Examination of Witness (Questions 1-19)
19 OCTOBER 2004
RT HON
PETER HAIN
Q1 Chairman: Welcome, Peter. This is
the next stage of our campaign to establish greater rights for
the Select Committees. I do not want to say any more than that
because I think you would like to make a start and then we will
go into the questions as quickly as possible.
Mr Hain: Thank you very much,
Alan. Thank you very much for inviting me to give evidence today.
You will now have received our proposed draft of the Guidance
on Departmental Evidence and Response to Select Committees. The
government would very much welcome your comments—but it
is an important point that this is not a finished product—and
stands ready to consider any further changes which you think would
improve it. We are also consulting counterparts in the House of
Lords, and I emphasise that the government is very keen to engage
constructively with Select Committees. In fact Select Committee
activity has increased vastly since we came into office in 1997,
with 350 substantive reports from the Departmental Select Committees
alone last session. Ministerial appearances before Select Committees
are running at over 200 a year and appearances by civil servants
are many more than that. So any problems between Committees and
departments have, I think, been very rare, judged against that
overwhelming tide of activity. Perhaps I could outline the measures
we have taken since I last gave evidence in private and in response
to your own representations? First, we thoroughly reviewed and
updated the rules to reflect the changes both in government and
parliament. Secondly, we have looked carefully at the concerns
which the Liaison Committee and other Select Committees have highlighted.
We have made a number of positive and very significant changes
in response: namely, making clear the presumption that Committees'
requests on attendance of civil servant witnesses, including Special
Advisers, will be agreed to; making clear the presumption that
the provision of information will be agreed to, including the
presumption of cooperation on joined-up inquiries, including a
new paragraph on parliamentary privilege in relation to evidence
from civil servants and non-departmental public body staff, and
encouraging departments to be proactive in providing relevant
information and documents to Committees. So I see this as an opportunity
for reform, but if you have any further issues or suggest amendments
to the initial stab at this, then we would be very pleased to
look at them in a constructive way. Thank you.
Chairman: I am relieved by your use of
the phrase "initial stab", which suggests at least a
receptiveness to further suggestions because we would welcome
the proposals you have actually referred to; they are most striking
for their modesty, if I may say so, but nonetheless welcome. So
can we start with questions relating to your general approach
and the contrast, as we see it, between that and the recent treatment
that has been given to outside Committees who have been carrying
out inquiries, because our worry is that unless we are given comparable
facilities then there will be increasing pressure for inquiries
to go outside parliament. Michael Mates.
Q2 Mr Mates: I have noticed a marked
distinction between my life as a Member, as the Chairman of the
Northern Ireland Committee, and my short life as a member of the
Butler Committee, in particular the complete difference in the
way that government was prepared to produce documents showing
how policy was being formed. I know this is a difficult area for
government, but it was so much more helpful to producing a really
comprehensive report to know how various decisions were being
arrived at. These are things that routinely Select Committees
are not shown, and I was looking with hope at your new draft to
see if there was going to be some change and advance in that.
Let me make it quite clear, I am not talking about security classified
stuff, I am talking about the general run of things, when Select
Committees have traditionally been excluded from what is called
"advice to Ministers", which covers a multitude of sins—any
single piece of paper can be considered in that context. One of
the things I had hoped, after that very interesting experience,
was that on coming back to the normal run of the mill Select Committee
we would find that government was prepared to be more forthcoming
in disclosing to Select Committees how various decisions were
arrived at and what the arguments were. And while government will
do it sometimes, when it is in government's interest—and
Alan and I have noticed this from the Intelligence and Security
Committee, when the government has asked us to do a job, to explain
to the public something they did—we have been shown everything,
but when we, on the other hand, are probing to find out how a
conclusion was arrived at, people tended to hide behind this old
mantra, "That is advice to Ministers, you cannot see it."
If it is all right in an informal way when it suits government,
why cannot it be slightly more formalised and why cannot the presumption
be that we can see these bits of paper unless there is a good
reason to the contrary?
