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House. The resulting agreement to disagree, on this point, together with undertakings by
Government, most notably set out in the Resolution of 19 March 1997 [above, p 572], have
created informal conventions which normally enable committees to carry out their work
without major hindrance. However, periodically there are refusals of cooperation over par-
ticular Government witnesses.


Various instances of di¬culty experienced by committees in securing informa-
tion or the attendance of witnesses are recounted by the Liaison Committee
(Shifting the Balance: Un¬nished Business, HC 321-I of 2000“01, paras 118“26).
A committee which is dissatis¬ed with a department™s refusal to disclose
information to it may report the matter to the House. The Leader of the House
said on 16 January 1981 (HC Deb vol 996, col 1312):

I am entirely prepared to give a formal undertaking that where there is evidence of wide-
spread general concern in the House regarding an alleged ministerial refusal to disclose
information to a Select Committee, I shall seek to provide time to enable the House to
express its view.
620 British Government and the Constitution


This undertaking is rea¬rmed in Departmental Evidence and Response to Select
Committees, para 30.
When the Government refused in 1998 to provide the Foreign A¬airs
Committee with copies of telegrams received at the Foreign O¬ce relating to
breaches of an embargo on the supply of arms to Sierra Leone, the committee
asked that the matter should be debated in the House: Foreign A¬airs
Committee, First Special Report, HC 760 of 1997“98 and Second Special Report,
HC 852 of 1997“98. The issue between the Government and the committee was
not yet resolved when it was raised for debate on an Opposition motion. The
motion was defeated, the Government having a¬rmed its readiness to provide
the committee with a summary of the telegrams on a con¬dential basis: HC Deb
vol 315, cols 865 et seq, 7 July 1998. In 2003 the Foreign A¬airs Committee, in
its report on The Decision to Go to War in Iraq, was ˜strongly of the view that we
were entitled to a greater degree of co-operation from the Government on
access to witnesses and to intelligence material™. It regarded ˜the Government™s
refusal to grant us access to evidence essential to our inquiries as a failure of
accountability to Parliament™. (Ninth Report, HC 813 of 2002“03, paras 6, 163.
See also this committee™s Second Report, HC 522 of 2005“06, paras 16“23.)
The relative weakness of select committees (despite their formal power to
send for persons, papers and records) in face of a refusal to produce documents
has been contrasted with the experience of the (non-statutory) Hutton Inquiry
into the Circumstances Surrounding the Death of David Kelly CMG (HC 247
of 2003“04), which was able to secure production of all the documents that it
required, some of which had been denied to the Foreign A¬airs Committee.
(See the Memorandum to the Liaison Committee by the Clerks to the Com-
mittee, cited above; Foreign A¬airs Committee, First Special Report, HC 440 of
2003“04, paras 9“12; Annual Report of the Liaison Committee for 2003, HC 446
of 2003“04, paras 87“91.) In its Annual Report for 2004, HC 419 of 2004“05,
para 130, the Liaison Committee was encouraged by the new assurance in para
68 of Departmental Evidence and Response to Select Committees that ˜the
presumption is that requests for information from Select Committees will be
agreed to™. This declaration, it is hoped, will herald a greater readiness to coop-
erate with the committees. In any event it has been the case, as Michael Ryle
remarks, ˜that in the end nearly all committees have succeeded in getting
answers to the vast majority of the questions they ask. Little remains hidden™
((1997) 11 Contemporary British History 63, 69).
High hopes have been expressed for what the departmental committees
might achieve, as when a Leader of the House said that they were intended to
˜redress the balance of power™ between Parliament and the executive (HC Deb
vol 969, col 36, 25 June 1979). As such, the committees have an important role
in the scrutiny of the executive. Ministers and civil servants are questioned in
depth in a way that is impossible on the ¬‚oor of the House, and are obliged to
explain and justify their actions. Departmental activities are investigated, in
many hours of questioning, by members who have acquired some pro¬ciency
621 Parliament and the responsibility of government


