Select Committee on Standards and Privileges Minutes of Evidence

Examination of Witnesses (Questions 160 - 176)



  160. So you all got together and you are all going to abide by the new ruling. Now, you made an interesting point there. You said: "The document must be returned to the Minister on whom the ruling is binding." You may not have meant to say that, but why Ministers, and why is it not binding on you?
  (Sir John Kerr) First, your summary of the Whitehall process is, if I may so, slightly unfair. I decided what we should do in the Foreign Office: that we should interpret this as binding on everybody in the Foreign Office. I was aware that the promulgation of that rule would set a precedent, which would require the rest of Whitehall to do the same. So I told all my Whitehall colleagues. I first told the Cabinet Secretary that this is what I proposed to do. He suggested that I put it to them. I put it to them.

  161. So you are batting for them all today, are you not?
  (Sir John Kerr) I am merely reporting that this discussion has taken place. I have reason to believe that they will all follow the decision I have taken for the Foreign Office.

  162. That is very encouraging.
  (Sir John Kerr) I do think it is important actually, Mr Williams. I think it is important.

  163. I am grateful for that. We have established that they should have all alerted you. We have established you think it important and that you do not want it to happen again. So will it be understood, do you think, within the Civil Service, as a result of this high level discussion you have had in the Permanent Secretary's Cabinet, that, in future, any civil servant who, in any way, is complicitous in the process of the leaking of a document and not immediately returning it, that this will be conceived as a breach of Parliamentary privilege and, if it were, would that affect their career?
  (Sir John Kerr) Yes, it would affect their career. It would certainly be a breach of the Civil Service rules and Diplomatic Service rules. We rightly state in our rules that it is a disciplinary offence not to respect them.

  164. You tend to write it down, do you? This is one of the most important things that could emerge.
  (Sir John Kerr) Absolutely, Mr Williams, I entirely agree. I mentioned that I had already circulated an informal instruction which was in fact covering a copy of your Chairman's letter. I thought I should not do a formal instruction—though the informal instruction is binding—until I saw what this Committee had decided.

  165. Does that mean that it will mean the amendment of the existing rules because I thought that it was already in the existing rules?
  (Sir John Kerr) It will mean the amendment of the existing rules, yes.

  166. Can we have a copy of the existing rules?
  (Sir John Kerr) I have been through them at length, Mr Williams.

  167. I am only asking for a copy.
  (Sir John Kerr) I can find nothing in them which deals with this eventuality, just as I can find nothing in Erskine May that deals with this eventuality. That is why I am saying that I do think we are turning a page and doing something new here. I also think that it is absolutely the right thing to do, principally because I do think the poison of leaks is damaging on both sides of Whitehall, and I do think that the deterrent effect on the potential leaker of knowing that the whole public service will be bound by this rule should be very considerable and very helpful.

  168. What you have just said will, I am sure, be read. I do mean this genuinely. It is a matter of great importance and it really does alter possibly the whole environment in which the select committees operate and in which the Civil Service responds to the select committees. Let me then cover what looks to be a possible gap. It will cover the Civil Service. Is a political adviser a civil servant?
  (Sir John Kerr) Yes, political advisers are short-term contract civil servants.

  169. So political advisers will be equally covered by the rules that you introduce. So we could end up in a situation where anyone in breach in future is in breach of your code, and therefore subject to disciplinary action within the Civil Service, and is in breach of our code and therefore is in breach of parliamentary privilege which again could affect their careers. That is clearly understood, is it?
  (Sir John Kerr) Yes, following the Chairman's ruling.

  Mr Williams: Thank you very much, Chairman.