Mr Hain: As I indicated earlier
on, we are saying that there should be a presumption in respect
of requests from the Committee, subject to final decision by the
Minister, obviously. I think the Butler Inquiry and the Hutton
Inquiry were in a different box from Select Committee activity,
and I think therefore you have to consider the particular circumstances
in which they operated in a different context. This is a government
that has brought in a Freedom of Information Act, that has brought
a Prime Minister to be before you, that is actually more accountable
in terms of answering questions from Select Committees, and indeed
from the House itself at Prime Ministerial level than ever before.
So I do not think that we have any cause to be defensive; but
if you think, on consideration of the revised document that we
put before you for consultation, that there are specific things,
that we ought to revise, especially in the light of your experience
on the Butler Inquiry and that of the Liaison Committee generally,
then we will look at it with an open mind. I do stress that we
are not coming here to you with a take it or leave it finished
document, we are coming here to you with what you asked for, which
is our revision of the Osmotherly Rules and an open invitation
to see if they can be improved.
Mr Mates: That is a helpful reply and
that open invitation I think will be accepted.
Q3 Chairman: Donald Anderson—who
sends apologises, by the way, but has written in, he is chairing
the meeting with Kofi Annann at the moment—makes the point
in this specific context of Hutton, that it was very frustrating
for them to find that witnesses they had specifically asked to
see and documents that they had particularly requested were refused
to them, only subsequently to find that they were made freely
available to Hutton, although Hutton did not have the right to
demand papers that one might have anticipated in such an inquiry.
You can see that that caused intense dissatisfaction amongst members
of the Committee.
Mr Hain: I can understand that,
certainly irritation, and perhaps dissatisfaction, but I do stand
by my earlier statement that the Hutton Inquiry was in an entirely
different category. That does not mean to say that it was more
important, just that it was a proper inquiry ordered by government
into particularly difficult circumstances.
Q4 Chairman: Are you suggesting that
Select Committee Inquiries are not proper inquiries?
Mr Hain: No, I am not. I am saying
that in the end Select Committees' functions are to hold Ministers
to account and obviously, as is normally the case, any request
for civil servants to provide extra additional information by
way of background is responded to positively; and where there
are disagreements they are very rare, and I think there are good
reasons for refusals. What I feel is that we are in danger of
going away from the fundamental doctrine of ministerial accountability
to parliament. It is me who is accountable to parliament, as Leader
of the Commons, and to you as the Liaison Committee, as the representative
of the House, not the officials sitting behind me, and that goes
for every Secretary of State, every government Minister, and,
in a sense, I wonder—although again I would be interested
in any specific changes that you might want to recommend to the
text we have put before you—whether we are in danger of
focusing on the process rather than the outcome; of focusing on
the civil servants who advise rather than on the Ministers who
decide and who take responsibility for those decisions under our
Constitution.
Chairman: I think we would say that the
process dictates the outcome. Michael?
Q5 Mr Mates: I take what you are saying.
The difference is that when we ask routinely as any Select Committee
for information, one gets a Memorandum and that Memorandum is
a synthesis of whatever is in the file that it is thought by some
civil servant that the Select Committee can know. What would give
us a much better flavour of whether there was any difference of
opinion amongst the advisers—and there very often is—is
if we saw those papers from which those Memoranda are drawn. The
trouble with the Memorandum that you get as a standard at the
beginning of every inquiry is that it is very, very bland and
that it is minimalistic to satisfy the Select Committee that the
department concerned is doing what you suggest. If one could actually
see, as I have been privileged to see, what actually was being
written from A to B and put up to Ministers, we then got a far
clearer picture, which is why some people said our report was
a whitewash, but I maintain it was fair. Without seeing those
original documents we could not have come to those conclusions.
So in many ways it is only if the government has something to
hide, one would feel, that one is not allowed to see the basic
documents upon which policy is dictated. I fully take the point,
that at the end the Minister has to take the decision.
