Select Committee on Standards and Privileges Eighth Report


Memorandum submitted by the Clerk of the House


1.  I have been asked for a note to assist the Committee in its consideration of the First Special Report from the Foreign Affairs Committee (HC 293 (1998-99)).

2.  That report referred to the admission by an hon. Member that he had sent a draft of a Foreign Affairs Committee Report (on Sierra Leone (HC 116 (1998-99))) to the Foreign Secretary and had subsequently spoken to the Foreign Secretary's political adviser about the Committee's final conclusions. The Committee concluded (and the Liaison Committee agreed) that these actions were

    "likely to constitute a substantial interference with the select committee system."

3.  The Foreign Affairs Committee took a serious view of the matter, and concluded that its Special Report should be considered and reported on by the Committee on Standards and Privileges.

The task of the Standards and Privileges Committee

4.  The fundamental rule of the House, codified in a Resolution of 1837[31], but in fact much older than that, is that

    "[a]ny publication of a draft report which has been submitted to a committee before such report has been agreed to by the committee and presented to the House may be treated as a contempt."[32]

In this case the report was made to the House on 3rd February, and was published on 9th February. The disclosures complained of took place in the second week of January and around 5th and 6th February.[33] Thus only the first disclosure is a potential contempt. The second, made after the report had been tabled (though before it was published) would usually be considered a discourtesy to the House.

5.  In its Second Report of 1985-86[34], the former Committee of Privileges recommended that when a leak had taken place, the select committee concerned should seek to discover its source. It should then come to a conclusion on whether the leak amounted to substantial interference or the likelihood of such, and make the appropriate comment in a Special Report to the House. The Special Report would stand automatically referred to the Committee of Standards and Privileges. In this case, of course, there was no need to seek the source of the leak, and the Foreign Affairs Committee concluded that the disclosure of the draft report was likely to constitute a substantial interference with the select committee system. It is now for the Standards and Privileges Committee to consider whether (in the words of its 1984-85 predecessor at paragraph 70 of their report)

    "a serious breach of privilege or a contempt has been committed and [to confirm] that substantial interference with the committee's or the House's functions ha[s] resulted and which [is] contrary to the public interest ..."

6.  I know of only one case to which the Committee's attention should be drawn. It occurred in 1991; and it is only a partial analogy to that under consideration. A copy of a draft report on Public Expenditure and Personal Social Services in the name of the chairman of the Health Committee was seen by the Department of Health on the day before it was agreed by the Committee. A member of the Committee explained that one of his staff caused the draft to be given to officials in the Department. The Committee believed that the leak constituted a "potentially grave interference with its work". In such circumstances, the private proceedings of a select committee could be influenced or disrupted. Even investigating the leak was an obstruction to the committee's main task. The Committee laid the full facts before the House, and the Member whose researcher was responsible indicated his intention to seek to be discharged from the committee.[35] No further action was taken.

The test of substantial interference

7.  Whatever conclusion the Committee may reach in this particular case, regard should be had to a Resolution of the House of 1978, to the effect that the penal jurisdiction of the House would be exercised

    "as sparingly as possible, and only when [the House is] satisfied that it was essential to do so in order to provide reasonable protection for the House and its officers from obstruction or threats of obstruction causing or likely to cause substantial interference with the performance of their functions."

8.  The 1984-85 Privileges Committee devoted some attention to identifying what should be considered serious leaks. Three specific types were discussed—committee documents acquired by dishonest means; leaks of classified or commercially confidential information; and deliberate attempts to damage the working of a committee by premature press publication. None of these seems to be applicable in the present case. The Foreign Affairs Committee does not argue that the disclosure of the draft to the Foreign Secretary in the second week of January inhibited it from agreeing the report at the beginning of February. The Committee does not complain of any release of their confidential text to the press, which made it harder to seek agreement to conclusions based on the evidence received.[36] It argues that the interference was in effect broader: it related to the select committee system as a whole.

9.  In that context some comments of the 1984-85 Committee (at paragraph 55) pick up the aspect of breadth referred to in the preceding paragraph, and with it the concept of public interest, which is to be found as far back as the 1837 Resolution. That Committee emphasised that

    "the ultimate criterion in all such cases lies, as it always has (see the Resolution of 1837) in the effect of the leak on the public interest. Leaks which simply cause annoyance or political or personal embarrassment should not be considered serious cases for the purposes of the rules of privilege. But, in the opinion of Your Committee, the test of public interest does embrace substantial interference with the effective working of a committee or the committee system or the functions of the House itself ..."


10.  Leaks of private material of any kind may damage the standing of select committees, may make witnesses reluctant to entrust Members with sensitive information, and may undermine mutual trust among members of committees.[37] It is against this background that the Committee on Standards and Privileges must come to its judgement. Do the circumstances of this case involve a degree of substantial interference with the committee system which is reasonably likely to have the kind of consequences referred to? Is such interference thus against the public interest?

15 March 1999

W R McKay

31  CJ (1837) 282. The Resolution reads: "That according to the undoubted privileges of this House, and for the due protection of the public interest, the evidence taken by any select committee of this House and documents presented to such committee and which have not been reported to the House, ought not be published by any member of such committee, or by any other person.". For the background to the Resolution, see Appendix 2 to the Second Report from the Privileges Committee (HC 555 (1984-85)). Back

32  Erskine May's Parliamentary Practice, 22nd edition, page 670. Back

33  First Special Report from the Foreign Affairs Committee (HC 392 (1998-99)), Appendix 4, page vii [printed as Annex D to Appendix 1 to this Report]. Back

34  HC 555 (Premature Disclosure of Proceedings of Select Committees), and in particular paragraphs 61 to 70. The report was agreed to by the House (CJ (1985-86) 252). Back

35  First Special Report from the Health Committee (HC 34 (1991-92)). Back

36  Appendix 1 to the Second Report of the Committee of Privileges (HC 555 (1984-85) sets out the cases of premature disclosure to the press between 1971 and 1984: and for subsequent cases see Erskine May op cit, page 119. Back

37  Second Report from the Committee of Privileges (HC 555 (1984-85) paragraphs 35 and 36). Back

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