Select Committee on Procedure Fourth Report



40. Many witnesses warned that it was premature to be overly prescriptive about the nature of contact between Westminster and the devolved legislatures. There were warnings that an elaborate structure of liaison committees might act as a disincentive to contact.[69] The importance of personal contact was stressed, and it was suggested that the first contact would undoubtedly be between Members for Scotland, Wales or Northern Ireland and the Members of the devolved legislatures.[70] We strongly support such informal contact, and such contact between individuals should raise no procedural problems. However, Members should be aware that there may be problems in formal meetings involving Committees of this House and those of the devolved legislatures which will need careful consideration.

Relationships between Committees

41. Our witnesses hoped that there would be good working relationships between the Select Committees of this House and Committees of the devolved legislatures. The Scottish Affairs Committee has said "we see no reason why [this Committee] should not invite MSPs to sit jointly with it in London or Edinburgh".[71] Mr Barry Jones MP, Chairman of the Welsh Grand Committee suggested that the Committee might invite Members of the Assembly to sit with it.[72] The Northern Ireland Committee also hoped it would be possible to hold joint meetings with colleagues from the Northern Ireland Assembly, but Mr Brooke, its Chairman, warned:

"it would be important if you were setting up anything of a joint nature that the ground rules were very clearly established and you did not totally wing it. I can see some argument, if I may say so, for at least guidance from your Committee as to what might be a suitable vehicle because it will not only apply to us and the Northern Ireland Assembly. It will presumably apply to other Committees of the House working with committees in Wales and Scotland as well".[73]

There are two issues involved in such co-operation; the powers to exchange documents and the power to meet concurrently.

Exchange of documents

42. Select Committees (and the House as a whole) currently enjoy two forms of legal privilege in respect of their papers. The first is that once a Committee has officially taken possession of a paper it becomes a "proceeding in Parliament". This means that Article IX of the Bill of Rights protects it from question in the courts; there can, for example, be no action against the author of a briefing note prepared for and used by a Committee (but not published), however defamatory such a note might be. Committee papers "belong" to the Committee concerned, and, in general, if a Committee wishes to disseminate papers to Members or to other Committees they must be reported to the House, which, in effect, asserts their status as "proceedings". Certain Committees have power to communicate unreported documents to one another, which gives them freedom to consult while retaining some control over their papers.[74]

43. Article IX protects "proceedings in Parliament"; it does not protect the publication of such proceedings. That protection is given by the Parliamentary Papers Act 1840 which provides that civil or criminal proceedings in respect of any "report, papers, votes or proceedings" published "by or under the authority of either House of Parliament" shall be stopped. Some publications, such as the Official Report, are published "by authority"; most others are printed by Order of the House. The printing Order is given in the Votes and Proceedings by the words "to be printed" and each such Order is numbered. We cannot offer a definitive interpretation of the law, but it must be possible, or even likely, that sending papers to the devolved legislatures would constitute their publication. We consider that it should be possible for the House to give its authority for such partial publication through a resolution empowering Committees to send papers to the devolved legislatures and through the necessary changes to Standing Orders. We recommend that Select Committees appointed under public business Standing Orders be given power to communicate documents to the devolved legislatures or their committees. If a Committee wished to use such a power it would need to make a formal Order that a paper, or class of papers, be communicated to the body concerned, just as Committees currently order exchanges of evidence with other Committees appointed by the House.

Joint meetings

44. There would be no difficulty if a Select Committee wished to hold informal meetings with a committee of the devolved legislatures, or even if it wished to invite such a committee to appear before it (or to accept an invitation to appear before such a committee itself). The British-Irish Inter-Parliamentary Body has operated informally without problems for almost nine years.[75] Informal joint meetings might appear very similar to existing meetings. Consultation in private would cause no problems for Westminster Select Committees. Public meetings could also be arranged at which witnesses could be invited to appear and those who attended would be examined. As long as any such informal meeting dealt with witnesses who attended entirely voluntarily and as long as Members realised that they were not necessarily protected by the Bill of Rights, informal proceedings would be adequate. Indeed, if a Westminster Committee and a Committee of the Scottish Parliament or Welsh Assembly wished, they could informally consult on a form of words for a report; it would then be open for each committee, independently, to agree a report in those words, if it wished to do so. The ground rules for such meetings would, at the outset, be decided by the committees concerned, but we would expect that, if such meetings were widely used, common practices would soon emerge as experience was shared. There would be technical matters to be dealt with, such as the division of the costs of any such meeting, but these could be resolved.

