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614 British Government and the Constitution


committees, each of them ˜shadowing™ one or more government departments
and their associated bodies:
Communities and Local Government
Constitutional A¬airs
Culture, Media and Sport
Defence
Education and Skills
Environment, Food and Rural A¬airs
Foreign A¬airs
Health
Home A¬airs
International Development
Northern Ireland A¬airs
Science and Technology
Scottish A¬airs
Trade and Industry
Transport
Treasury
Welsh A¬airs
Work and Pensions
If it is to keep the work of a department and its satellite public bodies under
e¬ective review a committee may need to appoint a sub-committee to carry out
simultaneous inquiries. A committee may meet concurrently with any other
committee of either House and committees may make available to each other
evidence taken by them in the course of their inquiries. Since 1999 four com-
mittees “ those for Defence, Foreign A¬airs, International Development and
Trade and Industry “ have worked together in scrutinising the government™s
policy on strategic export controls: in acknowledging the work of this ˜quadri-
partite committee™ a Foreign O¬ce minister paid it the compliment of having
˜given the government so much trouble™ in its ˜detailed and expert analysis™
(HC Deb vol 359, col 32 WH, 14 December 2000).
The maximum number of members of a ˜departmental™ (departmentally
related) committee is in most cases eleven, but some have a maximum mem-
bership of thirteen or fourteen. Since 1979 members have been appointed on
the nomination of an all-party Committee of Selection which would have
regard to the balance of parties in the House. In practice, however, government
and opposition Whips exercised a covert and decisive in¬‚uence, as has been seen
from time to time when backbenchers of independent spirit have been deprived
of their places on select committees. When two Labour MPs were excluded
from, respectively, the Foreign A¬airs Committee and the Transport, Local
Government and the Regions Committee, seemingly for the vigour with which
they had performed their function of critical scrutiny, the House of Commons
delivered a rare cross-party rebuke to government in voting to restore the two
615 Parliament and the responsibility of government


members to their places on the committees. (See HC Deb vol 372, cols 35 et seq,
16 July 2001; vol 372, cols 508 et seq, 19 July 2001.)
A House of Commons committee has declared it to be ˜wrong in principle
that party managers should exercise e¬ective control of select committee mem-
bership™ (Liaison Committee, First Report, HC 300 of 1999“00, para 13). The
Government initially disfavoured any change in the system of nomination (see
the Government™s Response to the Liaison Committee™s Report, Cm 4737/2000,
paras 6“14) but a new Leader of the House (Mr Robin Cook) proved more
¬‚exible (see HC Deb vol 372, col 1320, 18 October 2001), and the matter was
considered afresh by the Modernisation Committee, chaired by the Leader of
the House. In its First Report, HC 224-I of 2001“02, that committee made a pro-
posal for placing nominations to all select committees ˜in the hands of an inde-
pendent authoritative body™, which would ˜command the con¬dence of the
House on both sides™. This would be a new Committee of Nomination, com-
posed of the Chairman of Ways and Means, seven members of the Chairmen™s
Panel (who are appointed by the Speaker) and the most senior backbencher
from the government and opposition sides of the House. The political parties
could submit proposals to the Committee of Nomination which, acting with the
˜utmost impartiality™, would scrutinise the proposals made and would have the
¬nal say. When the matter came before the House for decision, MPs were not
persuaded of the case for a Committee of Nomination which, it was objected,
would assume powers belonging properly to the parties in Parliament and the
House as a whole. The in¬‚uence of the Whips may perhaps be discerned in this
outcome. (See HC Deb vol 385, cols 648 et seq, 13 May 2002.) Reform-minded
MPs continued to campaign for a new system of election to select committees,
providing for nominations to be made by any member and election by secret
ballot of MPs. Meanwhile the unreformed nomination procedure remains in
place, and prevention of abuse depends, as before, on the will of the House to
resist manipulation by the Whips.
The departmental select committees are the preserve of backbenchers:
neither Parliamentary Private Secretaries nor frontbench spokesmen are
appointed to them. The committees elect their own chairpersons, but informal
arrangements have ensured that a number of the chairs are occupied by oppo-
sition members, account being taken of the balance of parties in the House.
Chairpersons serve on a Liaison Committee which coordinates the work of
select committees and makes representations on their behalf (on sta¬ng,
powers, etc) to the House. The Liaison Committee™s report, Shifting the Balance
(First Report, HC 300 of 1999“00), assessed the e¬ectiveness of the departmen-
tal committees and proposed reforms for strengthening them in their task of
holding the executive to account. Few of the recommendations were imple-
mented and the committee expressed disappointment with the Government™s
response (Shifting the Balance: Un¬nished Business, HC 321-I of 2000“01). The
project was resumed by the Modernisation Committee under its reform-
minded chairman and Leader of the House, Mr Robin Cook. Its First Report
616 British Government and the Constitution


of 2001“02 (above) made twenty-two recommendations for enabling the
committees to perform their task of scrutiny more e¬ectively. The proposed
reforms included additional sta¬ and resources for the committees, an alterna-
tive parliamentary career structure devoted to scrutiny, with salaries for
committee chairpersons, and a clear de¬nition of committees™ common objec-
tives. These proposals were approved by the House of Commons on 14 May
2002 (HC Deb vol 385, cols 648 et seq). Following this resolution, the Commons
Liaison Committee de¬ned the ˜core tasks™ of the committees: these, it is said,
˜now provide the central scrutiny agenda for the accountability of ministers and
their departments to Parliament™ (Annual Report of the Liaison Committee for
2004, HC 419 of 2004“05). They are set out as follows, in guidance to each
committee.

