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Departmental Evidence and Response to Select Committees (the 'Osmotherley Rules')

Section 2: The Select Committee System

General Description

10. Select Committees are appointed by the House to perform a variety of functions, generally of inquiry, investigation and scrutiny and they report their findings and recommendations to the House. They are to be distinguished from Standing Committees whose function is to examine and debate certain matters such as Bills and delegated legislation.

11. Most House of Commons Select Committees have a continuing existence and their terms of reference and powers are laid down in Standing Orders of the House. Others may be established on a sessional basis for a particular purpose.

12. The House of Commons Select Committees which officials are most likely to come into contact with are:

• the departmentally-related Select Committees listed in paragraph 20 below
• the Committee of Public Accounts (the PAC)
• the Public Administration Select Committee (PASC)
• the European Scrutiny Committee.

13. The Procedure Committee may occasionally invite evidence from Departments as may, less frequently, the Committee on Standards and Privileges. The Liaison Committee carries out certain co-ordinating functions on behalf of the various House of Commons Select Committees and takes evidence twice a year from the Prime Minister. The normal Government contact with this Committee is through the Office of the Leader of the House. The Regulatory Reform Committee examines the Government's proposals for amending legislation under the terms of the Regulatory Reform Act 2001. The Environmental Audit Committee audits Departments and NDPBs' performance against environmental protection and sustainable development targets.

14. The Committee of Selection has no requirement for evidence from Departments; nor usually do the various Select Committees concerned with the finance, business and domestic affairs of the House.

15. The House of Lords has two main Select Committees - the European Union Committee and the Committee on Science and Technology - which are reappointed at the beginning of each session. Both Committees have Sub-Committees and there is power to co-opt additional members to these Sub-Committees as appropriate.

16. The Delegated Powers and Regulatory Reform Committee examines the appropriateness of the order-making powers in legislation before the House and considers legislative proposals under the Regulatory Reform Act 2001. The Constitution Committee examines the constitutional implications of Bills, and keeps under review the operation of the Constitution. The Economic Affairs Committee has a wide remit to consider economic affairs. The Merits of Statutory Instruments Committee examines the merits of all SIs subject to affirmative and negative procedure (except those laid before the Commons only) and reports to the House those of particular interest. The Merits Committee bases its consideration on the Explanatory Memorandum published on each instrument.

17. In addition, there may also be one or more ad hoc Select Committees in the House of Lords which undertake enquiries into matters of policy. Ad hoc Select Committees cease to exist once they have reported to the House and rarely last for more than one session.

18. There are also a number of Joint Committees of both Houses. These include:

• the Joint Committee on Statutory Instruments (JCSI) is responsible for scrutinising statutory instruments to ensure that they meet certain criteria and are drafted properly. The JCSI may ask departments for evidence in explanation of particular instruments
• the Joint Committee on Human Rights considers matters relating to human rights in the UK and has responsibility for scrutinising remedial orders under the Human Rights Act 1998.

19. Ad hoc Joint Committees may also be established for specific purposes for example, to examine a policy area or to conduct pre-legislative scrutiny of a draft Bill.

20. Finally, all of these Committees are to be distinguished from the Intelligence and Security Committee established under the Intelligence Services Act 1994. Although the membership of that Committee is drawn from both Houses of Parliament, it is not a Committee of the House as such, and reports to the Prime Minister under separate statutory powers and duties laid down in the Act.

House of Commons: Departmental-related Select Committees

21. There are currently eighteen such Committees. They are as follows:

22. The orders of reference of these Committees are contained in House of Commons Standing Order No.152 (full text at Annex A).

23. The Committees have a remit to examine the expenditure, administration and policy of the principal government Departments referred to, and also of their 'associated public bodies'. Standing Order No.152 does not define 'associated public bodies' but the Government has accepted that Select Committees should be able to look at the activities of public bodies that exercise authority of their own and over which Ministers do not have the same direct authority as they have over their own Departments.

24. The broad test is whether there is a significant degree of ultimate Ministerial accountability for the body in question. This means that, as well as Departments and their Agencies, Select Committees may, for example, examine the expenditure, administration and policy of Non-Departmental Public Bodies and NHS bodies. In practice, the remit has also extended to non-Ministerial Departments.

Powers of Select Committees

25. The powers of Select Committees derive from the powers of the House and from the Standing Orders. It is for the Committees themselves, and ultimately for the House, to interpret their terms of reference. Under Standing order No.152 (3), each of the Commons Departmental Committees has power to set up a sub-Committee. Under Standing order No.137A, each Committee or sub-Committee has power to meet concurrently with any other Committee or sub-Committee of either Houses of Parliament.

26. Select Committees (and their Sub-Committees) have power to 'send for persons, papers and records' relevant to their terms of reference. The issue of an order for an individual to attend or to provide evidence can exercise these powers, formally. Enforcement of these formal powers and, in particular, the power to punish for contempt of the House, is retained by the House itself and can be exercised only by the House as a whole, not by the Select Committee.

27. A full discussion of the powers of Select Committees, and how these powers are exercised in practice, is contained in a memorandum by the then Clerk of the House of Commons which was published as Appendix C to the First Report from the Select Committee on Procedure, Session 1977-78, HC 588-I.

