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

2Exercising the power through a motion for return

20.The House’s power to call for papers is exercised by means for a “motion for return”: a motion requiring the provision to the House of a return of information of a specified character.25 Motions for return are typically directed at Government departments, though they can also be directed at the House itself or at others.

Use of the power by Ministers: motions for unopposed return

21.Ministers often use the power to call for papers to facilitate the publication of documents which the Government wishes to place in the public domain with the protection against actions for defamation or other legal proceedings which is provided by Parliamentary privilege.26 The power is also used annually for the formal production of certain fiscal information required by the House, and for the production of a statistical digest of information about the House and its Committees in each session.27

22.In the 2017–19 Session to date ten motions for return have been moved in the House to secure papers Ministers wished to have published: five of these have been moved by Cabinet Ministers in person. Such motions have facilitated the publication of, for instance, the report of a review of how the Home Office handled information received in relation to allegations of child sexual abuse in Rotherham, and the report of the review of the official response to the Hillsborough disaster in 1988.28

23.The continued use of the power to call for papers in this way demonstrates that it is in current use to secure information held by the Government or by the House (for instance, the information on the performance of the economy held by the Treasury and published as the Budget Red Book, and the data on House of Commons activities gathered by the House of Commons Service), as well as to secure the publication of papers in the possession of Ministers or papers which they have the authority to obtain, such as the reports of major public inquiries commissioned by Ministers.

Motions for unopposed return: practice

24.The settled practice of the House in considering motions for return moved by Ministers has been to take them at the beginning of the sitting day, in the period reserved for unopposed business. The Clerk of the House indicated that this procedure “was introduced originally to avoid the inconvenience [to] the House of having formally to consider motions by Ministers for returns of largely uncontroversial information from their own Departments.”29 Notice is given of the intention to call for an unopposed return, by means of the Government tabling a motion in the name of the responsible Minister on the previous sitting day. If the department providing the information is headed by a Secretary of State, the motion is for an humble Address to the Sovereign, asking her to give directions for the return of the paper: if it is the Treasury, or another department not headed by a Secretary of State, the motion is for an order requiring the paper to be provided.30

25.If it is evident that the Department is prepared to provide the return in response to the motion, the motion is set down on the Order Paper at the time reserved for unopposed business. No objection may be taken to the motion when it is moved: Erskine May indicates that “it is a settled principle that a motion for return which is proposed by the Minister responsible for the department concerned ought not to be opposed by any other Member”.31

26.Once the motion has been agreed, to, in the form of a resolution or order, the Department lays the paper requested before the House, and it is printed by order of the House in the sessional series of House of Commons papers. Typically the paper is laid, and published, on the same day the motion is passed: publication is often timed to coincide with a Ministerial statement. Where the call for papers is given effect through a resolution for an humble Address, no address is required to be presented to the Sovereign by the senior Government whip who holds the position of the Vice-Chamberlain of the Household. Ministerial compliance with the request, through the production of the papers requested, is sufficient to discharge the obligation.

Recent judicial examination: the Warsama case

27.The use of the unopposed return procedure has recently been examined by the courts, and its use as “a means by which the Executive prints material which would otherwise lead to a risk of legal liability, including for violation of Convention Rights” has been sustained.32 While the court accepted the privilege arguments advanced by the Government, there remains a chance that the matter may be raised again on appeal.33

Motions for return not moved by Ministers

28.As explained above, the tabling of motions for return by private Members to secure the production of Government papers is a practice which fell out of use as Ministers volunteered information under more categories to the House or were required to provide it by other means.

29.The practice was revived earlier in this Session.34 Ten such motions have been tabled in the name of the Leader of the Opposition, as matters to be taken on Opposition days, in the 2017–19 Session to date.35 Of these, five have been agreed to without a division, and five have been negatived on division.

30.Notice of these Opposition motions has generally been given on the day before they are to be debated. Unlike motions for unopposed return, there has been no requirement to ascertain in advance whether the Government has the information sought in the motion, nor whether Ministers are willing to provide it as requested.

