House of Commons - Standards and Privileges

Select Committee on Standards and Privileges Eighth Report

EIGHTH REPORT

The Committee on Standards and Privileges has agreed to the following Report:—

PREMATURE DISCLOSURE OF REPORTS OF
THE FOREIGN AFFAIRS COMMITTEE

Introduction

1. We have considered the issues raised by the First Special Report of the Foreign Affairs Committee (the text of which is reproduced in Appendix 1 to this Report) on the premature disclosure of that Committee's report on Sierra Leone,[1] and its Second Special Report on the premature disclosure of two other reports.[2]

2. The report on Sierra Leone[3] was agreed to by the Foreign Affairs Committee on Wednesday 3 February and published on Tuesday 9 February. There was concern that the report might have been disclosed prematurely to the Foreign and Commonwealth Office (FCO). On 23 February Mr Ernie Ross, a member of the Committee, admitted sending the draft report to the Foreign and Commonwealth Secretary in January and speaking to the Foreign Secretary's political adviser about the Committee's final conclusions. The Committee's First Special Report, to which it agreed on 2 March, stated:

"The Committee takes a serious view of this matter, and therefore concludes that this Special Report should be considered and reported upon by the Committee on Standards and Privileges".

The Liaison Committee had considered the matter on 25 February and had taken the same view.

3. On 4 March a written answer[4] by Mr Robin Cook indicated that his office had received the final version of the Foreign Affairs Committee's report on foreign policy and human rights shortly before its publication in December 1998; and that it had received in January 1999 a copy of a draft report on European Union enlargement, which had been seen by Ms Joyce Quin and a limited number of officials, but not by him. Mr Ross acknowledged responsibility for the first leak (which took place after the text was agreed by the Committee), but the Committee was not able to establish who was responsible for the second. The Committee concluded that the possession by the FCO of early versions of all three of its reports of the present Session was likely to constitute substantial interference with the select committee system, a view with which the Liaison Committee concurred.

4. In accordance with the procedure adopted in 1985[5] both Special Reports stood automatically referred to the Committee on Standards and Privileges without a debate in the House.

5. We were also asked by the Speaker to consider the responsibilities of a Member who receives leaked committee papers. The Speaker's letter and our reply, both of which have been placed in the Library, are set out in Appendix 2 to this Report. We replied to her letter in the following terms:

"The Committee has discussed the matter you referred to us and entirely shares your view that the fundamental responsibility of a Member who finds himself or herself in this position must be to act in a way which does not impede the committee in the discharge of its responsibilities to the House. In our judgement the Member ought to make no use of leaked committee papers and should return them without delay to the clerk of the committee".

6. The Chairman wrote to Mr Ross and to Mr Cook on 10 March asking for written answers to a number of questions about the leak of the draft report on Sierra Leone. He wrote a further letter to Mr Cook on the same subject on 31 March. The letters and replies are printed as Appendices 3 and 4. We received a memorandum from the Clerk of the House which is published as Appendix 5. We took oral evidence from the Permanent Under-Secretary of State and other officials of the FCO, which is published with this Report.

The evidence

7. Mr Ross explained in his reply to the Chairman's letter that he had leaked the draft report on Sierra Leone to Mr Cook and to Mr Tony Lloyd, the Minister of State responsible for Sierra Leone, because he profoundly disagreed with what the Foreign Affairs Committee was doing, and that he wished "to alert the two Ministers that their departments were in for more criticism". He confirmed that no one had asked him, or any member of his staff, to disclose Committee papers and that neither he, nor any member of his staff, had ever discussed possible amendments to the draft report with Mr Cook or anyone else in the FCO. He noted that he had become aware during the Committee's deliberations "that my actions in sending a copy of the draft report to my two colleagues, had effectively ruled out any opportunity that I had had of submitting substantial or indeed any amendments to this Report".

8. Mr Ross also confirmed that he had disclosed some of the key conclusions of the final report to the Foreign Secretary's political adviser, Mr Andrew Hood, at a meeting on 4 February, after the Committee had reported to the House but before the report was published. He stated that "Andrew Hood had no prior knowledge that I would raise this subject at our meeting and I accept that I placed him in an invidious position and apologise for this". We do not pursue this matter, or Mr Ross's disclosure of the report on foreign policy and human rights, any further because, although improper, they do not raise questions of privilege because the Committee had already reported to the House.

9. Mr Cook confirmed in reply to our questions that his office had received a copy of the draft report on Sierra Leone by fax in the second week of January. It was seen first by his special adviser (Mr Andrew Hood), who gave it to the private secretary (Mr John Grant) and to Mr John Williams of the FCO News Department. Mr Williams then gave it to the Head of the News Department and another member of the News Department's staff. Mr Cook was not aware that the FCO had received it until 1 February; Mr Grant subsequently showed him a copy. Also on 1 February Mr Williams showed the draft report to the Permanent Under-Secretary of State, Sir John Kerr. Mr Lloyd, meanwhile, had received a paper copy in the House of Commons in a plain envelope but "did not show it to or discuss it with anyone".

