Privilege

Bill Presented – in the House of Commons at 12:59 pm on 7th June 2018.

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Photo of Damian Collins Damian Collins Chair, Digital, Culture, Media and Sport Committee 12:59 pm, 7th June 2018

I beg to move,

That this House
takes note of the Third Special Report of the Digital, Culture, Media and Sport Committee (HC 1115);
and orders Mr Dominic Cummings to give an undertaking to the Committee, no later than 6pm on 11 June 2018, to appear before that Committee at a time on or before 20 June 2018.

I am grateful to Mr Speaker for allowing the motion to have precedence today. As we all know, the function of this House is not just to vote on and pass legislation, and to debate Bills and matters of public interest, but to hold Ministers to account. There can probably be no Parliament in the world that provides more consistent or closer scrutiny of Ministers’ work than the House of Commons, but it is the work of Select Committees to continue that scrutiny, and to question and hold Ministers to account. Indeed, plenty of Ministers have got themselves into trouble as a result of evidence they have given to Select Committees. The additional privilege of the Select Committees is not just to question members of the Government, but to call anyone whose role, position and power in society makes them a matter of interest and a subject of interest for our inquiries. The ability and power of the Committees to invite people to give evidence, and to issue a summons for them to appear to give evidence where necessary, is vital to the work of the Select Committees of this House.

Having checked with the Clerks of my Committee and with the House of Commons Library, I believe that this is the first time since 1920 that a motion of this kind has been put before the House. It has not been done lightly; in some ways, it is done with regret, because I wish we had not come to this point and that we could have reached a successful conclusion to the invitation we issued to Dominic Cummings before now.

It might be helpful to the House if I explain why we are in this position. In March, the Digital, Culture, Media and Sport Committee issued an initial invitation to Dominic Cummings to give evidence to us as part of our investigation into disinformation and fake news. I should say that we are not conducting an inquiry into the referendum. We are not seeking to invite people who worked on campaigns for the Brexit referendum to give evidence, or to scrutinise the details of those campaigns. We are conducting an inquiry, and an important part of it has been the use of data in the course of campaigning. During our investigations, other witnesses have come forward and made allegations about the work of Vote Leave; as Dominic Cummings was its communications director, he is the person most fit to speak about that. In many ways, what we are seeking to do is to extend a privilege that many Committees do extend to witnesses: when allegations are made about them or their organisation, they are given the ability to come before the Committee to refute those allegations and present alternative evidence. That is the opportunity we wish to give to Dominic Cummings, but we also believe it is the right of the Committee to have the opportunity to question him, based on evidence that we have already received.

We were unable to reach a satisfactory conclusion from the invitations we issued to Mr Cummings. As a result, we proceeded to issue a formal summons, which was passed by the Committee. Mr Cummings not only refused to accept that summons and to appear on the named day cited in it, but refused to consider alternative dates on which he might appear and to which the Committee might have agreed. He also made it clear in public remarks that he had no intention of ever coming to give evidence to this Committee and that he resented the way in which he had been treated. That left the Committee with no alternative but to seek to report this matter to the House, and to seek the support of the whole House of Commons—not just the Committee—for a motion ordering Mr Cummings to appear before us.

We felt that Mr Cummings had taken the view that appearing before a House of Commons Select Committee is not a matter for that Committee, but entirely at the discretion of the proposed witness, with it being up to him to set the time and date, even though that might be months after our inquiry has finished. Not only does that restrict our right and ability to question witnesses who have important information linked to our inquiries, but it fails to give us the opportunity to question people based on evidence that has been received and tabled against them.

Is our relationship with Mr Cummings uniquely bad? Have we treated him unkindly, whereas other Committees of the House may have treated him more favourably? He has even suggested he would be willing to come—at his discretion, and at some future point—to give evidence to another Committee.

