Unprecedented actions by Commons committee augur badly for Facebook

The chairman of the House of Commons digital, culture, media and sport (DCMS) committee, Damian Collins, last week ordered documents relating to Facebook to be handed over by Ted Kramer, boss of US software company SixforThree, who was passing through London.

Kramer is suing Facebook in the San Mateo Superior Court in California over rights to access pictures of people wearing bikinis. Kramer had obtained the Facebook documents under “discovery”, a legal procedure that allows litigants sight of each other’s case papers.

When the documents were not handed over in London, the House of Commons policeman, the serjeant-at-arms, effectively arrested Kramer and frogmarched him to Parliament, where he was told he would be imprisoned if he failed to hand over the papers. There are believed to be two small cells in the Parliament building where prisoners can be held.

Collins, Tory MP for Folkestone and Hythe, said the documents Kramer had in his possession contained information needed by his committee to continue its investigation into Facebook and the Cambridge Analytica scandal. This made Kramer’s situation “obstruction of procedure” as well as contempt.

Normally, when a committee chairman wants a reluctant witness to attend a hearing, the witness is cited for contempt and a report made to the full House of Commons, which then, normally, gives orders to the serjeant-at-arms.

In this case,  Collins used the inherent powers of his chairmanship and sent the serjeant-at-arms under his own authority to Kramer’s hotel – but not without the consent of the Speaker, it is believed – and Kramer handed over the documents.

Facebook attempted to claim over the weekend that the documents were privileged because they were sub judice in the Californian court. This drew a short and ominous reply from Collins – ominous for those claiming US legal privilege in the UK. He said that in the UK, Parliament had jurisdiction and a US court had none.

This claim of US jurisdictional privilege is central to Facebook’s appeal before the Irish Supreme Court on 21 January, in which it will seek to halt questions to the European Court of Justice about safe data transfers to the US under Privacy Shield.

The House of Commons authorities could find no precedent for what Collins had done, referring only to the case of the Maxwell Brothers in 1992, when the brothers refused to attend the social affairs committee looking into their father’s pension fraud at the Mirror Group, and were “persuaded” to attend under threat of contempt, but not put under de facto arrest.

Facebook approached Collins via one of its vice-presidents, Lord Allen of Hallam, in Sheffield. Collins reminded Lord Allen that he, too, was a Member of Parliament, although in the House of Lords. This put the spotlight on Facebook’s new head of PR, former LibDem leader Nick Clegg, who inherited Richard Allen’s Sheffield Hallam seat in 2005.

Collins’ move has been widely approved within parliamentary circles. One MP said: “It shows that Parliament and its committees must be taken seriously. It is long past time this happened.”