The Westminster Parliament and Executive Accountability: the oversight function of departmental select committees with reference to the Millenium Dome and the David Kelly Affair

Peter Leyland: University of Pisa: April 2004

This paper discusses the part played by departmental select committees in providing executive accountability in the UK. The first section introduces the constitutional context by looking briefly at the convention of individual ministerial responsibility and how this is acted out through parliamentary procedural mechanisms. The second section looks at the functions and powers of the committees to assess the capacity of departmental committees to hold the government to account for its actions. As part of the discussion the role of departmental select committees is compared to that of Congressional Committees in the USA and of Subject Committees which were formed following the introduction of devolution in Scotland, Wales and Northern Ireland. Finally, some illustration is provided of how, in practice, these committees have performed an oversight function. The final part of the paper makes specific reference to two investigations. The first was by the Culture Committee into the Millennium Dome project. The second was the investigation of the Foreign Affairs Committee into the governments reasons for its involvement in the war against Iraq in 2003 which probably triggered the death of David Kelly, in turn, giving rise to the Hutton Inquiry.

Constitutional Context

In the absence of a codified constitution the doctrine of individual ministerial responsibility addresses the relationship between Parliament and the executive. It is a fundamental characteristic of the British constitution that ministers must be members of Parliament and that ministers must also be answerable to Parliament. Many commentators have identified a strong trend during the twentieth century towards the executive dominance of Parliament. In this discussion we will assess the degree to which Parliament has managed to fight back by improving select committees as the principle oversight mechanism. To what extent has the balance between Parliament and the executive been redressed?

The convention of individual ministerial responsibility developed as the mechanism for accountability between the political decision makers and professional civil servants and administrators responsible for implementing policy in the United Kingdom as part of an evolutionary process[1]. Dicey, writing in the nineteenth century, noted that ‘the point of defining, scrutinising and controlling public power was not to further responsiveness, representativeness and participation. Rather, the aim was to establish predictability in the exercise of power and to limit the scope of political decisions’[2]. In essence, a model of the constitution was conceived which sought to accommodate the existence of discretionary public power by the device of ministerial responsibility and this ‘complemented harmoniously, without altering in essence, the Diceyan concept of the rule of law. While the courts policed the boundaries of ministerial powers by reference to the common law rights of individuals, Parliament scrutinised the actions of ministers within those boundaries’[3]. In a formal and procedural sense ministers are answerable to Parliament for their departments. The concept has needed to be reviewed in the light of structural changes in the contemporary state which has seen the introduction of next steps agencies, privatisation and regulation[4]. Under the Diceyan scheme democratic constitutional theory demanded an ultimate political accountability to the people and a model was needed which could provide a ‘chain of accountability’ by which officials answer to ministers who answer to Parliament which in turn answers to the electorate and thus the doctrine of ministerial responsibility emerged as the convention which described constitutional accountability[5]. ‘The logic and history of the perception was simple: Parliament was sovereign; the Commons now dominated Parliament; therefore the Commons should, through the responsibility of ministers, monopolise political control ... British government was a unity founded on a ministerial/parliamentary monopoly of policy making’[6].

At one level executive accountability[7] is acted out as a crucial part of Westminster parliamentary procedure. What does this mean in practice? The basic requirement is that ministers are members of parliament. This can be either the House of Commons or the House of Lords[8] but at the same time they are deemed to be responsible to Parliament. In terms of general principle this responsibility to Parliament recognises that their continuation in office as ministers depends upon the confidence and support of MPs or Peers. In practice, when a government has a substantial majority in the House of Commons it can usually rely upon the support of its back bench MPs to sustain its majority, should there be an attempt to censure the minister. There are a number of ways in which ministers and their departments are 'answerable' to Parliament[9].

First, in regard to the passage of government legislation through Parliament, the relevant minister in the House of Commons or House of Lords introduces a bill concerning his or her department in Parliament and then participates in the debate that follows. At the next stage in committee he or she appears before the standing committee which has the task of scrutinising the measure in question. Although the minister responds to debate and may accept amendments to a bill at committee, the party whips are nearly always in position to deliver a majority for the proposed measure and this capacity of a government, once elected with an overall majority in the House of Commons, to reach its legislative objectives, often in the face of considerable opposition beyond Parliament, has been termed 'elective dictatorship'[10].