  170. I think that is most welcome, that you have told us that you will be seeking to amend the rules, and that is something we find very satisfactory. I do not think there is anything more for us to say this morning but just to thank you for coming along and answering our questions.
  (Sir John Kerr) Thank you, Chairman. Could I say that not only will we be seeking to amend the rules but we have the agreement of the permanent secretaries in Whitehall that the rules shall be amended. Could I say two other things, Chairman, I apologise for delaying the Committee. It was dragged out of me that I had a wicked past in the Treasury and I admit it. I found in the Treasury a much closer acquaintance with the ways of the House. I was there for some years in a public expenditure command and subsequently as private secretary. I found a much closer acquaintance with the ways of this House than there is in the Foreign Office. I was abroad from 1990 to 1997 and came back and found the Foreign Office rather distant from the House. I think this is principally because the Foreign Office does very little legislation and, our people are often abroad and, therefore, a little remote. Historically we do not have as many dealings as do the other great central departments with the every day business of the House. The Legg Report into Sandline, and the Foreign Affairs Select Committee Report into Sandline, rightly criticised the quality of some parliamentary briefing prepared inside the Department, and it deserved the criticism. We took action last summer to try to put that right. I have continued to think that we must try to do something more to narrow the gap, and the Foreign Secretary has accepted my proposals to strengthen our Parliamentary Relations Department, upgrading jobs there, including that of the Head of the Parliamentary Relations Department. I am in touch with the clerks here with a view to obtaining the secondment for two or three years of a senior clerk to be Head of the Parliamentary Relations Department of the Foreign Office. I believe my diplomacy may succeed, and I think such a secondment may be made. I do not know who I can look forward to getting, but whoever he is I think he will do us a great deal of good. I do think that the gap is unnecessarily wide and can be narrowed. I see somebody coming from a background as a parliamentary clerk to head up our Parliamentary Relations Department beefing up our every day handling of routine parliamentary business but, much more important, acting as a kind of consultant in the Foreign Office, consulted by those whose work should have a parliamentary dimension and enlightening those who have not spotted that it has a parliamentary dimension, in the same way that the Head of our News Department has a consultancy role on the making of policy and not simply on its presentation.

Mr Williams

  171. Will that be an appointment that you will make or that the House will make?
  (Sir John Kerr) I hope the House authorities will lend me someone for three years. The appointment will be made by me but I would not expect them to send a wide slate of candidates. I suspect that who we get may in some way be determined more by the clerk than by the permanent secretary. By injecting this consultancy function I would like to try to make it clear to the Office that parliamentary work really does matter a lot. I would like to see more good people choosing to work in the Parliamentary Relations Department as a useful step up in their career. That was the first point I wanted to make. The second point was about the Sandline Report and my own eccentric reaction on seeing its references to me. Last summer there were some fairly heated passages of arms between the Foreign Affairs Select Committee and myself, principally I think on a couple of points. One, that the Government had set up the Legg Inquiry in parallel and wished Legg to report, setting out the facts, before the Select Committee interviewed everyone and saw the documents. That was seen by many in the Select Committee as unwise and by some in the Select Committee, I think, as potentially a cover-up, which actually it was not. Secondly, there were some on the Select Committee who seemed keen to prove that ministers must in some way have been involved and for whom the Legg first conclusion must have come as a disappointment. The Legg first conclusion was that "No minister gave encouragement or approval to Sandline's plan to send a shipment of arms into Sierra Leone, and none had effective knowledge of it". That is true. What I am saying is that in the summer term of last year I made myself extremely unpopular with the Select Committee. I think they got their revenge, I think the messenger got shot in the end. At the time I remember some cheerful colleague reminding me of stout Horatio keeping the bridge and how "the ranks of Tuscany could scarce forebear to cheer" or in this case, he said, to jeer. Perhaps that was about right. My serious point, Chairman, is this: I have had 11 hearings, before this one, with committees of this House, some of them with the Public Accounts Committee (and that was why seeing Mr Williams here put the point in my head) and some of them with the Committee on the Parliamentary Commissioner for Administration. By definition such debates are critical, they are very uncomfortable. The permanent secretary spends one, perhaps two weekends working very hard on the documents and grills everybody, it is going to be serious stuff. But it takes place on the basis of an agreed statement of fact by the Comptroller in the case of the Public Accounts Committee and by the Ombudsman in the case of Mr Morgan's Committee. I think one of the reasons why the wells became so poisoned with the Foreign Affairs Committee last year was that there was no agreed statement of facts until the Legg Report appeared. If that is to be the basis on which one does business I think one does need to think very hard about whether there should not be a Salmon Letter procedure. If a man does not know what is the charge that is to be made against him, and in my case I was charged when the report was published this year as having failed in my duty to ministers, a charge of which I was found guilty but of which I had not been made aware during the process, there had been no charge sheet. I am tempted to recall Denning in 1976: "If somebody is to be adversely affected by an investigation and a report, he should be told of the case against him and afforded a fair opportunity of answering". I think that is why the Salmon Tribunal's procedure was set up and why, in cases like Scott or the BSE Inquiry now, those who are in the hot seat are receiving in advance of publication a text of the charge against them and invited to comment on it. If they can make a defence, okay. I would hope that last year's episodes are safely buried and behind us. I think that lots of lessons have been learned. The report that the Select Committee produced contained many good things, but I do think that the procedure which generated such a high temperature perhaps does require further thought. And it is perhaps the temperature generated by that procedure which explains why mistakes were made when the leak of the eventual report of the Select Committee turned up in the Foreign Office in January 1999.