Interestingly, Mr Cummings has given evidence to House of Commons Select Committees before. He gave evidence to the Treasury Committee in the last Parliament, and it is relevant to look at its report following the evidence he gave. That Committee took evidence from a number of parties and campaigns involved in the Brexit referendum, to analyse the arguments they were making. In chapter 7 of that Committee’s report, at paragraph 236, the Committee sets out the similar frustrations it had, even though Mr Cummings had agreed to be a witness. It stated:

“In their treatment of this Committee, neither Mr Elliott”— also from Vote Leave—

“nor Mr Cummings, as individuals, have fulfilled Vote Leave’s commitment, made in their successful application to the Electoral Commission, to ‘create a valuable legacy for the UK’s democratic process’. Their conduct has been appalling. Mr Elliott’s and Mr Cummings’s expressed view that powers should be restored to Parliament sits ill with that conduct.”

The report goes on to state:

“It was the Committee’s preference to hear from both Vote Leave and Leave.eu in one sitting. In the end, it took three. If Mr Elliott and Mr Cummings consider that the Committee’s evidence-taking process has been protracted, uncomfortable or harmful to their cause, they have only themselves to blame.

The Committee notes that Mr Banks and Mr Tice”, of Leave.eu,

“did not seek to attach conditions to their attendance.”

That is very similar to the experience we have had.

As a consequence of evidence we have received, we have also asked other people to give evidence to the Committee. We have asked Mr Banks and Mr Wigmore from Leave.eu to give evidence, and they have agreed to do so next week. We asked AggregateIQ, the tech company from Canada that Leave.eu used to work on its campaign, to give evidence and it has done so, even though the person giving evidence was a Canadian national who is based in Canada, and so was outside the jurisdiction of this Parliament and had no obligation to attend. Nevertheless, that person crossed an ocean to do so. Yesterday, the Committee took evidence from Alexander Nix of Cambridge Analytica, who was returning to give evidence to the Committee about links and relevant issues.

It therefore seems that we have a unique problem in requiring Dominic Cummings to come to give evidence to us. I do not believe, and neither do the members of my Committee, that that is an acceptable state of affairs. These are incredibly serious matters. There is a certain irony when someone who was the communications director of Vote Leave and ran a successful campaign to seek to restore powers to Parliament seemingly holds that institution in such contempt.

Photo of David Linden David Linden SNP Whip

Perhaps the hon. Gentleman should have issued his notice to Mr Cummings on the side of a bus, because he might then have seen it and come to Parliament.

Photo of Damian Collins Damian Collins Chair, Digital, Culture, Media and Sport Committee

I will not go down that road or follow that bus. As I say, this is not necessarily directly about that campaign, but there is a certain irony when someone who campaigned to restore powers to Parliament is not willing to come to Parliament to give evidence before one of its Committees. This is someone who, in his campaign, was so critical—many would say rightly so—of European civil servants and bureaucrats exercising power remotely, unelected and unaccountable to any institutions. He held a very important position in this country during a very important campaign. We believe that we have important questions to put to him, but he declines to appear. He did suggest in his initial communications, after we invited him in March, that he might appear at some point later in July. He has subsequently said in his public statements that he will not appear until other investigations—those being conducted by the Electoral Commission and the Information Commissioner, in particular—have concluded.

There are rules that prevent Committees from calling witnesses, but those are normally restricted to matters before the courts. This matter is not sub judice. Mr Cummings has not been charged with any offence and he is not in proceedings before the courts. We sought guidance from the Electoral Commission and the Information Commissioner, given their ongoing inquiries, to ask whether our calling him to give evidence would in any way undermine the work of those investigations. They have said that it would not, and that they would welcome it if Mr Cummings gave evidence to the Select Committee, so there is no founded excuse there. Whatever he says, his decision not to come before us is one of his own making. It is a deliberate attempt to deny Parliament its right to question witnesses on matters of importance. That is why we have brought the motion before the House—to stand up for an important point of principle; and to support the work of the Select Committees and their inquiries across Parliament. We are seeking to maintain the right that we should have to call witnesses when we believe it is important to our work and in the public interest for them to give evidence before us.

Photo of Hilary Benn Hilary Benn Chair, Committee on Exiting the European Union 1:07 pm, 7th June 2018

I support the motion. I do not want to debate the issues that give rise to the Select Committee’s requests for Mr Cummings to appear, because, as the whole House would probably agree, those are properly matters for the Committee, and I trust its Chair and members to do their job with their usual diligence and care. The reason why I wish to contribute briefly relates to the question of the power of Select Committees to ensure that witnesses do turn up, which is the point of principle that is, quite properly, now going to be referred to the Committee of Privileges. Mr Cummings is clearly refusing to do so, although he has appeared previously before Committees. I agreed absolutely with the Chair of the Committee, Damian Collins, when he said a moment ago that Mr Cummings was showing contempt for the House. Indeed, the phrase in Mr Cummings’s letter of 11 May was:

“As you know you have no powers to compel my attendance and your threats are empty.”