Mr Hain: Again, I understand the
point you are making, but first of all there is an obvious point
that if officials were aware that routinely advice to Ministers
could be made public, then you might find that what you ended
up doing in years to come is not chasing the advice but the draft
of the advice or the verbal substitute for the advice. So I think
this is not a matter of hiding anything, this is a matter of recognising
that the ministerial code is very clear, that Ministers should
be as open as possible with parliament and the public and refusing
to provide information only when disclosure would not be in the
public interest. I think that should be decided in accordance
with the law, and the exemptions are set out in the code of practice
on access to government information. I think the fundamental point
that you are making, which gets you into very difficult waters,
is that if every official who has ever advised me in my various
jobs in government, or my colleagues, knew that that advice was
to be made public you might find that actually you did not get
very satisfactory access to advice because it would be circumscribed.
Instead of being open and frank as it usually is, with the knowledge
that something might be made public. Officials have a relationship
with Ministers where we are the ones who are publicly accountable
and they are the ones who professionally advise in accordance
with the traditions and the rules of the Civil Service.
Q6 Chairman: I think there is a deliberately
singularly narrow interpretation of a concept of ministerial accountability
that you are using, that you, the individual, are responsible
and that the whole department behind you, which services you as
a Minister, is not accountable to parliament. As far as parliament
is concerned, if executives are not accountable to parliament
you do not have a proper democratic process. You as a Minister
do not operate in isolation from your department; you make decisions,
you make choices based on information accumulated for you by your
department. Those choices and those options are relevant to parliament
in knowing how you have carried out your duties.
Mr Hain: I accept that in general
terms but I do not accept it in specific terms because if I take
a decision that one of your Select Committees thinks is wrong,
or any of my ministerial colleagues, then we are the ones who
should be answerable; that is the principle of ministerial accountability.
Q7 Chairman: You are answerable; it is
the amount of information that you are willing to give in answer
that is part of the problem. We are not getting the answers we
want, we are getting the answers you choose to give.
Mr Hain: Actually we have been
more open, as I said earlier on, Alan, and, as against the instances
of hundreds of appearances by Ministers and even more by civil
servants in front of your Committees, where there has been a disagreement
the areas of disagreement are very, very narrow. I think if you
started opening up—and in any case the Freedom of Information
Act does advance this quite considerably—if you went beyond
that and said that every bit of advice that any official ever
gave a Minister would appear on a front page at some stage, you
would then find that you were not getting access to the real advice,
it would be given in another way. Where would that get us? I come
back to what I have said, and I rest on entirely in this position,
that I think we have a very proud record as a government of being
open; our Ministers are more accountable, from the Prime Minister
downwards; he has made more statements as Prime Minister to the
House than Mrs Thatcher for the comparable period and John Major
for the comparable period—significantly more—and he
has appeared before you for the very first time historically of
any Prime Minister. So I think we have a very proud record of
accountability. I do not think that we should, as it were, put
civil servants always in the firing line, it should be us in the
firing line. We are the ones who are elected, we are the ones
who are accountable and we should carry the can.
Q8 Chairman: You are not necessarily
putting civil servants in the firing line, but you are putting
the Minister in the firing line with the choices that have been
put to him. The choices could be fed anonymously, we do not need
to know which particular individual provides the information,
we need to know what valued judgement you made and what the options
were available to you. Can I quote an example? Way back in history,
when I was sitting in a government department, and in came an
official in my outer office and I said, "What do you want?"
and he said, "I've come to get a steer." I said, "What
do you mean a steer?" He said, "I have to make a submission
to you." I said, "You do not get a steer in this office,
you are paid to give me the best advice you can give. If I am
going to end up with egg on my face I want to end up with egg
on my face in this office not in the Despatch Box at the House
of Commons."
Mr Hain: A principle I readily
endorse.
Q9 Chairman: On the other hand, it would
not therefore be very harmful for the anonymous advice and options
that you considered to be known, so that we can make a more appropriate
assessment of the quality of your judgment, and it may well be
one piece of advice that you do not want us to see is the one
that proves you were wrong, in hindsight.
Mr Hain: Ultimately, I think what
our electors are interested in is whether the outcome is good
or bad and whether the policy is right or wrong, and I do not
think they are overly obsessed with the process behind it. There
is another issue, however.
Q10 Chairman: With respect, that is not
the issue. That is absolutely right, the voters do not necessarily
want to know all the minutiae, but parliament has a right to know,
parliament exists to know and it exists not just to rubberstamp
legislation for you, but to make sure you carry out that legislation,
to understand how you arrive at it.
