Scrutiny by Select Committees



These pages cover the cover the following issues

Select Committees - general rules
Public Accounts Committee
Departmental Committees
Select Committees - general rules

The final method Parliament uses to scrutinise the executive is Select Committee - committees of MPs meeting away from the floor of the House in a smaller debating chamber with the task of considering specific aspects of Government policy and administration.

NB.

a) Distinguish between Select and Standing Committee. Save is excepted cases, Select Committees do not consider the detailed drafting of Bills and conversely Standing Committees never consider policy and administration (except in relation to a specific proposed Bill).

a) These notes concentrate upon Select Committee which scrutinise the Government's policies and administration. There are also several Select Committee which are concerned with the working of Parliament - a good example is the Procedure Committee, whose reports have already been cited.

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Public Accounts Committee

1. The oldest Select Committee of this kind is the Public Accounts Committee (PAC) under SO122. "... for the examination of ... accounts ...". This committee of 15 MPs, the Chairman of which is by convention a senior member of the Opposition, examines whether public money has been spent for the purposes intended by Parliament.

The detailed investigation work is done by the Comptroller and Auditor General. He is an officer of the Crown but is independent of the Government because

- the PM's choice of who to appoint as Comptroller must be approved by the Chairman of the Public Accounts Committee and the Commons as a whole - National Audit Act 1985

- and he is removed only for misbehaviour and if Parliament consents - Exchequer and Audit Department Act 1866 s3.
The Comptroller leads the National Audit Office (comprising a staff of 900) which has two functions.

National Audit Office 

- first, it audits Government accounts

- second, it can carry out economy, efficiency and effectiveness examinations of Government departments and of any body appointed by the Crown which receives more than half of its income from public funds. These examinations must not question policy objectives.

These audits and examinations are considered by the Public Accounts Committee.

2. This system suffers from three limits:

a) First, the task is really too just for a Committee of 15 MPs to cope. So the Committee can only ever hope to investigate a couple of areas out of thousands.

b) Scrutiny by the Comptroller and the Committee is retrospective i.e. the money has already been spent , so ever something has gone wrong, it may be too late to do anything about it.

E.g. losses on the De Lorean Car Company in Belfast were found to amount to £77 million which was described as "one of the greatest cases of the misuse of public resources for many years". - but there was virtually nothing that could be done to recover that money.

c) Public expenditure on defence has raised acute problems of accountability since Government claims the need for secrecy. Therefore, defence estimates given no indication of specific items. E.g. the Chevaline Project (to update Polaris missiles) was estimated to cost £175 in 1974, rising to £530 in 1982. The idea for this project had been devised in 1967 - but Parliament was not told until 1980. This episode prompted two concessions from the Government. After 1982, the Ministry of Defence makes a Major Project Statement to the PAC and Defence Committee - ie it discloses the existence of projects costing more £250m. In addition, after 1987, Defence Equipment Project Reports have been given for items over £25m - but highly classified items may be omitted.

See further:

Defence Committee, Expenditure on Major Defence Projects (1986-87 H.C. 340)

Drewry, G. "The National Audit Act" [1983] P.L. 531

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Departmental Committees

Unlike the Public Accounts Committee, most Select Committees with the task of scrutinising the executive are each linked to a specific Government department - 14 (there are now 16) of these "Departmental" Select committees were set up in 1979 under SO No.130.

"... to examine the expenditure, administration and policy of the principal government departments ..."

See: House of Commons Factsheet on Departmental Select Committees

The following table shows the Departmental Committees currently in existence and the Departments they scrutinise.
 
 

Select Committee

Government Department Covered

Culture, Media and Sport Dept. of Culture, Media and Sport
Defence Min. of Defence
Education and Skills Dept. of Education & Skills
Environment, Food and Rural Affairs Dept. of the Environment, Food and Rural Affairs
Foreign Affairs Foreign & Commonwealth Office
Health Dept. of Health
Home Affairs Home Office, Lord Chancellor's Dept
International Development Dept. for International Development
Northern Ireland Affairs Northern Ireland Office
Science and Technology (Cross-Departmental)
Scottish Affairs Scottish Office
Trade & Industry Dept. of Trade & Industry
Transport, Local Government & the Regions Dept. for Transport, Local Government & the Regions
Treasury Treasury, Board of Inland Revenue, Board of Customs and Excise
Welsh Affairs Welsh Office
Work and Pensions Dept for Work and Pensions

1. The main features of the departmental committees are as follows:

a) They all have the task of examining the expenditure, administration and policy of the department they cover. This is a significantly wider task than the Public Accounts Committee, which does not consider policy.

b) Members of the Committees are chosen by the Committee of Selection, a committee nominated by, and including, the whips, whose presence obviously gives the Government influence over who is on the Select Committee. Membership must reflect party strength in the Commons, therefore Government has an in-built majority. Otherwise, membership is largely determined by the whips who consider e.g. the expertise and political reliability of candidates. The result is that the membership is very much influenced by Government whips, though the convention accepted in 1979 is that neither Government Ministers nor Opposition Shadow Ministers are chosen for these committees. The influence of the Whips on both sides may nevertheless be illustrated by two incidents in 1987-88

- the Scottish Select Committee was not reformed after the General Election of 1987. The problem was that the Government could not secure a majority in the Committee - it needed to find seven backbench Conservative Scottish MPs but only had three willing to serve.

