Rhodesian Oil Sanctions Special
Commission
210. The best and most recent example dates from
1978-9. After the Bingham Inquiry revealed the failure of the
oil sanctions policy against the white minority Rhodesian government
in the late1960s and the early 1970s in particular through the
use of the 'swap' arrangements involving South Africa, there was
pressure for a further inquiry to determine any ministerial or
official knowledge. Leading the charge was the former Prime Minister
Harold Wilson who sought full disclosure of papers from the current
and previous administrations by means of a parliamentary inquiry
during the debate on the Loyal Address in November 1978.[345]
In the debate on the second day of the Queen's Speech the Attorney
General stated that the Government's view was "that ministerial
responsibility and the workings of government are essentially
questions for Parliament…".[346]
He went on to note that "if […] a further inquiry is
needed […] to bring further into the open these matters of
ministerial policy, ministerial responsibility, the responsibility
of officials […] that must, of course have an important bearing
on the nature of any further inquiry which would be appropriate…".[347]
211. The Attorney General then rehearsed the various
possible options turning last to a parliamentary inquiry "which
could take the form of a Select Committee or of a joint Committee
of both Houses invested with whatever powers and its procedures
adapted if necessary to allow legal representation.[348]
The Attorney General saw "many attractions" in this
arrangement "particularly if its role is to investigate questions
of policy and ministerial responsibility—a role which such
Committees are well used to playing. Such a Committee would report
direct to Parliament which would be in a position to consider
its findings.[349]
The disadvantages were those which Lord Salmon had described in
1966.
212. In light of the debate, the Prime Minister,
James Callaghan announced on 15 December 1978 that the Government
had decided to recommend to Parliament the setting up by Joint
resolution, a 'Special Commission of Inquiry' comprising members
of both Houses and chaired by a Law Lord who would filter Cabinet
papers for relevance. The Resolution would provide the Committee
with its powers including sending for papers and persons, to hear
counsel, examine witnesses on oath, sit in private and appoint
persons to carry out work for it. It would publish its findings
but not the evidence. It terms of reference were instructive.
"To consider, following the Report of the Bingham Inquiry,
the part played by those concerned in the development and application
of the policy of oil sanctions against Rhodesia with a view to
determining whether Parliament or Ministers were misled, intentionally
or otherwise, and to report".[350]
213. In the subsequent debate on the Resolution the
Attorney General explained that the terms of reference would "enable
the Special Commission to concentrate upon the issue of political
responsibility…" and it would be for the Commission
"to investigate the way successive governments pursued the
oil sanctions policy […] to ascertain and report whether
Parliament and Ministers were misled concerning that policy".
If so it would have "the further task of seeking to determine
the responsibility of those whether Ministers, officials, or persons
outside Government, who were providing, or failing to provide,
information".[351]
Winding up the debate the then Leader of the House, Michael Foot,
assured Members that in proposing the membership "The names
that we propose will have to be brought before and approved by
the House" adding "I believe that this is the proper
way to proceed".[352]
In the event the Joint Resolution was agreed in the Commons without
a Division but was roundly defeated in the Lords. Despite this
political failure at the last hurdle, the story of the Rhodesian
Sanctions commission makes a very important constitutional point.
Investigation of possible ministerial failure can and should,
wherever practical, be based on a parliamentary foundation and
not on the foundation of ministers' own powers.
214. Parliament has at its disposal huge expertise
and a degree of resource to draw on to conduct inquiries should
it wish to. The select committee system has endowed Members with
an inquiry habit. Members also participate in supervisory committees
based on statute such as the Intelligence and Security Committee
and the Privy Counsellors required to review the Anti-Terrorism,
Crime and Security Act 2001. A number of successful chairs of
inquiries are also parliamentarians themselves. Specialist advisers
can and are recruited to provide expertise and support and the
House is of course accustomed to the Comptroller and Auditor General,
the Parliamentary Ombudsman and the Parliamentary Commissioner
for Standards undertaking investigations its behalf and reporting
to it. Parliament itself has unfettered powers to summon person
papers and records which it can delegate at will. It is entirely
possible therefore for Parliament to put together an investigatory
mechanism which meets the requirements we identify in paragraph
207 above.
215. The temporary Butler Committee and the permanent
Committee on Standards Public Life are good examples of a mixed
membership harnessing the knowledge and experience—and the
political tensions—of both Houses and of outside expertise
to good effect in matters of some controversy and sensitivity.
Asked whether, with some modification, his committee might have
been brought into a parliamentary context, Lord Butler agreed
"Indeed. Four out of the five members of our committee were
Members of Parliament, two Lords and two members of the Commons".[353]
The similarity in form of the
Franks and Butler Committees with that of a Joint Committee is
striking but, as Committees of Privy Counsellors, their nature
is fundamentally different and, from a constitutional point of
view, less satisfactory. We recommend that in future inquiries
into the conduct and actions of government should exercise their
authority through the legitimacy of Parliament in the form of
a Parliamentary Commission of Inquiry composed of parliamentarians
and others, rather than by the exercise of the prerogative power
of the Executive.
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