in the subject and can call on the assistance of expert advisers. Not only the
departments themselves but others involved with or a¬ected by their policies “
local authorities, political parties, pressure groups, industrialists, trade unions “
may be called to give evidence. The committees have prised many facts and
explanations from the departments that could not have been extracted in any
other way, and their published reports (300 or more in a parliamentary session)
constitute a considerable body of information about the processes of govern-
ment. (For instance, it has been remarked that the reports of the Treasury
Committee are ˜the primary source of what we now know about economic
policy-making™: A Robinson, in G Drewry (ed), The New Select Committees
(2nd edn 1989), p 283.)
The Treasury Committee assumed a new role for itself in 1998 after the estab-
lishment (by the Bank of England Act 1998) of a Monetary Policy Committee
of the Bank of England with responsibility for setting interest rates. The
Treasury Committee decided to hold regular non-statutory ˜con¬rmation hear-
ings™ on appointments of members of the Monetary Policy Committee to satisfy
itself and Parliament that those appointed were of ˜demonstrable professional
competence and personal independence of the government™. (See Treasury
Committee, Third Report, HC 571 of 1997“98 and Sixth Report, HC 822-I, II of
1997“98.) It holds to the view that it should be given power by statute to
con¬rm nominations to the Monetary Policy Committee (Ninth Report, HC 42
of 2000“01, para 49), but the Government has not conceded this. In 2003 the
Public Administration Committee argued that there were ˜solid reasons for
Parliament to take a more assertive approach to public appointments™ and
recommended that select committees should have the right to hold meetings
with proposed appointees to key positions and be empowered to require com-
petition for a post to be re-opened if of the opinion that the person proposed
was unsuitable (Fourth Report, HC 165-I of 2002“03, paras 103“10). The
Government rejected this recommendation. Scrutiny of major appointments is
one of the ˜core tasks™ (above, p 616) of the select committees and it is common
practice for them to hold evidence sessions with incumbents of major posts
soon after appointment.
Another of the committees™ core tasks is the scrutiny of draft bills, in this way
making a useful contribution to the quality of legislation. For instance, the draft
Freedom of Information Bill was scrutinised by the Select Committee on Public
Administration in 1999, and in 2001 three committees (Home A¬airs, Defence
and the Joint Committee on Human Rights) commented on the Anti-terrorism,
Crime and Security Bill before its second reading; two amendments proposed
by the Home A¬airs Committee were accepted by the Government. In 2003,
forty of the recommendations made by the O¬ce of the Deputy Prime Minister
Committee in its examination of the draft Housing Bill had a positive response
from the Government. A number of the recommendations in the report of the
Home A¬airs Committee on the draft Identity Cards Bill in 2004 were incor-
porated in the bill introduced in Parliament. A recent innovation has been the
622 British Government and the Constitution


publication by a committee of its own draft bill, in making a case for legislative
reform. In 2004 the Public Administration Committee published draft bills on
the civil service and on the Executive™s prerogative powers (First Report, HC
128-I and Fourth Report, HC 422 of 2003“04).
Between the departments and the committees that shadow them there is a
continual dialogue, the departments replying to the committees™ reports (nor-
mally within two months), and their replies sometimes stimulating further
inquiry. It has been found possible in the committees ˜for people of widely dis-
parate views to work together exclusively as parliamentarians™ (Mr Edward du
Cann, MP, in evidence to the Select Committee on Procedure (Finance), HC
365-vi of 1981“82, Q 459). The committees do not usually vote on party lines
and generally strive for consensus, which adds weight to reports that are often
sharply critical of government policy or its administration.
It is di¬cult to assess the impact of the committees on governmental deci-
sion-making. Even when recommendations of the committees are accepted, it
may be that departmental thinking was in any event moving in the same direc-
tion. On the other hand, even if a committee™s report has no observable result
it may bring new evidence and argument into the debate within government, or
may contribute to the climate of opinion in which departments must operate.
An instance of direct and signi¬cant impact was the Home A¬airs Committee™s
report on the ˜sus™ law (loitering as a suspected person) which helped to bring
about its repeal by the Criminal Attempts Act 1981.
There has also been some e¬ect on the House as a whole. Select committee
reports may be speci¬cally debated in the House: three Estimates Days are set
aside for such debates in each session, but the main forum for debating select
committee reports is the parallel chamber in Westminster Hall. In addition, many
reports are relevant to the subject matter of other debates. For example, the report
of the Foreign A¬airs Committee on the ˜patriation™ of the Canadian constitution
(see chapter 3) provided much material for the debates in Parliament. Members
of the committees are, too, better equipped to play their part on the ¬‚oor of the
House, in the striving for accountability that takes place there.
The select committees are Parliament™s best method for enforcing the account-
ability of government, and in this they have had some success, although their
achievement has been partial and uneven. Recent changes in the working
methods and objectives of the departmental committees, together with specialist
assistance from a recently established Scrutiny Unit, give promise of more sys-
tematic and e¬ective scrutiny of the executive. A change of culture may also be
needed. Governments are ambivalent in their attitude to select committees: as
Peter Riddell remarks, ˜Too often, select committees have been seen by ministers
and civil servants as a problem to be tackled, and if possible neutralised, than as
a potentially important factor in policy making and implementation, and legis-
lation™ (Parliament under Blair (2000), p 214). The committees themselves cannot
be wholly detached from the contest of the parties in Parliament, engaged there
in a perpetual election campaign. Members of the committees are supportive of
623 Parliament and the responsibility of government