- in regard to the Defence Select Committee, the Labour was pressured into avoiding the appointment of hard-line nuclear unilateral disarmers. Two 'moderate' CND members are eventually accepted.

Another important incident occurred in 1992, after the General Election of that year. Under pressure from the Conservative Government, the Commons accepted the convention that posts on Committee should not be given to those who had served since 1979. The Government said that this would allow for opportunity for new MPs and for fresh thinking. However, observers alleged that it was a way of disbarring MPs who, through their committee work, had become too expert at criticising the Government, especially Nicholas Winterton, the Conservative MP who had been the chair of the Social Services Committee and a noted critic of Government. The result is that MPs cannot treat Select Committees as a long term political career, so that only the Government provides a career path leading to real power and influence - with the implication that it will not be a career path open to difficult customers! This governmental influence has concerned the Liaison Committee. In its report Shifting the Balance (1999-00 H.C. 300), it called for a system of nomination at the outset of a new Parliament by a Chairman of Committees and two deputies. Once the system was established, there would be an independent Select Committee Panel. Not surprisingly, this idea has not been supported by the government.

c) The Foreign Affairs, Home Affairs and Treasury and Civil Service Committees can appoint one sub-committee each, and there may be a further one or two sub-committees to consider nationalised industries. But no other sub-committees can be set up. This limits the number of scrutinies which can be undertaken at any one time.

d) The Committees can appoint advisers and call for witnesses and evidence. But they cannot themselves compel Ministers and civil servants to divulge Government information.

e) The Committees may also meet outside Westminster - e.g. several meetings of the Scottish Affairs committee have been in Scotland. The Scottish and Welsh Committee are to remain at present, despite devolution: Procedure Committee, The Procedural Consequences of Devolution, 1998-99 H.C. 185, para.21.

f) The Committees produce and publish reports which appear as House of Commons papers.

g) Finally, the entire committee system is overseen by a further Select Committee called the Liaison Committee, consisting of the Chairmen of all of the departmental committees. This considers the general work of the Select Committee and deals with any demarcation disputes.

2. The value of the departmental committees has been assessed by the Liaison Committee in report published in 1982 (Liaison Committee, The Select Committee System (1982-83 H.C. 92) and 1997 (Liaison Committee, The Work of the Select Committee System (1996-97 H.C. 323). The Report lists many of the problems found by the Committees:

a) First, the limited power to set up sub-committees means that the committees do not have enough time to monitor more than a small portion of all departmental activities. However, the Government objects to more sub-committees on the basis that more work by the committees means more work for Government departments. The Liaison Committee criticises this reaction on the basis that the committees improve the running of the departments and the spending of public money, and so would be time well spent. However, there is some fear that concentration on Select Committees will damage the prestige of debates on floor of Home which more MPs still see as the prime political forum. It is interesting that the 1997 Liaison Committee Report did not favour an increase in funding to pay for more advisers and so on. It found that the real constraint was not financial but lack of time on the part of MPs to make use of any information put before them (para.21) - implying that there is no great enthusiasm amongst MPs to spend much more effort on this line of work.

b) Conversely, the committee system may be already too fragmented for some purposes. The result is that they cannot easily handle matters which cut across several committee boundaries and are so multi-faceted that ordinary back-benchers do not have the time properly to explore all the issues. It was suggested that this problem was faced in connection with the "Arms to Iraq" affair (see below). It has been suggested that the Commons should be able to set up a Parliamentary Commission (the counterpart of a Royal Commission appointed by the government). See: Government Response to the Public Service Committee, Ministerial Accountability and Responsibility (1996-97 HC 67, p.xiv).

c)As ever, there is the problem of access to information; civil servants and Minister have refused to give evidence from time to time. The only response the committees then have is that the matter is likely to be debated as a contempt of the House (or at very least a matter of concern). But with its in-built majority, the Government is not likely to be forced to alter course, and Committees do not in any event have any automatic right to bring their concerns to the Commons as a whole. To enforce attendance, there must be an order of the House of Commons, not just the Committee itself. The Government did give an undertaking in 1981 that any refusal to attend will be discussed in the House, but this did not extend to a promise to cooperate in every case.

