Perjury, contempt and privilege: the coercive powers of Parliamentary committees.

• Author: Robert, Charles

This paper explores the history and issues surrounding privilege and swearing in witnesses. In summary, it argues that: contempt powers available to committees are not always enough to compel the appearance or testimony of witnesses. By legislating the power to administer oaths, by exempting sworn testimony from the usual protections of privilege when it is used in the case of perjury and by giving the responsibility for prosecuting perjury cases to the courts, Canada has created a more effective mechanism for punishing those who lie to a parliamentary committee. It also argues that the Charter's provisions guaranteeing the rule of law and due process may conflict with Parliament's coercive powers; that other claimed powers, such as the ability to fine offenders, may also be questionable; and that the power to punish for contempt and to fine can no longer be asserted with certainty until they are tested in the courts. In remedy, the paper suggests a comprehensive review of the privileges and powers of Parliament with respect to its committees and that consideration be given to ensuring that they are properly equipped to function in the legal and human rights constructs that comprise the Charter era.

**********

The use of coercive powers by Parliament has two identifiable functions, to compel or to punish. Compulsion can be used with witnesses who may be hesitant or reluctant to cooperate; it deals with the immediate situation. Punishment is used after the fact against witnesses whose behaviour has been found to offend the dignity of the committee. The option to use either remains entirely at the discretion of the committee, subject to confirmation by the House. The history of these coercive powers and their effectiveness has not been the focus of much study or comment. Joseph Maingot's Parliamentary Privilege in Canada is one of the few to have reviewed the subject, but this analysis does not pretend to be comprehensive; nor does Maingot really consider whether these coercive powers are still appropriate today, even though he was sensitive to the altered legal environment brought about by the incorporation of the Charter into the Constitution. Should these coercive powers be retooled to maximize their usefulness in the contemporary context? Has there been any impact on them as a result of the proclamation of the Charter with the guarantee of individual rights, including due process and the protection of self incrimination.

The privileges and powers of Canada's Parliament are derived from British parliamentary practices and traditions. The House of Commons in England has exercised contempt powers for centuries. As a constituent part of the High Court of Parliament, it had an inherent right to insist on the complete cooperation of witnesses called before the bar of the House or before one of its committees. Failure to comply with its demands for information could lead to various punishments including admonishment, reprimand and, not infrequently, imprisonment.

As it happened, Parliament's successful assertion of its supremacy in the late 17th century confirmed these powers, and also contributed to their excessive use. The judgment of Stockdale v. Hansard includes a list of some of these abuses spanning a century. (1) Among the more egregious examples were violations of members' private property, such as poaching and trespass, and even eviction of tenants for non-payment of rents. These abuses were completely unrelated to the strict understanding of contempt because they did not involve interference in the actual workings of the House or the participation of its members. Such outrageous practices were eventually curbed and the contempt power was more properly limited to enforcing compliance with orders of the House in pursuit of its work.

In addition to the contempt power, the House of Commons sought the right to administer oaths to witnesses, which was fully achieved by statute in 1871. Unlike the House of Lords, the power to swear witnesses was not inherent to the House of Commons because it did not exercise judicial functions. The Commons did, however, deal with quasi-judicial matters such as disputed elections and petitions for divorce. Early attempts to hear witnesses under oath included some irregular practices. At a time when some MPs were also magistrates, they might be called upon to administer an oath. On other occasions, witnesses were sent to be sworn at the bar of the House of Lords. These practices, not authorized in law, were used sporadically over the course of about 100 years until they were abandoned mid 18th century.

The preference to hear witnesses under oath was motivated by at least two factors. One was to impress upon members and witnesses alike the serious nature of some of the committee proceedings. Second, the growing number of private bills highlighted the need to hear petitioners under oath to ensure that Parliament did not enact statutes based on false information.

The 1770 "Grenville Act" was the first statute to replace this ad hoc approach with a more systematic one. It was done to allow committees looking into disputed elections to conduct themselves more like a trial. This same Act also empowered the House of Commons to administer oaths at the bar in certain cases. Various amendments were made to this Act, and other similar Acts from 1770 onwards to extend the range of committees and subject-matter where oaths could be administered. The issues being examined primarily dealt with controverted elections and divorce cases.

The Parliamentary Witnesses Oaths Act of 1871 finally granted the House of Commons and its committees the right to administer oaths without restriction. By its terms, "Any person examined as aforesaid who willfully gives false evidence shall be liable to the penalties of perjury." Before the passage of such statutes, article 9 of the Bill of Rights barred the courts from using any aspect of parliamentary proceedings as evidence for any purpose. Laws permitting the swearing of witnesses, and particularly the 1871 Act, removed this impediment by creating a statutory exception to article 9. This interpretation is confirmed by the 1999 UK Joint Committee on Parliamentary Privilege (2) and by Maingot (3). Until the adoption of the Defamation Act 1996, (4) permitting the limited use of Hansard by MPs as evidence in defamation proceedings, perjury was the only exception to article 9.

These exceptions to article 9 have not impaired Parliament's coercive powers. On the contrary, with the incorporation of the oath power, witnesses became liable to two distinct charges--contempt and perjury. Either or both could be pursued, depending on the circumstances. This was acknowledged as early as 1844 in the first edition of Erskine May's "Treatise on the Law, Privileges, Proceedings and Usage of Parliament". The 1999 UK Report on Privilege also noted the dual liability and was not particularly troubled by it, though one British Justice recently expressed some concern about the possibility of conflicting results if both charges were actually followed. In fact, this has yet to happen and seems quite unlikely. (5)

Only three examples have been identified of perjury charges being recommended by the House of Commons in the nineteenth century. All three predate the 1871 Act, and all involve false testimony in relation to a committee examination of a disputed election. (6)

These examples have led to the perception that a perjury prosecution can take place only on the recommendation of the House, or that a prosecution must take place if the House calls for one. This presumption does not appear to be well founded. In an 1869 appearance before a House of Commons select committee, Erskine May suggested an alternative understanding. Asked whether an indictment for perjury could proceed only with the permission of the House, May answered in the negative, saying:

... the House of Commons would be in the same position as any other court which administers oaths; and the Act of Parliament would state, as was done in the Act of 1858, that "Any person examined as aforesaid who shall willfully give false evidence, shall be liable to the penalty of perjury." That is the case now with regard to Committees on private bills, and it is the case with regard to the Committees of the House of Lords; and I can see no reason for treating the House of Commons in a different way. (7) May used the example of the courts to demonstrate that the decision to pursue a charge of perjury would ultimately be made at the discretion...