Further memorandum by the Clerk of the
House of Commons
PAPERS ORDERED TO BE PRINTED BY THE HOUSE
OF COMMONS
1. I understand from the Commons Clerk to
the Joint Committee that it proposes to consider the application
of the Parliamentary Papers Act 1840 to House and Government papers.
The Joint Committee would, in particular, like me to clarify:
i. What categories of papers are ordered
to be printed by the House of Commons?
ii. What are the criteria upon which such
orders to print are given?
iii. What are the procedures for obtaining
such orders?
iv. What are the problems arising from current
procedures? What solutions would I suggest?
2. The answers to the specific questions
are as follows:
CATEGORIES
i. With few exceptions all papers ordered
to be printed consist of two broad categories:
CRITERIA
ii. Typically, House papers are tabled by
members carrying out a specific function on behalf of the House
(eg the Chairman of a Select Committee making a report from that
Committee). Some papers (eg reports of the Comptroller and Auditor
General or the Parliamentary Commissioner for Administration;
both Officers of the House) are laid on their behalf by the Clerk
of the House. The Speaker also lays certain papers (eg reports
of the House of Commons Commission). The large majority of Government
Papers (including those of Agencies and Non Departmental Public
Bodies) are laid by Ministers of the Crown: some departmental
audits are, however, presented to the House by the Comptroller
and Auditor General and therefore laid upon the Table by the Clerk.
A private Member, acting in that capacity, has no right to formally
lay a paper.
All House papers customarily receive an order
to print. Many papers required to be laid by statute also receive
an order to print including virtually all papers relevant to the
financial responsibilities of the House. In most cases Departments
take the view that it is more appropriate for papers they are
required to lay before the House of Commons to be published under
the authority of the House than issued as a Departmental paper.
PROCEDURES
iii. Printing orders are given automatically
to House papers, and to other papers at the request of the Department
concerned. All papers presented by the Comptroller and Auditor
General, by the Parliamentary Commissioner for Administration
and by other Parliamentary Commissioners established by statute
also regularly receive orders to print. A printing order is entered
in the Votes and Proceedings on the day on which the Paper is
laid before the House and appears as part of the entry recording
that it has been formally received by the House. No statistics
are routinely kept of the number of printing orders given to different
categories of paper. An analysis of the orders given in the current
session to June of this year is given in Annex A.
PROBLEMS
iv. One might question whether it remains
necessary for so wide a range of Government papers to be absolutely
protected from legal action by the 1840 Act. The Joint Committee
may recall that the Clerk of the Parliaments and I drew attention
to this matter in our memorandum to the Committee. It is considered
further in paragraphs 8 to 15 below.
COMMAND PAPERS
AND RETURNS
3. Apart from Act Papers there are two other
categories of Papers which it is relevant to consider:
(i) Command Papers—It is not
established with any certainty whether or not the Parliamentary
Papers Act 1840 applies to Command Papers. In the last case in
the courts in which the issue was considered[84]
it was accepted that papers laid before Parliament by a Minister
"by Her Majesty's Command", and not published until
so laid, were protected by the Act. This is, perhaps, a surprising
interpretation of the Act. The matter was examined in 1970 by
the Joint Committee on the Publication of Proceedings in Parliament.
Their opinion was that "the present situation is unsatisfactory
and requires clarification". After careful consideration
the Joint Committee decided that "Command Papers should not,
as such, receive the protection afforded by the 1840 Act"
(paragraph 56). No action has since been taken to clarify the
position, but Departments generally act on the basis that the
1840 Act does not apply to Command Papers. In our memorandum the
Clerk of the Parliaments and I suggested to the Committee that
it might recommend legislation to exclude Command Papers definitively
from the 1840 Act.[85]
(ii) "Unopposed Returns"—Governments
may also lay papers by an older procedure: by moving a motion
in the House for the "unopposed return" of the document
they wish to lay before the House and be printed on its authority.
The large number of papers now required to be laid by statute,
combined with the more frequent use of "Command Papers"
might have been expected to make this procedure obsolete. It has
survived very largely[86]
because of uncertainty over the extent to which Command Papers
have absolute privilege. The procedure of an "unopposed"
return was introduced originally to avoid the inconvenience of
the House of having formally to consider motions by ministers
for returns of largely uncontroversial information from their
own Departments. It is now used by ministers almost exclusively
in order to ensure that a report of a ministerial inquiry will
not be subject to actions for defamation. Use of the procedure
is infrequent. It is not popular with Departments since it involves
three stages: a motion for the return in the name of the minister
must be tabled (like any other motion) on a sitting day, moved
(like any other motion) on a sitting day, and the return made
(by publication of the report) on a sitting day. Most typically
the report is of such moment that it is published on the day on
which the motion is moved (though this is not essential) and the
Minister will make a statement upon it to the House at 3.30 pm.