E.g. the investigation of the Westland Helicopter affair by both the Defence and the Trade and Industry Select Committees was hampered by the fact that the Government refused to allow access to three DTI civil servants and two civil servants in the Prime Minister's Private Office.

E.g. the Trade and Industry Select Committee inquiry into the Iraqi supergun affair was obstructed by the Government's refusal to contact two retired civil servants whose evidence was required by the Committee: see: Tomkins, A., "Government information and Parliament" [1996] Public Law 472

Even non-Government persons have refused to cooperate eg the Maxwell brothers refused to answer questions in 1991-92 (whilst their trials were pending). No action was taken against them. See: Social Services Select Committee Special Report (1991-2 H.C. 353)

In regard to the questioning of civil servants, guidelines were issued in 1980 (the "Osmotherly Rules") by the Government. See: Memorandum of Guidance for Officials Appearing before Select Committees (1980). The Guidelines forbid the disclosure of evidence of various types, especially

- advice to Ministers

- interdepartmental exchanges (including Cabinet Committees)

The rules are now entitled the Departmental Evidence and Responses to Select Committees (1997) (click for details of the crucial extracts).

Following the Ponting and Westland Affairs, these Guidelines were supplemented by a further "Armstrong Memorandum" in 1985 ("Guidelines for officials giving evidence to Departmental Select Committees" (1986) - see: HC debs. col.572wa, 2 Dec. 1987) which state that civil servants are not to answer questions about "conduct" (i.e. misconduct) of themselves or other named civil servants. The rules overlap considerably with the Osmotherly Rules but have been revised and retained (click for details). These rules accept that Ministers must give as full explanations to Parliament as possible (para.4) but at the same time assert that civil servants are Crown Servants not Parliamentary servants (papra.3) and that they are under an obligation not to disclose confidences or other materials without authorisation (paras.8, 9). These statements are now backed by the Civil Service Code of 1995 (see especially para.3). There have also been some clarifications of the rules relating to the answering of Parliamentary Questions in the form of Guidance to Officials on Drafting Answers to Parliamentary Questions, issued in 1996 (click for details).

As regards the rules applying to Ministers themselves, the supine relationship between Commons and Government in terms of the enforcement of accountability was the subject of adverse comment in the Scott Report into the Iraqi Supergun affair: - Report of the Inquiry into the Export of Defence Equipment and Dual Use Goods to Iraq and Related Prosecution (1995-96 HC 115). Scott expressed concern that all of the definitions about what could or could not be disclosed to Parliament were devised by the Government and not by Parliament. Taking up this point, the Government has made some amendments to the relevant rules in the Questions of Procedures for Ministers, paragraph 27 of which now states that:

But this still allows the Government a great deal of ill-defined discretion, and so the House of Commons Select Committee on Public Service has taken up the challenge laid down by Scott in its report, Ministerial Accountability and Responsibility (1995-96 HC 313). It suggests that:

There has been no response on the last point, but the Government has accepted that named officials will "normally" be produced before the Committee (Government Response (1996-7 HC 67) p.x and Departmental Evidence and Response to Select Committees (1997) para.41). As regards the first point, the Commons itself passed a resolution in 1995 which lays down a Code of Conduct for Members of Parliament. This was promulgated with the Nolan Committee (Standards in Public Life, Cm.2850, 1995) and concerns about "sleaze" in mind, but it does include standards such as "openness" and it does apply to Ministers just as it applies to back-benchers. More specifically, a Resolution on Ministerial Accountability was agreed to in March 1997, which affirms the importance of truthfulness and openness on the part of Ministers and attempts to confine the circumstances in which the suppression of information will be acceptable. Any Minister who knowingly misleads Parliament should offer his or her resignation to the Prime Minister (para.2). The limitations of this statement should be noted: the fault has to be knowing rather than, say, negligent or grossly stupid, and resignation is only to be offered rather than accepted.
 
 

d) Next, the ambit of Select Committee scrutiny has blind spots.
- All departments are now covered (legal issues were added in 1991 and Northern Ireland in 1994), but European matters are not reflected in a Select Committee on European Affairs (though there is a Select Committee on EC Legislation). See: The scrutiny of European legislation (Cm 1081, 1990).
- Their remit could include looking at proposals for legislation, but few Select Committees have had time to act as a pre-legislation committee. One exception - the Home Affairs Select Committee reported on the "Sus" law (see Vagrancy Act 1824) and threatened to introduce a Private Member's Bill if the Government did not pay attention to it - which it did. (4th Report 1980-81 HC 744). This aspect of work has concerned the the Liaison Committee. In its report Shifting the Balance (1999-00 H.C. 300), it argued for more attention to draft legislation (there was just one report in 1997-98, 8 in 1998-99, and 1 in 1999-00). A major problem is the limited number of legislative draftsmen. which means that legislation is not drafted far in advance of its introduction into Parliament.
- Another limit is that few Select Committees have yet looked at the departmental estimates. The Treasury and Civil Service Committee has suggested that all annual departmental reports should be looked at by the Select Committees and a day set aside in the Commons Chamber for debate on their reports. Likewise, the Commons Select Committee on Public Service has suggested greater access to National Audit Office papers and briefings to encourage the Departmental Select Committees to consider financial matters: Ministerial Accountability and Responsibility (1995-96 HC 313)

