After Mark Zuckerberg’s testimony before a Congressional Committee, Jonathan Freedland, a thoughtful and well-respected commentator, wrote an opinion piece entitled, “Zuckerberg got off lightly. Why are politicians so bad at asking questions?”
The short answer is – challenging a witness is tough: any inquisitor needs to know what they are doing and to practise the craft, before their performance will start to improve. It is also relevant to look at the arena in which politicians have to ask questions.
In the UK, hearings before Parliamentary Select Committees have gained increasing prominence. Freedland argues that the appearance of Rupert and James Murdoch before the Commons Culture Committee in 2011, in response to the phone-hacking affair, was an example of the descent from forensic inquiry to actual slapstick. If the press and the public want gladiatorial combat from exchanges like this, are they bound to be disappointed?
Since 2015 the Institute for Government has been working with Select Committees on improving their impact, and sent all members a short booklet on how to be more effective. Different Committees have trialled different approaches. For example, the Public Accounts Committee (PAC) now assigns a sub-group of its members to take the lead on questioning in each inquiry, which reflects the wide remit of the PAC. Several Committees have taken up offers of external coaching to improve their questioning technique; especially important when facing off against Ministers, who will have received ample media training on sidestepping difficult questions. Critics should also bear in mind that there are softer and more subtle ways to make an impact; the kind that comes from a well-timed letter or carefully worded recommendation as opposed to a grand battle of wits, broadcast live from Portcullis House.
MPs today are, or should be, busy people. Committee members must balance their work with myriad constituency and political commitments. A dedicated team of clerks and specialists can work away behind the scenes to prepare briefing material, but there is no substitute for having the time to develop understanding of a topic, which allows for concise follow-up questions on the fly. With most Committees averaging only one evidence session a week, questions are often raced through, leaving no time for more thorough investigation.
There is little appetite for increased funding of Parliament, but if Select Committees are going to be at the sharp end of investigating alleged wrong doing or of holding the Government to account, might there be a role for outside legal help? Freedland lauds Senator Howard Baker’s role in bringing about the downfall of President Nixon, but the Senate Watergate Committee had seven special counsel to direct the investigation.
Dealing with the world as it is now and applying Mark Zuckerberg’s maxim that all internet content should be free to the end user, we can offer three rules for effective cross examination in order to help the fearless political inquisitors who are following us.
Rule 1: The outcome means more to the witness
Witnesses always have more skin in the game than questioners. At a minimum, credibility will be in issue and often, reputation, career or even liberty might depend on the answers. Accordingly, the witness will have prepared with care, will have defensive strategies in place and will be ready to meet your challenges. Questioners (and this applies to media interviewers and counsel) often appear flummoxed when the witness deflects the first offensive jabs and shows no sign of raising the white flag. Unless the questioner had done more work than the witness and has a better and more flexible plan of attack, the witness is going to win.
Rule 2: Think Lion, not Christian
In an airless corridor of the Crown Court at Southwark, a freshly acquitted defendant once said to a much-missed colleague, “I know you’re a barrister and all that, but you have to admit, MrX, in there, in the witness box, I was beating you and beating you bad.” The questioner who is challenging a witness is in the arena. Like the lion in Aesop’s fable, the questioner has the option on whether to attack or not. The questioner also gets to choose the form of attack: head-on, flanking, feinting, exploratory – there are many options. Whatever attack you choose, you can’t afford to lose. If the last image is of the witness gently removing the thorn from your paw and the audience is sighing ‘Aw,’ you’ve not been an effective lion.
Rule 3: Get back to Gladiator School
When amateurs tell novelists that they ‘think they’ve got a great book in them,’ the novelist is entitled to wonder whether the same amateurs tell furniture makers that they ‘think they have a Chippendale cabinet in them.’Some skills are harder to master than others. Experience suggests that challenging a witness effectively falls into that category. You won’t get better by day-dreaming or watching legal dramas on TV. You need to get help from people who know what they are doing, talk to them, imitate them, learn from them. Advocates’ triumphs are hard won. But when you survey your scattered opponents, remove your headgear (actual or metaphorical) and say,
“I am Maximus Decimus Meridius, Commander of the Armies of the North, General of the Felix Legions ….”or some such song of victory, that rare moment will make the investment of time and money worthwhile. Or if the exercise seems nasty and dangerous, hire a decent gladiator.
