House of Commons - Liaison

Select Committee on Liaison First Report

5 Recent Developments and Concerns

Scrutiny of Government: The Hutton Inquiry

87. At our most recent session of oral evidence from the Prime Minister, we raised with him the contrast between the level of access to information and people achieved by Lord Hutton in his investigation into the circumstances surrounding the death of Dr David Kelly,[161] and that available to select committees.

88. Most of the select committees which we chair are granted by the House the power to send for "persons, papers and records" under Standing Orders. The House of Commons gives this power to its committees in order to ensure that no obstacle should hamper them in carrying out their work.

89. The Government has undertaken to co-operate as fully as possible in the provision of information to Parliament.[162] It is therefore reasonable to expect that select committees should receive Government co-operation as fully as an inquiry set up by the Government itself.

90. During evidence to us on 3 February,[163] the Prime Minister agreed to undertake a review within Government of its guidance to officials relating to the availability of witnesses and evidence (usually known as 'the Osmotherly Rules').[164] The Leader of the House gave a similar undertaking on 5 February,[165] and we look forward to discussing the results of the review with him. We have drawn the Government's attention to particular aspects of the problem, about which we have been concerned for some time:

access to No. 10 policy advisers;
availability of current policy reviews and reports;
evidence on 'joined-up' policies from Government departments involved, including HM Treasury.

91. Our forthcoming dialogue with the Government will also be informed by the work of the Public Administration Select Committee. Its investigation of Government by Inquiry, to which Lord Hutton will be contributing, is likely to highlight the differences between parliamentary and extra-parliamentary processes.

Witnesses

92. In order to be as effective as possible committees need access to those witnesses who are able to supply them with relevant information. The House does not condone witnesses being prevented from providing information or being harassed if they do so. A case currently referred to the Standards and Privileges Committee at the request of the Constitutional Affairs Committee raises this very serious issue.[166]

93. The Science and Technology Committee raised a concern about the ability of witnesses to give evidence free from outside pressure. An important part of the Committee's examination of the work of Research Councils involves contributions from interested organisations and individuals. However, the Committee noted:

"Many individual researchers have been reluctant to voice their concerns in public for fear of affecting future grant applications. We regret that these fears appear to be so widespread. We hope that the Research Councils are not deliberately the cause of such concerns and will take the necessary steps to counter them. We hope that some of the private representations we receive might in future be able to be printed."[167]

94. A different problem concerning the ability of witnesses to give evidence was raised by the Transport Committee. Its Annual Report said:

"We were extremely startled when the Secretary of State declined to answer a question on the grounds that to do so might expose him to judicial review. The Chairman has pursued this matter in correspondence with the Secretary of State himself, and the Attorney General. We acknowledge that the courts are increasingly using the Official Report in their proceedings, but it is at the least unfortunate that this should reduce the ability of select committees to inquire into matters of general public interest, which are not at that time actually sub judice."[168]

95. Witnesses' evidence is vital to successful scrutiny. Anything which prevents witnesses being able to speak freely to committees is a matter of serious concern.

Relations with departments

96. We were pleased to note from annual reports that, in general, committees have good working relationships with departments. However, concerns have been raised by some committees about two issues: access to confidential or sensitive information; and Government responses to reports.

Access to confidential or sensitive information

97. The Foreign Affairs Committee said, about its Inquiry on The Decision to go to War in Iraq, that "the Government hampered the Committee in carrying out its scrutiny role effectively by refusing to provide the relevant intelligence-related material which we had repeatedly requested".[169] Relating to other areas of its remit, the Committee also made the point that "while we appreciate being taken into the FCO's confidence, and always respect the confidentiality which the Government attaches to its documents, we are not convinced that such confidentiality is always necessary".[170]

98. The Defence Committee expressed a similar view:

"We have had some difficulty in encouraging openness and transparency within the MoD. We have on several occasions encountered refusals to provide documents that we have requested to see in confidence…. MoD witnesses are not always as forthcoming as they might be: the MoD's advice to witnesses, published on the Hutton Inquiry website, appears to encourage reticence rather than the helpfulness which elected representatives might expect to receive."[171]

