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Send for Persons
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‘In
the depths of Westland I was walking up and down my
bedroom rehearsing how I’d get the sonofabitch
[Sir Robert Armstrong], how I’d box him, as I was
convinced he was trying to mislead the committee.’
(Dr John Gilbert MP, Defence Committee member).47
|
| The two breeds of committees have widely
divergent powers to send for persons. As a result, the
extent of select committee power is ‘unqualified’
and thus ‘lacks formal authority.’48
However, the committees have the power to call any member
of the public, save in the circumstances detailed below.
In contrast, the Assembly subject committees’ power
to require attendance is limited only to present office
holders of a limited number of quangos listed in the Government
of Wales Act.49
Assembly committees cannot call private citizens of any
description, even if they are the heads of companies who
have misspent large amounts of Welsh taxpayers money.
The committees are powerless to require the attendance
of any elected representative under any circumstances.
In this context, Assembly committees are toothless watchdogs.
What, if anything, can they learn from select committees? |
| Powers |
| The power of select committees to summons
‘persons’ is ‘unqualified’ with the
exceptions of the royal prerogative, diplomatic immunity,
and parliamentary privilege it can, theoretically, call
anyone it wishes.50 The imposition of a sanction if the summons
is ignored remains enforceable only by a resolution of
the House.51
The Assembly is legally limited to calling current
office holders only. The committees’ ‘power
to require attendance…’ is detailed in section
74-75 of the Government of Wales Act: ‘any person
who is a member, or a member of staff, of a body specified
in schedule 5, and any person who holds, or is a member
of staff of a person who holds, an office so specified.52
In the event of a Subject Committee requiring the attendance
of a person who has left their post and is not currently
employed in any of the bodies listed in schedule 5, they
are powerless to secure their attendance.53
It is vital that schedule five is update. New bodies have
been created since 1998 such as ELWa and the Children’s
Commissioner. There is no evidence any new bodies have
been added to schedule five.54
Any intention to reform this section would require primary
legislation.55
|
| Members |
| Due to Parliamentary privilege committees
cannot order the attendance of a member without the express
approval via a division of the House. Committees, therefore,
are in normal circumstances limited to requesting
a member’s attendance. The Assembly cannot order
the attendance of any members and current standing orders
do not allow for the Assembly –via a plenary vote-
to compel an AM to attend. |
| A resolution of 1688 states that select
committees have no independently exercisable power to
order an MP to attend any committee meeting.56 The last time MPs were ordered to attend was
in 1781 when the directors of the South Sea Company refused
to attend a meeting of the Committee of Secrecy.57
Modern day examples have not, to date, resulted in an
order being put before the House. A more recent example
would be in 1989 when the Agriculture Committee- investigating
Salmonella- invited Edwina Currie MP. The former Minister
for Health initially refused an invitation and proceeded
to politely refuse for the next month. The chair then
wrote stating ‘if you do not [accept the invitation]
the Committee will have no option but to seek to secure
your attendance.58 To which the former minister replied,
‘The House was very wise not to give committees the
power to require individual members to attend… there
is no precedent since 1690 [sic]. But to spare you further
embarrassment and as a personal courtesy I will come to
your meeting. 59 |
| A resolution of 1688 states that select
committees have no independently exercisable power to
order an MP to attend any committee meeting. The last
time MPs were ordered to attend was in 1781 when the directors
of the South Sea Company refused to attend a meeting of
the Committee of Secrecy. Modern day examples have not,
to date, resulted in an order being put before the House.
A more recent example would be in 1989 when the Agriculture
Committee- investigating Salmonella- invited Edwina Currie
MP. The former Minister for Health initially refused an
invitation and proceeded to politely refuse for the next
month. The chair then wrote stating ‘if you do not
[accept the invitation] the Committee will have no option
but to seek to secure your attendance.’ To which
the former minister replied, ‘The House was very
wise not to give committees the power to require individual
members to attend… there is no precedent since 1690
[sic]. But to spare you further embarrassment and as a
personal courtesy I will come to your meeting. ’
|
| Securing a former minister’s attendance
is something the Assembly has yet needed to do, primarily
because there are only four former government ministers.60 A censure motion passed by the
whole Assembly is only for current ministers. The
only tool remaining would be the informal political pressure
of the whips.61
There are only two situations that would empower Assembly
committees to have equal scrutiny powers to Westminster.
