Annex C: Parliamentary Commissions—Note
by the Chair of the Treasury Committee and former Chair of the
PCBS, Andrew Tyrie MP
Introduction
1) This paper draws on extensive exchanges with colleagues
on the Parliamentary Commission on Banking Standards. It also
reflects a large number of suggestions from the senior members
of staff of the Commission. It addresses two issues:
· How to decide whether a Parliamentary
Commission might be the best vehicle to examine a subject
· How a Commission might work to best effect
if it is selected as the method to be used.
2) The advantages of the Parliamentary Commission
approach are:
· flexibility
· speed
· the chance to assemble Parliamentarians
with expertise in a subject
· cost.
The fact that a Commission will be composed of legislators
makes it particularly suitable in cases where it will be necessary
to translate its conclusions into legislation.
3) Each Commission will be unique and will have its
own requirements for success, so they will need to be structured
and to operate in different ways. There is no one-size-fits-all
model.
Criteria for a Parliamentary Commission
4) Before deciding how to structure any inquiry body,
it is important to decide what the problem is that it will be
asked to solve, and over what timescale.
5) The experience of the PCBS suggests that the following
are necessary for a Parliamentary Commission to be the best choice
of method and for such a Commission to be a success:
· There needs to be a clear and identifiable
problem with a high level of public concern and salience
· This problem needs to be amenable to proposals
for change
· There should be all-party agreement to
the idea of a Parliamentary Commission—party divisions would
have been fatal to the PCBS
· The problem cannot readily be dealt with
by an existing select committee, and the Commission approach is
likely to be quicker and cheaper than a judge-led inquiry or a
committee of experts.
6) The narrow space that this combination of features
allows will mean that Parliamentary Commissions are likely to
be infrequent. In the case of the PCBS, the Treasury Committee
could also have been a suitable vehicle to perform the task, but
it would have meant the TSC doing little else and made performing
its necessary duties (such as scrutiny of the Bank of England,
the Autumn Statement, the Budget and public appointments) difficult.
The creation of the PCBS meant that the TSC was able to continue
work at almost its normal level.
7) If a Commission is decided upon, I would make
the following observations.
Membership
8) The membership of 10 was at the top end of what
is manageable. Certainly for technical subjects, and probably
for most other subjects, the smaller the membership, the better—6
would be ideal, unless more are required to balance a lot of different
views. But in that case, a different sort of body might be preferable—perhaps
one that is a debating forum rather than an inquisitorial body—and
so a Parliamentary Commission is less likely to be appropriate.
9) The PCBS had considerable Commissioner expertise.
This meant that it was able to acquire credibility quickly, and
that the Members were already up to speed with a good deal of
the often highly technical subject matter.
10) The membership was also a considerable advantage
when considering subsequent legislation, as the peers from the
PCBS were able to persuade their colleagues in the upper House,
and therefore the Government, of the merits of a number of its
key recommendations.
11) The five Commons Members were drawn from existing
Members of the Treasury Committee. While the consequent heavy
workload for the five of us was a distinct disadvantage, it had
the advantage that we were used to working together, had knowledge
in the subject area and could maintain contact with the rest of
the Committee during the inquiry and subsequently. Nonetheless,
the workload of the Treasury Committee scarcely dipped from the
very high level of the first two years of the Parliament; its
work during the PCBS was still comparable to that of the more
active years of the Committee in the previous Parliament.
12) It should be borne in mind that some Members
on the relevant departmental committee may feel aggrieved that
their committee is not examining the subject of the Commission's
inquiry unless they themselves are on the Commission. In the case
of the TSC, this was assuaged somewhat by the fact that the need
for the PCBS had been triggered by the TSC's own inquiry into
the LIBOR scandal.
Setting up
13) The summer recess began very soon after the PCBS
was created. This made it much more difficult to recruit staff.
Many people in outside organisations were away in August, unable
to be interviewed or unwilling to focus on the issue when approached.
