3 Protocol and sanctions
The current position
14. At present, the Ministerial Code sets out the
"general principle" governing the release of information
as follows:
When Parliament is in session, the most important
announcements of Government policy should be made in the first
instance, in Parliament.[6]
The Ministerial Code is enforced by the Prime Minister
and not by Parliament. Statements are made at the Government's
initiative, and the Speaker has no power to compel a Minister
to make a statement. Since 1983 there have been at least 44 occasions
on which the occupant of the Chair has made a ruling about the
release of information before a statement is made to the House.
There is widespread agreement that the "pre-release"
of information before its announcement in the House is undesirable
and to be deprecated.
A House protocol?
15. The motion agreed to by the House on 20 July
2010 invites us to "develop a protocol for the release of
information" by Ministers. Members giving evidence to our
inquiry agreed that there should be a House of Commons protocol
for the release of information to enable the House itself to hold
Ministers to account. The Shadow Leader of the House was in favour
of such a protocol, saying:
I think the House of Commons ought to say to Ministers,
"You should take us seriously—and, by the way, this
is what we expect.".[7]
Mark Durkan MP described a "House code of accountability"
which was "the property of this House", and argued that
the responsibility for ensuring that Ministers had adequately
discharged their duties to make announcements to Parliament was
"something that needs to be taken from the Executive".[8]
We agree that it is necessary for the House to assert its independence
from the Government and establish its own protocol.
16. It would be difficult to codify the type of announcements
that should be made by Ministers to Parliament. The question of
which announcements of government policy are "the most important"
is subjective. Ministers make statements on a wide variety of
subjects, including on unpredictable events. It would be inevitable
that a protocol of this kind would fail to cover all possible
eventualities in which a statement should be made to the Parliament.
17. We do not
believe that it is practical or desirable to produce a detailed
protocol that would cover all possible situations in which a Minister
should make a statement. We recommend instead that the House agrees
a resolution in which it sets out in broad terms the behaviour
expected of Ministers. We propose the following:
That this House expects Ministers
to make all important announcements relating to government policy
to Parliament before they are made elsewhere on all occasions
when Parliament is sitting and expects information which forms
all or part of such announcements not to be released to the press
before such a statement is made to Parliament.
Enforcing the protocol
18. As we have already noted, the question of whether
a particular announcement should have been made to Parliament
first requires a subjective judgment. It is also not always clear
whether a leak has occurred or whether press reports are merely
the result of speculation about policy announcements. In cases
where leaks have occurred, they can be difficult to attribute
to a particular source. For these reasons, an impartial arbiter
is necessary to determine whether a breach of the protocol has
occurred and whether any sanction is appropriate. We set out below
a number of options for people or bodies who might act as such
an arbiter.
DEPARTMENTAL SELECT COMMITTEES
19. The first option is that departmental select
committees could investigate alleged breaches of the protocol.
Rt Hon Michael Meacher MP proposed that:
where a Minister fails to [make an important announcement
to Parliament first] (e.g. by discussing it earlier in the day
on the Today programme), s/he should be summoned at the earliest
opportunity to the relevant select committee to give an explanation.
If that explanation is not accepted by the Committee, their reasons
for rejecting it should be published and sent in writing to the
Leader of the House and to the Prime Minister with a request for
an assurance that this disrespect to Parliament will not be repeated.
If it were still to continue, a motion of censure could
be moved on the Floor of the House.[9]
20. Departmental select committees, with their expertise
on the work of the Department, would be well-placed to judge the
significance of announcements made by Ministers. They could initiate
investigations themselves, or respond to complaints made by other
Members. They would also be well-placed to monitor the performance
of the Department and its Ministers over time. We are conscious,
however, that departmental select committees already have full
programmes of work which leave little time for investigations
of this kind. Also, an inconsistent approach to dealing with
leaks could easily develop if a different body was required to
adjudicate for each government department.
A NEW COMMITTEE
21. A second possibility would be the establishment
of a new committee to consider complaints that the protocol had
been breached. Investigations could be triggered by complaints
from Members, supported by evidence. If the committee found that
a breach of the protocol had indeed occurred, it could recommend
sanctions against the Minister. A dedicated committee which would
only need to meet when a complaint had been made would have ample
time to investigate alleged breaches.
22. The establishment of a new committee would not
be without cost. At a time when the Commons is seeking to reduce
the cost of its administration, the House would need to be certain
that this was an appropriate use of its resources. In addition,
it is not clear that there would be enough complaints of a sufficiently
serious nature to make the setting up of a new committee a proportionate
response to the problem.
PROCEDURE COMMITTEE
23. A third option would be for this Committee itself
to have oversight of the protocol and to arbitrate when complaints
were made. The release of information before a statement is made
to Parliament is not, strictly speaking, a matter of procedure.
It would not be unprecedented for us to have a role in adjudicating
when complaints are made by Members that the Government has failed
to honour its responsibilities to the House. We are already undertaking
an exercise in monitoring late or unsatisfactory answers to Written
Parliamentary Questions, in which Members may make complaints
to us about the way in which the Government has treated their
Questions. However, although it would be possible for us to undertake
this task, a role in arbitrating complaints of ministerial leaks
does not obviously sit within our current remit.