The first would be useful only if the Audit committee
was holding an investigation. Standing Orders empower
the committee to cross-examine witnesses on behalf of
the Public Accounts Committee.62
In such an unlikely event, it is possible for the PAC
to use its powers to invite people to an Assembly Audit
Committee meeting thus allowing the Assembly committee
the vicarious and limited use of a select committee’s
powers.63 This
would theoretically empower PAC to order even the First
Minister to attend an Audit Committee meeting. Another
alternative could arise out of a joint investigation into
an issue by the Welsh Affairs Select committee and the
relevant subject committee. CWA would then be able to
secure the attendance of any private citizen or Assembly
member64 it has already shown its commitment
to giving the Assembly a ‘louder voice at Westminster.65
|
| Another advantage Parliament has over the
Assembly is that in 1979 the then government made a binding
undertaking. Although under a Conservative government
‘the Labour government would undoubtedly honour them.66
In 1979 the government agreed that ‘every minister
would do all in his or her power to co-operate with departmental
select committees.67
The Assembly’s equivalent can only be found in the
Ministerial Code, (see chapter five.) There are clear
advantages for OPO to acquire a similar commitment from
WAG. |
| Office Holders |
| A select committees’ power to call
named civil servants is disputed. As long back as 1967
the committee on the Parliamentary Commissioner reported
this contention. The committees have held that since their
power to call ‘persons’ is unqualified it naturally
extends to officials. As the Clerk of the House stated
in 1977 ‘there is no doubt that a committee could
summon a named official if it so wished.68 However, successive governments
have argued the contrary and have been incredibly reluctant
to allow such a powerful tool to go unqualified. It is
argued that as officials act as an extension of their
minister they have no ‘constitutional personality’
of their own. So they would ‘only appear before a
committee if the minister wants them to go on his behalf.69 As the committees seldom use their formal powers-
relying more on informal political persuasion- the clash
of these two differing interpretations have been rare.
|
| The ‘Osmotherly rules’ is a thirty-eight
page guide book for all civil servants on how to treat
to Select Committees and how the procedure to follow when
asked to appear. The rules symbolise the hostility and
fear Whitehall has for the committees. Although Parliament
has never officially recognised their status, let alone
as any sort of rulebook.70
As they have no Osmotherly rules, what can NAW/OPO
learn from this?71 |
| A number confusing and contradictory statements
have sought to downplay the powers of select committees.
As stated earlier- the only exemptions are royal prerogative,
diplomatic immunity or parliamentary privilege. Officials
are not covered by any of these exemptions, as the Head
of the Civil Service confirmed in 1997.72 Therefore, a summons would ‘stand in its
own right and failure to obey is a contempt of the House.73
|
| The 1997 edition of the rule presents the
summoning of named officials as an almost nuclear option.74
Highlighting no less than ten possible ways a committee
could be prevented from questioning. It begins by stating,
'it’s customary’ for ministers to choose the
officials. And it’s customary for committees to accept
this.75 Secondly,
it states that if the committee names an official it is
up to the Minister to ‘suggest an alternative’
and-thirdly- in the ‘unlikely event of no agreement’
‘it is open to the Minister to appear personally
before the committee.76
Fourthly, it states that the committees’ are not
a disciplinary tribunal so ‘a Minister will wish
to consider carefully a committee’s request
to take evidence from a named official where this is likely
to expose… questioning about… the allocation
of blame between them and others.77
Fifthly- a further barrier to a committee’s request
will be ‘where the official concerned has been subject
to, or may be subject to, an internal departmental
inquiry or disciplinary proceedings.78 In such circumstances a minister
would ‘suggest either he give evidence personally
or…’ sixthly- ‘a designated senior official.79
Seventhly, ‘if the committee nevertheless insists
on a particular official… contrary to the minister’s
wishes… it could issue an order for attendance, and
request the House to enforce it.80
As has previously been confirmed this passage seems to
repeat the error of earlier Osmotherly editions when it
suggests a summons of an official would need the House
to enforce it. This is incorrect. It also contradicts
the 1983 edition of the rules, which seems to confirm
the conventional constitutional position.81
Nevertheless, this alternative interpretation of constitutional
