Select Committee on Standards and Privileges Tenth and Eleventh Report


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




1. We have considered the issues raised by the Third Special Report of the Social Security Committee[1] in which the Committee reported that Mr Don Touhig, the Parliamentary Private Secretary to the Chancellor of Exchequer, had been given a photocopy of a draft report on child benefit. The facts of the case are set out at length in the letter from Mr Archy Kirkwood, the Chairman of the Social Security Committee, to the Chairman of the Liaison Committee, which is printed in Appendix 1 to this Report. Correspondence between Mr Kirkwood and Mr Touhig is printed in Appendix 2.

2. The Social Security Committee was unable to discover how the leak had come about. The Liaison Committee considered that the leak represented a substantial interference with the Social Security Committee's work, although in this case the Social Security Committee itself took a different view following a division in the Committee on party lines. The Committee nonetheless made its Special Report "so that the matter of the draft report given to the Chancellor's Parliamentary Private Secretary may be placed before the Committee on Standards and Privileges".[2]

3. We have also considered the issues raised by the discussion between Mr Kirkwood and a journalist, to which the Social Security Committee refers in its Special Report.[3]

4. We took oral evidence from Mr Touhig and Mr Kirkwood, which is published with this Report. Our Chairman's letter to Mr Touhig, and his reply, are printed in Appendix 3 to this Report.

The Member responsible for the leak

5. As a result of Mr Touhig's evidence that a member of the Social Security Committee had given him the report, we invited every member of that Committee to answer "Yes" or "No" to the question "Did you give Mr Touhig a copy of the report?" All of them answered "No". Our correspondence with the members of the Committee is printed in Appendix 4 to this Report.

6. The House expects all Members to answer questions from this Committee truthfully. Knowingly to mislead the Committee on Standards and Privileges is a contempt of the House and we condemn the conduct of the Member who has failed to tell the truth and take responsibility for his or her actions. We regret that the leaker's failure to own up casts a cloud unfairly over the other members of the Social Security Committee and can only damage the Social Security Committee's standing in the House. We will wish to return to this matter if the identity of the leaker subsequently comes to light.

7. We take a serious view of this case. The person who leaked the draft did so in blatant disregard of the accompanying circular, which included the words—

"Members are reminded that this text is in confidence for the use of Members of the Committee only, and that any public disclosure of it would be a prima facie contempt of the House.

It would also be a prima facie contempt for any person not on the Committee to be given access to the text, particularly if attempts were then made from outside the Committee to influence the Members' consideration of the Report".[4]

The copies of the report which were circulated to the members of the Social Security Committee on 4 February were numbered. The leaked photocopy which Mr Touhig later returned to the Chairman of the Committee was not. Mr Touhig told us that he did not notice whether the document he was given was numbered. We conclude that the person who was responsible for the leak made sure that the version given to Mr Touhig did not include the page which bore the number, which indicates that he or she was well aware that giving a copy of the report to a non-member of the Committee was a breach of the rules, and moreover that he or she did not want to be found out.[5]

Mr Touhig

8. Mr Kirkwood explained to us the circumstances in which the Social Security Committee had decided, at its meeting on 10 February, that his draft report should be set aside in favour of a fresh draft which would reflect the consensus of the Committee. He had invited Labour Members in particular to ask Ministers to send Treasury officials to give evidence to the Committee, and the desirability of enlisting Mr Touhig as an intermediary had also been discussed.[6] At earlier meetings of the Committee the question of getting Treasury officials to appear had only been mentioned in passing, if at all.[7] Mr Kirkwood considered that the leak amounted to a significant interference with the work of the Committee only to the extent that the need to investigate the leak contributed to an atmosphere of mistrust within the Committee and distracted it from its programme of work.[8]

9. Mr Touhig told us[9] that he had been approached in the hope that he would make representations to the Treasury urging that its officials should appear before the Social Security Committee, as it was felt that the Committee's report on child benefit would be incomplete without Treasury evidence. Approaches had been made to him by two (or possibly three) members of the Committee in the course of 9 and 10 February; two members had come to see him before he received a copy of the report.[10] He had asked the first member who spoke to him for a copy of the report so that he could better understand the problem. He had received one around tea-time on 9 February and had read parts of it later that day.[11] He had had conversations with special advisers at the Treasury about the Treasury's refusal to give evidence to the Social Security Committee, but he had not discussed the draft report with anyone, nor had he shown it to anyone.[12] In retrospect he bitterly regretted having asked for a copy of the draft report and apologised unreservedly.[13] He took full responsibility upon himself for that action and did not feel that he could name the person who had given him the draft report unless that person gave permission, which he or she had declined to do.[14]

10. Mr Touhig's evidence discloses two distinct offences. First, he asked for a copy of a draft report of a select committee. Whatever his motives in doing so, that was a breach of the conventions of the House. Secondly, he has refused to identify the person who gave him the draft. The House will expect us to uphold its rights and privileges, and we cannot therefore overlook the fact that "witnesses ... who have refused to answer questions ... have been considered guilty of contempt".[15] Mr Touhig explained to us that he had discussed with the leaker the question of disclosing his or her name, but the person involved had felt unable to agree.[16]

11. The timing of the leak has some significance. Mr Kirkwood said in his original submission to the Liaison Committee, "Mr Touhig has declined to state whether he received the draft before or after our meeting on 10 February. It could be argued that to have given the draft to the PPS only after the Committee had decided not to proceed with its formal consideration, and in the spirit of securing the Treasury's compliance with the Committee's unanimous wish to seek further evidence, would not amount to a substantial interference in the work of the Committee".[17] Mr Touhig has now told us that he asked for and received the draft on 9 February, when it was expected to be considered formally by the Committee on the following day.

