DEFENCE COMMITTEE
1992-97
Report by Mr Michael
Colvin, Chairman of the Committee
Introduction
1. A separate statistical
record of the Defence Committee's work this Parliament will be
published at a later date. The Defence Committee's experience
in relation to the other specific issues raised by the Liaison
Committee is set out below. Some of these problems tend to arise
only in relation to post-mortem inquiries into politically controversial
events. The Committee's most recent experience of such an inquiry
is that into the Westland affair in 1986. That experience is borne
in mind in this response. Otherwise, this response is based on
the experience of the Committee appointed in 1992. The Committee's
current inquiry into Gulf War syndrome does also touch on some
issues of ministerial accountability and parliamentary access
to information, but that inquiry is not yet concluded.
2. In common with other
departmental select committees, the Defence Committee has not
always found straightforward the process of obtaining information
from the department it scrutinises. An added complication is that
some evidence is submitted to the Committee in a classified form
which cannot therefore be reported to the House. The Committee
often successfully challenges the level of classification initially
made by MoD to enable more information to come into the public
domain. The Committee has also contributed to the Whitehall review
- set up following the Scott inquiry - about information which
should be disclosed to Parliament about arms exports.[49]
Scrutiny of agencies and other
non-departmental bodies
3. In its Report on Ministerial
Accountability and Responsibility[50]
the Public Service Committee recommended that select committees
play a more active role in the work of Agencies, commenting on
framework documents and corporate plans prior to publication and
when they are reviewed. The Committee also recommended that the
Liaison Committee study ways of improving parliamentary scrutiny
of agencies. The Government has stated that it would welcome
Committee comments during the prior options reviews and during
the revision of framework documents and corporate plans.
4. There are already over
forty defence agencies, with agency status under consideration
for a further ten bodies. Nearly a third of MoD personnel, military
and civilian, are employed in agencies or possible agencies. This
means that inevitably the Committee comes across agencies in the
course of its inquiries. As part of a wider inquiry into MoD
Police and Guarding we examined and reported on the transfer of
the MoD Police to agency status. Similarly the current inquiry
into defence medical services has involved taking evidence on
the Defence Secondary Care Agency.
5. The Committee requests
from each new agency copies of its Framework Document and Corporate
Plan. It has repeatedly been necessary to remind existing agencies
to send to the Committee copies of their annual reports. We
would aim in principle to select one or more agencies for a short
inquiry each year. We will continue to draw on the work of
the Public Services Committee in identifying issues which apply
to agencies generally.
Committee Resources
6. In recommending that
the operation of the Select Committee system be examined by the
Liaison Committee the Public Service Committee invited consideration
of the expansion of the resources available to them.[51]
7. The Defence Committee
has two Clerks, an adviser seconded from the NAO and two other
full-time clerical staff. In the course of a session it makes
use of the services of up to six part-time specialist advisers
for particular inquiries. The Committee has traditionally produced
a relatively large number of reports each year. During the course
of its inquiries it devotes a considerable number of days to visits,
both in this country and abroad.
8. The Committee is not
conscious that its work over the current Parliament has been constrained
by a shortage of staff, but obviously there have been times when
the committee staff have been very busy. In particular, over the
past session the work of supporting the Select Committee on the
Armed Forces Bill was undertaken by the Defence Committee staff
without any augmentation. While we welcome the overlap in both
membership and staff of these two committees, in future we believe
that additional clerical and secretarial staff should be seconded
to the Defence Committee during proceedings on the quinquennial
Armed Forces Bill.
9. A balance has to be struck
between the amount of work the committee staff devote to monitoring
the full range of the Ministry of Defence's wide responsibilities
and the more immediate requirements of current committee inquiries.
Naturally the Committee needs its permanent staff to concentrate
on current inquiries, while still being able to respond to requests
for information about other defence matters. The Committee has
benefitted from the advice and information available from the
International Affairs and Defence section of the Library. It may
be that greater use of the Library research capability would reduce
the amount of committee staff work which goes into storing and
retrieving information.
