The House's power to call for papers: procedure and practice Contents

1The House’s power to call for papers

1.This report follows a short inquiry to examine the recent practice of the House in exercising its power to call for papers from the Government. The inquiry was occasioned by two decisions of the House. The first, on 13 November 2018, was to agree to a motion requiring the Government to provide to Parliament details of the legal advice provided to Ministers on a specified matter, including legal advice from the Attorney General.1 The second, on 4 December 2018, was to agree to a motion, moved as a matter of privilege, to find Ministers in contempt of the House for not providing to Parliament a copy of the Attorney General’s legal advice to the Prime Minister on that matter in response to the earlier resolution of the House.2

2.The House rejected a Government amendment to the privilege motion taken on 4 December. Had that amendment been agreed to, the question of whether the Government’s response to the resolution passed on 13 November 2018 fulfilled the resolution’s terms would have been referred to the Committee of Privileges for consideration. That Committee would also have been asked to consider “the constitutional and historic context and the proper use, ambit and scope of the motion for return procedure.”3 Since the Committee of Privileges may only examine matters referred to it by the House, the Chair of the Committee, Kate Green MP, declined a separate request from the Leader of the House to examine the issues raised in the Government amendment.4

3.The Procedure Committee decided to open an inquiry into the issues of procedure and practice raised by the invocation of the House’s powers to call for papers.5 We noted not only the concerns raised by the Leader of the House in her letter to the Committee of Privileges but also those raised by the Public Administration and Constitutional Affairs Committee in a recent report.6

4.We took oral evidence from the Leader of the House, Rt Hon Andrea Leadsom MP, and the Attorney General, Rt Hon Geoffrey Cox QC MP; from the then Clerk of the House of Commons, Sir David Natzler KCB, and the Clerk of the Journals, Mark Hutton; from the Shadow Solicitor General, Nick Thomas-Symonds MP and the SNP Justice spokesperson, Joanna Cherry QC MP; and from a former Attorney General, Rt Hon the Lord Morris of Aberavon KG QC.7

The nature of the power to call for papers

5.Both Houses of Parliament have the power to require documents to be produced to assist each House in discharging its functions.8 Sir David Natzler, then Clerk of the House of Commons, told us that the right of the House of Commons to demand papers on this basis had never been challenged, and that the Government had consistently accepted that the House has the power to call for papers.9

6.Use of the power to require papers to be provided to the House, in response to an order of the House or to an address to the Sovereign, was commonplace until the second half of the nineteenth century as the primary means for the House to secure information from Ministers. Its use for this purpose declined as Ministers wishing to provide information to one or both Houses, either on their own initiative or in response to demand, did so in Command Papers, and an increase in the statutory requirements for the provision of information to Parliament led to a growth in the number of Act Papers.10

7.The power nevertheless remains in regular use: it has not been rescinded or otherwise set aside. Moreover, the House invests many of its select committees with the power to send for “papers and records” on matters falling within their order of reference.11

8.The power of the House to call for papers is binding on Ministers: this is demonstrated, in the period when it was customary for private Members to move motions for papers, by the approach of Ministers to motions which the Government opposed.12 Ministers would press for such motions to be withdrawn, would seek to amend motions calling for papers, or would negotiate over the papers to be produced, in the knowledge that if the motion were agreed to by the House they would be obliged to comply with it.13

9.The Clerk of the House noted that the regulation of the power is a matter for the House as a whole, and not a matter of order upon which the Chair may adjudicate.14

The scope of the power

10.The power to call for papers is exercisable by the House. In theory it remains capable of being exercised without limitation.15 No limits to its exercise have been established in common law or in statute.

11.The House has, through its practices, established certain limits to the power’s use. Use of the power, as established by the practice of the House and acknowledged by successive administrations, extends to papers and reports produced by Government departments, as well as papers which are in the possession of Ministers or which Ministers have the authority to obtain.16 Where the House has ordered the production of papers discovered not to be in the Government’s possession, or of a personal nature, the House has subsequently moved to rescind the order.17

12.In 1997 the House adopted a resolution on Ministerial accountability, in which the House gave its opinion on the principles which Ministers should observe in their conduct in relation to Parliament.18 Under the terms of this resolution, Ministers are expected to be “as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest”. While this resolution confirms the presumption that Ministers ought to be as open as possible in providing information to the House in all circumstances, we do not interpret it as a restraint on the House’s practice in the exercise of its own power to call for papers.

