Mr Trevor Phillips: Allegation of Contempt

Introduction

1.On 10 February 2010 the Joint Committee on Human Rights (JCHR) published its 7th Report of 2009-10, Allegation of Contempt: Mr Trevor Phillips. This report alleged that on 8 February, the day before the JCHR was to consider a draft report directly relevant to the work of Mr Phillips as Chair of the Equality and Human Rights Commission (EHRC), he had spoken to and sought to influence members of the Joint Committee. The report concluded that Mr Phillips’ actions “could constitute a contempt of both Houses”, and recommended that they “be subject to investigation by the Privileges Committees of both Houses.”

2.On 25 February the House agreed a motion to refer the report to the Committee for Privileges. Two days earlier a similar motion had been agreed in the House of Commons, referring the report to the Standards and Privileges Committee.

Background to our inquiry

3.Erskine May states that “joint committees are formally composed of separate select committees appointed by each House to work together”. While they work together as one committee, they are “defined in procedural terms as two committees”. It follows that, in procedural terms, interference with a Lords member of a joint committee is a contempt of the House of Lords, and interference with a Commons member a contempt of the House of Commons.

4.Thus both Privileges Committees had a direct interest in investigating the alleged contempt. However, we did not consider that it would be either efficient or fair to Mr Phillips for two investigations to be taken forward concurrently. As the Commons committee had already launched its investigation by the time we met on 1 March, we decided to take no action until that committee had completed its work.

5.The Commons committee took written evidence from Mr Phillips himself, from the Chairman of the JCHR, Mr Andrew Dismore, and from staff of the Joint Committee. Mr Dismore’s evidence included memoranda from all members of the Joint Committee who had spoken to Mr Phillips, including the Lords members. These memoranda were published online at the end of the last Parliament.

6.Although it published the memoranda, the Commons committee did not make a report on the allegations. However, the then chairman, Sir Malcolm Rifkind MP, wrote to the Chairman of Committees on 30 March, outlining his committee’s thinking. He noted that one factor dissuading his committee from publishing a substantive report was the “perceived need to avoid pre-empting the outcome of any inquiry that may be undertaken by the Committee for Privileges of the House of Lords.” At the same time he indicated that his committee “was unable to conclude on the basis of the evidence received thus far that there had been any contempt of the kind alleged in the Joint Committee’s Report”. It appears unlikely that the successor Commons committee will take any further action in the matter, unless another complaint is made by the JCHR and referred by the House of Commons.

7.Although the Commons committee has no jurisdiction in respect of interference with a member of the House of Lords, which would be a contempt of this House, in practice the evidence collected by the Commons committee comprises all the relevant and readily available information with regard to both Houses. We have therefore drawn heavily on this published evidence in reaching the conclusions and recommendations set out in this report.

Events leading up to the allegation of contempt

8.The evidence shows that from early January 2010 there were concerns within the EHRC about the impending JCHR report, in particular about the way in which oral and written evidence (some of which might be defamatory) would be handled. On 4 February, Mr Phillips discussed these concerns with senior staff, and it was agreed that he would contact members of the committee directly, in particular those whom he “knew personally”, to raise these concerns. Six members of the JCHR were suggested, though in the event Mr Phillips only succeeded in speaking to three of these, Fiona Mactaggart MP, Lord Dubs and Baroness Falkner of Margravine.

9.Then on 6 February 2010, two days before the alleged contempt occurred, Mr Phillips received an email from an un-named member of the EHRC staff. The member of staff reported that they had been “talking to someone who had had sight of the current draft of the JCHR report”. Although this person had not read the report in detail, “he had read the exec summary pretty comprehensively”, and was able to convey a sense of the key conclusions—which included criticism of Mr Phillips and of decision making within the EHRC. It appears therefore that a leak occurred between 4 and 6 February.

10.Mr Phillips’ conversations with Fiona Mactaggart, Lord Dubs and Baroness Falkner of Margravine took place on 8 and 9 February (though Fiona Mactaggart’s evidence shows that the call had in fact been booked on 4 February, in other words before the apparent leak of the draft report). The accounts given of these conversations by the members concerned are broadly consistent. In each case Mr Phillips raised the issue of publication of evidence, and the possibility that certain evidence might be redacted. He also touched on the personal criticisms directed against him, and accused the Chairman of the JCHR, either explicitly or by implication, of unfairness.

Did Mr Phillips’ actions constitute a contempt?

11.The reactions of the three members to their conversations with Mr Phillips diverged widely, demonstrating the lack of a common understanding of the boundary between, on the one hand, legitimate engagement and persuasion, and, on the other, contempt:

Fiona Mactaggart’s evidence says that “In view of the colossal damage to Mr Phillips’ reputation in this whole process, I frankly would not think him worthy of the well-paid and responsible position he holds if he did not seek to influence, in a wholly proper way, the outcome of this enquiry by drawing attention to evidence and to the importance of due process.”