99. Regarding access to confidential information and evidence provision generally, the Science and Technology Committee made serious criticisms in its Report into The Scientific Response to Terrorism, in which it said:

"The Home Secretary has been unnecessarily sensitive about this inquiry. It is perplexing and disappointing that he took steps, belatedly, to prevent us hearing from certain witnesses from his Department and that he apparently sought to instil this uncooperative attitude in other Departments. The Home Secretary's actions have sought to undermine the role of select committees. We recommend the Liaison Committee establish clear ground rules on the nature and extent of co-operation which is expected from Government in select committee inquiries"[172]

100. We note the concerns of the Foreign Affairs, Defence, and Science and Technology Committees regarding access to confidential information and openness generally. We will take these into consideration in our dialogue with the Government on access to information and people (see para 90 above).

Government responses

101. Criticisms of Government responses to reports fell into two categories: complaints that departments failed to meet the two month deadline for responding; and dissatisfaction with the substance of the responses. While departments generally were more efficient in meeting the deadline than was the case last year,[173] two examples of poor performance stand out:

the Health Committee's Annual Report, referring to that Committee's three Reports on Maternity produced during the last Session, states:

"We can see the logic of the Department issuing a single reply to three interlinked Reports. But the first of these Reports was published seven months ago and the last six months ago. So we are taking the opportunity that this Report provides to register our irritation at this shoddy treatment by the Department which we regard as wholly unacceptable";[174]

the Work and Pensions Committee held a short inquiry into the future role of the Social Security Advisory Committee (SSAC), at a time when its quinquennial review was underway. In its Annual Report, the Committee finds:

"It surprising and disappointing that, nearly a year after we published our Report on SSAC, a Government reply is still awaited. Although we understand that the need to thoroughly consider the quinquennial review and the involvement of another Department may have caused a prolonged delay beyond the normal two month deadline, we are disappointed with the Government's failure to provide a substantive reply to our Report".[175]

102. If a committee is dissatisfied with the delay in receiving a reply from the Department, it is open to it to preface its publication of the reply once received with a criticism of the delay, and a request for a full explanation. For example, in July 2002 the Environmental Audit Committee reported on Buying Time for Forests: Timber Trade and Public Procurement, following claims that some of the timber being used in the refurbishment of the Cabinet Office had not come from legal and sustainable sources.[176] Despite a number of private and public promptings, no reply was forthcoming until 1 July 2003, the day before the Committee's public oral evidence session on comparable concerns expressed over the construction of the new Home Office headquarters. The Committee set this timetable out in a Report fronting the Reply, and called for an explanation.[177] This was forthcoming in a September 2003 letter from the Minister of State. He apologised for the length of time, attributable in part to the need for detailed consultation between departments and stakeholders, but also due to an administrative error within Defra which "led to the draft response being buried for three months".[178]

103. Generally departments have raised their game in producing replies to reports within reasonable timescales, for which we are grateful. It is entirely unacceptable, however, that one committee has waited for more than six months and others for nearly a year for substantive replies.

104. Committees complaining about the nature of Government replies included the Science and Technology Committee, which condemned the increasing tendency of Ministers to respond instantly to committee reports. They gave an example which showed, in their opinion, an example of a Ministerial assertion by way of reply being "simply wrong". They concluded that "such blatant attempts to rewrite the record, whilst not in themselves hugely significant, serve to undermine relations with committees and also to underline the benefits of reserving judgement until the properly considered response in the formal Government reply."[179]

105. Publication of committee reports often puts subjects high on the daily political agenda. If Ministers feel compelled to reply at once (and they receive embargoed advance copies of reports in the same way as journalists in order to prepare themselves) they should do it in the context that they will be giving a full and considered response in due course.