31.On six occasions the Opposition motion has sought the provision of papers to a select committee, rather than to the House as a whole. On the four occasions that such motions have been agreed to by the House, the committee to which the information has been provided has been able to assess the information provided, to determine whether the House’s instruction has been complied with and to decide whether to report the information to the House and publish it.36

32.In one instance the committee to which the information was provided had not been consulted on the preparation of the motion and had not previously sought the papers concerned, but considered itself under a responsibility “to ensure that the House’s unambiguous instruction was carried out”.37

Papers sought in Opposition motions for return

33.The papers which the Opposition has sought to require the Government to provide have fallen into the following categories:

a)reports and other papers whose existence has been substantiated (for example, in written answers or other communications from Departments);38

b)records of legal advice surmised to have been prepared for Ministers and the Cabinet;39

c)reports and other papers surmised to have been prepared for Cabinet committees,40 and

d)records of internal communications and discussions surmised to have occurred within or between Departments on specified matters.41

The Government divided the House on each of the five Opposition motions for return seeking papers under categories c) and d): on each occasion the motion was negatived.

Compliance with resolutions and orders of the House calling for papers

34.Where Ministers move motions for unopposed return, questions over compliance with the order or resolution of the House do not in practice arise. The motion is accepted for tabling on the understanding that the Department is in a position to provide the papers to the House forthwith, and a return of the paper requested is typically made at the same sitting.

35.Determining compliance with motions not moved by Ministers is less straightforward in the context of contemporary House procedure and the politically-charged atmosphere in which Opposition motions for papers are moved.

Compliance with recent resolutions for papers from Opposition motions

36.The first four motions for return proposed as Opposition business and agreed to by the House required information to be provided to select committees. In each case, the committee to which papers were required to be provided reported receipt of the papers and either confirmed compliance with the House’s request or raised no explicit concern over non-compliance.42

The resolution of the House of 13 November 2018

37.A fifth resolution for a humble Address requiring papers was passed on 13 November 2018. It is instructive to summarise the sequence of events to illustrate the issues arising from the House’s use of the power to call for papers in this instance.

38.The Government did not arrange for a return of the information requested to be made, and instead presented to the House a paper which sought to address the House’s concerns. The House found that the information provided did not meet the terms of the resolution, and consequently adopted a resolution which found Ministers in contempt.

The Opposition motion and its interpretation

39.The motion tabled by the Leader of the Opposition on 12 November called for the following papers to be provided to Parliament:

any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.43

The motion was moved by the Shadow Secretary of State for Exiting the European Union, Keir Starmer MP, as the first item of business on 13 November 2018, an allotted Opposition day.44 In moving the motion, Keir Starmer sought to define the papers to be provided should the motion pass, and the conditions under which the papers were to be provided:

first, the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement; secondly, that this to be made available to all MPs; and thirdly, that it should be made available after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal.45

40.Keir Starmer asserted, on the basis of press reports, that on 17 October 2018 the Cabinet had asked the Attorney General for “a full assessment of the legal ramifications of the backstop” and had been provided with “a summary of the Attorney General’s advice on the options for the backstop” in early November.46 He maintained that “there is no doubt that there will be final legal advice if the Government are able to reach an agreement with the EU. It is that final advice that we want to see […]”.

41.Ministers advanced arguments against the motion from the Despatch Box, but did not seek to divide the House. The motion therefore passed unopposed.47 In points of order raised immediately after the House’s decision, Members sought to clarify the obligations on the Government arising from it: no Ministerial statement was made in response.48 The then Clerk of the House told us that he was not aware of the Government having made any attempt to discuss how the resolution of the House might be complied with.49

The Government paper on ‘overall legal effect’

42.An agreement between the United Kingdom and the EU on the UK’s withdrawal from the EU was endorsed by heads of state and government at the European Council meeting of 25 November 2018.50 On 2 December a newspaper published extracts from what was said to be a letter sent to Cabinet ministers by the Attorney General containing legal advice on the backstop provisions in the agreement.51 On 3 December the Attorney General presented to Parliament a Command Paper which purported to describe the “overall legal effect” of the agreement of 25 November 2018.52 On the same day he made a statement to the House “to inform the debate […] on the motion to approve the withdrawal agreement and the political declaration” scheduled to begin on 4 December.53 Neither the Command Paper nor the statement made reference to the resolution of 13 November, and the Command Paper did not purport to be a return to the resolution of the House.

