The following memorandum was submitted to the House of Commons Select Committee on Procedure in 1989 and printed with a volume of Memoranda, Session 1989-90, HC 19-i, The Working of the Select Committee System, as Memorandum 17 (pp lv-lix). It was reprinted with oral evidence in the Committee’s Second Report of Session 1989-90, HC 19-II, The Working of the Select Committee System, pp 202-6. (On pp 206-231 is printed the Cabinet Office’s memorandum of Guidance for Officials appearing before Select Committees, but this memorandum is not reproduced here.) See also other written and oral evidence. See copyright notice below.
- Constitutional Limits of Procedural Reform
- The Independence of Select Committees
- Prompt Publication of Evidence
- Power to Compel Attendance and Disclosure
- The “Osmotherly Rules”
- “The Next Steps”
- The Coverage of Committees
- The Lord Chancellor’s Department
- The Scottish Affairs Committee
- Size and Number of Committees
- Post-Election Delay in Establishing Committees
- Television Coverage
- Government Responses
This memorandum draws upon a book, The New Select Committees, edited by Professor Gavin Drewry, the second edition of which is due to be published by Oxford University Press in September 1989. The book is based upon observations of the departmentally-related select committees by academic members of the Study of Parliament Group’s study group on the select committees, set up in 1979. The memorandum was prepared by Gavin Drewry in his capacity as convenor of the study group, in consultation with his colleagues. It does not purport to represent the collective views of the Study of Parliament Group as a whole or indeed of the study group.
We start from the assumption that the impact of procedural reform is necessarily constrained by constitutional realities. When the departmentally-related select committees began their work early in 1980, there may have been some who genuinely hoped and believed that the change might significantly alter the “balance of power” between Parliament and the Executive. We consider–and our observations of the committees firmly bear this out–that this was never a possibility. The committees have in our view (though it is impossible to measure this with any precision) genuinely enhanced Parliament’s capacity to scrutinise Executive activity and hold ministers to account for their actions, but such committees are in no sense themselves competitors for governmental power, and reform of the committee system cannot by itself achieve major change in the “balance” between Executive and Legislature.
We refrain from speculating on how the role of committees might alter if constitutional change came about by other means–e.g. via the introduction of proportional representation or the enactment of a Bill of Rights; though we are tempted to reflect whether the present Government’s relatively relaxed attitude towards the work of the departmentally-related select committees might have been less so had it lacked the protective cushion of large majorities in the House of Commons.
The committees’ detachment from government has a negative and a positive aspect. On the one hand select committees may be depicted in dismissive terms as being mere observers, albeit with ringside seats. But, on the other hand, detachment is also a major strength of the select committee system, enabling committees to determine their own strategies, largely in a non-partisan spirit, with relatively little interference from party whips.
For this reason committees, individually and collectively, have always been suspicious, and we believe rightly so of attempts to draw them into routine parliamentary tasks (like processing legislation or approving estimates) in respect of which the Executive has a direct interest in the outcome. Were this to happen then select committees would become disciplined adjuncts of executive government rather than free-standing scrutineers of the Executive. We hope therefore that the Procedure Committee will feel due scepticism towards any proposals to move the select committee system in such directions.
The Committee might like to note that the Canadian House of Commons has moved in the opposite direction: having reformed its committee system in 1968 so that specialist standing committees became responsible for the committee stage of Bills, for dealing with Estimates, and for conducting inquiries, the Canadian House now uses separate committees for the committee stages of Bills, as at Westminster.
We would also be opposed to any suggestion (cf. a speculative report in The Times, 16th June 1989) that the subjects of committee inquiry be decided, not by the departmentally-related select committees themselves but by the House of Commons. Such a proposal runs sharply counter to the traditional view that select committees of this kind, with their accumulated specialised knowledge of a given subject area, are best qualified to determine their own priorities. This view is, in our opinion, correct. (This argument does not apply to investigatory committees set up by the House purely on an ad hoc basis).
The constitutional “balance” between Executive and Parliament must, by and large, be treated as a constant. But another, more delicate, kind of balance that has always to be sought is between a committee system that is, on the one hand tough enough, independent enough and sufficiently well-informed to undertake worthwhile scrutiny and criticism while, on the other hand, preserving its non-party character and not attracting unwelcome attention from party managers or, more importantly, provoking ministers and departments (upon whom committees depend for so much of their evidence) into adopting a policy of tacit non-cooperation. Perfect balance is an elusive target that can probably never be reached in the real world. In so far as such balance is achieved it depends upon the skill and judgment of chairmen and members of committees rather than upon procedural arrangements. However, the chances of achieving it are improved in circumstances where committees are aware that they can, in general, count upon the support of their fellow MPs. We hope that the Procedure Committee will feel able to affirm, in positive terms, the achievements of the committee system and the continuing value attached to it by the House of Commons.