In the email exchange cited at the very end of the report, he said:

“I’m calling your bluff. Your threats are…empty…Say what you like, I will not come to your committee regardless of how many letters you send or whether you send characters in fancy dress to hand me papers.”

There is a very important point of principle at stake here, which the House has debated in the past and will need to debate again: what do we do when witnesses refuse to appear? This issue has been looked at in several reports. My hon. Friend Chris Bryant, who I think will also try to catch your eye, Madam Deputy Speaker, is a great expert on these matters. There have been two substantive reports—in 1999 and 2013—on whether we should legislate. At the time of the Murdoch situation, there was a lot of discussion about what happened in the past and powers that had fallen into abeyance. There are two views. The first says that, in the end, almost everybody who initially refuses to appear then turns up. The Messrs Murdoch situation is a good example of that. I think the Assistant Serjeant at Arms was dressed for the occasion and a journey was made to Wapping with a notice to require attendance. It is true for many people—the argument is forcefully made—that the threat to their reputation if they do not appear is, in the end, what obliges them to turn up.

The second argument against legislating to give us some power is the fear that the courts will interfere in the functioning of Parliament. I understand that argument, but I must say that I come down on the other side. If we if end up in a situation in which one witness gets away with not appearing, it might catch on with others. Think of the really important role that Parliament has played recently by calling in the chairs and chief executives—they may regard themselves as private individuals—of major companies that have done things that have impacted hugely on our citizens’ lives. If it comes to pass that people think, “I don’t have to turn up,” how can Select Committees and Parliament continue to do our job of holding the powerful to account? In the main, there are two types of Select Committee witness: the powerful who are being held to account; and others who have information and expertise that can inform the work that we undertake. In supporting the motion and asking that the Privileges Committee should look into this matter, I do not think we can accept a situation in which people think they do not have to turn up.

I am advised that Australia and New Zealand have offences of failing to appear before Parliament—people can be fined and imprisoned if they do not turn up as a witness. By the way, the witnesses do not have to answer questions, although it would be quite an appearance to sit there and say, “I decline to answer that question”—it would be the equivalent of taking the fifth amendment in front of a congressional committee in the United States of America. I do not want to be in a position where the courts start to question the reason why a witness has been called or what questions might be asked of them. I would have thought it would be perfectly possible to draft legislation that said, “If a Select Committee has issued an requirement for a witness to appear and the witness does not turn up, without reasonable excuse, it is for the courts”—not Parliament; I am not in favour of being able to fine people by a decision in this Chamber or of the Privileges Committee, or to clap recalcitrants in irons—“to apply an appropriate penalty to the individual who failed to turn up.” In such circumstances, I do not see how the courts could say, “We want to go over the reasons why the Select Committee wanted to call this witness,” because although I am not a lawyer, I suppose it would be a strict liability offence, because if a summons has been issued by the House of Commons, someone either appears or they do not.

This is an important point of principle. This unfortunate case, and the response of Mr Cummings, reminds us of the need to ensure that we end up with a system that does not allow the powerful and those who need to answer questions and to be held to account for what they have done—in the normal, courteous manner under which almost all Select Committees operate—not to appear. We cannot allow that to happen because, if we do, we cannot do our job on behalf of the people who send us here. The Liaison Committee debated this issue recently. As I understand it, we have sent to the Privileges Committee the view that there are two sides to the argument and it really needs to be looked into, but I wanted to take this opportunity to say where I stand. We have to ensure that when we call people, they turn up.

Photo of Andrea Leadsom Andrea Leadsom Lord President of the Council and Leader of the House of Commons 1:13 pm, 7th June 2018

The Select Committees of this House do vital work on behalf of the people of the United Kingdom, and the Government are strong supporters of the independence of the Select Committee system. I thank my hon. Friend Damian Collins and the other members of the Digital, Culture, Media and Sport Committee for all their work on behalf of Parliament.

