Send for Papers and Records
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‘In
the unlimited character of the claim for information,
which may in principle be at any time, there lies a
fundamental parliamentary right of the highest importance.’
(J Redlich and C. Ilbert, 1908)105
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When
the committee reviewed the investigation process…
the lack of powers to make documents available [was]
a major weakness and some felt that key question remained
unsolved.’ (Dr Richard Edwards AM, 2002)106
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| The committees have similarly divergent
powers to send for papers and records. Select committees
are strong in comparisons, yet they have very similar
aims of holding the executive to account for the spending
of billions of pounds. What can select committees teach
the Assembly? |
| Powers |
| There is no point being able to summons
a person to give evidence if there is no compulsion for
them to produce physical proof of their statements. The
power to call for papers and records is fundamental to
the effectiveness of committees.107 However, there is a problem in determining
what documents they can have access to. The power is unqualified,
in practice it’s limited to ordering papers from
a department headed by a minister.108 As most departments are now headed by a Secretary
of State this seems like an outdated anomaly. Parliament
has to pass an ‘Address to the Crown’ to formally
secure the documents.109
However, if any government were ‘at any time to rest
upon this formal position the chairman of committees might
seek to move an ‘Address to the House,’ or communicate
with the Secretary of State… who would lay them before
Parliament, if he thought it proper, ‘by command
of Her Majesty.’110
On top of this are some constitutional conventions such
as the ‘Crown Jewels’ procedure which was named
after arrangements were made for the Foreign Affairs committee
of 1945 to view intelligence known as the ‘Crown
Jewels’ on the department’s premises, without
taking away copies or making notes.111 Many committees have misgivings about this
procedure as it restricts their ability to comment on
the evidence but still consider it a useful ‘last
option.’112 |
| By contrast the Assembly’s powers
are straightforward. The committees have the power to
call for any body listed in schedule five to ‘produce
to the Assembly documents in his possession or under his
control.’113 ‘However, with this certainty comes
server limits to scrutiny. The committees are powerless
to demand papers or records from any minister or private
body. Any conventions that the Assembly committees
may reach with government departments have-technically-
to be within the scope and limits of the Act and as such
should do all to maximise the committees’ powers
in this regard. However, as we have seen, the de facto
split between WAG and OPO has shown that in reality it’s
much more flexible.114 |
| Government Departments/Agencies |
| One of the central problems in obtaining
papers has little to do with actual powers. The first
and most difficult hurdle for any committee is to know
what papers to ask for. As ‘Jim Hacker’ neatly
summarised, ‘how do I know what questions to ask
and what papers to ask for if I don’t know what I
don’t know?!’115
As the Defence committee stated, it’s usually the
case of questions not being fully answered than bluntly
refused.116
But only later does it become apparent that they have
not given a full answer to which the officials reply that
‘they were not actually asked the precise question
which would have elicited the full information.’117
Assembly committees should take steps to ensure this is
not happening. The Liaison committee in 1997 called for
a duty to be imposed on departments so that they furnish
select committees ‘with any important information
which appears to be relevant to their inquiry without
waiting to be asked for it specifically.’118
NAW/OPO should consider implementing this. |
| As has been shown the right to information
from government departments is far from clear. The key
document that influences how much information is given
is the Osmotherly rules. With the Assembly it is the ministerial
code and standing orders. |
| The Osmotherly rules have contained the
usual exemptions such as advice given to civil servants,
information of a previous administration and inter-departmental
and inter-governmental exchanges.119
The 1999 edition has ten maze-like pages on the provision
of evidence.120 The first paragraph confirms that ‘it is
the duty of officials to be as open and as helpful as
possible’ to the committees and the rest of the nine
and a half pages list the exceptions to this rule.121
For example, ‘the government’s commitment to…
select committees is largely met through the provision
of memoranda, written replies and oral evidence…
It does not amount to a commitment to provide access to
internal files, private correspondence… should a
committee press to see such documents… departments
should consult their minister.’122
One of the widest exemptions is one that enables all ‘vexatious
or voluminous requests to be turned down if they would
require ‘unreasonable diversion of resources.’123 The Health Committee was indeed
met by this very refusal when in 1995 they investigated
ambulance response times and requested the department
collect the data. The Minister replied ‘my officials
were all ready to write round to ambulance services…
I had to instruct them that I did not believe [it] a proper
use of their time… no reason why the committee [in
reality the clerk and an assistant] should not collect
[it] themselves.’124
The rules are an example of worst practice by Westminster.
