Dominic Cummings made some explosive claims in his evidence to MPs on Wednesday. Among them: that the Health Secretary, Matt Hancock, “lied” repeatedly in cabinet meetings (including about the plan to test people in hospital for Covid-19 before they were discharged to care homes), that Hancock was so incompetent the Cabinet Secretary recommended to Boris Johnson that he be sacked in April, and that Johnson deliberately kept Hancock in office so the government would have a scapegoat in a future public inquiry.
There were also accusations that Johnson initially wanted to be injected “live on TV with the virus so everyone realises it’s nothing to be frightened of”, and that he said he would rather see the “bodies pile high” than order a third lockdown.
Some of these claims have since been rejected as “unsubstantiated” and “not true” – by the Prime Minister, by Hancock, and by other government ministers. There are now multiple contradictory versions of events formally on record, which means at least one person has lied, or if nothing else supplied inaccurate and misleading information.
As someone who evidently has an axe to grind against his former boss, Cummings is not the most reliable narrator – and the public realise this. According to recent YouGov polling conducted before his evidence session, only 14 per cent of people believe they can trust what he has to say. So if it transpires that he did mislead MPs during the marathon seven-hour hearing, what are the potential consequences?
While hearings might often have the air of a courtroom drama, select committees do not have the powers of a court of law, either in compelling a witness to give evidence, or in punishing them if that evidence proves false.
“In normal circumstances, an individual who refuses to attend or gives dishonest evidence to a select committee might be found in contempt of the House. Historically, this could be punished by fines or imprisonment. However, such powers have not been used in modern times and are thought to fall foul of the fair trial rights guaranteed by the European Convention on Human Rights,” says Alexander Horne, a barrister who previously worked as a legal adviser in parliament.
“Contempt of the House of Commons” (covered more broadly under “contempt of parliament”) is an impressive-sounding charge that should theoretically compel a minister to resign. But as the New Statesman explained in 2018, it is accompanied by few enforceable sanctions, particularly when it comes to non-members (anyone who isn’t an MP or a peer). Indeed, the last time the Commons fined someone for this offence was 1666.
And despite the influence select committees supposedly wield, there have been several high-profile examples in recent years of individuals refusing to attend altogether and facing little punishment.
“In 2011 James Murdoch refused to testify before a parliamentary committee on issues related to phone hacking. There was brief talk of Mark Zuckerberg being incarcerated in the basement of the Queen Elizabeth Tower for failing to testify before the same committee in 2018. And Dominic Cummings was found in contempt of parliament in 2019,” says Fergal Davis, reader of public law at King’s College London.
This last point is particularly interesting. In 2018 Cummings was repeatedly called to testify before the Digital, Culture, Media and Sport Committee on issues relating to “fake news” in the EU referendum campaign. When he failed to do so, he was “admonished” for contempt of parliament by the House, and a resolution was passed to that effect in January 2019.
But as Davis points out, resolutions “are not ‘laws’. They do not result in punishment – the impact is reputational.”
That Cummings was appointed as a Downing Street adviser later that same year, complete with a parliamentary pass, suggests the reputational damage of his admonishment was minimal.
In the case of this week’s Covid hearing, Cummings did choose to appear. He asserted that the evidence he gave was “under oath”, associating the select committee with a courtroom. But it is unusual, Horne says, for a witness before a committee to take the oath, and it is not clear Cummings was asked to do so on Wednesday.
Horne (who stresses he is not commenting on the veracity of the evidence given), adds that even if Cummings had taken the oath, lying would not put him at the same risk of criminal sanctions as giving false evidence in court would.
“Where evidence is taken under oath by a select committee, if a witness is dishonest, this can amount to perjury under the Perjury Act 1911. However, while there are some historic precedents where offenders were prosecuted before the courts for perjury before committees, these occurred in the 19th century,” he says. “There are no records of any witnesses being punished for perjury since the passage of the 1911 Act.”
What this amounts to is a code of conduct that relies on a witness’s integrity and concern for their reputation. Absent of this, select committees lack the powers to enforce their demands. Whether this is a problem that requires legislative change is an issue of some contention.
The Labour MP Chris Bryant is among those who believes committees need “more teeth”. The work they do in holding the powerful to account, he recently wrote, cannot happen “without parliamentary committees having clear and enforceable powers to summon people, papers and records”. The Committee of Privileges, which he chairs, published a report earlier this month which recommended legislating to give them those powers.
“The report effectively offers a choice between legislating to strengthen the powers of select committees or sticking with things as they are. Both approaches are problematic,” says Davis.
“If parliament cannot compel witnesses and sanction them for failing to give honest evidence it’s effectively trying to investigate matters of public concern, but with one (or maybe both) hands tied behind its back.”
However, he notes that giving parliament the ability to impose penalties, especially on non-members, comes with its own problems: turning parliament into a kind of law court “might open the door to uncomfortable judicial interference with parliamentary business”.
Horne, too, fears “this would be unwise as there would not be sufficient safeguards in place to protect such individuals from oppressive behaviour by MPs”. He adds: “Parliamentary committees should not be seen as courts of public opinion to hold private individuals to account. The risk would be that witnesses would begin to attend with counsel (as can be seen in the United States) and witnesses would be far cagier about what they said. Worse, if such evidence were taken under oath, then political vendettas could end up being played out in the courts. This would leave judges in a difficult position.”
This conundrum does not have an easy answer. It is, as Davis puts it, “about more than Dom and Boris or Vote Leave and Facebook”. Trying to toughen the sanctions available to parliament could impact an individual’s right to a fair trial and actually make it harder for select committees to act effectively, blurring the boundaries between the political and legal spheres. That said, the current reputational deterrent is clearly ineffective. “It is not good for ‘the dignity of parliament’ to have people admonished by the House, then employed at Number 10 and then called by another committee to give evidence,” says Davis.
The issue is not going away. As awareness grows that people such as Murdoch and Zuckerberg can defy committee summons without substantial ramifications, more will no doubt decide to turn down the invitation. For now, the Committee of Privileges is continuing its inquiry and has an open call for evidence, which people can submit to.
As for Cummings, the government’s line is that what he said on Wednesday cannot be trusted. If there is evidence that undermines his version of events, we will surely be hearing about it – and with Downing Street set on debunking his claims, Cummings may find himself admonished for contempt of parliament a second time.
If so, we will have to trust that the resultant damage to his reputation is enough to deter others from lying to a select committee.
[See also: Dominic Cummings has confirmed Boris Johnson’s utter unfitness for office]