The select committee, the Murdochs and Brooks

I’m not sure what purpose will be served by today’s grilling of Rupert and James Murdoch and Rebekah Brooks (whose portrait still hangs at the National Portrait Gallery, I found on Sunday) by the Culture, Media and Sport select committee. I have to admit I suspect MPs of wanting to be seen to bear down on the figures at the centre of the phone hacking storm; I’m not sure they know what they want to achieve, or what they can achieve with only an hour scheduled to question the two Murdochs, for example. It may well be a huge anticlimax. But almost anything could happen. Which is why it’s worth considering some unlikely eventualities.

Some people must be wondering whether the evidence will be given on oath. That’s very unusual in select committee hearings, but the chairman does have power to administer an oath. I very much doubt he will, though, since it makes little difference. If a witness lies under oath in the committee, he or she will be guilty of perjury – but that perjury would be punishable only by the House of Commons, not in the courts. If he or she lies not under oath, that would surely amount to contempt of Parliament – again, punishable by the House. In either case, the punishments available would be the same.

In theory, the House has power to compel the witnesses to answer the questions it puts: you cannot refuse to answer questions put to you by a Parliamentary committee. Not even the traditional common law privileges – the right not to incriminate yourself, and legal professional privilege – apply, according to the Parliamentary bible, Erskine May (chapter 37 of the 24th edition covers this, for those who can get access to a copy). That wouldn’t necessarily stop the witnesses citing it: the Maxwell brothers, advised by George Carman QC, did exactly this in 1992. The then chairman of what must have been the social security select committee, Frank Field, warned the brothers they faced possible imprisonment for contempt of Parliament – but still they refused to answer, and as I recall, they never did.

So, as David Allen Green has written, the select committee today will not be able to compel answers there and then. In a sense, no one can ever compel anyone to answer questions – even by the use of torture (a power not even Parliament claims for itself). The real question is, what sanctions will you take against a silent witness?

Sir George Young, Leader of the House, said last week that the Committee on Standards and Privileges (to which any refusal to answer questions would be referred) could fine a witness; Chris Bryant, the Labour MP, said that was “wrong”. According to Erskine May, Parliament has seemed to accept for some time that it cannot impose fines (unlike the House of Lords, oddly), based on non-binding judicial statements (obiter dicta, in legal jargon) in a couple of 18th century cases that said the Commons is not a “court of record”. A number of Parliamentary committees since the 1960s have recommended that Parliament legislate to put the power to fine beyond doubt – but it never has. It ought to do so now as a matter of urgency.

What’s not in doubt is the House’s power to imprison someone for contempt – though only until the end of the Parliament, according to Lord Chief Justice Denman in Stockdale v Hansard back in 1839. That limitation might, one day, prove very important: if someone were imprisoned against the background of a major national scandal that forced a general election, he or she would have to be released soon after the election was called. Parliament hasn’t actually imprisoned anyone since 1880, as it happens. I detect, though, in recent years, an increasing assertiveness – or arrogance – from MPs; I’m certainly not making any sort of prediction about this case, but I would not entirely exclude the possibility of Parliament’s seriously making the threat of imprisonment again before long.

Of course, trying to rely on the privilege against self-incrimination would be effectively an admission of guilt, something that might have made sense in the desperate circumstances the Maxwell brothers faced, but will be less attractive to today’s witnesses. A much more effective line – and more troubling I think to the House authorities in terms of advising the chairman, John Whittingdale, on the propriety of his insisting on answers – would be to ask the chairman to stop a certain line of questioning on the grounds that any answer to a particular question might prejudice someone’s trial – perhaps someone else’s trial – in future. I certainly do think clumsy questioning by MPs today might cause future legal problems, which is why I’d advise the committee to proceed with extreme caution.

A particularly interesting hypothetical for lawyers is what would happen if a lawyer is asked a question about something that would normally be legally privileged. As I’ve said, no such privilege is available, according to Erskine May (which cites an example of solicitors producing privileged material to a Parliamentary inquiry). The lawyer would though, feel him or herself in an extremely awkward situation, and might well feel duty bound to risk contempt of Parliament.

The technical power of Parliament to overcome these privileges is extraordinary – but it makes a little more sense when you realise that, in return, the evidence witnesses give is protected by Parliamentary privilege. Select committee business clearly amounts to “proceedings in Parliament” for the purpose of the Bill of Rights, so a witness cannot be prosecuted using evidence of what he or she said before a committee, and no one can sue them on the basis of it, either. Looked as as a whole, it’s clear that Parliament’s rules are not simply the expression of power, but are designed so as to permit and require absolute frankness. I’m not sure they’re as out of date, in this age of supposed “transparency”, as they first seem to be.

The fact that Parliamentary privilege applies raises the most outlandish hypothetical of all: what if someone were to confess to a serious crime in front of a select committee? The operation of privilege would mean that confession could not be used against them in court: in the absence of other evidence, no prosecution could be brought.

It seems Parliament can waive privilege – at least, that was the view of former Speaker Weatherill in 1998. By I’m not sure that’s the simple solution it seems. Amending the Bill of Rights retroactively might result in a breach of the article 6 Convention right to a fair trial, and any such confession given in such questionable circumstances might not be admissible evidence: at least, there’s a good argument it ought to be excluded by the trial judge. These questions are, I think, better left to fiction.