Today’s debate is not about the substantive issues under investigation by the Select Committee; it is about Select Committees’ right to undertake the duties assigned to them by the House. The Government have full respect for the privileges of the House of Commons and we will continue to uphold them. They are crucial to Parliament’s independence and the strength of our democracy. I therefore support the motion.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Constitution), Shadow SNP Leader of the House of Commons, Chair, Scottish Affairs Committee 1:14 pm, 7th June 2018

As a fellow Select Committee Chair, I wholeheartedly support Damian Collins. I hope that the motion is passed and that he gets the witness he requires. It is unfortunate that it has go to the stage where he has had to come to the House to move such a motion. It is important that we all support him in these endeavours.

It is imperative that Select Committees secure the witnesses that they feel they require to make progress in their inquiries. We think long and hard about who we consider bringing before the Scottish Affairs Committee. The process involves the Clerks and fellow Committee members, and we look to see who could supply us with the best possible information, which will then shape and inform our inquiries. It is important that we get the people we need.

I totally support the remarks made by Hilary Benn: we have to get an absolute, determined process for what we do about reluctant witnesses. He and I serve on the Liaison Committee, which is currently considering this issue, and I hope that the Chair of that Committee, Dr Wollaston, will say a few words about it so that we know exactly where we are with getting clarity as to what we do with reluctant witnesses. We cannot have a situation in which we in this House require people to help us with our reports and inquiries and they simply refuse to do it. Some of the extraordinary language that Mr Cummings has used to evade that responsibility is quite bizarre and shows nothing other than contempt for the hon. Member for Folkestone and Hythe’s Committee and for this House.

We have been here before: the issue of the Murdochs has been raised, and the Scottish Affairs Committee has had difficulty in securing witnesses, although in the end we have managed to ensure that they came before the Committee. I must say, though, that the situation is not helped by Ministers also refusing to appear before Select Committees. I just made a Select Committee statement on bank closures, to which you listened patiently, Madam Deputy Speaker. I could not get a Treasury Minister to come to my Committee to answer questions about bank closures in Scotland. I am sure that people like Mr Cummings, and others who are reluctant to come before Select Committees, observe that and think, “Well, if Government Ministers will not come in front of Select Committees of the House, why should I?” We have to make sure that if Ministers are asked to come before Select Committees, they come. It is not good enough for them to say that it is not their responsibility or that they answer to another Select Committee.

Photo of Julian Lewis Julian Lewis Chair, Defence Committee

I endorse what the hon. Gentleman has just said. The same applies to senior officials. The Defence Committee very nearly got to the point of issuing a summons, but common sense broke through. The Government, whether Ministers or senior officials, are required to set a good example.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Constitution), Shadow SNP Leader of the House of Commons, Chair, Scottish Affairs Committee

Absolutely. I thank the right hon. Gentleman for his comments; I know that he has had difficulties with securing the appearance of members of the Government. Whether they are civil servants or senior officials, they have to come before a Committee. I hope that that is something that we can take away from this, because I am sure that all these reluctant witnesses the length and breadth of the country are observing what happens today.

The only route available to us is to do exactly as the hon. Member for Folkestone and Hythe did, which was to get a motion to summon Mr Cummings to come to his Committee. The process is then to go to the Privileges Committee to get a ruling in respect of privilege in this House. We have to look into this matter and make sure that we can amend our practices and procedures to allow us certainty when we deal with reluctant witnesses. I hope that the hon. Gentleman gets his witness, and I am pretty certain that he will, after today’s debate— I am sure Mr Cummings is observing what is happening and realising that time is up and he should just agree. Let us put in place a proper process for ensuring that we get the people we need to appear before our Select Committees.

Photo of Sarah Wollaston Sarah Wollaston Chair, Health and Social Care Committee, Chair, Liaison Committee (Commons) 1:18 pm, 7th June 2018

I put on record my thanks to all those who appear as witnesses before our Select Committees. Many of them do so knowing that they will face a considerable level of challenge, but they come prepared to put their case, on the public record. They do so because they know that to refuse to appear shows contempt not only for this House but, more importantly, for the public, because Select Committees carry out their work on the public’s behalf, and in almost every case the House delegates to us the ability to call for persons, papers and records. That is an extraordinarily important role that we have on behalf of the public.

