HOUSE OF LORDS

Committee for Privileges and Conduct

1st Report of Session 2010–11

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
2 FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT

The Committee for Privileges and Conduct

The 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 Membership
The 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 D’Souza
Lord Eames
Lord Graham of Edmonton
Lord Howe of Aberavon
Lord Irvine of Lairg
Lord 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 O’Neill 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 Information
General information about the House of Lords and its Committees can be found at
http://www.parliament.uk/lords/index.cfm.

Contacts
General 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).
 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. 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 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”. 2 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. 3
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

1 HL Paper 56/HC 371.

2 Erskine May’s 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.
4 FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT

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
 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 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.” 4 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.

4 Erskine May, p 147.

6 FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT

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” 5 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 6 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

5 Erskine May, p 128.

6 JCHR, Equality and Human Rights Commission (13th Report, 2009-10, HL Paper 72/HC 183).
 FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT 7

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”, 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 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

7 Inquiries Act 2005, s 17(3).

8 The Inquiry Rules 2006 (S.I.2006/1838), rule 13.
8 FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT

committee intends to make personal criticisms of a named individual

(other than a Minister).
 FIRST REPORT FROM THE COMMITTEE FOR PRIVILEGES AND CONDUCT 9

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.