This snapshot, taken on 07/04/2010, shows web content selected for preservation by The National Archives. External links, forms and search boxes may not work in archived websites.
Last updated: 13 March 2009
80. Once information has been supplied to a Committee it becomes "evidence" and, subject to any agreement with the Committee on the non-publication of protectively marked information (paragraphs 85-92), it is entirely up to the Committee whether or not to publish it and report it to the House. Certain rules apply to the further public use of such evidence by the Government prior to its publication by the Committee. Departments should be careful to observe these rules as failure to do so could amount to a breach of Parliamentary privilege. Committees are usually helpfully flexible in applying the rules but, in cases of doubt, Departments should consult the relevant Committee Clerk for guidance.
81. The basic rule is a Commons resolution of 1837 which states that "...the evidence taken by any Select Committee of this House, and Documents presented to such Committee, and which have not been reported to the House, ought not to be published by any Member of such Committee or any person". This Resolution still stands but is now subject to important modifications which give Committees power to authorise witnesses to publish the memoranda of evidence they have submitted (Commons Standing Order No. 135) and which permit the publication of evidence given in public session before it is formally reported to the House (Commons Standing Order No. 136). Many Committees now agree to a resolution giving permission to witnesses to publish their evidence, either generally or in respect of a specific inquiry.
82. The practical implications of these rules for Departments are as follows:
83. House of Lords Committees treat evidence in a quite different way. Once received by the Committee, it is treated as being in the public domain unless other arrangements have been made. It may be reproduced freely, provided the fact that it was originally prepared for the Committee is acknowledged.
84. Evidence critical of a Department may be given in public session by witnesses outside the Department. This may prompt questions to the department by the media or others. Departments can of course respond to such questions. Departments may also wish to explore with the Clerk whether it would be appropriate to submit further evidence setting out the Department's position.
85. It is to the benefit of Committees in carrying out their task of scrutinising Government activities, and to Government in explaining its actions and policies, for sensitive information, including that carrying a protective security marking, to be provided from time to time on the basis that it will not be published and will be treated in confidence. Procedures have been developed to accommodate this.
86. When this arises, the Department should inform the Clerk that the information in question can be made available only on this basis, explaining the reasons in general terms. Such information should not be made available until the Committee has agreed to handle it appropriately, either by treating it wholly in confidence or by agreeing to publish it with a reasonable degree of sidelining (i.e. with the relevant passages omitted but with the location of the omissions indicated). It is important when submitting such information to make clear that the papers are provided in confidence and are not for publication. Information provided to Committees in confidence will be covered by Parliamentary privilege, and therefore will be exempt from release under FOI, but they will eventually be considered for release under the 30 year rule. In cases of particular sensitivity, Departments may wish to register a wish to be consulted before release. It should be appreciated, however, that once evidence is given to a Committee, whether in confidence or not, it becomes the property of the Committee, to deal with as it thinks fit.
87. It would clearly be inappropriate for any evidence which a Department wished to be treated as confidential to be given at a public session of the Committee. If it appears likely, therefore, that subjects to be discussed at a forthcoming public session are such that the witnesses would only be able to give substantive answers in confidence, the Department should discuss this with the Chairman or the Clerk. The Committee may then agree to take that part of the Department's evidence in closed session.
88. If, despite such an approach, a Committee questions an official witness in public session on confidential matters, or if such matters are raised unexpectedly, the official should inform the Committee that the questions could only be answered on a confidential basis. The Committee may then decide to go into closed session or request a confidential memorandum. It is not for the witness to suggest that the Committee should go into closed session as this is wholly a matter for the Committee to decide.
89. Where evidence has been given in a closed sitting, the transcript of that session is handled differently from the transcript of a public session. It will not, of course, be published on the internet in uncorrected form. Neither is it circulated to Members of the Committee or other prospective witnesses, although it will be available for inspection by Members of the Committee in the Committee Office in the same way as a classified document (see paragraph 92). A hard copy of the transcript will be provided to the Department. On it the Department should insert its corrections and indicate which passages of the evidence should be sidelined (i.e. contain sensitive information which it would not be in the public interest to publish). If any of the information is classified, the level of classification should be clearly marked. The copy should then be returned to the Committee.
90. Although Committees usually respect such requests for sidelining, they may occasionally challenge a particular request. Witnesses should therefore bear in mind when providing confidential memoranda, or in giving evidence in private, that their evidence may be published unless there is a clear justification for sidelining. This justification will be expected to relate to the reasons given by the Department, in the first place, for holding the evidence in private. The final decision on publication rests with the Committee.
91. Where information is submitted to a Committee on the understanding that it will be kept confidential, this understanding should be recorded in the covering letter forwarding the evidence to the Clerk. The letter should make clear whether the whole memorandum or, as is often the case, particular sections are to be kept confidential. If the information is classified, the level of classification should be clearly marked. The confidentiality of the papers will be taken into account when the information is being considered for disposal in future years.
92. Agreement has been reached with the Liaison Committee on the conditions under which classified information may be disclosed to Select Committees. The key points are as follows:
Departmental Evidence and Response to Select Committees Contents page >