The finding of contempt

43.Following the presentation of the Government’s Command Paper to the House, Keir Starmer, together with representatives of four other political parties, wrote to the Speaker alleging that the Government had not complied with the terms of the resolution of 13 November. They asked the Speaker to give precedence the following day, as a matter of privilege, to a motion alleging that the Government was in contempt of Parliament.54 The Attorney General also wrote to the Speaker with his observations on the matter: he argued that the Government was in considerable difficulty in knowing how to comply with the resolution.55 Precedence was given to a motion, tabled by Keir Starmer and signed by representatives of five other parties, which was taken as the first item of public business on 4 December.56 The Leader of the House moved an amendment to have the matter referred to the Committee of Privileges, which was negatived: the main motion was agreed to on division. The House thereby ordered the Government to publish “the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship”.57

Compliance with the resolution of 13 November and the order of 4 December

44.On 5 December 2018 the Attorney General made a written Ministerial statement announcing that “a copy, in full, of the final advice that I provided to Cabinet on 14 November [sic] on the legal effect of the Withdrawal Agreement” had been placed in the libraries of both Houses in fulfilment of the direction given in the resolution of the House of 13 November.58 The advice, in the form of a letter to the Prime Minister dated 13 November 2018, was also published online.59

45.In the absence of any further complaint endorsed by the House, the Government can be considered to have complied with the requirements of the resolution of 13 November and the order of 4 December.

Observations

46.We make the following observations on the resolution of the House of 13 November 2018 and the subsequent proceedings:

a)The motion for return was tabled by the Opposition on the afternoon of the sitting day before the debate was due to take place. This gave little if any time for discussions to take place to ascertain what information was being sought in the return and whether it could be provided.

b)During the course of the debate, the Member moving the motion sought to clarify the information required, and to state what he would consider to comprise compliance with the resolution of the House if it were agreed to. This proposition was not formally endorsed by the House, and the Attorney General later claimed that the resolution was ambiguous.

c)The Law Officers’ convention prevented Ministers from disclosing to anyone outside Government whether any advice provided by the Attorney General existed. The existence of a letter, dated 13 November 2018, which might have fallen within the scope of the resolution was only indicated by a press report on 2 December.

d)Ministers apparently did not seek to discuss how the resolution might be moderated or otherwise complied with. The papers sought in the motion for return were not laid before Parliament as a response to the resolution: instead, the Government presented a legal commentary on the provisions of the withdrawal agreement signed on 25 November.

e)It was left to the House as a whole to adjudicate, following debate, on a claim that the Government had not complied with the resolution of 13 November. There was no mechanism for a body of the House to assess the competing claims and to provide a report to the House for its information. Nor was there a mechanism for a body of the House to assess, on behalf of the House, Ministerial claims that the public interest merited the withholding of certain information.


25 “Return” is used here in the sense of “an official report or statement submitted in response to a formal demand”.

26 House of Commons Service (PHP0005), paras 3.2 and 3.3

27 The Budget “Red Book”, formally known as the Budget Report, provided to the House at the same time as the Chancellor of the Exchequer’s annual Financial Statement, is presented as a return to an Order of the House. So are the annual accounts of the Contingencies Fund. The Sessional Returns, a collection of returns of statistical and other information about the business of the House and its committees in a session, are published early in the subsequent session as a return to an order of the House, formally moved by one of the Deputy Speakers.

28 The motions for papers moved by Ministers in the 2017–19 Session to date are listed in Table 1 of the annex to this report.

29 House of Commons Service (PHP0005), para 3.4

30 The Clerk of the House explained that the distinction between the use of either procedure was a matter of constitutional theory and was of no practical difference. House of Commons Service (PHP0005), paras. 4.1–4.4

31 PHP0005, para 3.7, citing Erskine May (24th edition, 2011) p. 352

32 Warsama & another v the Foreign and Commonwealth Office & others, [2018] EWHC 1461 (QB), 15 June 2018, esp para 100. The claimants alleged that the report of the Wass Inquiry, published on 10 December 2015 following a motion for unopposed return, breached their rights under Article 8 of the European Convention on Human Rights. The FCO submitted that the content of the inquiry report was protected by Parliamentary privilege. The judgment examined, among other things, the basis of the FCO’s claim, given that there did not appear to be a previous relevant judgment (para 13) which dealt with a privilege defence to a claim against a paper produced in response to a motion for unopposed return. The judgment found that the unopposed return procedure did provide a defence against claims which sought to challenge the accuracy or the content of the paper (para 110).