e) Next, the work of some committees have been hindered because their members have acted in a much more party political way than the members of the Public Accounts Committee. One consequence is that some committees, such as the Employment Committee, have been forced to avoid subjects which are likely to divide them along party lines. On at least one occasion, the political pressure has come from the government. In regard to an inquiry by the Privileges Committee into improper payments to MPs, a government Minister, David Willetts was condemned for "dissembling" about his contacts with the chairman of the Committee, Sir Geoffrey Johnson-Smith. See: Privileges Committee, Complaint of Alleged Improper Pressure brought to bear on the Select Committee on Members' Interests in 1994 (1996-97 HC 88).

f) The work of the Committees, though extensive and eventually published, is not widely known or publicised in advance. This sometimes has the effect that they are overly influenced by "insiders" - lobbyists and pressure groups, who know what inquiries are being conducted and have the resources to feed them helpful information.

g) Finally, there is a lack of response from the Commons to the reports of the Committees. Unlike reports of the Public Accounts Committees which are debated annually, no time is specifically set aside in the Commons chamber. Out of 565 debates published from 1979 to 1987

- 26 were the subject of debate

- 60 were referred to in debate.

The Liaison Committee has recommend that time should be allocated for debates, but the Government rejected fixed debates. - and no select committee on European Affairs. Only have Select Committee on EC Legislation and 6 monthly debates in the end to coincide with Heads of Government meetings.

More recently, the Select Committee on Procedure (Sitting Hours Reform, 1994-95 HC 491) has suggested that the Estimates Days be the occasion for debate upon

- 6 Select Committees reports on Expenditure

- 6 Select Committees reports on policy or administration selected by the Liaison Committee.

There has been some progress on this matter in recent times. Time is now allocated to debate select committee reports ie 3 "Estimate Days" and 3 Wedsnesday morning sessions of 3 hours each..

 

3. Turning to the achievements of the system. The main purpose of these reports and the Select Committee system generally is to provide arguments and information for the Commons to aid it in its task of scrutinising the Government. So the point is not to look for Government action as a direct result of the Committees' work but to see how the Commons has used the reports in its scrutiny of the Government. In these terms, success has so far been limited.

a) Pressure from the Commons through questions and debates has ensured that the Government explains its reaction to each Committee Report. By convention, some reply is given, usually by publishing a report within 2 months. So, there has been considerable success in bringing into the open information about the Government's business.

b) But, as we have been, the Commons as a whole rarely debates Committee reports, and this means that the Government is let off the hook and its replies can be superficial.

So, Committees have been a limited success. At least they direct the talents of backbenchers into scrutinising Government in a systematic way which, if the system did not exist, Parliament would be even less effective than it is now. Thus, they are a useful extra device for enforcing Ministerial accountability - nowhere else are Ministers questioned so clearly and thoroughly. But Select Committees have not fundamentally shifted balance of power in the Commons because the overriding political consideration for the majority of MPs remains party loyalty to their Government. Parliament does not provide an alternative career structure with the same degree of prestige. MPs therefore must always have in mind that may one day want to be part of Government. It has therefore been suggested by Charter 88 in its briefing paper on Modernisation of the House of Commons (June 1997) thatthe role of bdepartmental select committees should be expanded to include all back-bench M.P.s and that there should be extra payments for this work so as to encourage "an alternative career path".

4. Other select committees - The Departmental select committee system is potentially very comprehensive, but there have been subject-area where the House of Commons has felt that a specialist committee might be more effective, especially where issues cut across departmental boundaries. The Public Accounts is one such example, but more recently there have been established select committees on:


For further reading, see:

Flegmann, V., Public Expenditure and the Select Committees of the Commons (Gower, Aldershot, 1986)

Giddings, P., "Select committees and Parliamentary scrutiny" (1994) 47 Parliamentary Affairs 669

Giddings, P.J. (ed.), Parliamentary Accountability: A study of Parliament and Executive Agencies (MacMillan, London, 1995)

Harden, I and Lewis, N. The Noble Lie (Hutchinson, London, 1986) chap.4

Ryle, M., and Richards, PG, The Commons under Scrutiny (3rd ed., Routledge, London, 1988) Chaps. 4-6, 8-10

Thompson, B, "Ministers and mandarins and select committees" (1987) 50 Modern Law Review 492


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© Clive Walker
Last updated, 18 November 2001