12. Mr Touhig said that he asked for the report in the light of informal requests from members of the Social Security Committee, made to him on the afternoon and evening of 9 February, that he should make representations to the Treasury about the appearance of officials. It was not until 10 February, the day after Mr Touhig received the draft report, that the Committee agreed that members would ask Mr Touhig to convey the Committee's views to the Treasury. On both counts, therefore, it is a more serious matter that Mr Touhig received the draft before the meeting on 10 February than it would have been if he had been given a superseded draft after a meeting at which the Committee had agreed that he should be approached.

13. Mr Touhig now recognises that he was wrong to have asked for a copy of the draft, and he has made a full apology. He told us that his actions were prompted by a desire to assist the Social Security Committee, and that he made no use of the leaked draft in order to influence the Committee on his own behalf or on behalf of the Treasury.[18]

14. Mr Touhig has taken full responsibility upon himself. He must therefore accept the consequences both of initiating the leak by asking for a draft report and of refusing to answer a question put to him by this Committee. A senior Parliamentary Private Secretary to a major Department may be seen as a member of the Establishment. Select committees are part of the parliamentary system that is supposed to keep the Executive in check and under scrutiny. Mr Touhig has recognised he was wrong to have asked for a copy of the draft. He caused the leak. We recommend that Mr Touhig should apologise to the House by means of a personal statement and that he be suspended from the service of the House for three sitting days. Our recommendation takes account of the mitigating circumstances; otherwise we would have recommended a longer period of suspension.

Mr Kirkwood

15. Mr Kirkwood said in his letter to the Chairman of the Liaison Committee that he had briefed a journalist "to the effect that the Committee aimed to produce a report before the Budget, and that it would reflect the evidence received". An article appeared on 10 February.[19]

16. In his evidence to us[20] Mr Kirkwood said that he had spoken to the journalist on the telephone on 8 February. In the course of his conversation with her, after answering general questions about the work of the Committee, he had said that the Committee's next report would be on the taxation of child benefit, that the Committee wanted to publish it before the Budget, and that the Committee hoped the report would inform the Budget debate. He had told the journalist that the evidence indicated that the experts doubted whether it was practicable to tax child benefit, and that the report would probably reflect the fact that the balance of the evidence was critical of the idea. Mr Kirkwood told us that he thought he was entitled to say what evidence the Committee had received at public sessions, which the journalist could have read for herself, where the balance of the evidence lay, and that select committees tended to follow the evidence.[21] It was not his normal practice to brief journalists on the possible content of reports before they were finalised. He acknowledged that it was an important element as far as the Chancellor of the Exchequer was concerned. He agreed that it would not have been difficult to foresee that the Chancellor might have had some difficulties if an adverse report had been published before his Budget statement.[22]

17. A journalist who has attended a public evidence session or read a published transcript may well know what evidence a committee has received. On this occasion Mr Kirkwood was more forthcoming than was prudent, and it was unfortunate that he departed from his normal practice. We note that members of the Social Security Committee have drawn attention to their concerns about Mr Kirkwood's conversation with a journalist.[23] There were clearly leaks to the press from a number of sources. Our order of reference gives us the duty of considering specific matters relating to privileges referred to us by the House.[24] We do not have power to institute inquiries into privilege cases on our own initiative. We would be precluded from taking these matters further.

18. Chairmen and other members of select committees should exercise caution when discussing their committee's work and possible conclusions with outsiders, and should not indicate the contents of a draft report to which the committee has not yet agreed.

1  Unauthorised Receipt of Draft Report, HC 482 (1998-99). A revised draft of the leaked report was subsequently published as the Fourth Report from the Social Security Committee, Child Benefit, HC 114 (1998-99). Back

2  Ibid., paragraph 4. Back

3  Ibid., paragraph 3. Back

4  Appendix 1. Back

5  Qs 11-19, 29-31 and 84-5. Back

6  Qs 1-28. Back

7  Q 22. Back

8  Qs 1, 2, 8 and 63-5. Back

9  Appendix 3; Qs 67-157. Back

10  Qs 90-4 and 152-4. Back

11  Qs 115 and 120. Back

12  Qs 73-4, 135-148 and 150-1. Back

13  Q 67. Back

14  Qs 69-72, 79 and 110-2. Back

15  Erskine May, 22nd ed., pp. 109-10. See also p.653; and see also Q 68. Back

16  Qs 69-72. Back

17  Appendix 1. Back

18  Qs 67, 114, 123 and 146. Back

19  Appendix 1. Back

20  Qs 32-65. Back

21  Qs 32 and 56. Back

22  Qs 50-4. Back

23  HC 482, Appendix 2, no. 2 (Mr Andrew Dismore) and no. 9 (Mr Chris Pond). Back

24  S.O. No. 149(1)(a). Back

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Prepared 27 July 1999