One of the powers of the House of Commons is a power to “call for papers”: that is, to require Ministers to produce documents and information to assist the House in discharging its functions. The right of the House to demand papers on this basis has never been challenged. In theory the power is capable of being exercised without limitation, but the House has, through practice, established certain limits: the power is not used to obtain papers which are not in the Government’s possession or which are of a personal nature. Although limited at present by the House’s established practice, the power could in the future be limited by a resolution of the House, by statutory provision or by judicial intervention.
The Law Officers’ convention is a Government convention which provides that the existence and the content of advice to Government from the Law Officers of the Crown must not be disclosed outside Government without the authorisation of the Attorney General. The convention is cited in Erskine May, which acknowledges that such advice is not usually provided to the House: requests for the production of such advice are frequently refused. There is nevertheless no known precedent for the House having used its formal powers to obtain such information and the Government having successfully resisted the use of the power, either by defeating a motion trying to exercise the power or by having a resolution rescinded.
Historically, Members who were not Ministers would often move motions for papers in order to force the Government to disclose information. The Government would resist, or attempt to amend, the motions it disagreed with, since it recognised that such motions, if passed, would have to be complied with. From the second half of the nineteenth century, Ministers began to provide more information to Parliament in Act and Command Papers, and the use of the “motion for return” as a means for Members to secure information from the Government fell into disuse.
Ministers themselves make frequent use of the power in order to arrange for the publication of reports of sensitive inquiries and other material which they wish to protect from legal challenge. The Government’s use of motions for return has been the subject of a recent judgment in the High Court, and may be examined again on appeal.
The procedure has been revived in the present Session: to date ten motions for return have been moved on Opposition days. The House has agreed to five such motions, and in four of the five cases the Government has complied with the requirements of the House without further challenge.
On 13 November 2018 the House passed a resolution requiring the production of the legal advice to the Government on the Withdrawal Agreement between the UK and the EU then under negotiation. The Government did not engage directly with the resolution of the House, and instead provided a paper on the “overall legal effect” of the agreement in its final form. Press reports indicated that a legal opinion on the draft agreement had been provided to Cabinet but had not been disclosed to the House. The issue was raised as a matter of privilege on 4 December 2018: the House found Ministers to be in contempt and ordered the immediate production of the legal advice referred to in the 13 November resolution. On 5 December the Attorney General consented to the release of his legal advice, and no further complaint of non-compliance has been made.
The Committee has considered a number of issues arising from the House’s recent practice in considering motions for return, and has made this report in order to clarify the House’s practice.
The Government has contended that Ministers are under a legal duty, driven by the public interest, to keep certain information confidential. Ministers are expected to observe certain conventions within Government on the confidentiality of such information, and in some cases the obligations on Ministers are governed by statute. The Government has suggested that the House ought to recognise the Law Officers’ convention and other Government conventions governing the disclosure of information, and undertake not to request information which Ministers consider they are under an obligation to keep confidential.
Although the Committee recognises the importance to Government of the Law Officers’ convention, and other conventions on the disclosure of information, it does not recommend that the House should place any further prior restraint on the exercise of its power to call for papers. Motions seeking the production of papers may be defeated by the use of a Government majority: they may also be amended, for example to allow extracts of papers to be released without compromising confidential information.
The Committee is not convinced that there is any case for the House to amend its current practice in relation to the power to call for papers. The recent difficulties experienced by the Government in complying with the House’s demands stem from political disagreements over the use of Opposition days. The Committee considers that the procedural mechanisms available to the Government are sufficient to enable Ministers to resist demands for the disclosure of information which would pose a genuine risk to the national interest.
The Committee recommends one substantive change in practice: where a motion for return requires the disclosure of papers to a committee of the House, the motion ought not to be debated unless and until the chair of the committee concerned has indicated that the committee is content to receive the information.
Published: 20 May 2019