14) The Commission held several meetings at the start
to plan our work. These gave an essential sense of direction and,
importantly, some limit to what we were trying to achieve. There
was considerable input from Members, with valuable proposals on
how to conduct the work and what to examine.
Staffing
15) It would be a mistake to assume that future Commissions
should necessarily follow the staffing model of the PCBS. The
model we used, based around a fairly traditional core of committee
staff, may not suit all circumstances.[40]
It will always be necessary to deploy some House staff as their
experience of committees, Members, procedure and the House will
be relevant. We were fortunate in obtaining the services of an
outstanding clerk as chief of staff who was made available at
very short notice. He did an excellent job in putting together
and leading a staff team under severe time pressures. High quality
clerk support will certainly be necessary for any future Commission.
But although it would be the least risky choice to follow the
well understood practice of employing a clerk to be the chief
of staff, this may not be the best option. The PCBS was covering
a technical area where the Commission might have benefited from
a technically expert outsider (a financial lawyer, for example,
or someone from the Bank of England) as chief of staff. A trained
project manager would also be helpful as part of the team, not
least for cost control.
16) The technical nature of the PCBS's work meant
that the PCBS required staff from outside Parliament, some of
whom had to be paid for—although several were offered free
of charge.
17) The PCBS eventually employed around 25 staff
in all, although at any one time the team had at most about 20
staff. The outsiders were recruited on a variety of terms including
unpaid loan, secondment and short-term contract. This allowed
the Commission to carry out its work at a fraction of the cost
of a judge-led inquiry. I identified most of the organisations
from whom we drew secondees and contacted their leaders to request
high quality staff—the chief of staff followed up, usually
with an interview. Given the substantial personal engagement between
Members and staff on the Commission, there is a case for even
closer involvement by the Chairman of a future Commission in the
recruitment of secondees and external staff. In the cases of most
seconded staff, we took the first choice offered, given the speed
required for the work to be done. We would have been able to ask
an organisation for someone else, but at the cost of time lost.
The Treasury undertaking to refund the costs enabled decisions
to be made more quickly. This flexibility worked well. Having
all its staff in one place was very helpful, and likely to be
so in future cases.
18) The House of Lords contribution to the staffing
of the Commission was nugatory: it provided only half the time
of a single clerk. The Lords does of course have a smaller staff
than the Commons, but even so it appears that it is not capable
of providing staff support to joint Commissions on an equivalent
basis. The Commons will need to be prepared to provide the bulk
of the parliamentary staff for future Commissions. The notion
that the Lords take the lead in most Joint Committees, and that
they should be run with Lords procedures, should end.
19) Other House staff elsewhere in DCCS (in particular
the Treasury Committee and the Scrutiny Unit) and in the Library
were also called upon from time to time to help with specific
tasks. The support was often outstanding. I would also particularly
like to record my appreciation of the imaginative suggestions
made by some of the most senior Commons Clerks.
20) The staff recruited from elsewhere adjusted with
varying success to the requirements of the Commission. Some became
indispensable members of the team; some failed to adapt; some
were better placed to contribute ideas than to produce briefings
or drafts; and a few promoted their own hobbyhorses too much.
None of these behaviours had much to do with seniority. Commissions
should be prepared to send people back if they consume too much
management or colleague time for the benefit they contribute.
21) Staff interests were declared and conflicts of
interests were vetted—this was essential to promote the
credibility of the Commission.
Funding
22) The Treasury agreed to refund the cost of the
PCBS. But if the Government agrees to fund a future Commission,
it is important not to kill the goose that is laying the House's
golden egg. The House should charge the Government the marginal,
not the average, cost of the resources it commits. The House could
ask the NAO to allocate someone who could reassure the Government
about the costs that are charged and who could work alongside
the project manager (see para 15). I needed to devote more time
to cost control, and to ensuring that only the marginal cost was
charged, than I would have liked.
23) The Treasury initially resisted the notion of
direct repayment, suggesting that the House should pass a supplementary
estimate to cover the cost. This would have appeared as the House
increasing its budget without the Treasury incurring any extra
cost. I intervened to resolve this and the Treasury made a direct
transfer to the House.