10. Although the Committee's
permanent full-time staff is small, the ability to draw on part-time
specialist advisers of high quality should not be under-estimated.
Members would find difficulty in devoting substantially more time
to absorbing additional written material produced by extra committee
staff. We believe that this provides the flexibility to meet
most predictable needs. What might be required at times of
high pressure is some "surge capacity" to augment the
staff for a particular inquiry. We understand that the Committee
Office generally does not have this capability. This would involve
procedures for speedy authorization and recruitment of necessary
specialists or support staff to meet an unexpected need as soon
as it arises.
Relations with PAC and NAO
11. Following a Report
from the Procedure Committee in 1990 Standing Orders were amended
to allow the PAC to communicate evidence from the NAO to departmental
select committees. The Public Service Committee has recently
recommended that the Liaison Committee re-examine the relationship
between PAC, NAO and departmental select committees.[52]
Among the options it suggested for consideration were regular,
formal contact between PAC and other committees about the NAO's
programme of work; a new power for departmental select committees
to request memoranda from the NAO concerning any aspect of the
department's use of resources; and regular briefings by the NAO
for select committees on administrative and value for money issues.
The Government expressed no objection to departmental select
committees making more use of the NAO.
12. The Defence Committee
has had little formal contact with the Public Accounts Committee
but has had productive informal relations with the National Audit
Office. To date, the Defence Committee is the only committee
to have conducted an inquiry on the basis of a published report
by the NAO.[53]
We have also taken into account the information in NAO reports
for our other inquiries. The presence of an NAO officer on secondment
to the committee staff gives us the benefit of NAO expertise though
not NAO access to MoD documents. The Committee is also informed
of the NAO's programme of inquiries through regular informal contacts.
13. An example of how this
works in practice is the sale of the married quarters estate.
The Defence Committee conducted an inquiry into the merits of
the sale - the policy - as it was being carried out. As with other
privatisations, the NAO waited until completion of the sale before
examining the detailed financial information in the bidding and
selection process. When the NAO report is published, the Committee
may decide to return to the subject.
14. We are aware of the
existence of completed NAO studies on defence matters which have
not been submitted to PAC or reported to the House. One example
is the type 23 frigate, which we wished to look into during an
inquiry into Royal Navy Front Line Forces in 1995-96. MoD declined
to give details to the Defence Committee because the full NAO
report had not been given to the Public Accounts Committee. We
were unable to persuade the Public Accounts Committee to take
this matter forward within the timescale of our inquiry. We are
concerned that there may be other completed NAO studies on defence
matters which have not been reported to the House or shown to
the Public Accounts Committee.
15. We would welcome
the ability to ask the NAO to investigate particular matters and
report back. Although such requests would not be made frequently,
there are occasions when a detailed financial investigation by
NAO would provide a basis for the Committee making a political
judgment on them. Letting the NAO first establish the facts
- and agree them with MoD - in a complicated accountancy matter
would certainly help some inquiries. In such cases it would be
important that the process should not take too long.
16. We conclude that,
although there is scope for duplication and confusion between
departmental committees and the Public Accounts Committee, the
diversity of approaches may work to the benefit of the House.
Parliamentary Commissions
17. The Trade and Industry
Committee has recommended that the Procedure Committee consider
the creation of a system whereby select committees would have
the power to establish independent inquiries on very detailed
factual matters before using the findings to report to the House.[54]
The model used by the Public Accounts Committee is suggested,
where the NAO conducts the factual investigation, the results
of which are then examined and reported to the House by the Committee.
18. We see some merit in
Committees having the ability to delegate the fact-finding element
of an inquiry to another body. This might be the NAO in financial
matters or a specially-appointed lawyer in other matters of fact.
This is the procedure now devised for the Standards and Privileges
Committee and the Parliamentary Commissioner for Standards.
19. We are not convinced
that in relation to the major post-mortem inquiries of the last
few years - Westland, Belgrano, salmonella in eggs, privatisation
of Rover, arms sales to Iraq, BMARC - the relevant select committee
should have delegated its responsibility in this way. The House
would probably expect the Committee whose members have experience
of the subject area to devote its time to an early and largely
public examination of the facts. It is also important that those
who are to form judgments on the facts should have heard the evidence
of the witnesses at first hand and not just an assessment of it
by an intermediary. On matters of public administration and
political responsibility we still consider that the prime task
of investigation should remain with select committees.
