It’s a commonly established practice that Parliamentary select committees can ask witnesses to attend hearings and answer questions. This frequently happens during inquiries – like the culture committee’s current investigation into the role of fake news in our politics.
This ability is a cornerstone of democratic scrutiny, and ensures backbenchers can fulfil their role in holding powerful figures to account. But now it is coming under strain.
How it usually works
In the first instance, witnesses are called through an informal request. But if the individual refuses, a committee can formally summon them (as happened with Cambridge Analyica’s Alexander Nix this month – as well as Rupert and James Murdoch during the phone hacking inquiry).
And if the individual still refuses, the matter is reported to the House of Commons as a whole. This is the start of the process which could lead to the individual being held in contempt of parliament.
While contempt of parliament is not defined in statute, it can be considered to include behaviour which ‘obstructs either parliamentary chamber in the performance of its functions’.
In theory contempt of parliament could result in a fine or imprisonment, though this is unlikely to happen in reality. At the moment, at least.
Why it’s in the news
Dominic Cummings, who was Campaign Director for Vote Leave during the EU referendum, has refused requests to appear before the Digital, Culture Media and Sport Committee, which is investigating fake news and issues surrounding the Cambridge Analytica scandal.
Mr Cummings claims that he cannot appear because of an on-going inquiry by the Electoral Commission. (This has been refuted by committee chair Damian Collins.)
On Thursday, the House of Commons took the unusual step of demanding Mr Cummings appear before the committee, setting a deadline of June 20. It was the first such all-Commons vote since 1920.
What happens now
The problem is, it’s not exactly clear what Parliament can do next if he doesn’t turn up. The rules are not ‘codified’ – that is, written into law – rendering it unlikely that Mr Cummings will face any formal action other than being charged, by Parliament, of contempt.
MPs charged with contempt can be suspended or expelled. But for ‘strangers’ (those who are not members of the House), it is a different kettle of fish.
In theory, they can be committed to prison during the life of the Parliament. The House of Lords has the power to fine as well as to order imprisonment for a term of years.
Here’s what is more likely to happen now, according to a Parliamentary briefing on the issue, if the witness refuses to respond to a summons:
“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 [they can call in the police to help on this].
“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).”
We are not quite there yet – although we could be soon. Again, if Mr Cummings ignores the warrant, it is for MPs to decide what happens next.
But as the Institute for Government’s Dr Hannah White wrote in a blog in 2016, the water gets even muddier here:
“It remains unclear what sanctions [the House] would have at its disposal. Historically, those found guilty of contempts could be fined or imprisoned, but those sanctions have not been used by the Commons since 1666 and 1880 respectively. For all sorts of practical, legal and constitutional reasons, it is highly doubtful that the modern House would seriously consider this…
“In recent decades committees have sought to avoid reporting potential contempts to the House precisely because such moves might end up exposing their own impotence.”
Need for change?
If the House does prove impotent and their ‘bluff’ is called – legislation could be on the way.
As the BBC reports, Commons leader Andrea Leadsome backed the committee chair’s motion. And Conservative MP Dr Sarah Wollaston, who also chairs a select committee, called Dominic Cummings’s refusal ‘a disgrace’, agreeing with Labour’s Hillary Benn that it was time to consider introducing a formal penalty (most likely a fine) for witnesses refusing to appear.
That might not be necessary, depending on who gives in first. Either way, this whole affair is a fascinating insight into the powers of Parliament – and Britain’s often baffling, uncodified constitution.