24) It is impossible to estimate the cost of a future
Parliamentary Commission without knowing the subject matter: each
will have its own demands, and it may be possible to have a Commission
without needing to call on any additional Government funding if
it is on a subject where the House had expert staff available.
There will, however, always be non-financial effects on other
committees or departments of the House from the redeployment of
staff. If Commissions were to become regular events the House
may need to budget for them as it already does Joint Committees
on draft legislation.
25) The appendix gives the costs of a number of other
recent inquiries. It also compares in more detail the costs of
the Commission with that of the Salz review commissioned by Barclays
to provide a plan for cultural change following the Libor scandal—a
related but more limited subject. These figures suggest that the
cost of the PCBS was comparatively modest.
26) Commissions should therefore be capable of offering
significant attractions for the executive. They can report more
quickly, and at a fraction of the cost. These attractions will,
however, depend on the exercise of self-discipline by any future
commission.
Use of counsel, etc
27) The Commission was given the power to appoint
counsel as specialist advisers to question witnesses. This happened
in a few full Commission meetings and in some of the panels, and
was generally a success. I would recommend giving this power to
any future Commission. I agree with some on the Liaison Committee
that select committees should have this power, too.
Operation of panels
28) The PCBS was given the power to appoint sub-committees
("panels"), with a quorum of only one. Their purpose
was to take formal evidence. These were useful on occasion, as
they enabled much more evidence to be gathered on a wider range
of subjects than would have been possible by the Commission on
its own. They also allowed evidence to be gathered in unusual
ways, for example through a visit to the home of a seriously ill
witness. However, their drawback is that a newly formed group
of Members may—for party political or personal reasons—lack
the trust in each other necessary to delegate important work to
a small group or a single Member with a particular interest or
apparent hobbyhorse. There is also the risk that Members may attach
less importance to evidence they have not personally heard while
emphasising evidence only they have heard: these could cause difficulty
in agreeing the Report or Reports.
29) It was probably a mistake that the Commission's
panels piggy-backed on existing sub-committee arrangements. Although
the panels did not have a power to report, the differences from
normal sub-committees in purpose and organisation were not sufficiently
clear. Future Commissions should be given the power to create
panels for evidence-taking only. These panels must nevertheless
give witnesses the full protection of parliamentary privilege.
Their powers will need to be defined in the resolution creating
any future Commission. This should not prevent a Commission creating
conventional sub-committees, should it wish to do so.
Powers to obtain documents and witnesses
30) The PCBS was given the normal powers to send
for persons, papers and records. It was able to secure the witnesses
and documents it wanted, after a few exchanges on occasion. Future
Commissions should have these powers.
Virtual meetings
31) The Commission was given the novel power for
the Chairman to report to the House orders, resolutions or special
reports on behalf of the Commission, having consulted other Members
and obtained a majority. This was designed to speed the work of
the Commission, especially during recesses. In the event, this
precise power was not used, although the Commission made use of
telephone conferences to discuss matters among Members. We might
have used them more, but the House's ICT systems remain inadequate.
I would nevertheless recommend giving this power to any future
Commission. Indeed, I think that 'virtual meetings' should become
part of Parliamentary work, reflecting practice in most other
walks of life these days. I believe that committees should be
able to decide for themselves those things which need to be agreed
at a physical meeting (Reports are one clear example).
Timetable
32) The initial timetable of the Commission—as
set by the House at the instigation of the Government—was
wholly unrealistic: it envisaged completing legislative scrutiny
by Christmas and the report on banking standards shortly thereafter!
Governments will often want instant responses. A Commission needs
to be set up with a realistic time allowed for its work, so that
it can be planned properly. The Commission issued five Reports,
but the very large fifth and final one would have been shorter
and crisper with more time.