Although other Members cannot oppose the motion, the procedure
ensures that Members receive clear notice of presentation. A list
of recent unopposed returns is set out in Annex B.
ORIGIN AND
PURPOSE OF
THE PRINTED
SERIES
4. There are some considerations which the
Joint Committee may wish to bear in mind when looking at the current
practice and possible changes.
5. At lease since the beginning of the nineteenth
century, laying papers before the House has been as much a means
of achieving wider publication as of informing the House. There
are two strands in the development of the practice. The first
is the most obvious: the House needed a means to inform not only
its own members but the wider public of its proceedings, particularly
as it became more dependent on an expanding electorate and an
informed press. The second strand may be the older one: Governments
have long needed to place before the House and publicise more
widely a very wide range of information. Much of this information
relates directly to the role of the Commons in granting supply,
raising revenue, and in scrutinising the accounts afterwards.
But not all. For a very long time, governments have also presented
to the House a much wider range of documents. The mid-nineteenth
century Journals provide many examples of printed papers relating
to such matters as defence, law and order, or events in British
possessions overseas, as well as a great deal of statistical material.
6. Thus, presenting papers to the House
of Commons has long been a primary means of government publication.
This has been encouraged by the repeatedly expressed view of the
House of Commons that it must be kept fully informed and that
it must be the first to be informed. Motions for the return of
papers (often moved by Ministers) have given way increasingly
to Command Papers and to papers laid in response to a requirement
in statute, but the principle remains the same. It is therefore
simplistic to look at Stockdale v Hansard in strictly parliamentary
terms. That case arose in relation to a report laid upon the Table
by the inspector of prisons as required by statute and published
as a matter of course on the authority of the House. The annual
report of the Chief Inspector of Prisons is still ordered to be
printed by the House and enjoys the protection of the 1840 Act.
While it may seem logical that that Act should apply only to papers
emanating from Parliament this was never the exclusive, or even
the primary, purpose of its authors.
"SESSIONAL PAPERS"
7. There are other considerations. An order
to print a paper has the effect of including that paper within
the series of Parliamentary papers for the session: indeed another
term for them, more commonly used in the past than in the present,
is "sessional papers". Inevitably the Joint Committee
will be looking at the issue of a printing order primarily within
the context of the absolute legal immunity conferred upon that
paper. This has never been the main reason for including a paper
within the House of Commons printed series. More important has
been the coherent ordering by the House of its own papers, and
of the papers required by statute to be laid before it, and maintaining
the continuity of established series of documents. (The Joint
Committee may wish to take evidence from the Library on this aspect).
An order to print affirms the status of a paper as a parliamentary
paper, and gives the authorities of the House an appreciable measure
of control over its presentation and format. For example, although
the recently adopted practice of incorporating audited accounts
within the reports of Executive Agencies and other public bodies
is adding a large category of documents to those receiving printing
orders, the fact that they thereby become parliamentary papers
has enabled the authorities of the House, in conjunction with
the Treasury and the National Audit Office, to impose conditions
in respect of their content, format, and availability. Many Act
Papers place before the House information which is directly relevant
to the work of the Departmental Select Committees. The requirements
of these Committees, too, influence their presentation and content.
Finally, and perhaps most important of all, by giving an otherwise
departmental document the status of a House paper, the House ensures
its ready availability to members, and its availability to the
public nationally through the House's publisher. Members are frequently
concerned by the lack of availability of public documents which
only appear ephemerally or which have limited circulation.
PREVIOUS REVIEWS
8. In 1970 the Joint Committee on the Publication
of Proceedings in Parliament set itself the following questions:
(i) Should Act Papers be protected by absolute
privilege in respect of any defamatory matter they may contain,
so that no action whatever can be brought in respect thereof?
(ii) Should a differentiation be made so
that those Act Papers which are ordered to be printed and published
by order or under the authority of either House would be entitled
to absolute privilege under the 1840 Act: while all others would
receive qualified privilege? (paragraph 42)
9. The Joint Committee considered that there
was no reason for withdrawing from Act Papers published by order
or under the authority of the House the absolute privilege they
already attract under the 1840 Act. "The same reasons which
led Parliament to pass that Act following upon the decision of
the Court in Stockdale v. Hansard apply to such papers".