13.If the power were in future to be limited, this might be achieved in the following ways:

Law Officers’ advice

14.There is a convention within Government, referred to in the Ministerial Code, that “the fact that the Law Officers have advised or have not advised, and the content of their advice, must not be disclosed outside Government without their authority.”.20 Erskine May cites the convention and states that in consequence the opinions of the Law Officers “are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused.”21 There is nevertheless historic and recent precedent for the voluntary disclosure of legal advice given within Government, either to the House or through general publication. Legal advice has on occasion also been disclosed in response to orders made by select committees.22

15.Until the resolutions of the House of 13 November and 4 December 2018, there had been no recorded instance of the Government complying with a formal direction from the House to release legal advice, nor of successful resistance to such a direction.23 So, although a limit on its exercise of the power in this respect may hitherto have been perceived, the House, by its recent actions, has demonstrated that it does not at present recognise that limit. Another committee of the House has recently argued that the Law Officers’ convention represents “an established limit” to the power to call for papers: but we can find no evidence of any test which has established that limit in practice.24

16.The power of the House of Commons to require the production of papers is in theory absolute. It is binding on Ministers, and its exercise has consistently been complied with by the Government. The way in which the power is exercised is a matter for the House and not subject to the discretion of the Chair.

17.The House, by its practice, has observed limitations on the power: it does not use the power to call for papers which Ministers do not have the authority to obtain, nor does it use it to obtain papers of a personal nature.

18.Until November 2018 the House had not used the power to require the production of legal advice to Government from the Law Officers. The House’s resolution of 13 November 2018 requiring the disclosure of such advice, and its subsequent order of 4 December 2018 demanding compliance with the resolution, represents a potential extension of the historic use made of the power.

19.We therefore make this report to advise the House of the potential implications of its recent decisions and to make recommendations on its future practice.

1 Votes and Proceedings of the House of Commons, 13 November 2018

2 Ibid., 4 December 2018

3 Ibid., 4 December 2018

4 The letter from the Leader of the House to the Chair of the Committee of Privileges, dated 4 December 2018, is available here: The response, dated 6 December 2018, is available here:

6 Public Administration and Constitutional Affairs Committee, Fifteenth Report of Session 2017–19, Status of Resolutions of the House of Commons, HC 1587, paras 65–72.

7 Oral evidence witnesses are listed on page 33. The written evidence received is listed on page 34.

8 The first edition of Erskine May (1844, p. 309) states that “Parliament, in the exercise of its various functions, is invested with the power of ordering all documents to be laid before it which are necessary for its information.” House of Commons Service (PHP0005), para 2.1.

9 House of Commons Service (PHP0005), para 2.2, citing Sir David’s oral evidence to the Public Administration and Constitutional Affairs Committee on 23 October 2018, Q28.

10 Ibid. (PHP0005), paras 2.1 and 5.1

11 House of Commons Service (PHP0005), paras 7.1–7.4; Dr Andrew Defty (PHP0001), para 4. For a fuller description of the power to send for papers and records as it affects select committees, see the memorandum from the then Clerk of the House, Sir Richard Barlas KCB OBE, to the Procedure Committee in 1978 (hence Barlas memorandum): First Report of the Select Committee on Procedure, Session 1977–78, HC (1977–78) 588-I, Appendix C, paras 36–47.

12 A list of motions for return made in the Commons and the Lords and opposed by the Government of the day is appended to the Barlas memorandum, q.v., pp 29–36. The first instance cited is in 1692: the last is in 1905.

13 House of Commons Service (PHP0005), paras 5.1–5.3

14 PHP0005, para 5.3, citing the Barlas memorandum, q.v. p. 22.

15 PHP0005, para 5.3

16 PHP0005, para 3.3, citing Erskine May, 24th edition, 2011), p. 133

17 PHP0005, para 5.4: see also the oral evidence of the Clerk of the Journals to the Public Administration and Constitutional Affairs Committee on 23 October 2018, HC 1587, Q28.

18 The House’s resolution on Ministerial accountability to Parliament, adopted on 18 March 1997, is as follows (emphasis added): Resolved, That, in the opinion of this House, the following principles should govern the conduct of Ministers of the Crown in relation to Parliament: (1) Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their Departments and Next Steps Agencies; (2) It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister; (3) Ministers should be as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest, whichshould be decided in accordance with relevant statute and the Government's Code of Practice on Access to Government Information (Second Edition, January 1997); (4) Similarly, Ministers should require civil servants who give evidence before Parliamentary Committees on their behalf and under their directions to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code (January 1996)

19 See the judgment of Master McCloud in Warsama & another v the Foreign and Commonwealth Office & others, [2018] EWHC 1461 (QB), 15 June 2018, and para 27 below.

20 Ministerial Code (Cabinet Office, January 2018), para 2.13

21 Erskine May, 24th edition (2011), p. 447

22 PHP0005, paras 5.11–5.13

23 Ibid. (PHP0005), para 5.14

24 Public Administration and Constitutional Affairs Committee, Status of Resolutions of the House of Commons, para 69

Published: 20 May 2019