I join my hon. Friend in condemning the action of Dominic Cummings and the way that he has behaved. It is a disgrace, frankly, and we should call it out. I also think that we need to reflect on what we now do when individuals refuse to appear. I agree with Hilary Benn that it is time now to take action. I speak in a personal capacity, because there is a difference of opinion over the pros and cons of taking this matter forward. I welcome the further inquiry of the Privileges Committee. There is a difference of opinion on the pitfalls of involving the courts, but, ultimately, the experience of other jurisdictions such as New Zealand and Australia, which have that final backstop, is that they have not had to use it. There is a case for saying that, where we do not have a final backstop, we will increasingly see examples of witnesses like Mr Cummings refusing to answer to the British people and to Parliament.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

Does the hon. Lady also agree that if witnesses feel that they are not obliged or compelled to appear before a Select Committee, they could be bribed or intimidated into not attending? Someone might have an interest in a witnesses not attending, and bribe them or intimidate them.

Photo of Sarah Wollaston Sarah Wollaston Chair, Health and Social Care Committee, Chair, Liaison Committee (Commons)

There is a danger that people will increasingly come under pressure to make the judgment that, by not appearing at all, the reputational damage will be less, so the hon. Gentleman makes a very important point. However, we have now come to a point where having the final backstop of a penalty—

Photo of Julian Lewis Julian Lewis Chair, Defence Committee

May I just say to my hon. Friend in her role as Chairman of the Liaison Committee that she was enormously helpful to the Defence Committee—as were other members of the Committee—in getting the senior official to agree to come, and in getting the Prime Minister to agree to his attending the Defence Committee? In the end, it was a very valuable session. I do not know Mr Cummings, but I support his cause, and he is in danger of doing grave damage to the cause that he and I both support because the effect of his refusal is far more damaging than anything that could happen at a hearing if he actually gave evidence. Finally, may I appeal to her to stop using the word “backstop”, which, at the moment, is not my favourite expression?

Photo of Sarah Wollaston Sarah Wollaston Chair, Health and Social Care Committee, Chair, Liaison Committee (Commons)

I thank my right hon. Friend for that point. Yes, the point has been made before that someone may want to call for powers to be restored to Parliament, but actually not when it comes to themselves.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Conservative, Chesham and Amersham

I am most grateful to my hon. Friend for giving way. I was pleased to see this motion on the Order Paper today. I serve on the Public Administration and Constitutional Affairs Committee and we have often had to call witnesses before us who were perhaps not quite as enthusiastic about attending as they should have been. Does she agree that there is some deficiency in this, because the motion on the Order Paper merely asks Mr Cummings to appear before the Committee at a time and place? It does not ask him to appear and answer questions. Would it not have been better to make that specific, because, in theory, it is possible for Mr Cummings to appear but then not to answer any of the questions of the Committee?

Photo of Sarah Wollaston Sarah Wollaston Chair, Health and Social Care Committee, Chair, Liaison Committee (Commons)

I thank my right hon. Friend for her point. Even in other jurisdictions where people can be compelled to appear, they are not compelled necessarily to answer a question. For Mr Cummings to have behaved in the way that he has is a grave contempt not only of this House but, more importantly, of the British people.

Photo of Damian Collins Damian Collins Chair, Digital, Culture, Media and Sport Committee

For the benefit of the record, Alexander Nix came back to the Select Committee yesterday to give evidence. We were concerned that he had said things that were not consistent with the evidence we had received, and he came back to correct the record and to answer our questions. He was also under investigation by the Electoral Commission, the Information Commissioner and other agencies and other jurisdictions. He managed the process perfectly well, answering questions where he felt he could and giving guidance where he felt that there were things he could not answer—there were very few of those. Even with someone under investigation who has not yet been charged with an offence it is perfectly possible to conduct a successful hearing.

Photo of Sarah Wollaston Sarah Wollaston Chair, Health and Social Care Committee, Chair, Liaison Committee (Commons)

I thank my hon. Friend for that point.