Lord Dubs’ comments are neutral: “I had no reason to think that he had seen a copy and I assumed that he was simply expressing a general concern based upon the evidence the committee had received from witnesses.”

Baroness Falkner of Margravine got the impression that Mr Phillips had “either seen the report or was familiar with its contents”. She told Mr Phillips in the course of the conversation that she “could not have a discussion about the committee’s work with a ‘concerned’ party”; her evidence also describes the conversation as “deeply inappropriate”.

12.We accept that Mr Phillips’ actions could, in certain circumstances, be judged to constitute a contempt. Erskine May notes that “attempts by improper means to influence Members in their parliamentary conduct may be considered contempts”, before indicating that improper “pressure” may be applied by means of “a positive and conscious effort to shift an existing opinion in one direction or another.” Mr Phillips’ actions could certainly be deemed to have been an attempt by improper means to influence Members in their parliamentary conduct.

13.However, it is clear from the wording of Erskine May that each House enjoys considerable discretion in applying these general principles to individual cases. The House “may” consider particular actions to be contempts, but it is not bound to do so. We therefore sought, before determining whether or not Mr Phillips’ actions should be considered a contempt, to put them into context.

14.First, we note that Mr Phillips met senior staff of the EHRC on 4 February, before the draft report was apparently leaked, to discuss concerns over the handling of written and oral evidence. These concerns were entirely legitimate. However, it should have been obvious to Mr Phillips that the proper way to have raised such concerns would have been to call or write to the Chairman or clerk of the JCHR, not to ring up individual members of the JCHR with whom he was personally acquainted. Mr Phillips’ behaviour in ringing individual members of the JCHR, in order to raise his concerns over the handling of evidence, was inappropriate and ill-advised.

15.Having given Mr Phillips an opportunity to comment on this report in draft, we note that he does not consider it reasonable, in the circumstances, that he should be criticised in these terms (see Appendix). However, notwithstanding his comments, we remain of the view that for Mr Phillips to telephone individual members of the JCHR with whom he was personally acquainted was an inappropriate and ill-advised course of action.

16.Between the meeting on 4 February and the conversations on 8-9 February, it appears that the JCHR report was leaked to a member of the EHRC staff. So by 8 February Mr Phillips was aware that the draft report criticised him personally, and his sense of grievance, of being unfairly treated, came out very strongly in the conversations themselves. This compounded Mr Phillips’ mistake in making the calls in the first place.

17.In passing we note that the leak itself, if there was one, may well have constituted a contempt of both Houses, in that, in the words of Erskine May, it tended to “obstruct or impede” the work of the Joint Committee. But the leak was not the responsibility of Mr Phillips or the EHRC, but of the person who divulged that information. Moreover, given that the JCHR report made no complaint regarding a leak, it falls outside the remit of our inquiry. We have therefore not investigated the leak further.

18.However, in considering whether Mr Phillips’ actions constituted a contempt, we have also taken into account other circumstances, which help to explain Mr Phillips’ behaviour. First, we note that the conversations that took place on 8-9 February were, as Mr Phillips’ published memorandum states, part of a series of contacts between EHRC staff and the JCHR in late 2009 (when Mr Phillips and colleagues appeared before the Joint Committee) and early 2010. Most of these contacts were unobjectionable, and no complaint has been made in regard to them.

19.The conclusion drawn from this by Mr Phillips, in his memorandum, is that the dividing line between legitimate engagement with committees and inappropriate interference, amounting in some cases to contempt, is unclear. We have some sympathy with his view. The guidance issued to witnesses does not explain the concept of contempt, or provide any warning of the possible consequences; nor does it provide clear instructions to witnesses as to the appropriate means of communication with committees.

20.Many select committees encourage and thrive on informal contacts with witnesses, as well as on formal evidence sessions. In the absence of guidance as to the appropriate means of communicating with committees, witnesses or other interested parties may err through ignorance rather than design. Although such ignorance does not necessarily excuse inappropriate behaviour, in the present case, and in light of the background described in the published memoranda, we accept it as an important factor.

21.Another relevant factor is whether or not any harm was caused to the JCHR’s work. The JCHR agreed its report on the EHRC on 2 March, notwithstanding the events of the previous month. The former Chairman of the JCHR, Mr Dismore, states that “the constructive working atmosphere in the committee was undermined”. He further claims that “it was difficult to escape the conclusion that some Members had been influenced in their approach to the draft Report by their private conversations with Mr Phillips.” While we give due weight to the comments of the Chairman, we note that they are subjective, and that no firm factual evidence is presented in their support; nor are they borne out by the submissions by individual members of the JCHR. We therefore conclude that, however inappropriate and ill-advised, Mr Phillips’ actions did not significantly obstruct or impede the work of the JCHR.