28. In that same 1977-78 Report (which led to the establishment of the present departmentally-related Select Committee system), the Procedure Committee emphasised the primacy of Ministerial accountability to Parliament. Officials can, of course, be summoned or invited to appear, or asked for information, under the Committees' powers but, almost invariably, this is done as part of the process of overseeing Ministerial accountability:

'The over-riding principle concerning access to government information should be that the House has power to enforce the responsibility of Ministers for the provision of information or the refusal of information. It would not, however, be appropriate for the House to seek directly or through its committees to enforce its rights to secure information from the Executive at a level below that of the ministerial head of the department concerned (normally a Cabinet Minister), since such a practice would tend to undermine rather than strengthen the accountability of Ministers to the House."

29. Although this passage appears in the context of proposals to increase the powers of Select Committees in relation to Ministers (proposals which, in the event, were not adopted by the House) the general principle nonetheless holds good.

30. If a Select Committee sought the backing of the House in any dispute with the Government as to the exercise of its powers, Ministers would be accountable to the House for their actions and those of their officials. The Government has given a commitment that, where there is evidence of widespread general concern in the House regarding an alleged Ministerial refusal to divulge information to a Select Committee, it would seek to provide time for the House to express its view (Official Report, 16 January 1981, Column 1312). In such circumstances it would be for members of the Committee to argue why the House should exercise its powers to require the production of papers, and for Ministers to explain the reasons of public policy for withholding them.

31. In practice, Committees usually proceed on the basis of informal requests for departmental witnesses and evidence rather than through the exercise of their formal powers. It should be noted that, in pursuing their examination of the expenditure, administration and policy of Government Departments and associated public bodies, Select Committees are free to seek evidence from whoever they wish, and can send for papers and records from private bodies or individuals where these are relevant to the Committee's remit.

Core tasks

32. In its 2002 Report on Select Committees, the Select Committee on Modernisation of the House of Commons (First Report, Session 2000-01, HC 224-1) recommended that there should be an agreed statement of the core tasks of the departmental select committees. On 14 May 2002 , the House of Commons approved a resolution inviting the Liaison Committee to establish common objectives for Select Committees. The core tasks agreed by the Liaison Committee are set out in the Annual Report for 2002 (First report, Session 2002-03, HC 558).

Public and Closed Evidence Sessions

33. Select Committees' own deliberations are held in closed session but Committees usually admit the public and the press to hearings at which they take evidence from witnesses. Departmental witnesses (and those officials who are sitting behind them in support) should bear in mind that such public proceedings may also be televised or sound broadcast, usually in edited form and will be webcast on the Parliament website. Committees may, on request from a witness, agree to take evidence in closed session if sensitive or confidential material is likely to be discussed (see paragraphs 87 - 90).

Informal Briefings

34. In addition to taking formal evidence, Committees may invite Ministers or officials to informal meetings at the start of an inquiry to brief them on the main issues or, more generally, to update them on technical and other developments within their field of responsibility. Departments may also offer such briefings or informal visits to departments if they feel it would be helpful. The guidance in Sections 3 and 4 applies in these circumstances also.

Travel Overseas by Select Committees

35. Departmental Select Committees and some others have power to "adjourn from place to place" and may travel outside Westminster in connection with their Inquiries. They may also travel overseas. In relation to overseas visits, the Committee Clerk will in the first instance contact the Parliamentary Relations and Devolution Department (PRDD) in the Foreign and Commonwealth Office for advice on the timing and content of such visits. The FCO and the British Embassies and High Commissions concerned are closely involved in the organisation of these visits and a representative from the overseas post will normally accompany members of the Committee on their calls. Meetings overseas are generally conducted on an informal off-the-record basis although formal evidence is sometimes taken. The FCO will ensure that Departments are aware of any proposals for overseas travel and will be glad to offer advice.

Departmental Select Committee Liaison Officers (DSCLOs)

36. Most Departments appoint a Liaison Officer as the main point of contact at official level between the Department and the Select Committee and its Clerk. Executive Agencies normally use their parent Department's Liaison Officer as their main point of contact but may also wish to nominate an agency contact point for an individual inquiry into their work.

37. Committee Clerks will generally use the Liaison Officer as the channel for requests for information and memoranda. They will usually be glad to talk informally to Liaison Officers about their Committee's work and co-operate by, for example, providing the Departments most concerned with advance copies of evidence taken by the Committee from other witnesses.

Provision of Departmental Publications

38. There will be many departmental publications which will be of interest to a Committee, either in relation to a current or previous inquiry or more generally. Departments should provide the Clerk of their Committee with a copy of such relevant publications free of charge. If further copies are requested they should also be provided free of charge, though Liaison Officers should if necessary discuss with Clerks the need for multiple copies of expensive publications. (See also paragraph 113(a) on the provision of copies of Command Paper responses to Committee Reports).

General Elections: Dissolution of Parliament

39. Select Committees set up by Standing Order continue in existence until that Standing Order is amended or rescinded. However, when Parliament is dissolved pending a General Election, membership of Committees lapses and work on their inquiries ceases. The point of contact for Departments continues to be the Committee Clerk who remains in post to process the basic administrative work of the Committee (including the publication after dissolution of any reports which the Committee had authorised prior to dissolution). Departments should continue to work, on a contingency basis, on any outstanding evidence requested by the outgoing Committee and on Government responses to outstanding Committee Reports. It will be for the newly appointed Committee to decide whether to continue with its predecessor's inquiries; and for the incoming administration to review the terms of existing draft responses. As it is also for the newly appointed Committee to decide whether to publish Government responses to its predecessor's Reports, an incoming Government may wish to publish such responses itself by means of a Command Paper (see paragraph 113(a)).

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