law, sanctioned by successive governments can only serve
to strengthen officials’ commitment to ministerial
accountability. Finally, the section states that where
an official is successfully summonsed- ‘so far unprecedented’-
the official ‘would remain subject to ministerial
instruction under the terms of this guidance.82
The 1994 rules put this section more clearly ‘…
the official would remain subject to ministerial instruction
on how to answer questions and on what information to
disclose.83 So they would appear but not necessarily
answer any questions. As The Scottish Affairs Chairman
stated ‘I can see no advantage for select committees
having the power to insist on the appearance of a named
civil servant so long as Ministers can restrict what officials
say.84 |
| Assembly |
| Section 74-75 of the Government of Wales
Act limits committees to calling current office holders
only. In the event of a Subject or standing Committee
requiring the attendance of a person who has left their
post and is not currently employed in any of the bodies
listed in schedule 5, they are powerless to secure their
attendance.85 The Act unequivocally gives them
the right to call any named civil servants or those
who work for them who are office holders of the bodies
listed in schedule five. Unless WAG officials decide to
create a welsh version of the Osmotherly rules, the Assembly
will escape the select committees’ tortuous experience
with this issue. |
| The ability to order ‘current office
holders only’ to Assembly committee meetings has
already caused problems. In November 2001 the Audit committee
took evidence on the Auditor General for Wales’ report
into the £9million failed ‘Centre for Visual Arts.’
After a presentation by one of it prominent ‘scrutineers’-
former Assistant Chief Constable Alison Halford AM- the
committee decided to hold an historic second hearing into
the CVA.86 As
the key events occurred almost a decade previously, it
felt the need to take evidence from previous office holders.
As the Chair- Dafydd Wigley- stated in his submission
to the Richard Commission in December 2002 ‘the committee
has expressed concern about the limited number of people
it can compel to attend, in particular its inability to
require former members of staff in the specified public
bodies to attend.87 Luckily, the people it invited
to give evidence – one of which was retired and another
had moved to England- kindly agreed to do so. |
| What can the Assembly learn from Westminster?
The Westland Affair saw the leaking of a confidential
letter by the Solicitor-General about Michael Heseltine
in order to undermine the ex-minister’s advocacy
of a European rescue of Westland. Even though such an
investigation ‘was bound to be seen as questioning
the veracity of the Prime Minister herself’ the Defence,
Trade and Industry and Treasury and Civil Service committees
all launched controversial investigations, which teetered
on creating a ‘constitutional crisis.88
Such investigations inevitably lead to a series of confrontations
with the government some of whom it could not call to
give evidence. |
| The Defence Committee sought oral evidence
from the three officials most intimately involved in the
leak as well as from the Press Secretary to the Prime
Minister-Sir Bernard Ingham and her Private Secretary
Charles Powell. In the end political pressure was brought
to bear on the Conservative committee members and the
‘government Chief Whip got the Head of the Civil
Service to attend 89 If they had summonsed the named witnesses
to the committee the convention of ‘individual ministerial
responsibility’ would also ‘have ensured their
silence over the important issues.90 They would have clashed with the government and
not helped their inquiry. 91It’s
therefore essential for scrutiny that NAW resists all
calls for a Welsh Osmotherly rules. The Prime Minister
made a claim of privacy following the committee’s
attempts to call members of her private office. Mrs. Thatcher
stood up in Parliament and declared: ‘… I am
bound to say that the Committee’s request for private
secretaries and personal staff to give evidence has major
implications for the conduct of Government… which
will have to be thought about very carefully.92
NAW should seek an agreement with WAG to get access to
private office staff. |
| In a Welsh version of Westland the absence
of a check on the power of cabinet ministers seems to
be a fundamental flaw in the powers of Assembly committees
and goes against the spirit of the Assembly’s own
Ministerial Code. Under the Act the committees are empowered
to call named officials and those who work for them including
staff within a private office of the Welsh Development
Agency for example. The key drawbacks remain that it would
have no power to call members of a Minister’s private
office or seek to call the First Minister’s- or any
non ASPB officials- to account.93 Para 8.2 of the Ministerial code
states ‘The committees will be involved in scrutinising…