33 Ibid. paras 118–130: leave was given to the claimants to appeal, and the FCO to counter-appeal, given the public interest, the constitutional interest of the matters decided and the lack of previous high authority on the points raised.

34 The Clerk of the House observed that the use of such motions in the current Parliament has been “in no small part a reaction to the decision of the Government not to oppose Opposition Day motions in the division lobbies”: PHP0005, para 5.16.

35 The motions are listed in Table 2 of the annex to this report.

36 For details see Annex, Table 2.

37 Work and Pensions Committee, Fifth Report of Session 2017–19, Universal Credit Project Assessment Reviews, HC (2017–19) 740, para 2

38 Motions of 1 November and 5 December 2017 and 24 and 31 January 2018

39 Motion of 13 November 2018

40 Motion of 16 May 2018

41 Motions of 2 May, 23 May and 17 October 2018 and 14 May 2019

42 For details see Annex, Table 2. The first such motion, tabled for debate and decision on 1 November 2017, required several papers to be provided by return: a “list of sectors analysed under the instruction of Her Majesty’s Ministers, and referred to in the Answer of 26 June 2017 to Question 239”, to be provided to the House, and “the impact assessments arising from those analyses”, to be provided to the Committee on Exiting the European Union. The motion was agreed to without a division. On 27 November 2017 the Department for Exiting the European Union provided to the Exiting the European Union Committee papers which purported to comply with the second element of the resolution. On 6 December 2017 the Committee resolved that these papers complied with the terms of the resolution: Formal Minutes of the Committee on Exiting the European Union, Session 2017–19, Resolved, That, in view of the statement that no impact assessments have been undertaken, the Committee considers that the Government’s response to the resolution of the House of 1 November has complied with the terms of that resolution.

43 The subject matter of the debate was changed during the course of the day on 12 November: notice had previously been given that the matter to be debated would be a motion relating to mental health. Order Paper (Future Business A), 12 November 2018, p. 22.

44 Order Paper, 13 November 2018, p. 6. A backbench amendment to the motion was tabled, the effect of which would have been to require the production of “a full, reasoned position statement laying out the Government’s political and legal position on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union, to include a statement as to the Government’s position on the legal effect of the proposed withdrawal agreement in respect to the UK’s ability to withdraw unilaterally from the backstop and to prevent the imposition of regulatory barriers between Northern Ireland and Great Britain.” The amendment was not selected.

45 HC Deb, 13 November 2018, col. 192

46 Ibid, col. 191. “The backstop” refers to the arrangements for the border between Northern Ireland and the Republic of Ireland negotiated between the UK and the EU which, under a withdrawal agreement, are intended to come into effect if no other solutions to maintain the current open border can be agreed once the UK leaves the EU.

47 HC Deb, 13 November 2018, cols 199–206 [Chancellor of the Duchy of Lancaster, Rt Hon David Lidington MP] and 232–35 [Solicitor General, Robert Buckland MP]

48 Ibid., cols 235–36.

49 Q83 (Sir David Natzler)

51Revealed: Brexit legal advice could sink Theresa May”, The Sunday Times, 2 December 2018. The report did not mention the date of the letter which was said to be the source of the report.

53 HC Deb, 3 December 2018, cols. 546–81

54 Nick Thomas-Symonds MP (PHP0002), annex

56 Speaker’s Statement, HC Deb, 3 December 2018, col. 625. Caroline Lucas MP did not sign the letter alleging contempt but signed the privilege motion.

57 Votes and Proceedings, 4 December 2018: Resolved, That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication. This is thought to be the only recorded instance of the House passing a resolution finding Ministers in contempt. The then Clerk of the House, Sir Richard Barlas, reported to the Procedure Committee in 1978 that no record could be found of the House holding a Minister of the Crown in contempt: First Report of the Select Committee on Procedure, Session 1977–78, HC (1977–78) 588-III, Appendix 40, para 5.

58 Exiting the EU: Publication of Legal Advice, HCWS 1142, 5 December 2018.

59 Letter from the Attorney General to the Prime Minister, dated 13 November 2018, published on GOV.UK by the Department for Exiting the European Union.




Published: 20 May 2019