It saw no reason why absolute privilege should be extended to
other Act Papers. However it drew attention to "the somewhat
haphazard manner" in which printing orders were accorded
to some Act Papers, but not to others and recommended that "rules
should be prescribed to regulate this matter". (paragraph
44). The Joint Committee had not taken detailed evidence on this
point; nor had they taken into account consideration of factors
other than privilege which might affect whether a paper might
be included within the sessional series of House papers. The recommendation
was never formally adopted by the House of Commons.
10. Following a review of practice relating
to the laying of papers[87]
in the 1970's, the Journal Office sought in 1980 to institute
a policy by which printing orders would be restricted to Act Papers
in the following broad categories:
(a) reports and associated papers of committees
of the House itself;
(b) reports and accounts which were accompanied
by Reports of the Comptroller and Auditor General.
11. This policy met with strong resistance
both from Government Departments and from within the House. Consequently
it had only limited success. Departments tended to take the view
that a statutory requirement to lay a document before the House
of Commons implied that it ought to be published on the authority
of that House, and be within the numbered series of "sessional
papers". The Vote Office and the Printed Papers Office drew
attention to the fact that they received parliamentary papers
for distribution to Members as a matter of course, but papers
not in the parliamentary series were not always readily provided
by the originating departments, or in the quantity required for
distribution. The Libraries drew attention to the administrative
advantages in handling properly numbered documents and to the
interruption that would occur in established series of annual
papers. Parliamentary papers together with Command Papers were
in those days given much higher printing priority than Departmental
papers. Although the privatisation of HMSO has brought changes,
it remains the case that parliamentary publications are very often
more readily available to Members, and to members of the public,
than departmental papers; and remain available for a longer period
of time.
12. It might be that a new attempt should
be made to reduce the number of papers which receive a printing
order. The criteria adopted by the Journal Office in 1980 might
not be entirely appropriate at a time when, as has been noted
above, the number of agency and other reports and Accounts incorporating
reports by the Comptroller and Auditor General is rapidly increasing
as a result of the policy of successive Governments (encouraged
by Select Committees) to ensure that newly created agencies and
other bodies are properly accountable to the House. It is difficult
to think of other criteria which would not be arbitrary to some
extent or which would not create new anomalies.
13. An alternative may be to separate the
granting of absolute privilege from the classification of a paper
as a parliamentary paper. Absolute privilege might be confined
to papers originated by the House itself or otherwise forming
part of proceedings (eg evidence to a Select Committee, Petitions).
It might be that such a change would lead to a disintegration
of the system of professional papers, unless the House ordered
that certain categories of papers should continue to be laid as
parliamentary papers and be subject to a measure of control by
the House in content and format. This difficulty does not seem
insuperable though finding a solution would require careful and
detailed examination. The unopposed return procedure might be
used by the Government in those cases where the public interest
requires protection. The risk would be that many Act Papers might
simply be presented as returns.
14. I make this suggestion with some diffidence;
clearly Government departments will have their own views and should
be consulted. The unopposed return procedure is not open to the
Comptroller and Auditor General (or his Northern Ireland counterpart)
or to the Parliamentary Commissioner for Administration, or other
Parliamentary Commissioners, all of whom have special responsibilities
towards the House. Since a substantial number of papers are ordered
to be printed because they contain reports by the Comptroller
and Auditor General, and since the National Audit Office also
publishes an increasing number of audit reports and value for
money (see Annex A) his views are especially important.
15. Opinion generally is more conscious
now than in the past of the need to limit absolute legal immunity
of the kind provided by the 1840 Act. While the Official Report,
and Select Committee reports and evidence should continue to enjoy
the protection of the Act, its application seems less justifiable
in other cases: eg a small agency whose affairs are seldom considered
by Parliament. I hope that the Joint Committee will draw attention
to this apparently needless extension of parliamentary immunity
and (since it is almost exclusively a House of Commons problem)
make recommendations which might form the basis of a broader inquiry
into parliamentary papers by the Procedure, Administration or
Information Committee of that House.