106. If committees receive formal responses which they consider to be unsatisfactory, they are able to do something about it. For example, the Education and Skills Committee's Annual Report notes:

"twice we considered the Government response to be unsatisfactory. The responses of the DfES and the Department for Culture, Media and Sport to the Committee's report on the British Library were insufficiently detailed. We therefore wrote to the Secretaries of State requesting further assurances, which were subsequently supplied. The response of the DfES to the Committee's report on A Level Standards failed to address one of our key criticisms, namely that the new examination system was not piloted before being implemented nationwide. We returned the response and later received a revised reply, giving a commitment that any major examinations introduced in future would be piloted. The Committee thus asserted its right to a detailed and considered response to its recommendations from the Department."[180]

107. Even where responses deal with the substance of a report, the Government does not necessarily have to have the last word. The Public Administration Select Committee regularly publishes its own comments on a Government response alongside the response itself. For example, when publishing the Government's response to their On Target? Government by Measurement Report, the Committee commented that "the Government is clearly moving in the right direction, but needs to increase the momentum".[181]

Northern Ireland legislation

108. The Northern Ireland Affairs Committee has drawn attention to a worrying practice in the Government's approach to Northern Ireland legislation. During a suspension of the Northern Ireland Assembly, the Government uses the provisions of the Northern Ireland Act 2000 ('the 2000 Act') to put legislation on devolved matters through Parliament as Orders in Council, which are not amendable and which must be accepted or rejected in their entirety. However, in 2003, the Northern Ireland Office also used the provisions of the 2000 Act to process Orders in Council on 'reserved matters' (policy areas retained by the Government, for the present, for handling at Westminster), rather than using the procedure under s85 of the Northern Ireland Act 1998 ('the 1998 Act'), which is ordinarily used in such cases.

109. The difference between the procedures laid down in the two Acts is that the 1998 Act requires, other than in emergency cases, for a proposal for a draft Order to be presented both to Parliament and to the Assembly for a two-month consultation period before being formally laid. The 2000 Act has no such requirement; therefore Parliament can be asked to agree to non-urgent Northern Ireland legislation without any consultation, and without Parliament having the opportunity to amend it. The Northern Ireland Office has adopted the 2000 Act procedure for reserved matters because of a technical flaw in that Act's provisions for the suspension of devolved Government. While the majority of the provisions in the 1998 Act, which provides for the workings of the Assembly, are cancelled by the 2000 Act, the latter fails to address explicitly the Assembly's right of reply on consultations on reserved matters. The Northern Ireland Office considers that the continuance of this provision in the 1998 Act makes that procedure for handling reserved matters unusable while a suspension lasts.

110. However, the Northern Ireland Affairs Committee is concerned that the 2000 Act deals only with matters within the Assembly's legislative competence. Therefore, for the Act to apply to an Order relating to a reserved matter, the Secretary of State has to consent to the Assembly assuming powers to determine the provision in question. This is unsatisfactory because, as the Committee suggests "the question of when, and if, certain areas of policy should be devolved continues to be a cause for argument both in Northern Ireland and at Westminster" and should not be determined for reasons of administrative convenience. The Committee concludes that "it is wrong in principle that Parliament should lose its statutory rights of consultation over matters it has for the time being reserved to itself, simply because of a minor technical flaw in the Northern Ireland Act 2000… If the flaw in the 2000 Act indeed makes the procedure under s85 of the 1998 Act inoperable during a suspension of devolved government, the error must be corrected without delay".[182] We support the Northern Ireland Affairs Committee in its recommendation that the Northern Ireland Act 2000 be amended, if necessary, in order to ensure that the duty to consult on Orders in Council relating to reserved matters is adhered to.

161 Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly C.M.G., Session 2003-04, HC 247 Back

162 See the Resolution of the House on Ministerial Accountability to Parliament, CJ (1996-97) 328 Back

163 Liaison Committee, Minutes of Evidence, HC 310-i, Q 1 Back

164 Departmental Evidence and Response to Select Committees, Cabinet Office, 1997 Back

165 HC Deb, 5 February 2004, col 905 Back

166 Votes and Proceedings, 15 January 2004. Constitutional Affairs Committee, First Special Report of Session 2003-04, Protection of a Witness-privilege, HC 210 Back

167 HC (2003-04) 169, para 19 Back

168 HC (2003-04) 317, para 5 Back