Ministerial Statements - Procedure Committee Contents

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.


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.


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.


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.


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.


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.


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.


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


19   See, for example, HC Deb 7 July 2010, cc 484-492 Back

20   Q35 Back

21   Q89 Back

22   Q52 Back

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Prepared 2 February 2011