their party, may be hopeful of o¬ce, yet are called upon to assert themselves as
parliamentarians in confronting and restraining the executive. In this they some-
times falter, though it is perhaps remarkable that they are often able to transcend
party di¬erences in exposing the errors and de¬ciencies of government policy
and administration.
Not everyone would welcome an extension of the bipartisan role of select
committees, seen as contributing to a sterile ˜government by consensus™. Tony
Benn, for instance, believes that the select committees ˜have become e¬ectively
a network of coalitions, knitting government and opposition backbenchers
together through a common desire to reach unanimous conclusions™ (in
K Sutherland (ed), The Rape of the Constitution? (2000), p 48).
On the strengths and weaknesses of the committees see further D Woodhouse,
Ministers and Parliament (1994), ch 10; Giddings, ˜Select committees and par-
liamentary scrutiny™ (1994) 47 Parliamentary A¬airs 669; S Weir and D Beetham,
Political Power and Democratic Control in Britain (1999), pp 405“18; P Riddell,
Parliament under Blair (2000), pp 208“22; Tomkins, ˜What is Parliament for?™, in
N Bamforth and P Leyland (eds), Public Law in a Multi-layered Constitution
(2003), ch 3; L Maer and M Sandford, Select Committees under Scrutiny (2004);
Natzler and Hutton, ˜Select committees: scrutiny a la carte?™, in P Giddings,
The Future of Parliament (2005).

(iv) Parliamentary Ombudsman
The o¬ce of Parliamentary Commissioner for Administration (or ˜Parlia-
mentary Ombudsman™ “ the name by which the o¬cer is commonly known) was
established by the Parliamentary Commissioner Act 1967 for the investigation of
complaints by members of the public of injustice resulting from ˜maladminis-
tration™ by government departments. The model for the new o¬ce was the
Scandinavian Ombudsman, but unlike the o¬cers of this title in Sweden,
Denmark, Norway and Finland the British Parliamentary Ombudsman was to be
harnessed to the legislature and to function as an extension of parliamentary
scrutiny and control. The o¬ce was intended, as the Government said in 1965, to
provide members of Parliament with ˜a better instrument which they can use to
protect the citizen™ (The Parliamentary Commissioner for Administration, Cmnd
2767/1965, para 4). The Parliamentary Ombudsman is an independent o¬cer,
appointed by the Crown “ in practice, on the motion of the Prime Minister with
the agreement of the leaders of the main opposition parties and of the Chairman
of the House of Commons Select Committee on Public Administration “ and
answerable to the House of Commons.
The Ombudsman (Ann Abraham in 2006) can at present undertake an inves-
tigation only at the request of an MP, to whom she reports the result. She makes
an annual report to Parliament and other reports as she thinks ¬t and she is sup-
ported by the Select Committee on Public Administration (successor to the
former Select Committee on the Parliamentary Commissioner), which itself
reports to the House on the work of the Ombudsman and takes up with the
624 British Government and the Constitution