O B J E C T I V E A : T O E X A M I N E A N D CO M M E N T O N T H E P O L I C Y O F T H E D E PA R T M E N T

Task 1 To examine policy proposals from the UK Government and the European Commission
in Green Papers, White Papers, draft Guidance etc, and to inquire further where the
Committee considers it appropriate.
Task 2 To identify and examine areas of emerging policy, or where existing policy is defi-
cient, and make proposals.
Task 3 To conduct scrutiny of any published draft bill within the Committee™s responsibilities.
Task 4 To examine specific output from the department expressed in documents or other
decisions.

O B J E C T I V E B : T O E X A M I N E T H E E X P E N D I T U R E O F T H E D E PA R T M E N T

Task 5 To examine the expenditure plans and out-turn of the department, its agencies and
principal NDPBs.

O B J E C T I V E C : T O E X A M I N E T H E A D M I N I S T R AT I O N O F T H E D E PA R T M E N T

Task 6 To examine the department™s Public Service Agreements, the associated targets and
the statistical measurements employed, and report if appropriate.
Task 7 To monitor the work of the department™s Executive Agencies, NDPBs, regulators and
other associated public bodies.
Task 8 To scrutinise major appointments made by the department.
Task 9 To examine the implementation of legislation and major policy initiatives.

O B J E C T I V E D : T O A S S I S T T H E H O U S E I N D E B AT E A N D D E C I S I O N

Task 10 To produce reports which are suitable for debate in the House, including
Westminster Hall, or debating committees.


Each of the departmental committees has power ˜to send for persons, papers
and records™. This formal power is rarely exercised, the committees preferring
to proceed by invitation rather than command, but some initial refusals to
appear or provide evidence have led to the service of formal orders by the
617 Parliament and the responsibility of government


Serjeant-at-Arms. The committees cannot themselves enforce their orders,
but a refusal to comply could be reported to the House which might treat the
refusal as a contempt. MPs and ministers may be ordered to attend select
committees or produce documents only by the House itself. (See R Blackburn
and A Kennon, Gri¬th and Ryle on Parliament (2nd edn 2003), paras
11-095“11-101; Leopold [1992] PL 541.)
The Leader of the House of Commons gave the following assurance on behalf
of the Government on 25 June 1979 (HC Deb vol 969, col 45):

There need be no fear that departmental Ministers will refuse to attend Committees to
answer questions about their Departments or that they will not make every effort to ensure
that the fullest possible information is made available to them.
I give the House the pledge on the part of the Government that every Minister from the
most senior Cabinet Minister to the most junior Under-Secretary will do all in his or her power
to co-operate with the new system of Committees and to make it a success.

These undertakings have been renewed subsequently and in general have been
honoured by ministers “ although former ministers have refused to give evidence
to committees (Baroness Thatcher in 1994 in the Foreign A¬airs Committee™s
inquiry into the Pergau Dam a¬air) or have attended reluctantly after initial
refusal (Mrs Edwina Currie in 1989 in the Agriculture Committee™s inquiry into
salmonella in eggs). In 2002 the Transport, Local Government and the Regions
Committee expressed its dissatisfaction that no Treasury minister or o¬cial had
consented to appear before it to answer questions about rail franchising or
funding proposals for London Underground, although the Treasury had been
closely involved in decisions taken. The Treasury, it said, ˜is ever more powerful
and in¬‚uential but is unwilling to be fully accountable™ to the scrutinising com-
mittees (Liaison Committee, First Report, HC 590 of 2001“02, Appendix R,
para 8; see also Transport, Local Government and the Regions Committee, First
Special Report, HC 771 of 2001“02). Successive Prime Ministers consistently
refused to appear before select committees until, in April 2002, Mr Blair
announced that he would, in future, submit to questioning by the Liaison
Committee at least once every six months. (It is a noteworthy feature of our
unwritten constitution that the terms on which ministers answer to Parliament
can sometimes be a matter for unilateral decision by the Prime Minister.)
Both ministers and civil servants (including special advisers) appear frequently
before the departmental committees, are questioned at length and in detail, and
are usually helpful to the committees in their inquiries. On the other hand ˜there
remains concern that the lack of speci¬c powers leaves committees at a disad-
vantage in obtaining the fullest cooperation from Government™ (Liaison
Committee, First Report, HC 323-I of 1996“97, para 10). The committees have
sometimes experienced di¬culty in obtaining relevant information from
government (see below) and have complained from time to time of a lack of
frankness on the part of departments.
618 British Government and the Constitution