20. We do accept however
that there may be circumstances when the best committee to conduct
such a post-mortem might be one specially appointed and appropriately
resourced. This should include some Members from one or more
relevant select committees as well as other Members of the House.
There may be occasions when an ad hoc committee on national
security, as used in other parliaments, should be set up, comprising
some members from the select committees on defence, foreign affairs
and home affairs, to conduct specific inquiries. Following the
experience of the Trade and Industry Committee's inquiry into
the coal industry in 1992-93, we do not think any committee
should be appointed specially to investigate a matter unless it
was agreed in advance that its eventual report would be debated
on the floor of the House on a substantive (and amendable) motion.
Difficulties in obtaining
evidence from Government Departments
21. In responding to
a Report from the PCA Select Committee the Government agreed to
amend its guidance on "Departmental Evidence and Response
to Select Committees" to reflect the terms of the Code of
Practice on Access to Government Information. This defines the
information which Ministers can justifiably withhold from Parliament.[55]
The Public Service Committee noted that Government departments
have been generally co-operative in supplying information to select
committees but were concerned that on the few occasions in which
disputes have arisen, committees lack the formal powers to obtain
documents from departments.[56]
It recommended that the House should agree to a 1978 recommendation
by the Procedure Committee for a procedure which would "restore
to Select Committees, in certain specified circumstances, the
right, which formerly belonged to any backbencher, to move for
an Address or an Order for a Return of Papers." In its Reply,
the Government agreed with the Procedure Committee's view in 1990
that additional powers were not necessary or workable.[57]
22. The Defence Committee's
experience has been not so much major confrontations with the
Ministry of Defence over specific documents but frequent skirmishes
over the release of information and its classification. It is
not usually a case of information being refused as of questions
not being answered fully. The absence of a full answer is usually
not apparent at the time. If and when the full information emerges,
it is often too late to make an issue of it. These are the circumstances
in which the civil service defence is usually that they were not
actually asked the precise question which would have elicited
the full information.
23. There have been examples
in this Parliament of the Committee being refused access to specific
documents. Many of the recent changes in defence administration
in recent years are based on a series of defence costs studies
conducted in 1992-94. The Committee was disappointed to be repeatedly
refused copies of the Defence Costs Study on Naval Stores. We
have already reported on the withholding of reports produced for
MoD by outside consultants: "if the justification for withholding
from Parliament advice to Ministers is the need to preserve the
integrity of Civil Service advice, we do not see that this should
extend to cases where the Department has specifically commissioned
an outsider to conduct an inquiry."[58]
We were recently concerned that the MoD refused the Committee
details of the Department's assessment of the bidders for the
married quarters estate (recently sold for £1,662 million)
on the grounds that they had entered a confidentiality agreement
which prevented disclosure to third parties. When we drew this
to the attention of Ministers, they relented. In the course of
our current inquiry into defence medical services, MoD have refused
the Committee access to a report on the operational capability
of the medical services on the grounds not of security classification
but that it constitutes advice to ministers. This type of factual
study, while in the end it may influence Ministers to change policy,
is unlikely to be a classic piece of civil service advice whose
integrity must be maintained.
24. We do not regard the
Government argument that existing powers are sufficient, as of
any real value in the circumstances when a disagreement arises
about access to information. [59]
We support the suggestion that in extreme cases a Committee
should be able to table and have debated a motion for the return
of a specific document. A debate for an hour or so would enable
the Committee and the Government to set out their points of view
and the House could decide the matter on a division. This procedure
would be analagous to the one hour debate provided for in Standing
Orders if nominations to select committees are opposed on the
floor of the House. The onus should be shifted onto the Government
to defend in the House its refusal to disclose information to
a select committee.
