By Professor Lorna Woods.

This post also appeared on the City Legal Research blog.

James Murdoch has been called by the select committee to verify the evidence he gave to that committee earlier this year. The problem means that his evidence conflicts with that given by others, so somebody must – at best – be misremembering events. It is timely therefore to recap briefly the rules relating to evidence given to Parliamentary select committees.

Some have noted that none of the people giving evidence have done so on oath; the argument therefore is that such witnesses cannot commit perjury. The implication that seems to be drawn from this is that people are free to lie to Parliament at will. This is not entirely the case. There are two points:

1. It is possible that a witness be required to give evidence on oath. If this were to be done, then the perjury route would be available. Of course, requiring that a witness take the oath rarely occurs. In any event, there is another way.

2. Lying to Parliament, even if you have not taken an oath, constitutes contempt of Parliament. In both cases, the body which would impose a punishment is Parliament and in both instances the punishment would be the same: imprisonment. Parliament has the power to imprison someone for contempt until the end of the Parliamentary term. Despite some claims to the contrary, it seems Parliament does not have the power to impose fines.

In theory, Parliament has power to compel the witnesses to answer the questions it puts. Not even the usual common law privileges – the right not to incriminate yourself, and legal professional privilege – apply. This latter point might explain the comparative forthcomingness of some of the lawyers (Tom Crone, Head of Legal; Julian Pike, Farrer and Co) giving evidence. In addition to having the power to insist on the attendance of witnesses, select committees may also require the production of documents and other material – though these powers are rarely used. Despite the seemingly strong powers of Parliament (including the select committees), there have been some concerns that select committees actually do not have the power to access documents that committees/inquiries set up by the executive have (e.g. Hutton Enquiry, see Scrutiny of Government: Select Committees after Hutton: Note by the Clerks).

Additionally, in practice nobody can ever compel anyone to say anything (short of torture perhaps – and that is not allowed!) if they can withstand the pressure of questioning (on intimidation of witnesses, see HC 447 2003-04). Despite the fact that there is no rule against self-incrimination, media moguls seem fond of relying on it. In 1992 when the Maxwells were being investigated in the context of a large shortfall in the pension fund of their newspaper, the Maxwells sought to rely on it and there is no record of them ever having answered the questions, despite being threatened with contempt (see HC 353 1991-92). While self-incrimination is effectively an admission of guilt, and perhaps an approach of last resort, there is a possible issue (subject to Parliamentary privilege) about the impact about what is said in the context of the trials of others. Likewise, Parliament can waive its privilege, but that also might give rise to fair trial issues should the evidence given to the House be used. Select committees, like the House, are expected to refrain from taking public evidence, or commenting in a report, on matters currently before a court.

The lack of privileges might seem extreme, but may make more sense against the backdrop of Parliamentary privilege (Article 9 Bill of Rights 1689). Essentially, this means a witness cannot be prosecuted using evidence of what he or she said before a committee, neither can anyone sue them on that basis. Of course, given that the activities of the House are open, saying something self-incriminating might be risky because an individual would then come under pressure to repeat the statement, or prosecutors (or other claimants) would know to go looking for supporting evidence. Privilege regarding documents it should be noted, only applies if the committee has formally accepted it as evidence; it does not apply to materials published before they were given to the committee.