W R McKay
11 November 1998
Annex A
The total number of printing orders for papers
made by the House of Commons and recorded in the Votes and Proceedings
between 7 May 1997 and 30 June 1998 is as follows:—
HOUSE PAPERS
Select Committee Reports - 274
Daily parts of evidence of Select Committees - 581
Bills: Minutes of Proceedings of Standing Committees:
Reports of Joint Committee on Consolidation &c - 47
(Note: Departmental observations on public
petitions printed in the Votes are not counted)
Report on a Measure by the Ecclesiastical Committee
- 1
PAPERS FROM DEPARTMENTS AND OTHERS
1. Papers relating to supply and public finance (Financial
Statements, Estimates, Appropriation Accounts, etc) - 52
2. Papers subject to affirmative resolution by the
House - 20
3. Parliamentary Commissioner for Administration,
Health Services Commissioner; Parliamentary Ombudsman for Northern
Ireland and Northern Ireland Commissioner for Complaints - 14
4. The Law Commissions - 10
5. Reports from statutory bodies (including Executive
Agencies, Non Departmental Public Bodies, Trading Funds required
to be laid by Act and incorporating Reports of the Comptroller
and Auditor General[88]
- 104
6. Miscellaneous Accounts ordered to be laid by statute
together with reports of the Comptroller and Auditor General thereon
- 121
7. Other Reports laid by the Comptroller and Auditor
General (and the Comptroller and Auditor General of Northern Ireland)
(mainly audit reports) - 63
8. Audited accounts (by the Comptroller and Auditor
General) relating to Members - 3
9. Report by the Comptroller and Auditor General
on the Annual Report of the European Court of Auditors - 1
10. Miscellaneous reports required to be laid by
Ministers by statute - 40
11. Returns to Addresses or motions for unopposed
return -- 4
(Two of these returns related to the Contingencies
Fund; see Annex B)
Annex B
REPORTS PUBLISHED ON MOTION AND ON ADDRESS
AS "UNOPPOSED RETURNS" SINCE SESSION 1992-93
Session 1992-93
| Date -- Journal page references[89]
|
| On motion: | |
| Bank of Credit and Commerce International: |
22 Oct -- 202,203 |
| Contingencies Fund: | 4 Feb -- 398,400
|
| Serious Fraud Office: | 1 Jul -- 720,722
|
| On Address: | |
| Election Expenses: | 15 Apr -- 559,560
|
| Fife Child Care Inquiry Report: | 27 Oct -- 208,211
|
| Maguire Case (Second Report): | 3 Dec -- 289,291
|
| Nimmo Smith/Friel Report: | 26 Jan -- 369,372
|
| Orkney Inquiry Report: | 27 Oct -- 208,211
|
| Session 1993-94 | Date -- Journal page references
|
| On motion: | |
| Contingencies Fund: | 28 Feb -- 205,207
|
| On address: | |
| May Inquiry (Final Report) | 30 Jun -- 417,419
|
| Session 1994-95 | Date -- Journal page references
|
| On motion: | |
| Barings | 18 Jul -- 462,465
|
| Contingencies Fund: | 8 Mar -- 205,209
|
| On Address: | |
| [nil] | |
| Session 1995-96 | Date -- Journal page references
|
| On motion: | |
| Contingencies Fund: | 1 Apr -- 274,285
|
| On Address: | |
| Child Care Procedures and Practice in North Wales:
| 17 Jun -- 414,417 |
| Export of Defence and Dual-use Goods to Iraq:
| 15 Feb -- 171,172 |
| Session 1996-97 | Date -- Journal page references
|
| On motion: | |
| [nil] | |
| Session 1997-98 | Date -- Journal page references[90]
|
| On motion: | |
| Contingencies Fund: | 3 June -- 38, 42
|
| Contingencies Fund: | 14 May -- 566,568
|
| On Address: | |
| Maze Prison (Narey Inquiry) | 2 April -- 506,507
|
| Eyre Review (Lyric theatre) | 30 June -- 647,649
|
| Legg Report (Arms Sales to Sierra Leone) |
27 July -- 723,727 |
| |
82
As will be seen from Annex A accounts laid by statute constitute
one significant category of printed papers. Another major category
is comprised of reports on the activities of departmental bodies
and executive agencies. These incorporate accounts audited under
statute by the Comptroller and Auditor General (who is an Officer
of the House of Commons with particular responsibility to the
Public Accounts Committee) and therefore obtain a printing number.
The only category not laid by statute are papers laid by unopposed
return (paragraph 3). Back
83
A very few Command Papers directly related to expenditure (the
Vote on Account, the Estimates) are also ordered to be printed
by the House. Back
84
Mangena V Edward Lloyd (1908) LT. 98. 640. Back
85
Memorandum of the Clerk of the Parliaments and the Clerk of the
House of Commons, paragraph 41. Back
86
Until comparatively recently a variety of annual statistical and
financial information was laid before the House under the procedure.
As can be seen from Appendix B a few cases survive. The Financial
Statement and Budget Report is also laid in response to a motion
for a Return moved by the Chancellor of the Exchequer. Back
87
One result of the review was to end a common Departmental practice
of laying parliamentary papers in the Votes and Proceedings Office
in "dummy" (ie incomplete) form. Back
88
Including Northern Ireland Accounts reported on by the C and AG
(Northern Ireland). Back
89
The first page number refers to the moving of the motion or Address,
the second to the record of the order to print in the papers appendix. Back
90
Page references are to the first proof of the 1997-98 Journal. Back
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