departments any cases in which there has been an inadequate response to the
Ombudsman™s ¬ndings.
The linkage with Parliament has been a controversial feature of the institution,
for the ˜MP ¬lter™ has operated in an arbitrary way “ some MPs rarely or never
refer complaints to the Ombudsman while others do so frequently “ and is a hin-
drance to the ordinary citizen in need of a clear and simple remedy for grievances
against the administration. A former Ombudsman has said that ˜the ¬lter serves
to deprive members of the public of possible redress for injustice caused by mal-
administration™ (Annual Report (1993), para 2), but in the view of the then Select
Committee on the Parliamentary Commissioner the ¬lter ˜acts as an extremely
e¬ective sifting mechanism and is one of the greatest strengths of the UK system.
In e¬ect, every individual Member of Parliament is himself an Ombudsman and
deals in his elected capacity with many complaints without having to seek
recourse to the PCA™ (Select Committee on the Parliamentary Commissioner,
First Report, HC 706 of 1987“88, para 9; see also the Committee™s First Report,
HC 33-I of 1993“94, paras 52“77). On the other hand, as the JUSTICE“All Souls
Review remarked, ˜An MP who raises a matter direct with a minister has neither
the time nor the resources to probe the answer which he receives™ (Administrative
Justice (1988), para 5.8). Direct access to the Ombudsman or equivalent o¬cer
by members of the public is allowed in almost every other country that has this
institution, and there is direct access to the Health Service Ombudsman and
Local Government Ombudsmen. A survey carried out for the Cabinet O¬ce,
Review of the Public Sector Ombudsmen in England (Collcutt Report) (2000), was
emphatic in recommending the abolition of the MP ¬lter, supported in this
by the Select Committee on Public Administration, and the Government
accepted this recommendation (HC Deb vol 372, col 464W, 20 July 2001), which
awaits legislative implementation. Some complainants, unaware of the present
restriction, apply directly to the Parliamentary Ombudsman, who has adopted a
practice which mitigates the e¬ect of the present rule. If the complaint seems to
be ˜clearly investigable™, the Ombudsman sends it with the complainant™s consent
to his or her constituency MP, inviting the Member to refer it to the Ombudsman
for investigation.
The Ombudsman can investigate the complaint of a member of the public
˜who claims to have sustained injustice in consequence of maladministra-
tion™ by a scheduled government department or authority (Parliamentary
Commissioner Act 1967, s 5(1) and sch 2), but she is not authorised to question
the merits of a decision taken, without maladministration, in the exercise of dis-
cretion (s 12(3)). The Ombudsman has stated as follows the four basic require-
ments a complaint must satisfy if it is to be accepted for investigation (Annual
Report (1983), HC 322 of 1983“84, para 17):

(1) the department or authority concerned must be one within my jurisdiction; (2) there
must be some evidence from which it may reasonably be inferred that there has been admin-
istrative fault; (3) I have to be satisfied that there is an apparent link between the alleged
625 Parliament and the responsibility of government


maladministration and the personal injustice which the aggrieved person claims to have
suffered; and (4) I also need to be satisfied that there is some prospect of my intervention,
if I find the complaint justified, leading to a worthwhile remedy for the aggrieved person or
some benefit to the public at large.

˜Maladministration™ is not de¬ned in the Act, but its intended scope
appears from the ˜Crossman catalogue™ of procedural improprieties instanced
by Mr Richard Crossman in the second reading debate on the Parliamentary
Commissioner Bill in the House of Commons: ˜bias, neglect, inattention, delay,
incompetence, inaptitude, perversity, turpitude, arbitrariness and so on™ (HC
Deb vol 734, col 51, 18 October 1966). The Ombudsman has provided an
expanded list of examples, going beyond the Crossman catalogue (Annual
Report (1993), HC 290 of 1993“94, para 7):

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