What is contempt of parliament – and could Mark Zuckerberg actually go to prison for it?

The Facebook founder is refusing to appear before the Commons, despite agreeing to give evidence to the European parliament (ouch). 

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People have been bandying round the term “contempt of parliament” since Rupert Murdoch and his son James refused to give evidence about phone-hacking in 2011. Last year it was in the news again after Brexit Secretary David Davis denied the existence of impact assessments he’d previously spoken about in a select committee.

Mark Zuckerberg is refusing to appear before the Commons select committee into fake news, despite agreeing to appear before the European Parliament (ouch). And now Vote Leave campaign director Dominic Cummings is stubbornly refusing to appear before the Commons culture committee to give evidence for its fake news enquiry – and today the committee announced it will report him to the Commons for contempt of parliament.

But what is contempt of parliament, does it really exist, and can anything substantial be done to those who are found guilty?

Well, like many rules in parliament, it stems from the United Kingdom’s “unwritten constitution”, which basically means something that just sort of happened hundreds of years ago that has turned into a rather wooly, nebulous thing. Unlike contempt of court, which is defined by an Act of parliament, contempt of parliament won’t be found on the statute books. But it does exist.

Contempt of parliament is laid out in the parliamentary handbook Erskine May, and there are several categories for it. Catherine Haddon, from the Institute for Government, explains: “Defining contempt is ultimately up to the House. It does not require a precedent and can cover many actions from members who deliberately mislead parliament to disorderly conduct, bringing parliament into disrepute and obstruction.”

With no courts involved, it’s entirely up to the House to decide whether it has occurred. This happened last year when David Davis was cleared of contempt of parliament after speaker John Bercow said the standard for a formal vote on contempt hadn't been met.

In the case of Zuckerberg and Cummings, they’re facing the possibility of contempt for failing to appear before a select committee. Normally, if a witness refuses to appear before a select committee, they can ‘compel’ the individual to hand over the information they need. This last happened in 2011 when Rupert Murdoch and his son James refused to answer questions about the phone-hacking scandal. At the time, MPs sent the deputy sergeant at arms of the Commons to deliver a summons in person – and they did eventually appear.

The problem then is that, like Zuckerberg, the Murdochs weren’t British citizens, and so constitutional experts thought no sanctions could be used against them – so a bit of an empty (if reputationally damaging) threat.

According to Erskine May, anyone can be summoned if they are in the UK’s jurisdiction – ie nationality is irrelevant, it’s all about geography. That’s why Damian Collins, the chairman of the Digital, Culture, Media and Sport Select Committee told Facebook’s chief: “It is worth noting that, while Mr Zuckerberg does not normally come under the jurisdiction of the UK Parliament, he will do so the next time he enters the country.” In other words: as soon as your feet touch British soil, the sergeant at arms will be waiting for you.

Cummings, however, has already rejected the committee’s formal summons through the sergeant at arms, leading to the chair Damian Collins to report the matter to the House. “[This] could result in a decision that a contempt of parliament has been committed,” he said “a very serious outcome for the individual.”

But how serious is Very Serious? Can Cummings be locked up at her majesty’s pleasure? There are various powers if contempt is applied to a member of either House – suspension, expulsion or simply censuring someone – but sanctions are much more difficult to do to non-members. The Commons hasn’t punished a non-member since 1978 (and the Lords since the 19th century).

Curiously, the Houses’ power to punish a member of the public is untested in recent times. In theory, both the Commons and the Lords can reprimand a person or order their imprisonment. The Lords can also fine non-members as it was recognised as a court.

The last time someone in the Commons was fined was in 1666. Thomas White was fined £1000 (£114,000 today) after absconding after being ordered into the custody of the sergeant at arms for causing Henry Chowne, the Member for Horsham, to be arrested and prevented from attending Parliament. Pretty dramatic stuff. But since the Commons wasn’t recognised as a court in the intervening centuries, they aren’t considered to be able to fine people now.

All the Commons can technically do is lock witnesses up in Elizabeth Tower or march them to the bar of the House to admonish them (front row seats, please).

So is this on the cards for Zuckerberg or Cummings? The threshold would be very high – in 1978 the Commons decided to use its penal jurisdiction as little as possible and only when it was “essential” to protect the House, its Members, or officers from being able to properly perform their function.

Do Zuckerberg or Cummings’s meet this threshold? Probably not now. But with a lot of witnesses not playing ball, it’s entirely possible things could escalate.