  Mr Williams: Can I make a point, Chairman. You have been Chairman of the Public Accounts Committee and of this Committee; we served on the Public Accounts Committee together for many years. Sir John, much of what you have said today has been very useful but I think the last bit is based upon a misunderstanding of the select committee system of this House of Commons. The PAC is unique in that it is retrospective and the agreement with the Department is factual, it is on the facts.

  Mr Campbell-Savours: Not the PAC, the NAO.

Mr Williams

  172. Between the NAO, that is right. Between the National Audit Office the agreed report is an agreement on the facts and where they are not agreed it says "in the view of the Department" or "in the view of the NAO", that sort of thing. Because it is retrospective, because it is not policy, it is able to operate on that basis, there is no urgency. The other select committees are completely different, they are policy committees, they are contemporaneous, they are investigating issues as they are developing. It would literally ossify the departmental select committees if one had to have the equivalent of an NAO type report before a select committee could question civil servants. I just want to put that on the record.
  (Sir John Kerr) Could I comment on that very briefly. I think the same procedure applies as for the Public Accounts Committee pari passu for Mr Morgan's Committee. I agree that it should not apply to nine-tenths or perhaps 99 per cent of the business of a select committee, which is indeed to grill the Government on policy as it happens. But the arms were moved to Sierra Leone in February 1998. I had 14 hours of hearings with the Select Committee starting in May 1998. The usurpers had been thrown out of Freetown in February 1998. Actually they had been thrown out before the arms arrived: they had nothing to do with it. I spent much of the summer term studying the interstices of history, of what had happened here. I had very few hearings with the Foreign Affairs Select Committee last year about foreign policy: actual, real, what is going on, what we should do today, what we are doing tomorrow. Instead the exercise was retrospective. With great respect, Mr Williams, it was very like the Scott Inquiry or very like the BSE Inquiry. That was why I suggested if a select committee decides that it wishes to do a retrospective investigation designed to attribute blame the House might want to consider whether some of the procedures thought appropriate by the House for the Public Accounts Committee or the Committee on the Ombudsman, or thought appropriate by Salmon in his report on tribunals, thought appropriate for Scott or BSE or whatever, might apply. It is a very small constituency, a very small proportion of the business of select committees of this House.

  Mr Campbell-Savours: Can I just come in on this point.

  Chairman: I do not want to get into too much of a philosophical discussion about the roles of the different types of select committees. What we are really after here is to find out just what happened in this particular case and draw conclusions from it.

Mr Campbell-Savours

  173. It is just that I think this is a very interesting issue that has been raised. We have a senior civil servant from Whitehall saying that he believes there must be a means by which civil servants, in your case criticised, should have the right in very rare circumstances to defend themselves against the actions of Parliament.
  (Sir John Kerr) Against?

  174. Against the actions of Parliament. Against a statement made by Parliament in a select committee report.
  (Sir John Kerr) I am anxious, Chairman, that select committees should be enabled always to report in full knowledge of the facts, having had all the facts explained to them.

  175. Can I just put it to you, and I leave you with the thought, that Parliament is entitled to get it wrong.
  (Sir John Kerr) Absolutely, I entirely agree.

  176. I am not saying it did get it wrong but is entitled to get it wrong. You, as a Foreign Office official, have a right in the Foreign Office response to that report to, in your view, correct Parliament where you believe it has got it wrong. That is how the rules exist at the moment. I think they work extremely well. It is just that in this case you may feel yourself that you have been a victim but you are a big man with big shoulders I am sure.
  (Sir John Kerr) I accept Mr Campbell-Savours' point. Perhaps I was out of order.

  Mr Campbell-Savours: Not at all, it is interesting.

  Chairman: I think the important thing at this stage is to see that we produce a report which perhaps the Foreign Office as well as this Committee and as well as the House of Commons might come to accept as being the kind of response to this particular investigation. I must thank you for coming and for answering our questions today. Thank you, Sir John.

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