33) During the nine months of the inquiry, some staff
and Commissioners worked very long hours during the working week
and at weekends. Nonetheless, there was a risk at some stages
that the final report would not be delivered on time. The technical
nature of some of the report drafting, combined with the need
to translate such technical material into an accessible House
style, was an enduring problem—technical experts who could
contribute to this drafting were always at a premium, as were
House staff with a full grip on the subject matter.
34) As already noted, the PCBS produced five Reports
culminating in a long final one. All the reports were drafted
in conventional committee style with analysis of evidence leading
to conclusions. Commissions should consider adopting different
styles of reports to suit their subject—for example those
of the Franks report into the loss of the Falkland Islands in
1982 or, in particular, the Vickers report into banking. The reporting
style may partly be consequent on the choice of chief of staff
(see para 15), as well as on the preferences of Members.
Follow-up
35) A Commission has one unique advantage over any
other form of inquiry: it consists of legislators, who will be
motivated to secure, and capable of securing, any legislation
consequent upon a Commission recommendation. This is the main
reason why it was a great mistake that the PCBS—and its
staff—was dissolved when it made its fifth report in June
2013. It should have been kept in being longer to do the follow
up necessary in order to capitalise on its work and, in particular,
to ensure that its recommendations were incorporated in legislation.
In the absence of a Commission, responsibility for the subject
areas of its work lies with the Treasury Committee and the Lords
Economic Affairs Committee.
36) Commission Members decided that they wanted to
continue to operate informally even if the Commission could no
longer make formal reports. But scattering the staff meant an
immediate and irrevocable loss of collective memory. This has
handicapped follow up work ever since, reducing Parliament's effectiveness.
37) Support for follow up work had to be reassembled.
Former Commissioners had the assistance of House legal advisers
to draft amendments and one (excellent) person part time from
the Scrutiny Unit, but otherwise the follow up on the Bill was
done by TSC staff who were also doing other things. Only one of
these staff had worked for any time at all on the PCBS, so the
team had to get up to speed with a vast and complex subject almost
from scratch in some areas.
38) It is in any case a risk to assume that the relevant
departmental or Lords committees will want, and be able, to do
the follow up work. As it happened, the Lords members of the PCBS
were assiduous and committed in working with the Chairman to press
the Government to move a very long way on a number of key issues.
That the legislative follow up was largely successful should not,
however, give any false comfort about how Parliamentary resources
were allocated to this work in the months after reporting. The
allocation of these resources was inadequate.
39) Commissions should be aware that follow up may
be necessary even after any relevant bill has received Royal Assent:
secondary legislation and non-statutory implementation will need
continuing scrutiny and pressure to ensure that the executive
delivers on its promises.
Appendix on costs
In November 2012, Chloe Smith, Parliamentary Secretary,
Cabinet Office, provided details of the costs of public inquiries
held in the last ten years:
John Stevenson: To ask
the Minister for the Cabinet Office (1) what the (a) highest
and (b) lowest cost was of a public inquiry held in the
last 10 years; [119573]
(2) what the average cost was of public inquiries
held in each of the last 10 years; [119574]
(3) how many public inquiries there have been in
each of the last 10 years; [119575]
(4) what the average length of time taken was for
a public inquiry between 2002 and 2012 to date; and what the (a)
longest and (b) shortest such inquiry has been. [119576]
Miss Chloe Smith: I refer
the hon. Member to the following table:
| Inquiry | Chair
| Legislation |