The summoning of named officials
25. The Public Service
Committee also recommended that "there should be a presumption
that Ministers accept requests by Committees that individual named
civil servants give evidence to them".[60]
The Government accepted that Ministers should normally accede
to such a request but sought to preserve the right of a Minister
to suggest an alternative civil servant and, in the event of continued
disagreement, to appear in person before the Committee. The Government
notes that Ministers may wish to protect individual civil servants
who have been subject to an internal inquiry or disciplinary proceedings
and may be expected by the Committee to comment upon personal
responsibility or the allocation of blame between them and others.
26. The Defence Committee
has not had any difficulties in this Parliament over the summoning
of named officials. Perhaps the most well-known case of named
officials not being allowed to appear before a select committee
was in the Defence Committee's inquiry into the Westland affair
in 1986. Further hearings in the Committee's current inquiry into
Gulf war syndrome are awaiting the outcome of the MoD's internal
inquiry into how MoD misled Parliament - and Ministers - about
the use of organophosphates in the Gulf war.
27. We understand that in
cases where an individual's conduct might be subject to disciplinary
proceedings a select committee should not involve itself while
the internal investigation is being carried out. It is up to the
Minister to ensure that errors are fully investigated and that
proper remedial action is taken. The Committee is entitled to
seek an explanation of such inquiries and action from the Minister
and to comment upon it subsequently. There is a danger, in circumstances
where either a Minister or his civil servants have
been at fault, that committees will be unable to hold a Minister
to account because an unpublished internal inquiry has blamed
the civil servants.
28. Select committees' interest
in hearing the evidence of named officials is not confined to
cases where the conduct of the individual is in question. It may
well be that either the individual civil servant has particular
expertise in the area or his knowledge of past events is especially
germane to the inquiry. This we understand to be the case with
respect of the retired MoD civil servants who were prevented from
giving evidence to the Trade and Industry Committee's inquiry
into arms sales to Iraq in 1991-92. In particular we would regard
the refusal of a minister to allow a chief executive of a defence
agency to give evidence as a very serious matter.
29. On the basis that a
Minister who refuses to allow a named civil servant to give evidence
to a committee will himself have to appear before the committee,
we do not think that at this stage it is necessary for the formal
powers of committees to be altered in respect of summoning named
civil servants. A committee would be fully entitled to draw adverse
inferences from a Minister's refusal to allow a named witness
to appear.
Ordering the Attendance of
Members
30. The Trade and Industry
Committee has proposed that select committees be given the power
to order the attendance of Members of the House as witnesses in
the same way as other witnesses can be summoned.[61]
Currently, committees would have to seek an instruction from
the House if a Member refused to appear.
31. In this Parliament the
Defence Committee has had no experience of other Members refusing
to appear, though informal invitations to ministers have been
greeted with varying degrees of enthusiasm. We take it as established
practice that no Minister would now refuse to appear before the
select committee relating to his department to answer questions
about his current responsibilities.
32. In the rare cases of
difficulty which do arise, we consider that there are two important
distinctions to be drawn: (a) between Ministers and private Members
and (b) between inquiries into the specific conduct of an individual
and general inquiries. The most recent example of a Member refusing
to give evidence to a Committee involved Sir Hal Miller and the
Trade and Industry Committee's inquiry into arms sales to Iraq
in 1991-2. He had no ministerial responsibility and the evidence
sought from him related not to his own conduct but to his contacts
with civil servants about a matter he had raised subsequently
in the House.
33. We believe that consideration
of this issue should concentrate on Ministers and not private
Members. The latter are liable to account to the House through
the Standards and Privileges Committee. A select committee faced
with a Hal Miller scenario ought to seek a reference to that Committee.
With Ministers the foreseeable problems relate not so much to
current Ministers but to (a) Ministers no longer serving in the
same department or (b) former Ministers. There may be a case for
allowing a select committee to put down and have debated for an
hour or so a motion to compel a reluctant former Minister to attend
to give evidence. If the House agreed such a motion, the Member
concerned might still attend but refuse to answer questions. We
assume that such a case would soon be referred to the Standards
and Privileges Committee.
