2nd May 2022
Did you know there is a Parliamentary Witness Oaths Act?
This 1871 statute – which is still in force – provides among other things that any committee of the House of Commons may administer an oath to the witnesses examined before such committee.
And, while an examination of witness by a parliamentary committee is not a judicial proceeding, it would still be perjury for a person to lie such an oath (or affirmation) – with the penalty being up to seven years in prison.
This information comes from a fascinating and informative article at the New Statesman by Alexander Horne, a former parliamentary legal adviser.
My first piece for the @NewStatesman looks at the powers of the @HoCPrivileges and poses the question: should the hearing to determine whether the PM misled Parliament be held in public and under oath: https://t.co/BKMGgJrPz2
— Alexander Horne (@AlexanderHorne1) April 30, 2022
In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.
If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.
(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)
On the face of it, administering such an oath has its attractions.
No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.
Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.
Horne mentions where such oaths have been used:
“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”
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But.
It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.
That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.
And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.
Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?
(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)
Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?
It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.
And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.
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That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.
This is certainly a constitutional problem that needs a practical solution.
The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.
The fear would be that in seeking go solve one constitutional problem, another is caused.
And so the problem remains: what can you do – constitutionally and practically – with a dishonest Prime Minister?
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POSTSCRIPT
Horne has provided a link to a useful post where he deals with the issues in more detail:
David raises some interesting and important constitutional points in his response to my piece in @NewStatesman
There are very few precedents relating to the prosecution of witnesses for perjury – but I address a couple here for anyone interested:https://t.co/pOi5ifQD5T— Alexander Horne (@AlexanderHorne1) May 2, 2022
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