Duration | Costs (£ million)
|
| Bloody Sunday Inquiry |
Lord Saville | Tribunals of Inquiry (Evidence) Act 1921
| January 1998 to June 2010
| (1)191.5
|
| Shipman Inquiry | Dame Janet Smith
| Tribunals of Inquiry (Evidence) Act 1921
| January 2001 to January 2005
| (1)21
|
| Investigation surrounding the death of Dr David Kelly
| Lord Hutton | Non-statutory
| July 2003 to January 2004
| 1.68 |
| Soham Murders Inquiry |
Sir Michael Bichard | Non-statutory
| December 2003 to June 2004
| 1.9 |
| Zahid Mubarek Inquiry |
Mr Justice Keith | Non-statutory
| April 2004 to June 2006
| 4.2 |
| The Billy Wright Inquiry
| Lord MacLean | Section 7 of the Prison Act (Northern Ireland) 1953. Converted to inquiry under Inquiries Act 2005
| November 2004 to October 2010
| 30.5 |
| Rosemary Nelson Inquiry
| Sir Michael Morland |
Section 44 of the Police (Northern Ireland) Act 1998
| November 2004 to May 2011
| 46.46 |
| The Robert Hamill Inquiry
| Sir Edwin Jowett | Section 44 of the Police (Northern Ireland) Act 1998. Converted to inquiry under Inquiries Act 2005
| November 2004 to present. (Although the RHI report has been completed and the Inquiry fulfilled its terms of reference, the Inquiry report will not be published until the conclusion of related legal proceedings)
| 33 |
| The ICL Inquiry | Lord Gill
| Inquiries Act 2005 |
January 2008 to July 2009 |
1.91 |
| The Baha Mousa Inquiry |
Sir William Gage | Inquiries Act 2005
| May 2008 to September 2011
| 12.99 |
| Outbreak of Clostridium difficile infection
| Dame Deirdre Hine |
Inquiries Act 2005 | October 2008 to March 2011
| 2 |
| Iraq Inquiry | Sir John Chilcot
| Non-statutory | June 2009 to present
| (2)6.1
|
| The Al Sweady Inquiry |
Sir Thayne Forbes | Inquiries Act 2005
| November 2009 to present
| (3)12.5
|
| The Azelle Rodney Inquiry
| Sir Christopher Holland
| Inquiries Act 2005 |
March 2010 to present | (4)1.435.485
|
| Mid-Staffordshire NHS Foundation Trust Inquiry
| Robert Francis QC |
Inquiries Act 2005 | June 2010 to present (following on from earlier inquiry from January 2005-March 2009)
| (5)11.75
|
| The Detainee Inquiry |
Sir Peter Gibson | Non-statutory
| July 2010 to present |
(6)1.70
|
| The Leveson Inquiry |
Lord Justice Leveson | Inquiries Act 2005
| July 2011 to present |
(7)3.9
|
(1) Inquiry commenced more than 10 years ago
but ended within the timeframe requested.
(2) To end March 2012.
(3) As at 31 July 2012.
(4) As at 30 September 2012.
(5) As at 5 September 2012.
(6) To end March 2012.
(7) As at 30 June 2012.
Comparison with Barclays' Salz review:
| Cost category |
Salz Review | Parliamentary Commission on Banking Standards
|
| Report leadership, consulting, media, PR and report writing services
| £11.9m | £0.57m
|
| Fees and expenses for legal advice
| £0.7 (plus a further £1.1 incurred in support of the interview process)
| £0.14m |
| Leasing of office space and IT equipment (in London)
| £1.0m | £0.03m
|
| Other costs including customer research, travel, printing
| £0.1m | £0.25m
|
| Total | £13.7m (plus a further £1.1 incurred in support of the interview process)
| £0.98m |
| Main caveats | · Barclays provided temporary office space in New York.
· In addition, Barclays retained Boies, Schiller & Flexner as its own legal advisers.
· The estimated costs of the Review (above) include VAT, which banks in the UK cannot reclaim.
| · The House of Commons provided office space, security, and a significant proportion of the parliamentary staff at less than full cost (approximately 1/3 of full cost was not charged for).
· Nine members of Commission staff were seconded from outside of parliament at no cost to the Commission, and a further member of staff was seconded to the Commission from outside parliament at a discounted cost.
· The estimated costs of the Commission's work (above) are net of VAT, which the House of Commons can reclaim.
|
40 A Clerk/Chief of Staff at SCS level; a Library specialist
in the subject area temporarily promoted to SCS level; 50-75%
of a senior specialist in the subject area at band A2; a second
clerk at band A2;two committee assistants at band B2; a committee
assistant at band C; a committee support assistant at band D1;
and a media officer at band B1 Back
| 