the strategic policy objectives for the Assembly…
Ministers should seek to make full use of the expertise
and views of Subject Committees.94
|
| Both the code and standing orders confirm
the committees central role in scrutiny but neither of
them empower the committees to conduct ‘Westland’
type investigations where the government’s decision
making process itself is under scrutiny, as the IWA confirmed.95
The Assembly or its committees cannot require the attendance
of any of the three thousand Welsh Assembly Government
civil servants. This is regardless of the fact that the
Ministerial Code states ‘the corporate nature of
the Assembly means that all decisions are taken
on behalf of the Assembly. Ministers only have
powers... that have been delegated... by the Assembly.96
Therefore as we’ve seen from Westminster the Assembly
remains comparatively powerless to effectively inquire
into decisions that are carried out on behalf of the Assembly,
by Assembly staff. A little comfort should be taken from
a statement in the code: ‘Ministers should require
civil servants who give evidence before Committees of
the Assembly on their behalf and under their direction
[notice the familiar tones of paragraph 42 of the Osmotherly
rules] to be as helpful as possible in providing accurate,
truthful and full information in accordance with the duties
and responsibilities of civil servants as set out in the
[non-devolved] Civil Service Code.97
The Code, however, makes clear that civil servants in
theory owe their loyalty to the Assembly and not the Assembly
government.98
Some future event is sure to require an investigation
into the conduct of ministers and at that time the committees
will be virtually powerless to compel officials to give
evidence to an inquiry. NAW should learn from Westminster
and begin making a case for at least a commitment that
ministers will not refuse WAG officials from giving evidence
if so requested. |
| Private Citizens |
| Select committees have the right to summon
private citizens. The Assembly committees have no such
power. The experience of Select Committees in this specific
area is rare. Most witnesses are more than willing to
appear voluntarily, but as we shall see the need for such
a power can seldom be predicted but on key reports it
can prove essential. In 1982 the Energy Committee invoked
its power to call for persons when it became clear that
Arthur Scargill, the President of the National Union of
Mine Workers, would not attend voluntarily. They ordered
him to ‘give evidence to the committee the following
day.99 Again
in 1992 the Social Security Committee summonsed Ian and
Kevin Maxwell to attend a hearing on pension funds. The
brothers attended but ‘refused to answer any questions.100 |
The Environment, Planning and Transport
Committee, under the Chairmanship of Dr Richard Edwards
AM, was requested by the Assembly (via an affirmative
vote in plenary) to conduct an independent investigate
into the Natygwyddon landfill site. Serious concerns had
been raised about the impact of the site on the health
and environment of local residents.101
Dr Edwards stated ‘the committee was to some extent
hampered by its inability to obtain information about
the affairs of the waste disposal company which had at
one time operated the tip.102
Dr Edwards calls for reform stating that ‘consideration
should be given to whether the Assembly’s power to
require the attendance before committees of witnesses…
should extend to all individuals or bodies who have information
relevant to the Assembly’s functions.103 In an interview, he confirmed that he
would like to see some test brought in whereby the Assembly
was empowered to call before it private citizens who were
implicated in some significant way to give oral/written
evidence to committees.104
And as we’ve seen from Westminster- the power- although
rarely used, is essential when needed and can make the
difference between righting a wrong and letting injustice
prevail. |
| Recommendations: |
Assembly committees by their nature have
a combined policy making and scrutiny role. However, as
is evident NAW needs the power –or at least an understanding
with WAG to:
- Summons any named WAG civil servant to give evidence.
- Officials in a Minister’s private office.
- Summons former office holders.
- Power to summons private citizens/bodies who have
spent (or are due to spend) large amounts of Assembly
funds or have information pertaining to the spending
of large amounts of public funds.
- Develop a relationship with Select Committee to
enable the use of their powers to summons if all else
fails.
|
| All these are essential especially if subject
committees are required to conduct an investigation into
the actions of WAG or its public bodies. |
47
Hennessey Whitehall, Pimlico, 2001 , p335
48 Diana, Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice,’
1994, p 180
49 See Appendix B
50 Erskine May, Butterworths,
1997, page 647.