Mr Hain: I agree. But we are a
more open government with parliament than ever before, and of
any government in history. The second point I would make and I
would like to clarify something that you asked in the question,
you said that officials' advice could be provided anonymously,
but then the next stage, whether in the media or, dare I say it,
amongst Select Committees, would be to demand the heads of the
particular individual. The point is, it is almost as if we have
a national sport developing in which you do not focus on the principle
of ministerial accountabilities, the bedrock of the relationship
between the Executive and the Commons, what you do is you create
an entirely different national sport in the media and amongst
perhaps the Opposition, but certainly in parliament, where you
are starting to go for the individual civil servant, and I do
not think that is right; I think that is constitutionally fundamentally
wrong.
Q11 Sir Nicholas Winterton: Chairman,
could I follow up your questions and those of Colonel Mates? The
Minister will be well aware that the Procedure Committee, which
I chair, is very keen that the House should be able to do the
job that it is there to do, namely, to hold the government of
the day to account, to scrutinise legislation that the government
is putting through—and that is why we have produced a report
on programming, to which you will be making comment in a debate
in the not too distant future. Can I ask whether you believe that
if the House is to do the job that it is there to do it should
be denied legitimate information that is requested by a Select
Committee? Colonel Mates referred both to Butler and to Hutton
and indicated that those members of those two Committees were
able to obtain information which had been denied to Select Committees.
I do think that you are seeking to make government more open,
more transparent; certainly your record since you became Leader
of the House, and one of your predecessors, has been very much
to make information more readily available, but could I ask you
whether you think this is merely a tidying up exercise that we
are concerned with or whether it is in fact a genuine attempt
to make parliament more open and to enable parliamentary Committees,
which really are the powerhouse of parliament—the Chamber
is no longer the powerhouse, Select Committees are the powerhouse
of the elected parliament—that they should be denied information
which they believe is relevant and important to the inquiry which
they are undertaking? I do put that to you most seriously because
you have given an answer but—I hesitate to say to a distinguished
Minister like yourself—you have slightly hedged the issue,
you have fallen back upon ministerial accountability. What about
the ability of a Committee to do the job that they are doing and
sincerely requesting from you or from government departments information?
Not just Memoranda, as Colonel Mates referred to.
Mr Hain: If I perhaps expand briefly
in response to the point I made right at the outset, that there
should be a presumption of disclosure of documents. That is what
the revised guidance says, but Ministers reserve the right to
look at it on a case-by-case basis, so I do not think that Select
Committees should, as a matter of course, be denied the right
to legitimate access to documents; on the contrary, Select Committees
should be able to get hold of documents that it is appropriate
for Select Committees to have. But in the end, in accordance with
ministerial accountability, Ministers have to decide what particular
documents and, for that matter, which particular officials might
be appropriate to help the Select Committee. As regards a tidying
up exercise, I have run into trouble with that phrase once before
and I will avoid that temptation again.
Q12 Sir Nicholas Winterton: So are you
prepared to comment upon the ready availability, it appears, to
those that comprised Butler and Hutton, as against some of the
problems, for instance, Foreign Affairs has had in obtaining information?
Mr Hain: I can see the point being
made and I come back to what I said earlier, that if there is
a way that the Liaison Committee feels that the revised guidance
should be revised further in specific to meet those points I will
look at it with an open mind.
Q13 Mr Ainsworth: In order to know whether
we think it should be revised further, I need to pick away at
your earlier remarks about the presumption in favour of disclosure,
to see whether or not this is some great leap forward. I take
it from what we have heard already from you today means that the
presumption in favour of disclosure when it comes to Select Committees
does not extent to the sort of information that was disclosed
to Butler and Hutton?
Mr Hain: I think you need to be
specific.
Q14 Mr Ainsworth: There was specific
information disclosed to those Committees, which I am getting
the feel today that you would not be prepared to disclose in the
same way to a Select Committee. Indeed, we have heard that that
is the case.