The Procedure Committee states in 1990 that ‘we would
like to see the principle enunciated… that it is
the duty of departmental witnesses to be as helpful as
possible.’125
NAW/OPO should consider agreeing this with WAG. |
| Informal Agreements |
| In 1981 it was agreed that ‘a debate
would be provided in government time on the floor of the
House ‘when there is evidence of widespread general
concern in the House regarding the alleged refusal to
disclose information to a select committee.’126
The Assembly committees have no such agreement. However,
in recent times the Liaison Committee has stated that
the arrangement is ‘not entirely satisfactory’
as ‘there have been a significant number of cases
where committees have been refused specific documents
but the government has not provided time for a debate.’127
As a result they called for a change in standing orders
to enable the chair of a committee to call for a ‘specific
document to be laid before the committee’ otherwise
the motion should be debated for an hour on the floor
of the house.128 This is an excellent idea and which the Assembly
committees should give serious thought to asking for themselves
as an essential last resort. |
| Assembly |
| The Assembly’s standing orders give
committees some power to obtain information. Standing
order 9.11 empowers any member of a committee to
‘propose that the Minister should provide the committee
with an oral or written report on a specified matter within
the committee’s remit, and if the committee so resolves
the Minister shall submit a report on
the matter within a period agreed with the chair.
‘129
As is clear, this just empowers the committee to get information
on a topic but there is nothing stopping the minister
from giving a response that refuses to give the information
requested. Standing order 17.4 is similar as with one
hand it empowers any Assembly member to ‘inspect
any document in the possession or under the control of
the Assembly’ but it is slightly undermined by a
list of five broad and vaguely defined exemptions behind
which a reluctant minister could easily hide.130
The last could easily be a ‘catch all’ exemption
if required. Standing order 17.5 (v) states the information
could be withheld if it ‘would inhibit the free and
frank exchange of advice and opinion between Assembly
Members and members of the Assembly’s staff.’131
This is yet further undermined by standing order 17.6
which confirms that even if you do get to see the information
‘shall not disclose to any person any information
contained in the document which is exempt from disclosure
to the public’ (clearly reminiscent of the ‘Crown
Jewels’ procedure). Even though there is no special
guidelines for committee’s access to ministerial
documents there has been few problems. The Economic Development
Committee once had to wait almost a year for the WDA’s
corporate plan; only to find once it was received it contained
large parts of the earlier one.132 The committee was understanding
about the year long delay but at anytime of its choosing
it could have exercised its power under section 74(1)(b).133
NAW should take steps to enable secret information to
be imparted to a closed committee session. |
| What can the Assembly learn? |
| There have been a number of recent concerns
over the access of information and the securing documents.
The Treasury Sub-committee in its inquiry into Customs
and Excise were refused a routine internal document, commenting
‘we remain mystified as to why the government employed
a range of spurious and conflicting excuses [not]…
to hand over an old report.’134
The committee was also refused responses to a public consultation
on the basis that the third parties concerned were not
consulted or ‘warned that there was a possibility
that their responses might be made public.’135
An interesting anomaly worth noting was the refusal of
the Ministry of Defence to review the confidential classification
of a document the Defence committee had seen. A journalist
applied to see the document under the Code of Practice
in Open Government and succeeded. Lack of cooperation
by departments is not new but – given the recent
confusion over the Assembly’s own Open Government
policy- OPO should closely observe the potential for inconsistent
application of codes of access.136
The creation of such a ‘de facto relationship
of confidentiality’ also has serious implications
for further release of information and OPO should make
sure that WAG departments are asking all those who contribute
to consultations if they consent to the advice going to
a committee.137
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| Commercial confidentiality |
| With the increased role of the private
sector in carrying out public policy there has been a
rise in the use of ‘confidentiality’ and ‘commercial
confidentiality’ as a justification for governments
withholding information. The Welsh Affairs Committee was
refused information by a firm of accountants who had worked
on the body they were investigating, after getting a direction
so to do from the Welsh Office. The basis for refusal
was ‘the information had been supplied in confidence.’138
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| The Assembly had its own problems with
documents being classed as commercially confidential.
