When Ben Emmerson QC was called to give evidence before the Commons home affairs committee on Monday, the legal adviser to the child abuse inquiry was reminded by the chairman of his legal obligations. “The evidence that you give before this committee today is protected by parliamentary privilege,” said Keith Vaz. “It would be a prima facie contempt of the house for any witness knowingly to give false or misleading evidence to a committee of this house.”
As Vaz had the grace to acknowledge, Emmerson knew this better than most. The QC had, after all, acted as special adviser to the Commons standards and privileges committee on precisely these questions. And, as Vaz knew, Emmerson was bound by legal professional privilege. This privilege exists for the benefit of the client rather than the lawyer and meant that Emmerson could not be required to disclose information given to him by the inquiry panel and any advice he had given in response. The lawyer was also bound by a common law duty of confidence that prevented him from divulging, without the panel’s consent, any confidential information he had obtained in his capacity as counsel.
So it looked as if we were about to watch a trial of strength. Would parliamentary privilege trump Emmerson’s legal obligations? Could Vaz force him to answer on pain of contempt?
The QC had been called in to respond to allegations made to the committee a week earlier by Sharon Evans, a member of the panel and herself a survivor of child abuse, that she had been bullied and intimidated by Emmerson. Within a few hours, Emmerson had issued a statement saying these allegations were entirely baseless. They had already been fully investigated and dismissed as unfounded, he added.
Vaz wanted to know more. Emmerson was bound by confidentiality. But it turned out that the committee knew already. Vaz had been given a letter sent to Evans by Mary Calam, director general of crime and policing at the Home Office, in which Calam dismissed Evans’s allegations of bullying. Evans had been told that she should not circulate the private and confidential letter any further. Calam had also stressed that her finding that Evans was in breach of her terms of appointment must remain confidential.
But all these documents were published online by the home affairs committee on Monday while Emmerson was still giving oral evidence, together with a covering email making it clear that they had come from Evans. Also published was guidance from the panel secretariat to members who had given evidence to Vaz’s committee last week, which named a police investigation that they were specifically asked not to mention.
For a period on Thursday, the committee’s website was unavailable. On its return, the police codename had been redacted from the documents together with the names of abuse victims who had received death threats. The committee said afterwards that the names were already in the public domain.
The lesson Vaz should learn from all this is to consider the consequences before dumping leaked documents on to a privileged website. Protecting victims’ names – and journalists’ sources – is not the only reason for preserving confidentiality: members of a inquiry should be able to discuss their findings in private before their conclusions are made public. It may have been lawful for Vaz’s committee to publish what it did, but it certainly was not wise.
And that brings us back to contempt of the house, mentioned by Vaz at the outset. The government’s green paper on parliamentary privilege, published in 2012, said:
[Parliament’s] power to punish non-members for contempt is untested in recent times. In theory, both houses can summon a person to the bar of the house to reprimand them or order a person’s imprisonment. In addition, the House of Lords is regarded as possessing the power to fine non-members. The House of Commons last used its power to fine in 1666 and this power may since have lapsed.
In 1978 the Commons resolved to use its penal jurisdiction sparingly. Since then, it has not punished a non-member. The Lords has not done so since the 19th century.
In 2013 a joint committee on parliamentary privilege said there was no need to change the law. The government agreed.
Was Vaz’s warning mere bluster? Perhaps not. A paper published this week by Alexander Horne, who’s a barrister working at the House of Commons, argues that witnesses who give false evidence can be punished under the Perjury Act 1911. That would apply only if the Commons or Lords exercised their powers to take evidence on oath, but administering the oath is something that has been done in recent times.
So if you see witnesses being sworn in by Vaz’s committee next time, you’ll know the threat is real.