45. It is, however, possible that there could be problems if a Select Committee of the Commons attempted to place its powers to order a witness to attend or to demand the production of papers in the service of a meeting at which it sat together with a Committee from a devolved legislature. In this case, the co-operation would have to be formal and it is not clear what legal constraints there would be on a such a "Joint Committee". Joint Committees of Lords and Commons operate on the principle that each House appoints its own Select Committee with powers identical to that of the Select Committee appointed by the other; the two Committees then join together.[76] There are no legal questions raised by such a Joint Committee; the Select Committees are given power by each House, and empowered to report to each House.[77] Their activities are clearly proceedings in Parliament and, as such, cannot be questioned in the courts.[78]

46. In contrast, Committees of the delegated legislatures ultimately owe their powers to statute, and disputes over the nature and extent of their powers would clearly be justiciable. Their powers are not as extensive as those of the Committees of the United Kingdom Parliament. For example, a Select Committee's powers to send for persons, papers and records extend throughout the United Kingdom;[79] the devolved legislatures have power to summon only in relation to matters which have been devolved. (The Welsh Assembly may only summon members or members of staff of specified bodies.) The protection of free speech offered to Members by Article IX is absolute; members of the devolved legislatures have protection from actions for defamation, but only limited (and varying) protection from actions for contempt of court, and no protection in respect of breaches of injunctions or the official secrets act. It is easy to envisage a situation in which a committee from a devolved legislature sitting "jointly" with a Committee of the United Kingdom Parliament could be accused of going beyond its remit. If such a meeting had taken place without the authority of the House, there could be questions about the legal position of Members of the Committee from the United Kingdom Parliament and the status of the meeting as "proceedings in Parliament" could be called into question.

47. If there is a desire to hold formal joint meetings it may be possible to find a solution to the problems they pose. For example, in the 1930s a Select Committee appointed to join with the Lords to consider Indian Constitutional Reform was given power to "call into consultation representatives of the Indian States and of British India".[80] Those called into consultation were permitted to sit with the Committee during the examination of witnesses, and to put questions, through the Chairman, to those witnesses. The Minutes of Proceedings and Minutes of Evidence show that such representatives put questions directly to witnesses, although such questions were "subject to the direction of the Chairman".[81] Using this precedent as a model for future co-operation is likely to be more satisfactory than using the analogy of a Joint Committee alone, since it would avoid any legal problems caused by the differing status of the Committees concerned. If this course is followed, a Resolution of the House will be needed to authorise a Committee to "call into consultation" its counterpart in a devolved legislature. However, the devolved legislatures may not desire such formal co-operation, and we are reluctant to proceed too far along this road until we know their wishes.

48. This analysis has been based on Westminster powers and customs; the devolved legislatures may wish to consider their legal position in such circumstances. It is too early to produce definitive proposals for joint meetings at which Committees might exercise their powers under Standing Order, and we are likely to report further on this matter if it appears necessary. In the meantime Committees should not hold formal meetings in conjunction with Members of the devolved legislatures without the express authority of the House, and Members should be aware that there is no guarantee that their words enjoy the protection of Article IX of the Bill of Rights in any informal joint meetings.

European Scrutiny

49. The Government has suggested that although the United Kingdom Parliament will remain the primary body for the scrutiny of European legislation, the European Scrutiny Committee could develop relationships with Committees of the devolved legislatures.[82] The Chairman of the European Scrutiny Committee indicated that substantial progress[83] was already being made at a staff level, and that further progress depended on the views of the Committees of the devolved legislatures themselves which, of course, cannot as yet be determined.[84] We support the European Scrutiny Committee's readiness to work with our colleagues in devolved legislatures, and believe it is appropriate for the arrangements for such co-operation to be made by the committees concerned. We will, however, keep a watching brief on the development of these relationships as the devolution process evolves.

69  Q 231. Back
70  Evidence p 111. Back
71  HC (1998-99) 460-I, paragraph 86. Back
72  Q 148. Back
73  Q 338. Back
74  Publication of unreported papers without a Committee's permission is likely to be considered a contempt of the House. Witnesses must even obtain permission to publish their own memoranda. Back
75  QQ 344-5. Back
76  It is possible for Commons Select Committees to be given power to act independently of their Lords counterparts; thus the Select Committee on Statutory Instruments reports on delegated legislation (relating to financial matters) which is laid before the House of Commons only. Back
77  Joint Committee Reports are accordingly ordered to be printed by both Lords and Commons. Back
78  There have been Joint Committees of Committees of the Commonwealth Parliament and State Parliament in Australia. The difficulties there are less acute since both Commonwealth and state rest their privilege on statute, and the powers of both are based on the privilege of the United Kingdom Parliament, so there each part of such a Joint Committee has similar powers and privileges. Back
79  They do not, of course, extend to summoning other Members of Parliament, or to demanding government papers. Back
80  CJ (1932-33) 136. Similar powers were given to the Select Committee on Boundaries of Boroughs in 1868 (CJ (123) 183). Back
81  This appears to mean that the Chairman had a reserve power to rule a question from a representative out of order. Back
82  HC (1998-99) 148, Appendix 1, paragraph 3,. Back
83  Evidence pp 141-142. Back
84  The European Scrutiny Committee also expressed concern about sharing documents; an explicit power for Select Committees to communicate papers to the devolved legislatures, as recommended above, should go some way to dealing with those concerns (Evidence, p 142). Back

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