The Assembly’s Audit Committee found itself on new
ground when taking evidence on the Auditor General’s
report into the Assembly’s computer system (Osiris)
set up under a PFI agreement with SBS. The committee was
refused access to the exact profit made by SBS as it was
‘commercially confidential.’139 As Alison Halford AM said at
the time ‘"Who is it commercially sensitive
to? The company has got the contract and has made its
profit.140
" Such a position led to press speculation that WAG
was ‘even less open… than the House of Commons
- where sensitive figures are presented to MPs in private
committee hearings.’141 After protracted negotiations
the Permanent Secretary eventually agreed to release the
information on a confidential basis in a private session
of the Audit committee. There was no provision for such
a meeting in standing orders or any codes. For AMs it
was a victory and has set a precedent that confidential
information- even when it does not pass the numerous tests
set in standing orders- can be released to committee members
under given circumstances. 142Whether the information was politically embarrassing
will never be known, but at least the members will be
able to take the data into account when writing their
final report.143
NAW should take steps to ensure all WAG departments have
no such ‘confidentiality’ agreements with outside
advisers. |
| Inter-departmental correspondence |
| Select committees have been refused ‘inter-departmental
exchanges which lead up to a decision by Ministers’
as its classed as a type of ‘advice to ministers.’144
As the Education Committee stated ‘we do not
feel we can fully discharge our responsibility to Parliament
until we have access to more to this information.’145 The Foreign Affairs Committee was mystified
by the ‘rigid interpretation’ of this ‘so
called convention.’146 They were not asking for ‘advice given’
but the factual information on which it was based. This
distinction was aided by Leader of the House, Sir Geoffrey
House’s concession that ‘the general facts are
disclosable.’147
However, committees have great difficulty in getting this
information as governments consistently misinterpreted
it. The most well known example is the Defence committee’s
request for the ‘October Documents’ during the
Westland inquiry. The DTI turned it down on the basis
of not releasing ‘inter-departmental correspondence.’148 After much public and political protest-
a key factor essential to achieving effective scrutiny-
it was agreed the committee could see some original documents
in closed session.149
NAW should ensure that when asking for WAG documents they
make clear the distinction between classified advice to
ministers and the disclosable information upon which the
advice is bases. |
| The Trade and Industry’s 1985 inquiry
into the tin crisis was hampered by a blanket ban imposed
by officials and ministers who had effectively ‘closed
ranks.’ The Minister told them to ‘observe very
carefully’ the Osmotherly rules and the Minster refused
to answer a series of questions due to the ‘constitutional
convention’ to release advice to ministers.150 This is yet another example of the reluctance
of governments to accept the distinction between advice
that is rightly confidential and the factual information
on which it was based- something that should be accessible
by committees even if in a closed session.151
As the Procedure Committee stated ‘we doubt whether
the fabric of constitutional government would suffer fatal
injury if witnesses were more forthcoming about…
the extent of involvement of different departments.’152
Given the Assembly has a lot of cross-cutting themes-
such as the welsh language- and a statutory duty to ensure
equality for all people the refusal of inter-departmental
consultations will be of great concern.153
The availability of such information should not be restricted
to the Equal Opportunity’s standing committee. NAW
should seek conformation from WAG that no such bar will
exist in the Assembly. |
| Private bodies/people |
| Like the power to summons private citizens
Select committees can, in theory, demand any documents/information
a private bodies holds. Assembly committees can demand
nothing. The use of this power, however, is exceedingly
rare. In 1984 and 1993 the Trade and Industry committee
uses its power to force both British Shipbuilders and
the British Coal to submit their corporate plans for scrutiny.154
The Assembly has proven its need for similar powers. The
EPT committee chair Richard Edwards stated that the investigation
into Nantygwythan was undermined by the inability to make
private companies ‘make documents available.’155 |
| Recommendations |
6. Seek powers to call for papers or records
from WAG Ministers
7. Seek powers to call for papers from private
bodies.