Mr Hain: Peter, I am not trying
to dodge the question. I think you need to be specific about what
type of documents and I think you need to look at the Revised
Guidance we have produced and say in what way that may not satisfy
the point you are making.
Q15 Mr Ainsworth: The thing that worries
me is that this great new presumption in favour of disclosure
does not seem to change anything. Whether it was written down
or not, most Select Committees have operated on the basis that
information sought from departments would actually on the whole
be disclosed. So I do not really see what is being changed by
this new guidance.
Mr Hain: What is being changed
is there has not been such a clear-cut presumption before and
that is in the light of the representations that you have made
as a Committee to us, and in the light of the experience that
Select Committees have had, particularly with the recent inquiries,
which has given rise to these concerns. So I come back and I say
that I am happy to look at specific requests for specific modifications
of the revised guidance with an open mind. I find it difficult
to respond to a generalised, as it were, request on the one hand
and an accusation on the other.
Q16 Mr Ainsworth: The trouble is that
we cannot take the information that was requested in those other
two inquiries and apply them forward to some future Select Committee
inquiry because the subject matter is totally different and the
nature of the information sought is going to be very different.
I just feel a little concerned that your defence of your position,
based as it is on, "We do not want a witch hunt of civil
servants", seems to be fairly weak when, in the end, it is
all about ministerial accountability. That is our job; we know
that our job is to do with ministerial accountability, not the
accountability of individual civil servants. I think to base your
position on the assumption that individual civil servants are
going to be chased down Whitehall by howling mobs of journalists
or Select Committee members is a little weak, if I may say so.
Mr Hain: I simply do not agree
with you. I think that is the bedrock of my position as a Minister
and the accountability which I have to you; that it is me who
is accountable and where civil servants can add to your enlightenment
and your knowledge and help with investigations then, routinely,
we agree that.
Q17 Mr Ainsworth: First of all, there
is no need to disclose the name of individual civil servants anyway.
Secondly, do you not think, particularly in the light of what
Michael Mates said earlier, that giving Select Committees the
ability to look at the advice that Ministers are basing their
decisions on, that it would not be a helpful part of ministerial
accountability and of pushing that agenda?
Mr Hain: I come back, at the risk
of repetition, to the point that you then push the barrier on
process further into the undergrowth because what you then get
is, "Why is this person anonymous?" That will be the
next stage. You can imagine, if a Select Committee unearthed a
particularly striking bit of advice and it was civil servant X,
there would be a real media chase to find out who that person
was. Look what happened to David Kelly and look where we all ended
up there.
Q18 Mr Mates: That was not advice to
a Select Committee, that was going public to a journalist.
Mr Hain: I understand that, but
the point is the idea that you can hide behind the anonymity of
civil servants and achieve the advance which you seek is simply
not politically real. In addition, if civil servants came into
the job, particularly as they reached senior policy positions,
and they knew that any advice they gave to a Minister would end
up on the front page of a newspaper via proper inquiries by parliamentary
sources and Select Committees, then I think they would say, "I
am not going to give that advice, I am going to give a different
kind of advice because I do not particularly want to be in the
frame and those are not the conditions of the Civil Service that
I joined."
Q19 Andrew Bennett: I am worried about
this idea that simply the Minister volunteers the Memorandum and
sometimes that Memorandum can be very misleading. Can I give you
a specific example? In the last parliament the Select Committee
was looking into the whole question of cemeteries and burial law.
We asked the department what they would do and we got a Memorandum
which set out quite an impressive set of things that we are doing.
When we actually saw the Minister he admitted that, one, he had
not been aware that he was responsible for this area of policy
until we started; and, two, that actually until we started inquiring
into it nothing was going on in the department. So a Memorandum
was produced specially for us, and it was a good Memorandum, but
it created a totally false impression of what was happening in
the department. If we had been able to ask and get the answer
as to what was the department doing about this topic when we started,
the honest answer from the department was "nothing".
Surely we should be able to get that sort of information and not
get a Memorandum which creates the impression that the government
is doing a lot more than it was until we started asking questions.
Mr Hain: In that instance it sounds
as though you performed a valuable service in exposing a lack
of activity there, and you were able to do it by orthodox means.
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