10. Mr Cook stated that "no use was made of either the draft or the additional information from Mr Anderson[6] or Mr Ross in briefing the media". He also confirmed that neither he, nor anyone acting on his behalf, had asked Mr Ross to disclose Committee papers or discuss possible amendments, and that at no stage did he disclose the draft report to anyone else or authorise further dissemination of it.

11. In the course of their oral evidence to us Mr Hood, Mr Williams, Mr Grant and Sir John Kerr explained the circumstances in which they had come into possession of the draft report on Sierra Leone. They frankly admitted that errors had been made and expressed their regret at the way in which the draft report had been handled within the FCO.

12. Mr Hood, Mr Cook's political adviser, explained that he had come across the document by chance; that he had not alerted Mr Cook to it straightaway because there had been no opportunity to do so; and that he had allowed Mr Williams to take a copy because he was the most familiar with the subject. He had not thought it was wrong to retain the leaked draft but he knew it would have been wrong to have acted on it in any way.[7]

13. Mr Williams, of the News Department, said that he was unaware that he should not have seen the leaked draft. He regretted that he had focussed on it too narrowly as a matter of media strategy. He had given a copy of the draft to his superior some days later; as for the copy he had made for himself, he had read it, put it away and taken no further action on it.[8]

14. Mr Grant, Mr Cook's private secretary, said that he had not appreciated the status of the document and had assumed, wrongly, that it was reasonable for him to retain it and to use his discretion about when to consult the Foreign Secretary about it, as he would do with the large numbers of other documents which came into the Private Office. He had not immediately alerted the Foreign Secretary to it because there was no operational need to do so, since no decision or action was called for upon it. Likewise he had not informed the Foreign Secretary about the earlier leak of the draft report on EU enlargement because there was nothing in the substance of the report which the Foreign Secretary needed to know.[9]

15. Sir John Kerr said that he could not be sure whether he was aware at the time that his seeing the draft report raised questions of parliamentary privilege. He agreed that his concern about the critical references to himself in the draft might have blinded him to the implications of the status of the document. He regretted that he had not given instructions that the document should be returned to the House authorities.[10]

Conclusions

16. We turn first to the question whether the conduct of a Member who discloses draft reports to the Government amounts to a substantial interference with the select committee system. We consider this question solely in relation to the disclosure by Mr Ross of the draft report on Sierra Leone, as responsibility for the disclosure has been established.

17. Select committees cannot operate without a degree of mutual confidence. The Committee of Privileges of 1984-85 pointed to the "damage that leaks had created among Members on committees by undermining their mutual trust, one for another. The morale of committees could decline if some Members showed scant respect for the rules of privilege or for the loyalty of colleagues who do not betray confidential matter".[11] The Select Committee on Procedure of 1989-90 said that "All leaks are a breach of the trust amongst the Members and staff of a Committee which is essential to its smooth functioning".[12]

18. Our predecessor Committee also referred to "the indirect damage that leaks could do to the select committee system. If leaking becomes the common practice then there can be a cumulative effect and a general slippage from the standards of responsibility in maintaining committee confidences that the rules require. This could damage the standing of select committees in the public eye".[13]

19. Mr Ross, as a member of a select committee charged with scrutinising the actions of a Government Department, disclosed confidential committee papers to a Minister in that Department without the knowledge of other members of the committee and without the committee's approval. This was a clear breach of faith with the other members of the Foreign Affairs Committee which, as he recognised, made his position on the Committee untenable. Moreover, it tended to undermine the Committee's authority by calling into question its independence from Government influence.

20. We conclude that Mr Ross's actions were a serious interference with the select committee system.

21. The source of the fax was identifiable from each page. Mr Ross stood down from the Committee, so suspicion for the leak did not fall on any of his colleagues.

22. Mr Ross must have known at the time that what he did was wrong. His conduct fell below the standards which the House is entitled to expect from its Members. We recommend that Mr Ross should apologise to the House by means of a personal statement and that he be suspended from the service of the House for ten sitting days.[14]

23. We consider next the position of the recipients of leaked draft reports—first Members, then departmental officials.

24. In relation to the Sierra Leone report, Mr Cook told us that "At no stage did I or anyone acting on my behalf seek to influence or to interfere with the preparation of the report. We neither lobbied members of the Foreign Affairs Committee nor proposed amendments ... Nor did we do anything that might result in premature public disclosure of the report".[15] In relation to the reports on foreign policy and human rights and European Union enlargement he has told the House that "No action was taken to publish or disclose any part of these Reports, or to interfere in any way with their preparation or the Committee's deliberations on them. No advice or assistance was given to any Member of the Select Committee in the drafting of amendments".[16]

