days after his email, I wrote to him to respond in detail to his comments. I received no reply. All these letters, emails and responses are published on the Committee’s website.

At an earlier stage—this is similar to the experience of the DCMS Committee—Mr Cummings had insisted that all Members of Parliament taking part in the hearing should take an oath. I replied, pointing out that that would not be possible; we were willing to administer the oath to him, at his own request, but the oath could be administered only to witnesses, just as in the law courts the judge and barristers do not take an oath. In his blog, he described that argument as “laughable”. He also says that the Committee

“replied that No, they didn’t want to promise to tell the truth and sadly they weren’t able to make such a promise(!) but would I come anyway”.

Those comments are completely fabricated. I will not continue outlining the exchanges; anyone who wishes to can read our full report, and the various letters and email exchanges published with it, and make up their own mind as to whether it was the Committee of Privileges or Mr Cummings who was behaving unreasonably.

Notwithstanding those responses from Mr Cummings, I want to assure the House that the Committee has done its very best to approach the case scrupulously. Our report assesses whether his conduct amounts to contempt of Parliament. It might seem obvious that a refusal to obey an order of the House, or of its Committees, is a contempt of Parliament. However, in certain exceptional circumstances it is conceivable that a prospective witness might be justified in declining to give evidence, if they have genuine grounds to fear that they would be treated unfairly, or that giving evidence might significantly prejudice future court proceedings against them.

The report considers the arguments advanced by Mr Cummings to see whether there were extenuating circumstances that might have justified his conduct, particular in relation to the risk of legal proceedings against him, which Government Members have mentioned today. The report concludes that the DCMS Committee had offered Mr Cummings a series of alternative dates for a hearing and that he had not supplied any evidence that he was at significant risk of criminal prosecution, or that suggested any significant flaw in that Committee’s inquiry or in its handling of witnesses. Legal inquiries into whether he or others might have been at risk of future criminal proceedings were assessed in the light of assurances that we received from regulators, which led us to understand that he himself was not facing criminal proceedings.

We agree with the DCMS Committee that Mr Cummings’s evidence would have been relevant to its inquiry—a few moments ago we heard more detail from the Committee’s Chair about why that would have been the case—and we agree that his refusal to attend was a significant interference with that Committee’s work. We conclude that he committed a contempt by his refusal to obey first the Committee’s order and then the House’s order. We recommend that he be admonished by resolution of the House, to be communicated to him by the Clerk of the House. We do not recommend the old practice of summoning him to the Bar, which we believe would merely give him an opportunity to grandstand. The motion before the House, in conjunction with the report that it approves, constitutes the admonishment. If agreed to, no further action by the House will be sought in this matter.

Finally—this point has been raised a number of times this afternoon—the report comments that

“the case of Mr Cummings has raised further questions as to the enforceability of the House’s powers and those of its committees to secure evidence”.

The Committee will therefore now return to its wider inquiry into these matters, referred to it in the previous Parliament, and we plan shortly to announce a series of oral evidence sessions. We hope to co-ordinate our inquiry with the Liaison Committee’s current inquiry into Select Committee effectiveness.

[John Redwood]

Will the hon. Lady’s Committee pursue comparisons to see what might be working more effectively in other democratic institutions?

[Kate Green]

I am grateful to the right hon. Gentleman for that excellent suggestion. I urge right hon. and hon. Member to submit their own evidence to the Committee—we will shortly publish details on how that can be done.

It has been apparent to all of us for some time that the current situation is unsatisfactory. I acknowledge that admonishment is a fairly feeble sanction against an individual who does not appear to feel a sense of shame at his own behaviour. The historical punishments used by the House—fining and imprisonment—have not been used for many years and, although they have not been abolished, it is highly unlikely that any attempt to use them now would survive legal challenge. None of the alternative options—they may be summed up as doing nothing, attempting to assert the House’s rights through resolutions or changes to the Standing Orders, or legislating to confer powers on the House—is without objection, which is why the problem is still with us; if there was an easy answer, something would have been done a long time ago.

Notwithstanding that, the Committee wishes to canvass options vigorously, including, as the right hon. Member for Wokingham (John Redwood) suggests, by looking at how other legislatures around the world have dealt with the issue. We will focus not only on ways of strengthening sanctions, but at ensuring, as we have striven to do in this inquiry, that the House is fair and scrupulous in the way it treats witnesses. We intend to report to the House with proposals as soon as possible.

I will conclude by placing on the record my thanks to my colleagues on the Privileges Committee for their assistance in bringing the report to the House, to the Leader of the House for tabling the motion, and to the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Blackpool North and Cleveleys (Paul Maynard), for introducing the debate. I urge the House to support the motion.