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Last updated: 13 March 2009
67. Although the powers of Select Committees to send for "persons, papers and records" relating to their field of enquiry are unqualified, there are certain long-standing conventions on the provision of information which have been observed in practice by successive administrations on grounds of public policy.
68. The Government is committed to being as open and as helpful as possible with Select Committees. The presumption is that requests for information from Select Committees will be agreed to. Where a Department feels that it cannot meet a Committee's request for information, it should make clear its reasons for doing so, if appropriate in terms similar to those in the Freedom of Information Act (without resorting to explicit reference to the Act itself or to section numbers). If the problem lies with disclosing information in open evidence sessions or in memoranda submitted for publication, Departments will wish to consider whether the information requested could be provided on a confidential basis. These procedures are described in paragraphs 85 to 92 below.
69. Although the provisions under the Code for charging applicants do not apply in the case of Select Committees, it may occasionally prove necessary to decline requests for information which would involve the Department in excessive cost or diversion of effort. Ministers should always be consulted on their priorities in such cases.
70. Requests for named officials who are serving overseas to attend to give evidence should not be refused on cost grounds alone if the official concerned is the person best placed to represent the Minister. Committees will generally be willing to arrange for such witnesses to give evidence on a mutually acceptable date. Evidence by video link is an alternative that should also be explored with the Committee.
71. Committees are subject to the same rules by which the House regulates its conduct in relation to matters awaiting the adjudication of the courts (although the bar on debating such matters may be lifted if a Committee is meeting in closed session). If a matter already before the courts is likely to come up for discussion before a Committee at a public session, the Clerk will usually be aware of this and will draw the attention of the Chairman to the relevant rules of the House. Nonetheless, if a Department has reason to believe that such matters may arise, the Liaison Officer may wish to check with the Clerk that the Committee is also aware. It should be noted, however, that the Committee Chairman has an overriding discretion to determine what is appropriate in the hearing of evidence.
72. Officials should take care in discussing or giving written evidence on matters which may become the subject of litigation but which, at the time, do not strictly come under the rules precluding public discussion of sub judice questions. Such caution should be exercised whether or not the Crown is likely to be a party to such litigation. If such matters seem likely to be raised, officials should first consult their departmental legal advisers or the Treasury Solicitor on how to handle questions which might arise. In any case of doubt about the extent to which details may be disclosed of criminal cases, not currently sub judice, the Law Officers are available for consultation. Similar considerations apply in cases where a Minister has or may have a quasi-judicial or appellate function, for example in relation to planning applications and appeals.
73. Occasionally questions from a Select Committee may appear to be directed to the conduct of individual officials, not just in the sense of establishing the facts about what occurred in making decisions or implementing Government policies, but with the implication of allocating individual criticism or blame.
74. In such circumstances, and in accordance with the principles of Ministerial accountability, it is for the Minister to look into the matter and if necessary to institute a formal inquiry. Such an inquiry into the conduct and behaviour of individual officials and consideration of disciplinary action is properly carried out within the Department according to established procedures designed and agreed for the purpose, and with appropriate safeguards for the individual. It is then the Minister's responsibility to inform the Committee of what has happened, and of what has been done to put the matter right and to prevent a recurrence. Evidence to a Select Committee on this should be given not by the official or officials concerned, but by the Minister or by a senior official designated by the Minister to give such evidence on the Minister's behalf.
75. In this context, Departments should adhere to the principle that disciplinary and employment matters are a matter of confidence and trust (extending in law beyond the end of employment). In such circumstances, public disclosure may damage an individual's reputation without that individual having the same "natural justice" right of response which is recognised by other forms of tribunal or inquiry. Any public information should therefore be cast as far as possible in ways which do not reveal individual or identifiable details. Where Committees need such details to discharge their responsibilities, they should be offered in closed session and on an understanding of confidentiality. Evidence on such matters should normally be given on the basis that:
(a) information will not be given about Departmental disciplinary proceedings until the hearings are complete;
(b) when hearings have been completed, the Department will inform the Committee of the outcome in a form which protects the identity of the individual or individuals concerned except insofar as this is already public knowledge;
(c) where more detail is needed to enable the Committee to discharge its responsibilities, such detail will be given but on the basis of a clear understanding of its confidentiality;
(d) the Committee will thereafter be given an account of the measures taken to put right what went wrong and to prevent a repeat of any failures which have arisen from weaknesses in the Departmental arrangements.
76. Select Committees have agreed that it is not their task to act as disciplinary tribunals. Accordingly, if in the course of an inquiry a Select Committee were to discover evidence that called into question the conduct (in this sense) of individual named officials, the Committee should be asked not to pursue their own investigation into the conduct of the person concerned, but to take up the matter with the Minister.
77. If it is foreseen that a Select Committee's line of enquiry may involve questions about the conduct of named officials, it should be suggested to the Committee that it would be appropriate for a Minister or a senior official designated by the Minister to give evidence, rather than the named officials in question. If an official giving evidence to a Committee is unexpectedly asked questions which are directed at his or her individual conduct, or at the conduct of another named official, the official should indicate that he or she wishes to seek instructions from Ministers, and the Committee should be asked to allow time for this.
78. A recent extreme example of the House of Lords setting up a Committee with an explicit remit to inquire into the conduct of specific individuals, and to revisit the findings of a departmental tribunal, is provided by the Chinook ZD 576 inquiry in 2001. This was wholly exceptional.
79. There are well established conventions which govern the withholding of policy papers of a previous Administration from an Administration of a different political complexion. These were set out in a Parliamentary answer from the Prime Minister on 24 January 1980 (Official Report, Columns 305-307). Since officials appear before Select Committees as representatives of their Ministers, and since Select Committees are themselves composed on a bipartisan basis, it follows that officials should not provide a Committee with evidence from papers of a previous Administration which they are not in a position to show to their present Ministers. If such evidence is sought, Ministers should be consulted. Where Ministers propose to make an exception, it would be necessary to consult a representative of the previous Administration before either showing the papers to present Ministers or, with Ministers' authority, releasing information from them to a Committee.
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