34. We conclude that
it is inconsistent with select committees' powers to compel other
witnesses to attend for a committee not to be able to compel a
Member of the House to attend to answer questions about his current
or former ministerial responsibilities. The most appropriate way
of achieving this while protecting against abuse would be to allow
a committee to table a motion requiring the attendance of the
Member to be debated on the floor of the House for at least an
hour. This would be similar to the procedure for a one hour debate
on the floor of the House if there is objection to the nomination
of certain Members to a select committee.
The "Crown Jewels"
procedure
35. The "crown jewels"
procedure refers to the practice whereby Members of a committee
are permitted to see intelligence material on very restrictive
terms. This has only occurred once, when Members of the Foreign
Affairs Committee inquiring into the sinking of the General Belgrano
were permitted to see intelligence material at the Foreign Office
on the proviso that they could not take away notes. The Government
did not accede to a similar request from the Trade and Industry
Committee in the course of its BMARC inquiry.[62]
That Committee now recommends that the Government employ the
crown jewels procedure more widely.
36. The Defence Committee
has not during this Parliament been refused access to any intelligence
information for which it has asked. On another matter, when a
request to see a report produced for MoD by an independent consultant
was denied, the Chairman of the Committee alone was invited to
view the document and report back to the Committee. The report
contained material which could be described as sensitive but not
intelligence-related. The offer was not considered satisfactory
by the Committee and the document was never made available to
any Committee Member.
37. We accept entirely that
steps have to be taken to prevent highly classified information
coming into the public domain. It is inevitable that from time
to time the House's need for information will come into conflict
with this. Information on intelligence is not the only information
sometimes denied to committees. We are reluctant to institutionalise
any procedure which might later be used by Whitehall to justify
withholding information: the experience of Whitehall elevating
its refusal to answer parliamentary questions about arms sales
into a "parliamentary" convention that such answers
should be refused is too recent and poignant. On occasions when
Ministers decide not to accede to a request for information, there
may be a number of different means by which the problem can be
resolved. We would prefer to retain flexibility on this matter.
38. A "crown jewels"
procedure may be designed not so much to obtain new information
as to confirm that a precis or extract given in evidence contains
all material from a sensitive document which is relevant to a
committee's inquiry. With regard to intelligence material, it
might be possible for a select committee to invite the Security
and Intelligence Committee to perform an intermediary role in
verifying that the evidence given to a committee does not omit
any significant points from the original document.
Pre-legislation inquiries
39. The Liaison Committee
has asked for committees' views on the conduct of pre-legislation
inquiries.
40. Defence Ministers introduce
few bills to the House. The bills which have been presented in
recent years have been planned well in advance and have not been
opposed on second reading. On the face of it these bills might
be suitable either for pre-legislative inquiry or, when presented,
for referral to a select committee.
41. The 1995-96 session
saw the passage of two bills relating exclusively to defence.
The publication of a draft Reserve Forces Bill in March 1995
gave the Committee a chance to comment on it before the bill was
introduced in the following Session. The Committee had already
embarked on an inquiry into the Reserve Forces so was in a particularly
good position to comment on aspects of the legislation. The evolving
Government practice of publishing a draft bill prior to introduction
in the House is one that select committees should welcome. Whilst
an examination of a draft bill may not always suit a Committee's
timetable or priorities, there may well be occasions when the
accumulated expertise of Committee Members may provide a different
dimension to the scrutiny a bill ordinarily receives in a standing
committee.
42. The quinquennial Armed
Forces Bill has in the last twenty years been the only bill referred
to a specially-appointed select committee. There is a case for
referring the bill to the Defence Select Committee instead. The
disadvantages are that it would effectively prevent the Committee
carrying out other inquires for three or four months and that
other Members (including opposition spokesmen) would not be able
to take part. In this session the Armed Forces Bill Select Committee
included four Members of the Defence Committee (one of whom was
elected Chairman) and was staffed by Defence Committee staff.
We believe this overlap was useful to both committees.
43. Pre-legislative inquiries
would require a degree of co-operation between Departments and
committees over timing which it would not be easy to achieve.
