Procedural fairness

11.22In considering the summary of both Houses' exercise of their powers in the past, it should be borne in mind that the 2013 Joint Committee on Parliamentary Privilege noted:

‘Modern concepts of fairness in the judicial process have radically changed since either House last used its penal powers. While there is an external imperative, in that the United Kingdom could potentially be challenged in the European Court of Human Rights, we consider that this is a secondary consideration. Parliament itself would expect to comply with modern expectations of fairness and due process, which are very different to those which applied in the late nineteenth century.’1

That Committee set out proposals for Standing Orders to ensure fairness, but asserted the continuing existence of each House's powers. This matter is currently being looked at afresh in the House of Commons by its Committee of Privileges.

The Joint Committee on Parliamentary Privilege in 1999 drew attention to the need for procedural fairness in handling cases of Members of either House facing potential suspension and loss of reputation. Among the minimum requirements of fairness are for the Member accused of a contempt (which the Joint Committee recognised to be a serious matter) to be given:

• a prompt and clear statement of the precise allegations against the Member;
• adequate opportunity to take legal advice and have legal assistance throughout;
• the opportunity to be heard in person;
• the opportunity to call relevant witnesses at the appropriate time;
• the opportunity to examine other witnesses;
• the opportunity to attend meetings at which evidence is given, and to receive transcripts of evidence.

In determining a Member's guilt or innocence, the criterion applied at all stages should be at least that the allegation is proved on the balance of probabilities. In the case of more serious charges, a higher standard of proof may be appropriate.2 These recommendations were consistent with those of previous committees.3

The 1999 Committee also recommended that ‘for practical reasons punishment of non-members for contempt of Parliament should, in general, now be transferred to the courts’, although each House's residual jurisdiction should remain.4 This recommendation was not implemented. In 2013, the recommendation was rejected by a subsequent Joint Committee on Parliamentary Privilege, which considered that criminalising specific contempts ‘would entail a radical shift of power between Parliament and the courts', as well as introducing delay and uncertainty, and removing flexibility. Instead, the 2013 Joint Committee recommended that the two Houses should assert their continuing penal powers, and clarify the procedures they would use if called upon to exercise them.5

When in 2012 serious allegations of contempt were made in respect of evidence given to the Culture, Media and Sport Committee in connection with its inquiry into phone hacking, the complaint was referred to the Committee on Standards and Privileges for investigation.6 That Committee agreed at the outset a procedure it considered fair, and communicated it to inquiry subjects. It was not based on a court process, but contained provisions for evidence to be shared and challenged, for inquiry subjects to have the opportunity to put evidence to the Committee, and for them to suggest witnesses, and questions to be put to those witnesses. The Committee restated its undoubted right to call witnesses to give oral evidence if it thought fit.7 When the Committee's proceedings were interrupted by a General Election, the matter was referred to the Committee of Privileges in the subsequent Parliament for a full re-examination.8 Ultimately, that Committee found that two of those accused had misled the Culture, Media and Sport Committee, and recommended that the House should admonish them by resolution. The House duly did so.9

In the House of Lords, the requirements for fairness were addressed by the House of Lords Committee for Privileges and Conduct which considered that:

‘Natural justice and fairness require that the person complained against:

1. shall be judged by a person who is both independent and impartial and who hears all sides of the argument;
2. shall have fair notice of the case being made against him or her; and
3. shall have a fair opportunity to answer to the complaint.’

The Committee did not consider that this required evidence to be tested by cross-examination or an adversarial procedure. It emphasised that the concept of fairness applied to the complainant as well as to the accused.10