mr trevor phillips - allegation of contempt

8/8/2019 Mr Trevor Phillips - Allegation of Contempt

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HOUSEOFLORDS

CommitteeforPrivileges and Conduct

1st Report of Session 201011

Mr Trevor Phillips: Allegation of Contempt

Ordered to be printed 5 July 2010

Published by the Authority of the House of Lords

London : The Stationery Office Limited

price

HL Paper 15


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2 FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT

The Committee for Privileges and ConductThe Committee for Privileges and Conduct is appointed each session by the House to consider

questions regarding its privileges and claims of peerage and precedence and to oversee the

operation of the Code of Conduct. Detailed consideration of matters relating to the Code of

Conduct is undertaken by the Sub-Committee on Lords Conduct.

Current MembershipThe Members of the Committee for Privileges and Conduct are:

Baroness Anelay of St Johns

Lord Bassam of Brighton

Lord Brabazon of Tara (Chairman)

Lord Brooke of Sutton Mandeville

Baroness DSouza

Lord Eames

Lord Graham of Edmonton

Lord Howe of Aberavon

Lord Irvine of LairgLord Mackay of Clashfern

Lord McNally

Baroness Manningham-Buller

Baroness Royall of Blaisdon

Lord Scott of Foscote

Lord Shutt of Greetland

Lord Strathclyde

The Members of the Sub-Committee on Lords Conduct are:

Lord Cope of Berkeley

Lord Dholakia

Lord Irvine of Lairg

Baroness Manningham-Buller (Chairman)

Baroness ONeill of Bengarve

The Code of Conduct and the up-to-date Register of Lords Interests are on the Internet at

http://www.publications.parliament.uk/pa/ld/ldreg.htm.

General InformationGeneral information about the House of Lords and its Committees can be found at

http://www.parliament.uk/lords/index.cfm.

ContactsGeneral correspondence should be addressed to the Clerk of the Committee for Privileges and

Conduct, House of Lords, London, SW1A 0PW (telephone 020 7219 8796).

Correspondence relating to the work of the Sub-Committee on Lords Conduct should be

addressed to the Clerk of the Sub-Committee on Lords Conduct, House of Lords, London SW1A

0PW (telephone 020 7219 8750).
http://www.publications.parliament.uk/pa/ld/ldreg.htmhttp://www.publications.parliament.uk/pa/ld/ldreg.htm


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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 TrevorPhillips.1 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 hadspoken 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 bythe Privileges Committees of both Houses.

2. On 25 February the House agreed a motion to refer the report to theCommittee 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 separateselect committees appointed by each House to work together. While they

work together as one committee, they are defined in procedural terms as

two committees.2 It follows that, in procedural terms, interference with aLords 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 eitherefficient 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 Dismores 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 ofthe last Parliament.3

6. Although it published the memoranda, the Commons committee did notmake a report on the allegations. However, the then chairman, Sir Malcolm

Rifkind MP, wrote to the Chairman of Committees on 30 March, outlining

his committees 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 theCommittee for Privileges of the House of Lords. At the same time he

1 HL Paper 56/HC 371.

2 Erskine Mays Treatise on the Law, Privileges, Proceedings and Usages of Parliament(23rd edn, 2004), p 837.

3 See http://www.publications.parliament.uk/pa/cm200910/cmselect/cmstnprv/memo/privilege/contents.htm.
http://www.publications.parliament.uk/pa/cm200910/cmselect/cmstnprv/memo/privilege/contents.htmhttp://www.publications.parliament.uk/pa/cm200910/cmselect/cmstnprv/memo/privilege/contents.htm


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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 kindalleged in the Joint Committees 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 publishedevidence 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 inwhich 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 committeedirectly, 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 whohad 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 prettycomprehensively, 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 FionaMactaggarts 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 ofevidence, and the possibility that certain evidence might be redacted. He alsotouched 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 Mactaggarts evidence says that In view of the colossal damage toMr 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


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FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT 5

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 hadseen 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 MrPhillips in the course of the conversation that she could not have a

discussion about the committees 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 existingopinion in one direction or another.4 Mr Phillips actions could certainly bedeemed to have been an attempt by improper means to influence Members

in their parliamentary conduct.

13. However, it is clear from the wording ofErskine 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 ornot 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 theproper 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 inringing 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 totelephone 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 himpersonally, 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.

4 Erskine May, p 147.


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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 ofErskine May,it tended to obstruct or impede5 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 memorandumstates, 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 andinappropriate 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 thepossible 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 orother interested parties may err through ignorance rather than design.

Although such ignorance does not necessarily excuse inappropriatebehaviour, 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

JCHRs work. The JCHR agreed its report on the EHRC6 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 toescape 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 theirsupport; nor are they borne out by the submissions by individual members ofthe JCHR. We therefore conclude that, however inappropriate and ill-

advised, Mr Phillips actions did not significantly obstruct or impede thework 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

5 Erskine May, p 128.

6 JCHR, Equality and Human Rights Commission (13th Report, 2009-10, HL Paper 72/HC 183).


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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 thatany contact between witnesses and the committees should be made

through the clerk or Chairman.

Procedural fairness

25. The Joint Committees 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 thatthe Chairman of any tribunal of inquiry must act with fairness,7 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.8

27. Moreover, the Houses 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 LordsCommissioner 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 reportsshould 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 andinternal 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 seniorofficials, or those responsible for public bodies (including the EHRC) alsorequires 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 beforesuch 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

7 Inquiries Act 2005, s 17(3).

8 The Inquiry Rules 2006 (S.I.2006/1838), rule 13.


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committee intends to make personal criticisms of a named individual

(other than a Minister).


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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 notguilty 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 tobe 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 areconsidering 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 onthis 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, atleast 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 ourconcerns 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.

mr trevor phillips - allegation of contempt

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