Select Committee on Liaison First Report


APPENDIX 6

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


 
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