51 CJ (1849) 75, Diana, Woodhouse
‘Ministers and Parliament: accountability in theory
and in practice,’ 1994, p 204
52 See Appendix B for full copy
of Schedule 5
53 ibid
54 Discussions with the office
of the Counsel General, January 2003.
55 Discussions with the legal
adviser to Assembly Committees, February 2003.
56 CJ (1688-93)
57 CJ (1781-21)
58 Allen, M and Thompson B, ‘Cases
and Materials on Constitutional and Administrative Law,’
(p320) fourth edition
(Blackstone) 1996.
59 Ibid.
60 Former Local Government Ministers
Tom Middlehurts, and Peter Law, Former Agriculture Minister
Christine Gwyther, and
61 Rosemary Butler former pre-16
Education Minister.
62 See standing order 6.4
63 Standing orders 12.3(ii).
64 Ibid.
65 Unless AMs are to be covered
under parliamentary privilege. There is no indication
that this is the case.
66 Patchett, Keith ‘Memorandum’
to the House of Lords Constitution Committee, 28 May 2002,
p8. Silk, Paul and Walters, Rhodri, ‘How Parliament
Works, (4th Edition), p216-7.
67 Ibid
68 HC 588-I (1977-8) Memorandum
from the Clerk of the House. Para. 15
69 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice’
p203
70 Second report from the Procedure
Committee, 1989-90, HC 19, para 155.
71 Martin Evans, former head
of the Welsh Office Devolution Unit, written evidence
to the Procedural Review, 2001.
72 First report, of the Liaison
committee, Shifting the Balance: Unfinished Business,
HC 321-11, page 4, para 13, no 3.
73 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice’
p 204
74
75 Departmental Evidence and
Response to Select Committees, Machinery of Government
Group, Office of Public Service, Cabinet Office. January
1997.
76 Ibid.
77 Ibid, para 41(b).
78 Ibid,
79 Ibid,
80 Ibid, para 42
81 An official’s summons
by a committee stands enforceable in its own right: ‘if
a committee insisted on a particular official appearing…
they could issue a formal order for his attendance. In
such an event the official would have to appear before
the committee.’ See Gen 80/83.
82 Ibid, para 42
83 Departmental Evidence and
Response to Select Committees, December 1994, para 41.
84 First Report of the Liaison
Committee, 1997, Appendix 22, page 5.
85 See Appendix B for a list
of schedule 5 ASPBs
86 Held on the 13 December 2001,
Interview with Alison Halford AM
87 Dafydd Wigley, Chair of the
Audit committee, evidence to the Richard Commission, 2002,
p1.
88 Drewery, Gavin, ‘The
New Select Committees,’ (2nd edition) p413
89 Diana Woodhouse ‘Ministers
and Parliament: accountability in theory and in practice’
p205
90 M, Linklater and D. Leigh,
Not without Honour (London Sphere Books, 1986), p202.
91 Drewery, Gavin, ‘The
New Select Committees,’ (2nd edition) p414
92 Ibid,p413
93 ASPB stands for Assembly Sponsored
Public Bodies
94 Ministerial Code: A code of
conduct and guidance on procedures for Ministers, National
Assembly for Wales, Version 6, p28
95 John Osmond, ‘Supplementary
memorandum by Mr John Osmond, Director, evidence to the
house of Lords Committee on the Constitution, 27 May 2002,
para 51.
96 Ministerial Code: A code of
conduct and guidance on procedures for Ministers, National
Assembly for Wales, Version 6, p4, para 2.2
97 Ibid, p2, para 1.5(v). emphasis
added.
98 Martin, Evans Evidence to
the Procedural Review, ARP 02-01 (p6), 2000, p 6.
99 How Parliament Works (4th
Edition) Paul Silk and Rhodri Walters, p216.
100 Ibid.
101 Edwards, Richard, ‘Evidence to the Richard Commission’
25 November 2002, p2.
102 Ibid.
103 Ibid, p3
104 Interview with the Author |
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