Committees may summon named civil servants to appear before them and the
government acknowledges a presumption that a request for attendance of a par-
ticular o¬cial will be agreed to, but this is subject to the right of ministers ˜to
decide which o¬cial or o¬cials should represent them™ (Departmental Evidence
and Response to Select Committees, below, paras 43“44). Moreover, ˜Civil servants
who give evidence to Select Committees do so on behalf of their Ministers and
under their directions™ (ibid, para 40), and so may be instructed not to answer
particular questions or disclose certain information. In 1984 the Government
declined to allow the Director of the Government Communications Head-
quarters and a trade union o¬cial employed there to give evidence to the Select
Committee on Employment, which was inquiring into a ban on trade union
membership at GCHQ. (See Employment Committee, First Report, HC 238 of
1983“84, paras 6“7.) In the course of its inquiry into the Westland a¬air (above,
p 378) in 1986, the Defence Committee wished to question ¬ve o¬cials about
their conduct in the a¬air, but ministers refused to allow them to attend. The
committee criticised this refusal as an evasion of accountability to Parliament,
and was supported in this by the Treasury and Civil Service Committee: Defence
Committee, Fourth Report, HC 519 of 1985“86, paras 225“38; Treasury and Civil
Service Committee, Seventh Report, HC 92-I of 1985“86, para 3.18. The
Government said in its reply that it did not believe ˜that a Select Committee is a
suitable instrument for inquiring into or passing judgement upon the actions or
conduct of an individual civil servant™: Westland plc (Cmnd 9916/1986), para 44.
Guidelines subsequently issued to civil servants insist that questions by select
committees about the conduct of individual o¬cials (raising the possibility of
criticism or blame) should not be answered by civil servants: it is the responsi-
bility of the minister to make any necessary inquiry and then to inform the
committee of what happened and of any corrective action taken. (See Depart-
mental Evidence and Response to Select Committees, below, paras 73“8.) In the
Trade and Industry Committee™s Arms Exports to Iraq inquiry, the Government
refused to assist the committee in facilitating the giving of evidence by two retired
o¬cials, on the grounds that they would not have access to departmental papers
and could not give evidence on behalf of ministers (Second Report, HC 86 of
1991“92, para 125; see further S Weir and D Beetham, Political Power and
Democratic Control in Britain (1999), pp 412“13; Erskine May, Parliamentary
Practice (22nd edn 1997), pp 760“1).
Some categories of information are withheld from select committees. The
criteria to be applied by o¬cials are set out in the so-called ˜Osmotherly Rules™
(formerly entitled a Memorandum of Guidance for O¬cials Appearing before
Select Committees) of which the 1980 edition was issued by an o¬cial of that
name. The guidance has since been revised from time to time and has become
less restrictive in recent editions. It is now entitled Departmental Evidence and
Response to Select Committees (2005 edn). The guidance states (para 53) as its
˜central principle™ that o¬cials should be as forthcoming and helpful as possible
to select committees, and that any withholding of information ˜should be
decided in accordance with the law and care should be taken to ensure that no
619 Parliament and the responsibility of government


information is withheld which would not be exempted if a parallel request were
made under the FOI [Freedom of Information] Act™. Information is not to be
disclosed, for instance, if it relates to national security or would be likely to cause
harm to defence, international relations or the economy, or if it concerns the
private a¬airs of individuals or was supplied to the government in con¬dence.
As regards the discussion of government policy, the guidance states (para 55):

Officials should as far as possible confine their evidence to questions of fact and explanation
relating to government policies and actions. They should be ready to explain what those poli-
cies are; the justification and objectives of those policies as the Government sees them; the
extent to which those objectives have been met; and also to explain how administrative
factors may have affected both the choice of policy measures and the manner of their
implementation. Any comment by officials on government policies and actions should always
be consistent with the principle of civil service political impartiality. Officials should as far as
possible avoid being drawn into discussion of the merits of alternative policies where this is
politically contentious. If official witnesses are pressed by the Committee to go beyond these
limits, they should suggest that the questioning should be referred to Ministers.


In a memorandum provided to the Liaison Committee by the Clerks to the
Committee in 2004 it is said:

At least since the 1970s, there has been a continuing struggle between committees and suc-
cessive Governments to establish a modus operandi on attendance by civil servants. The
Government™s position is set out in the so called Osmotherly rules. These have, however,
never been approved by the House, which asserts that it is not for Ministers unilaterally to
abridge or fetter its powers to call evidence. On the other hand, political reality implies that
these powers cannot be enforced against the wishes of a Government with a majority in the

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. 115
( 155 .)



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