25. Mr Cook went on to say to us that "Existing rules of procedure do not make private knowledge by an MP of the proceedings of a Select Committee a contempt. Any Member of the House is entitled to be present at the sittings of Committees, including deliberations of the Committee. It would not be logical for private knowledge by a member of what happened at meetings at which he or she had right of attendance to constitute a contempt or even premature disclosure".[17]

26. We reject Mr Cook's argument. It is the case that there is no precedent for regarding the disclosure of a draft report to another Member as a contempt. Nonetheless we regard this aspect of Mr Cook's defence as mistaken. It is not the usual practice for Members to exercise their right to attend private, deliberative meetings of select committees to which they have not been nominated, unless of course they have been invited to be present by the committee itself; Erskine May says that "by convention ... if requested to retire, they have withdrawn from the room when a committee was about to deliberate".[18] Formerly, if a Member sought to exercise this right against the committee's will the committee had no option but to adjourn; but in 1995 the House made a new standing order (now S.O. No. 126) which gives any select committee power to exclude from a private meeting any Member who is not a member of the committee if it considers that his presence would obstruct the business of the committee.[19] We consider that, whilst the attendance at a private meeting of a backbencher sitting in silence at the back of the room is technically permissible, a departmental select committee could reasonably take the view that its business would be obstructed by the unwanted presence at a deliberative meeting of a Minister or a Parliamentary Private Secretary, and could therefore invoke the Standing Order to secure his withdrawal. Had Mr Cook turned up at a private meeting of the Foreign Affairs Committee at which the draft report on Sierra Leone was being discussed it is, to say the least, unlikely that the Committee would have accepted his presence without objection.

27. We have already made plain the responsibilities of a Member who receives leaked committee papers: "In our judgement the Member ought to make no use of leaked committee papers and should return them without delay to the clerk of the committee". We consider that the Prime Minister should amend the Ministerial Code[20] so as to require Ministers and Parliamentary Private Secretaries to comply with the guidance, and we invite him to notify us and the House in due course of the terms in which he has done so.

28. We raised the question of the responsibilities of an official who receives leaked committee papers with the Permanent Under-Secretary of State at the FCO. Sir John Kerr explained to us that at the time these leaks occurred there had been no guidance available for officials on this point. It had been understood that it would have been wrong to make use of such documents to influence the committee concerned, and indeed the documents had not been used in such a way.

29. Sir John Kerr said that the FCO had accepted that the guidance the Committee had provided for Members at the Speaker's request should also apply to officials, and other Departments had followed the FCO's lead. Once the Committee had reported, appropriate instructions would be included in the rules for the Civil Service and the Diplomatic Service, which would apply to political advisers and permanent staff alike, and any breach of those instructions would be treated as a disciplinary matter.[21]

30. Sir John said that in his new guidance "I envisage spelling out that FCO officials, if they receive any leaked document or become aware that somebody has received a leaked document, must at once report that and hand it to their responsible Minister on whom of course your ruling is binding. Therefore, it will come back via the MP Minister to the House, to the clerk to the committee".[22] We do not agree with this. The Minister has no business to see a leaked document, and the official who received it would aggravate the offence if he gave it any wider circulation by handing it to the Minister. Instead the official (including any political adviser) should return the document to the committee clerk directly, and should then inform his Minister that he has done so.

31. The duty of any official who receives leaked committee papers is exactly the same as that of a Member, namely, to make no use of them and to return them without delay to the committee clerk. Subject to the qualification in the previous paragraph, we welcome Sir John Kerr's assurance that officials and special advisers will be required to comply with this obligation and we expect to see a copy of the new rules as soon as they are issued. We share his hope that the implementation of the new instructions throughout Whitehall will deter potential leakers of committee papers. We emphasise that any unauthorised use of unpublished select committee documents received by a Department will in future be regarded by this Committee as a contempt.

1 HC 293. Back

2 HC 365. Back

3 Second Report from the Foreign Affairs Committee, HC 116 (1998-99). Back

4 Col. 876 (w). Back

5 Set out in the Second Report from the Committee of Privileges, HC 555 (1984-85), Premature Disclosure of Proceedings of Select Committees. Back

6 A reference to a briefing given by the Chairman of the Foreign Affairs Committee, Mr Donald Anderson, to the Head of the FCO Parliamentary Relations Department the day before the Committee's Report on Sierra Leone was published. Back

7 Qs 1, 2, 5 and 62. Back

8 Qs 63 and 79. Back

9 Qs 83-87. Back

10 Qs 138-148. Back

11 Second Report from the Committee of Privileges, Premature Disclosure of Proceedings of Select Committees, HC 555 (1984-85), paragraph 36. Back

12 Second Report from the Select Committee on Procedure, The Working of the Select Committee System, HC 19-I (1989-90), paragraph 226. Back