Examination of complaints: current practice
15.35In recent times, most complaints relating to privilege cases in the Commons have been referred to a committee, either the Committee of Privileges, or a specially constituted committee.1 Those committees have investigated, or referred matters to the Parliamentary Commissioner for Standards for investigation,2 and reported back to the House.
The Joint Committee on Parliamentary Privilege in 1999 recommended minimum standards for procedural fairness which are discussed in detail at para 11.22 above.
In 2012, a complaint that witnesses had misled the Culture, Media and Sport Committee was referred to the then Committee on Standards and Privileges. That Committee set out the process it would follow in a resolution sent to all parties. The Committee decided at the outset that it would not recommend that the House order committal to prison, and prescribed a process for the investigation designed to meet the criteria for fairness:
The committee would write to inquiry subjects inviting them to make submissions in response to the report from the Culture, Media and Sport Committee. Such submissions could include additional questions which the inquiry subjects considered should be explored key witnesses or other material Written evidence would be gathered and shared with inquiry participants (but not at that stage published); Inquiry subjects would be given the opportunity to give oral evidence, if they so wished, and the committee might decide to take evidence from other witnesses; If oral evidence was taken, the presumption was that it would be in public, but not broadcast; Witnesses giving oral evidence could be supported by a legal or other adviser, but would answer in person; oral evidence would be shared with interested parties; There would be an opportunity to make final written submissions after any oral evidence taking was complete; If the committee intended to criticise an inquiry subject the committee would first send a warning letter, setting out the criticism, the facts which the committee considered substantiated the criticism and the evidence which supported those facts; Any response to such a warning letter would be considered before the committee reported to the house; The committee would suspend its inquiry if requested to do so by the director of public prosecutions to avoid prejudicing any pending legal proceedings or criminal investigations.3
The Joint Committee on Parliamentary Privilege in 2013 recommended provisions to ensure the fairness of committee proceedings. These differed according to the seriousness of the behaviour complained of, and the likelihood of significant punishment, and drew on the work of the Committee on Standards and Privileges.
Although the Joint Committee's proposals have not been endorsed by either House, despite urging from the Committee of Privileges, in 2013 the Liaison Committee resolved: ‘That the Committee adopt the draft standing order provisions relating to fair procedures for witnesses as guidelines for select committees to test how they worked in practice’.4
Interference with a Lords Member of a joint committee is a contempt against the Lords, whereas interference with a Commons Member is a contempt against that House. When a joint committee complained of contempt by a witness, who had improperly approached committee members from each House, the Committee on Standards and Privileges in the Commons investigated, and published its memoranda, but did not make a substantive report. The Lords Committee for Privileges and Conduct subsequently reported on the matter. It was considered unfair for both committees to investigate the matter concurrently, but the Committee for Privileges and Conduct drew heavily on the evidence collected by the Commons investigation.5
- 1. Committee on an Issue of Privilege, CJ (13 July 2009), p 536.
- 2. HC Deb (20 February 2018) 636, c 70.
- 3. Committee on Standards and Privileges, Formal Minutes 2012–13, 3 July 2012.
- 4. Liaison Committee, Formal Minutes 2013–14, 27 November 2013.
- 5. Committee of Standards and Privileges, Formal Minutes (2009–10) 9, 16, 23, and 30 March; First report from the Committee for Privileges and Conduct, HL 15 (2010–12).