22.Therefore, taking all the circumstances into account, we do not consider Mr Phillips’ conduct to amount to a contempt of the House.

23.Having considered the memoranda published by the House of Commons Standards and Privileges Committee, we conclude that Mr Trevor Phillips was not guilty of a contempt of the kind alleged by the Joint Committee on Human Rights.

24.We recommend that the guidance issued to witnesses appearing before Lords select committees should in future state explicitly that any contact between witnesses and the committees should be made through the clerk or Chairman.

Procedural fairness

25.The Joint Committee’s report on the EHRC, which appeared in March, contains strong personal criticism of Mr Phillips. We are concerned that current procedure affords individuals who are the subject of such personal criticism in a committee report no formal opportunity to see and comment on a draft ahead of publication.

26.We note that the “Salmon principles”, which derive from the 1966 Royal Commission on Tribunals of Inquiry, chaired by Lord Salmon, afforded extensive rights to witnesses and other persons involved in such tribunals. More recently, the Inquiries Act 2005 created a statutory requirement that the Chairman of any tribunal of inquiry must act with “fairness”, while the Inquiry Rules 2006 set out a procedure whereby any person subject to criticism in an inquiry is sent a “warning letter”, and given a “reasonable opportunity” to respond.

27.Moreover, the House’s own disciplinary procedures reflect, in accordance with the Code of Conduct, the principles of “natural justice and fairness”. Members who are subject to adverse findings by the House of Lords Commissioner for Standards not only have advance sight of such findings, but enjoy a formal right of appeal against these findings to the Committee for Privileges and Conduct.

28.We believe that, in the interests of fairness, persons who are subject to criticism of a damaging and personal nature in select committee reports should have similar rights to those afforded to persons who are criticised in inquiries.

29.We acknowledge that this general principle is subject to a number of qualifications. Select committee inquiries are almost always political in character, and therefore very different from both tribunals of inquiry and internal disciplinary proceedings, which are judicial in character. Moreover, the ability of committees to criticise Ministers, when acting in a ministerial rather than a personal capacity, must be protected. The position of senior officials, or those responsible for public bodies (including the EHRC) also requires further consideration. While there are examples from other parliaments (for instance, New Zealand) of procedures analogous to the “warning letter” procedure, further work and consultation is needed before such procedures can be introduced here. The proper body to undertake such work is the Procedure Committee.

30.We recommend to the House that the Procedure Committee be invited to consider the procedure to be followed in a case where a committee intends to make personal criticisms of a named individual (other than a Minister).

Appendix

Letter from Mr Trevor Phillips to Lord Brabazon of Tara, 2 July 2010

I am very grateful to you and the Committee for the opportunity to comment on the draft report, which Christopher Johnson sent me on 28 June.

I welcome the findings of the report, in particular your conclusion that I was not guilty of contempt of the kind alleged by the Joint Committee on Human Rights. I also welcome your recommendations that there should be explicit guidance for witnesses to select committees about contact between witnesses and committees, and that the Procedure Committee should be invited to consider the procedure to be followed in a case where a Committee intends to make personal criticism of a named individual.

If I may say so, it seems to me that, if both of these recommendations are followed, it is much less likely that there will be disputes in future about what may, or may not, be properly said to members of Committees, when they are considering draft reports. As I said in my evidence to the House of Commons Standards and Privileges Committee, it is unlikely that there would have been any communications between myself and members of the Joint Committee in this case, if any of us had been aware of a published protocol or established convention on this issue.

As your draft report clearly recognises, there is no such guidance in place at present. In that situation, I must ask if it is reasonable that your report should criticise my telephone conversations, made on behalf of the Commission, with members of the Joint Committee as “inappropriate” and “ill-advised”. Indeed, at least one of the members to whom I spoke took a very different view of our conversation.

Your report rightly says that the “obvious” procedure was to have contacted either the Chair or officials of the JCHR in relation to our concerns. I agree. As a matter of fact, both the Director-General of the Commission and I (6 January and 18 January respectively) had written to the Chair of the Joint Committee on the question of how the Committee would handle written and oral evidence to it; other officers of the Commission had raised the same issue with the Clerk by email. We had had no response to our questions. Your draft report describes our concerns as “entirely legitimate”. I find it hard to see that my calls to individual members of the Committee can therefore be described as ill-advised or inappropriate in these circumstances.

I hope that you will reconsider this element in the report. Thank you again for the opportunity to comment.