THE SPEAKER
24. Some witnesses suggested to us that the Speaker
should be the arbiter of a House protocol for the release of information
by Ministers. The Shadow Leader of the House was in favour of
this suggestion.[10]
Rt Hon Nick Raynsford MP told us that, in his view, "the
Speaker would have to do it".[11]
Jane Ellison MP proposed that the Speaker should consult his deputies
when making his judgments, because "you have a kind of balance
there within the team anyway, a natural balance, different personalities,
different perspectives, even different political backgrounds."[12]
She suggested that this would give "the whole House confidence"
in the system.[13]
25. Those who made this suggestion were clear that
it depended on there being a detailed House protocol for the release
of information. Rt Hon Nick Raynsford MP said that the protocol
should be "written in a way that makes it relatively easy
for the Speaker to reach a judgment without too much latitude
and discretion."[14]
The Shadow Leader of the House warned that "one wants to
protect the Speaker from any appearance that he is acting in a
partisan way."[15]
26. As we have explained, we do not believe that
it is possible to produce a detailed protocol that codifies all
the situations in which the Government should make a statement
to Parliament first. If the Speaker (even if he were assisted
by his Deputies) were to be the sole arbiter of the more general
protocol we have proposed, he would, in some cases, have to exercise
a great deal of discretion. His decisions in these cases would,
by convention, not be open to question; he might find himself
open to informal accusations of partisan behaviour. It is our
view that, since subjective decisions must be taken on breaches
of a general House protocol, such decisions should be transparent
and taken on the basis of publicly available evidence.
27. We do, however, agree that it would be appropriate
for complaints that a House protocol had been breached to be made
to the Speaker in the first instance. Where a case was clear-cut,
the Speaker would act to ensure that trivial complaints could
be quickly dealt with and that immediate remedies (for example,
the granting of an Urgent Question) could be applied in urgent
cases, without requiring full investigation by a committee. We
expect that most complaints would fall at this first hurdle. In
more complex or more serious cases, he would need to refer the
matter to a body able to conduct a detailed inquiry and—if
necessary—to recommend appropriate sanctions.
COMMITTEE ON STANDARDS AND PRIVILEGES
28. In our view, the Committee on Standards and Privileges
is the most appropriate body to take on the role of investigating
complaints, referred to it by the Speaker, that the protocol has
been breached. This suggestion was also made during the debate
on 20 July 2010 by Chris Bryant MP, who proposed that complaints
that Ministers had breached a House protocol should be "referred
to the Committee on Standards and Privileges".[16]
Part of that Committee's remit is to "consider any matter
relating to the conduct of Members, including specific complaints
in relation to alleged breaches in any code of conduct to which
the House has agreed and which have been drawn to the committee's
attention by the Commissioner".[17]
29. The breaching of a House protocol for Ministers
is comparable to the breaching of a code of conduct for Members
established by the House. The Committee is already well-practised
at adjudicating in cases in which it is alleged that Members have
breached codes of behaviour established by the House. It is also
familiar with recommending sanctions for Members when a complaint
is upheld. The Committee also has the power to take evidence in
public, and could therefore invite Ministers and officials to
come before it to explain how a leak had occurred.
30. We recommend
that allegations by Members that the House protocol has been breached
be made first to the Speaker for his judgment. If he determined
that the complaint was without basis or trivial, it would be open
to him to dismiss it. In cases where it was clear that a minor
breach had occurred, he could take appropriate steps, such as
allowing an Urgent Question on the subject or making a statement
on his findings. In more serious or more complex cases, he would
refer the matter to the Committee on Standards and Privileges
for further investigation. We would hope that the Committee would
choose to take evidence in public as part of its inquiries into
such cases.
Sanctions
31. In cases where Members feel either that information
has been made public before a statement has been made to the House
or that a Minister has failed to make a statement on an important
matter, there are already a range of mechanisms by which they
may seek to raise the issue in the House. Members frequently to
seek to place such concerns on the record by making points of
order. A Member might seek to ask an Urgent Question (see paragraph
35 below) or to apply for an emergency debate under Standing Order
No. 24, or apply for an adjournment debate or a debate in Backbench
time. The relevant departmental select committee might choose
to investigate the making of particular announcements and invite
a Minister to give evidence.
32. The introduction of a new protocol and a process
of judging breaches of that protocol provides an opportunity for
new sanctions to be considered. During the debate on 20 July,
a number of suggestions for possible sanctions for breaches of
a protocol were made. These included a requirement for an apology
from the Prime Minister for every breach of the protocol and giving
the Speaker the power to call errant Ministers to the Bar of the
House.[18] We are not,
however, persuaded that such severe sanctions would serve as a
proportionate and effective means of encouraging Ministers to
give full and prompt information to Parliament.