We ourselves judge the main value of the select committee system to lie in the capacity of committees to elicit a wide range of oral and written evidence, from official and other sources, on matters of current concern, and to bring into the public domain information and expert opinion that might otherwise remain concealed from view. We therefore attach great importance to the fact that the departmentally-related committees–unlike some select committees in the past–normally publish most of their evidence, in full, at the same time as their reports, and we hope that this state of affairs will continue. However, prompt publication is essential if the impact of evidence upon public debate (and for that matter the impact of the committee’s own conclusions, drawn from that evidence) is not to be blunted by staleness.
We are aware of instances where select committees have faced difficulties in summoning witnesses and compelling disclosure of documents. In our view such problems are ultimately political in character and cannot be solved by strengthening the powers set out in the committees’ orders of reference.
The Cabinet Office’s Memorandum of Guidance for Officials Appearing before Select Committees (commonly known as the “Osmotherly Rules”) has accurately been described by the Liaison Committee as “a fair statement of a not very satisfactory situation”. However, we share the views expressed by the Treasury and Civil Service Committee, in the context of its 1985-86 inquiry into Civil Servants and Ministers: Duties and Responsibilities, that conventional constitutional orthodoxies about the roles and duties of civil servants vis-à-vis ministers need to be reconsidered in the light of recent experience. The Osmotherly Rules–which restate such orthodoxies in uncompromising terms, and at daunting length (the March 1988 version consists of 25 pages of single-spaced typescript, and several substantial annexes)–were drafted in circumstances where the relative novelty of investigative select committees gave rise to uncertainty about the position of civil servants appearing before them. That novelty has now worn off, and the Rules, in their present form, have a distinctly ponderous and old-fashioned flavour. There is already some evidence that senior civil servants are re-thinking their own conceptions of public accountability. Select committee work–which requires named officials, sometimes relatively junior ones, to appear in public–has become a familiar part of the landscape of Whitehall life.
We are not aware that the Osmotherly Rules have explicitly been invoked by officials asked to give evidence to committees. However, their generally negative tone must, we believe, have a depressing effect on official attitudes towards committees, and we consider that they should now be re-drafted (and probably considerably shortened) in the light of experience. We hope that the Procedure Committee will so recommend.
An added incentive to re-draft the Osmotherly Rules is the fact that traditional lines of departmental accountability are undergoing considerable adjustment in the wake of the government’s “Next Steps” initiative, which proposes the progressive hiving off of large blocks of departmental business to semi-independent agencies, headed by Chief Executives. This exercise has already been the subject of an inquiry by the Treasury and Civil Service Committee, which has returned to the subject in the current session. The departmentally-related select committees will inevitably have to adjust the focus of their inquiries to take account of the work of the new agencies; indeed, given the experimental nature of the “Next Steps”, the residual ambiguities about the boundaries of responsibility as between agencies and their sponsoring departments and the sheer scale of the changes envisaged, comprehensive monitoring of the agencies will necessarily, we believe, be a major feature of committee work in the future. Perhaps the relevant Standing Orders should be redrafted to emphasise this new aspect of the committees’ responsibilities.
Meanwhile, we believe that the Memorandum of Guidance will have to be re-drafted to define the responsibilities of the staff of the new agencies, and the lines of demarcation between chief executives and other agency personnel, permanent secretaries, and ministers. This, as suggested earlier, provides a good opportunity to look again at the entire text of the Osmotherly Rules. We hope that the select committees themselves will be actively involved in such an exercise. A recommendation along these lines might have the useful side-effect of encouraging the Government to clarify its own thinking on the subject of accountability.
The terms of reference of the departmentally-related select committees are, by their very nature, determined by the existing structure of government departments. Any imperfections and anomalies in the distribution of departmental functions are therefore mirrored in the select committee structure. However, we consider that in general departmental linkage has worked well, leaving few obvious gaps (apart from one subject-area discussed below). At the same time, overlaps of departmental responsibility have worked to the advantage of the departmentally-related committees in encouraging parallel and collaborative inquiry into related subjects, eg. the inquiries into drug abuse by both the Home Affairs Committee and the Social Services Committee during the last Parliament; we think that this is something that might be further encouraged. The original provision for joint committee inquiries into the affairs of nationalised industries has never been used. and is now rendered otiose by the cumulative effects of the Government’s privatisation programme. It might therefore be appropriate to consider abolishing it.