We would commend wider use of select committees on bills -
a long-standing but little-used procedure by no means confined
to the Armed Forces Bill - with an overlap of membership between
the relevant select committee and the specially-appointed bill
committee.
Public appointments
44. The Liaison Committee
has asked for committees' views on scrutiny of public appointments.
45. The Defence Committee
has in previous Parliaments and in this one taken evidence on
appointments to the post of Chief of Defence Procurement, probably
the most senior and highly-paid post in the MoD for which outside
candidates are considered. In the case of the most recent appointment,
the Committee took written evidence in advance of the criteria
for selection and took oral evidence subsequently from the new
incumbent. This concentrated more on his plans for the job than
on the process and terms of appointment. We have also obtained
recently from MoD written evidence on all appointments made by
MoD to non-departmental public bodies, chief executives of executive
agencies and other MoD posts where the vacancy was publicly advertised.
46. We note that no change
is required in the Standing Orders for committees to take evidence
on such public appointments. While formal endorsement by a committee
is not required for any such appointments, we believe that
an oral evidence session improves the committee's understanding
of the new post-holder's objectives and the context in which they
will be pursued. For the time being we believe that this scrutiny
should be confined to prior information on the criteria for selection
and subsequent evidence from the person chosen and not any participation
in the selection process. In the case of senior military appointments
we are particularly wary of introducing political considerations
into a choice which is ultimately made on advice to the Crown.
47. The Committee expects
to take evidence occasionally from people newly-appointed to public
posts and especially the chief executives of defence agencies.
Consideration of Statutory
Instruments
48. The Procedure Committee
has encouraged select committees to pay closer attention to statutory
instruments laid by Departments they monitor.
49. On 15 January 1997 the
Defence Committee took oral evidence from a Minister on the Army
Terms of Service (Amendment) Regulations 1996. This instrument,
laid under the negative procedure, was made in accordance with
the Armed Forces Act 1996. Its substance related to the guarding
of MoD facilities which had been the subject of inquiries by both
the Defence Committee and the Armed Forces Bill Committee during
the previous session. A prayer was tabled against the instrument,
but since there seemed no prospect of the Government finding
time for a debate, the Committee decided to take oral evidence
at one meeting. This evidence will be published with a short report.
50. Although the volume
of secondary legislation on defence matters is very low, the
Committee expects to take oral evidence on other statutory instruments
in future.
Conclusion
51. We are conscious that
select committees are appointed by the House to examine the expenditure,
administration and policy of Government Departments but there
is a danger of select committee activity becoming completely divorced
from that of the House. Towards the end of this Parliament we
have been keen to strengthen the connection between the proceedings
of the House on defence matters and the work of the Defence Committee.
To some extent we are assisted by the number of defence debates
traditionally held each session. We have sought to publish reports
and evidence in time for such debates. These are important opportunities
for the House to examine both individual services and defence
expenditure generally. We have also played a part in the legislative
process. We take a close interest in oral questions on defence
in the House and have recently agreed to monitor each year the
new policy on answering questions on arms sales. If a committee's
powers prove inadequate in particular circumstances, it should
have direct recourse to the House to resolve the matter.
In particular, as we propose in paragraphs 24 and 34 above, committees'
powers for obtaining government documents and securing the attendance
of former ministers should be strengthened.
49 Fourth Special Report 1995-96 HC407 Back
50 Second Report, Session 1996-96, HC 313-I, paras 122-123 Back
51 HC
(1995-96) 313-I, para. 143 Back
52 ibid, para 140 Back
53 Tenth
Report, Session 1993-94, Defence Procurement: Certain Projects
and Accounting for Inflation, HC 512 Back
54 Third
Report, HC (1995-96) 87. Back
55 First Special Report from the Public Service Committee, Session 1996-97, HC 67, p. viii Back
56 HC 313-I, Session 1995-96, para 130 Back
57 HC 67, Session 1996-97, p. xiii Back
58 Evidence
to the Public Service Committee, Second Report 1995-96 HC 313-II
pp84-5 Back
59 ibid, p. xiii Back
60 ibid
p.x Back
61 ibid, para. 166 Back
62 ibid, para. 168 Back