8. An agreement with WAG that the departments
will furnish the committees with
any important information it which appears to be relevant
to their inquiry without being asked.
9. Empower the chairs of committees to call
for a debate to be held in the next plenary
session unless document(s) asked for from WAG are
delivered to them.
10. Amend Standing order 17.6 to enable information
imparted to AMs is disclosable in a closed committee
session.
11. Ensure that WAG will not enter into or recognise
any ‘de facto’ relationships of confidentiality
with external bodies where one would not normally
exist.
12. Ensure there is consistency across departments
of the various codes of access to information.
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105
Diana, Woodhouse ‘Ministers and Parliament: accountability
in theory and in practice,’ 1994, p179
106 Written evidence to the Richard
Commission, 25 November 2002, page 31.
107 As standing order 139 (3) (a)
states select committees have the power to ‘send
for persons, papers and records.’
108 CJ (1849)
109 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice,’
p187. This creates an interesting anomaly as technically
the Chancellor of the Exchequer is not a Secretary of
State but a Deputy Lord High treasurer so he could be
ordered to produce documents.
110 Erskine May, 1997, p650 |
111
First Report of the Liaison committee, 1997, Appendix
6, para, 35-38.
112 First Report, Liaison Committee,1997,
para 15, page 5.
113 Government of Wales Act 1998 section
74(1)(b) and 74 (6)( b) defines ‘documents’
as ‘anything in which information is recorded in
any form (and references to producing a document are to
the production of the information recorded in it in a
visible and legible form).’
114 Interview with author
115 Jonathan Lyn and Antony Jay, ‘Yes,
Prime Minister, ‘Official Secrets, ‘ BBC Radio
Collection ,(1995)
116 First Report of the Liaison committee,
1997, appendix 6, para 22
117 Ibid. |
118
First Report of the Liaison committee,1997. para15
119 Diana, Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice,’
1994, p193
120 Departmental Evidence and Response
to Select Committees, 1999, Machinery of Government and
Standards Group , Cabinet Office.
page 11.
121 Ibid.
122 Ibid, para, 50.
123 Code of Practice on Access to
Government information (part 1) para 9. page30.
124 First Report, Liaison Committee,
1997, Appendix 13, para5. |
125
Second report from the Procedure Committee, 1989-90, HC
19, para 158.
126 Silk, Paul and Walters, Rhodri,
‘How Parliament Works, (4th Edition),
p216-7.
127 First Report, Liaison Committee,
1997, para 16, pages 5-6
128 Ibid, para 16.
129 my emphasis |
130
See Appendix C.
131 Ibid.
132 Interview with Alison Halford
AM, member of the Economic Development Committee
133 Government of Wales Act 1998.
134 Liaison committee, Shifting the
Balance: Unfinished Business, para 121.
135 bid., para 123
136 Clarke, Rhodri, ‘Open Government
hits a snag,’ Western Mail, August 19 2002. Ibid,
para 126, |
137
Ibid, para 124
138 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice’
p200.
139 See Audit Committee meeting 13
December 2001.
140 Western Mail, ‘Officials
refuse to give info to AMs’ Rhodri Clark, November
28, 2002.
141 Ibid
142 Interview with Alison Halford
AM |
143
Alison Halford ‘PFI: Closing the door on open
Government?,’ The Parliamentary Monitor, p62,
December 2002.
144 Third Report from the foreign
Affairs Committee (1979-80), HC 555, appendix 32.
145 HC 606, para. 4.
146 Ibid.
147 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice,’
(1994) p196
148 HC169, (1985-6) Letter from the
Permanent Secretary at the DTI to the Defence Committee.
149 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice’
(1994) p198
150 Ibid,p197 |
151
First Report of the Liaison Committee,1997, p5.
152 HC 19 (1989-1990), para,159
153 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice’
(1994) p195
154 Silk, Paul and Walters, Rhodri,
‘How Parliament Works, (4th Edition),
p216.
155 Written evidence to the Richard
Commission, 25 November 2002, page 31. |
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