At the same time, however, we are aware of concern about the lines of demarcation between the Public Accounts Committee and the work of the NAO on the one hand and the departmentally-related committees on the other. Our study group did not investigate this, but our feeling is that the machinery for resolving such problems already exists in the form of the Liaison Committee.
One clear, and in our view indefensible, omission from the purview of the departmentally-related select committees is the Lord Chancellor’s Department. The Department was excluded from the remit of the Home Affairs Committee (apparently at the insistence of the then Lord Chancellor) on the grounds that committee scrutiny might be a threat to judicial independence. We consider that the risk of parliamentary infringement of the prerogatives of the judiciary consequent upon such a change in the terms of reference of the Home Affairs Committee would be negligible.
The present exclusion is an anomaly. The Lord Chancellor’s Department employs some 10,000 civil servants and has an annual Vote of £716m; Lord Hailsham voluntarily gave evidence to the departmentally-related select committees in the course of the last two Parliaments; both he and Lord Mackay have given evidence to the Select Committee on the Parliamentary Commissioner; the accounting officer of the Lord Chancellor’s Department periodically appears before the Public Accounts Committee. We urge the Procedure Committee to renew its recommendation that the Lord Chancellor’s Department be included within the terms of reference of the Home Affairs Committee, subject to guidelines that define the important distinction between legal policy and administration on the one hand and judicial functions on the other. This distinction (not, we concede an easy one to make in practice) has been the subject of recent inquiry by the Select Committee on the Parliamentary Commissioner and we respectfully suggest that the Procedure Committee might usefully consult with the PCA Committee when drafting any proposals in this context.
We note with regret the continuing absence of a Scottish Affairs Committee, but consider that this is essentially a political and an electoral problem rather than a procedural one.
We would, in passing, like to make one very general point about the size and the number of committees. It might be tempting to consider expanding the coverage of the committee system by increasing the number of committees while diminishing their size. In our view the present balance is about right (and we take it that the overall burden of committee work for Members, given the present size and working hours of the House, must be near to saturation point). The weight, balance and credibility of committees would be diminished were they to be reduced below their present size. Small committees are more prone to be afflicted by attendance problems (cf. comments about sub-committees, below).
The Liaison Committee, prompted by individual committee chairmen, has called for all the departmentally-related select committees to be given a general power to appoint sub-committees. We are sceptical of the need for this. Experience of the difficulty in securing regular attendance of enough Members to man the former Overseas Development Sub-Committee of the Foreign Affairs Committee, and indeed the thin attendances at many sittings of the Sub-Committee of the Treasury and Civil Service Committee, point to a general difficulty of sustaining the viability and momentum of small sub-committees. In any case, select committees can, if they wish, organise de facto sub-committees on informal lines, and several have done so.
There is also a more general problem–applying both to official and informal sub-committees–that arises from the fact that many members of the main committee called upon to consider a draft report based upon a sub-committee inquiry, will not themselves have taken part in that inquiry. Approval, or disapproval, of such a draft report is therefore in the hands of members who have not been party to its preparation.
We share the concern of the Liaison Committee about the six months’ delay in re-establishing most of the departmentally-related select committees after the 1983 and 1987 general elections. Such a hiatus is seriously damaging to the momentum and the continuity of committee scrutiny. However, we are sceptical of the suggestion by Mr Terence Higgins that the problem might be solved by a revision of the Standing Orders. It is in essence a partly-political problem, exacerbated by the recent practice of calling general elections in May or June. It is not, we think readily susceptible to procedural solutions. Nevertheless, we hope that the Procedure Committee will take the opportunity to draw the House’s attention again to this serious problem.
Select Committees thrive on publicity. Their impact and their standing (eg. in the eyes of the specialist groups and policy communities from whom they solicit much of their evidence) are enhanced by good, accurate and supportive media coverage. Members themselves tend to be more attracted to committee work that enjoys a high public profile (and committees are highly dependent on the enthusiasms of their members). Our impression is that the departmentally-related select committees have enjoyed good coverage both in the quality/specialist press and on radio. Television will introduce a new and potentially valuable dimension into their work. Procedural adjustments (eg. in terms of times of sitting) might be thought necessary in order to exploit this coverage to full advantage.
The response times to committee reports by government departments remains very variable. Equally variable is the form in which such responses are made. Some, for instance, have taken the form of written answers to PQs; many appear as committee special reports; others have been deposited in the House of Commons Library. It is important that government responses, no less than committee reports themselves, should be readily accessible to all interested parties. We therefore favour the standardisation of reports in the form of command papers.
20th July 1989
Prepared by Simon Patrick, 13 June 2001