APPENDIX 5
Memorandum submitted by the Clerk of the
House
Introduction
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 ..."
Conclusion
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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