In closing, I pay tribute again to all those who do appear before our Committees and take the opportunity to thank all members of Select Committees for the work that they put in and all of our staff who do a magnificent job in supporting us. Thank you.

Photo of Chris Bryant Chris Bryant Chair, Finance Committee (Commons) 1:24 pm, 7th June 2018

I congratulate Damian Collins on bringing forward this motion; he was absolutely right to do so. There are whole series of ironies here. The man who derided unelected bureaucrats in Brussels now, as an unelected bureaucrat, refuses public scrutiny by elected MPs. The man who coined the phrase “Take back control” now defies Parliament when it tries to take back control. And the man who demanded that Britain assert her independent sovereignty denies the sovereignty of Parliament. However, I question in my mind whether that is irony or, frankly, hypocrisy. To be honest, I come to the conclusion that it is hypocrisy. I wondered whether this is some high-minded act of principle, but I think it is not; it is sheer cowardice.

The point has been made that Rupert Murdoch chose in the end to attend the Culture, Media and Sport Committee because he felt that his reputation might be harmed otherwise. Perhaps Mr Cummings thinks that his reputation is now so poor that it could not possibly be harmed any more. In the end, the debate today is not particularly important because of Mr Cummings and his refusal to attend the hearing—it is pretty clear from everything that he has said in his letters, emails and public announcements that he holds Parliament in complete and utter disdain. In the past, we would have been very robust, and more quickly so, than we are being today. The real issue, as my right hon. Friend Hilary Benn made absolutely clear, is that this poses the question of what we do if, in the end, somebody point blank refuses to attend a hearing.

The idea of sending the Serjeant at Arms is nice and quaint. Yes, undoubtedly he can deliver a letter, but I do not think that he has subpoena powers any more. It is also slightly strange for a political body to arrest somebody, which is, in effect, what we have to be able to do. The idea of politicians deciding on a political motion whether somebody should be arrested is, I am glad to say, anathema under habeas corpus. We simply do not believe in that way of pursuing justice any more.

In the end, we will have to legislate. We will have to make sure that there are proper bodies that operate in full recognition of human rights legislation in this country and in the European convention of human rights and provide due process so that someone cannot claim that they are being arrested on the political whim of politicians.

As my right hon. Friend has already said, two Committees—a Joint Committee and a Committee of this House—have looked at this issue over the past 20 years. They came to different conclusions. They held those conclusions very firmly, and Governments of different colours chose to do absolutely nothing about it. Indeed, the coalition Government produced a White Paper on the matter and said that they were going to legislate, but nothing has happened.

I am really delighted that the Leader of the House is here today because, in the end, she knows, as must everybody else, what will happen if one person decides not to attend and gets away with it. By getting away with it, I mean that either we choose to do absolutely nothing because the Privileges Committee decides that there is nothing that we can do, or we decide that we will just issue a statement saying, “You’re a very naughty boy.” Either of those is, to my mind, impunity. If that happens, every lawyer in the land for a big captain of industry will say, “There is no requirement for you to attend.” The whole thing will be blown to pieces and we will have lost an enormously important part of the way we do our job.

It was Norman St John-Stevas who set up the modern Select Committee system, our pride and joy. Some have argued in recent days that Select Committees should have the power to summon Members of this House, Ministers and Members of the Lords—oddly enough, that is the one thing that they do not have the power to do—but that they should not have the power to summon private individuals. However, in the modern era, Parliament is there to redress the grievances of our constituents, of the whole of the country. Often those grievances are not particularly against the powerful in Government, but against the powerful in every other aspect of our modern life—whether it is those running our broadcasting companies, our newspapers, our big businesses, our greengrocers, our banks, or whatever it may be. We would be losing a phenomenally important tool in holding to account the great and the good, and the powerful in this land if we were to surrender this by default.

I do not mind how we legislate—whether we go with the conclusions of the Joint Committee or the Digital, Culture, Media and Sport Committee—but I am absolutely certain that we will end up having to change the way in which we do our business. Pete Wishart, who speaks for the Scottish National party on his 17th anniversary of being an MP, said that we will have to do something. I very much hope that the Leader of the House will take that away. We cannot allow impunity any longer.

Question put and agreed to.