33. It is not uncommon for Ministers to volunteer
an apology in cases where it is clear that a leak has occurred
or that inadequate or incorrect information has been given to
the House.[19] If a Minister
in such circumstances did not spontaneously offer an apology,
it would be open to a Committee investigating the breach to require
him or her to make a formal apology to the House. If such behaviour
persisted, or if the breach were particularly serious, a motion
of censure could be moved on the Floor of the House. In our view,
this would be a sanction taken seriously by Ministers and one
which would encourage the making of timely and accurate statements
to Parliament.
34. We believe
that a recommendation from a Committee of the House that a Minister
should make a formal apology on the Floor of the House is a serious
and effective penalty. It would, of course, also be open to the
Committee to recommend that such an apology should be made at
a time when the House would be well-attended; for example, after
Questions on a Wednesday. In particularly serious cases, the moving
of a motion of censure on the Floor of the House would be an even
more severe sanction. We feel that these options are appropriate
and likely to be sufficient by way of both penalty and deterrent.
CHANGES TO URGENT QUESTIONS
35. In recommending the use of more severe sanctions,
we would not wish to lose sight of one of the most effective means
currently available for Members to elicit information from Ministers.
This is in many ways preferable to the imposition of sanctions
following a long inquiry. Urgent Questions provide Members with
a timely opportunity for questioning the Minister in cases where
such an opportunity has been denied them by the failure to make
a statement. Urgent Questions are governed by Standing Order No.
21(2), which provides that questions which are, in the Speaker's
opinion, "of an urgent character" and which "relate
either to matters of public importance or to the arrangement of
business" may be asked even though they do not appear on
the order paper. Members wishing to ask an Urgent Question must
apply to the Speaker in advance and notice must be given to the
Minister concerned.
36. Members who gave oral evidence to our inquiry
felt that Urgent Questions were a useful and effective sanction
in cases where Members felt that Ministers had failed to provide
information to the House. The Leader of the House told us that:
if the background to a UQ was the one that you have
outlined—namely it was because a Minister had made a statement
of major policy outside the House—I think that would be
very uncomfortable for the Minister when he appeared before the
House. I am not sure that any Minister would particularly look
forward to such an encounter.[20]
Rt Hon Nick Raynsford MP described the UQ as "undoubtedly
a very powerful weapon".[21]
The present Speaker has shown a much greater willingness than
his predecessors to grant Urgent Questions, and we applaud this.
During the current session there has been, on average, one UQ
per week. The Shadow Leader of the House was supportive of this
trend, saying "I think it's a very effective sanction and
there is no doubt in my mind that the increasing tendency to grant
UQs has put more of the focus back on Parliament".[22]
We agree with this analysis and support the approach of the Speaker
in this regard.
37. If a Minister gives notice of his or her intention
to make a statement, that statement takes precedence over any
application for an Urgent Question on the same topic. It is difficult
to know how often this occurs, since the refusal by the Speaker
of an application for an Urgent Question may not be publicly referred
to. Anecdotal evidence suggests, however, that applications for
Urgent Questions sometimes prompt Ministers to offer a statement
to the House. If this is the case, Urgent Questions can be seen
to act not only as a sanction but also as an encouragement to
Ministers to make more statements.
38. At present, the deadline for an application to
the Speaker for an Urgent Question is 12 noon on Mondays and Tuesdays,
10.30 am on Wednesdays, 9.30 am on Thursdays and 10 am on a sitting
Friday. If information on which a statement should be made is
released outside Parliament after this time, an Urgent Question
cannot be asked until the following sitting day. This means that
Members have no opportunity to elicit important or urgent information
from a Minister or to prompt the making of a statement.
39. Urgent Questions
clearly have a role to play in encouraging Ministers to provide
information to the House. We believe that this role could be enhanced
still further. We recommend that, in certain limited circumstances,
Members should have a second opportunity during the sitting day
to apply to ask an Urgent Question, but only where information
becomes known during the day that was not available before the
initial deadline. This deadline should fall at 7 pm on Mondays
and Tuesdays, 4 pm on Wednesdays, 3 pm on Thursdays and 12 noon
on sitting Fridays. The Urgent Question—if granted—should
be asked at the moment of interruption. In cases where an Urgent
Question to be asked at the moment of interruption has been granted
but the House rises early, the Question should stand over until
the following sitting day. We would expect this measure to be
used only in exceptional cases.
6 Cabinet Office, Ministerial Code, May 2010,
para 9.1 Back
7
Q57 Back
8
Q65 Back
9
Ev 29 Back
10
Q60 Back
11
Q67 Back
12
Q69 Back
13
Q69 Back
14
Q67 Back
15
Q59 Back
16
HC Deb, 20 July 2010, c 251 Back
17
Standing Order No. 149. "Commissioner" refers to the
Parliamentary Commissioner for Standards. Back
18 HC
Deb, 20 July 2010, c 258; ibid, c 277
Back
19
See, for example, HC Deb 7 July 2010, cc 484-492 Back
20
Q35 Back
21
Q89 Back
22
Q52 Back
| 