Second, back bench MPs are able to table questions to ministers on a regular basis. This can be a method of embarrassing the government, obtaining information or of pressing for action. The weekly Prime Minister's question time has come to be regarded as a parliamentary show piece with the focus increasingly on the respective performances of the Prime Minister and leader of the opposition parties before the TV cameras. But in contrast, departmental questions to ministers are much more important in regard to executive accountability because this provides an opportunity to expose matters of concern within departments and pursue grievances on behalf of constituents. The Scott Report exposed a lack of candour which amounted to a failure by ministers to meet the obligations of ministerial accountability by providing information about the activities of their departments and it was recognised that this failure tended to undermine the democratic process[11].

Third, Parliament performs an oversight function in relation to the public finances. For example, The Public Accounts Committee of the House of Commons plays an important part in monitoring expenditure[12]. Ministers and departmental accounting officers (usually permanent secretaries) appear before the PAC to be questioned, even interrogated, on issues arising from the annual audit of departmental accounts. The Committee is assisted in this task by the National Audit Office.

The Role of Departmental Select Committees

Perhaps most important of all, ministers are called to account for their policies and the actions of their departments before one or more of the Departmental Select Committees. These committees are relatively small with between 10-15 members (reflecting party representation in the main chamber) which shadow the main departments of state[13]. Departmental select committees were established in 1979 to oversee the work of the major government departments[14]. There were originally 14 of these committees but there are now 18. Unlike standing committees these committees have an investigative role and conduct inquiries[15]. It should be noted that: 'The topics investigated by select committees vary widely, ranging from major subjects that may take a year or longer to complete, to the latest departmental estimates and issues of topical concern ...' [16]. Crucially, the committees set their own agenda by choosing what to investigate and their work provides an opportunity for ordinary rank and file MPs to be involved in the policy process[17]. These committees also promote a degree of co-operation between MPs of all parties who may identify with the broader objectives of executive accountability but opposition MPs are always represented on these committees and this adversarial element, with the opposition having an interest in exposing abuse, certainly contributes to their effectiveness[18]. Political parties are represented according to their relative strength in the House of Commons which means that the governing party will have a majority on the committee. In fact, Select Committees should be regarded as an important extension of ministerial responsibility, helping to keep track of what ministers do in respect of their responsibility for their departments and other agencies. Unlike the courts which deal with ultra vires executive action or the abuse of power, the committees have an advantage in that they can have an informal influence on the formative stage of policy making, examining at their discretion political, social and economic issues as they arise.

In the UK system Parliament (within the existing framework of the Westminster model) has always assumed the crucial role of acting as a formal check on the executive. It became apparent to many MPs in the 1970s that to perform this task more effectively the place of select committees had to be revised and their inquisitorial powers needed to be strengthened[19]. The post-1979 departmental committees were to have a clear function, that being to shadow all the main departments of state, with the aim of examining ‘expenditure, administration and policy'. To assist in their investigative role these committees have limited capacity to employ a staff of expert advisers, mainly on a part-time basis. Back bench MPs who serve on a departmental select committee have an opportunity to be involved in the policy process. These committees have promoted a degree of co-operation between MPs of all parties who often identify with the broad objectives of executive accountability.

Departmental Select Committees Parliamentary Session 2001-2004

Name of CommitteeGovernment department Max MPs/ Quorum

Constitutional AffairsDep of Constitutional Affairs113

Culture, Media & SportDep for Culture, Media and Sport113

DefenceMinistry of Defence113

Education and SkillsDepartment for Education and Skills113

Environment, Food and Department of the Environment, Food and175

Rural AffairsRural Affairs

Foreign AffairsForeign and Commonwealth Office123

HealthDepartment of Health113

Home AffairsHome Office; Lord Chancellor's Dept113

International DevelopmentDepartment for International Development113

Northern Ireland AffairsNorthern Ireland Office;134

Office of the Deputy PMHousing, Planning, Local Government113

and the Regions

Science and TechnologyOffice of Science and Technology113

Scottish AffairsScottish Office113

Social SecurityDepartment of Social Security11 3

Trade and IndustryDepartment of Trade and Industry113

Transport Department of Transport113

TreasuryTreasury, Board of IR, Customs & Excise113

Welsh AffairsWelsh Office113

Since 1979, with each new Parliament following a general election, the departmental select committees have been reconstituted. Each committee is chaired by a member from one of the two largest parties, usually the government party. The subjects for scrutiny chosen by the committee will include major matters of policy, as well as more detailed administrative questions. Although it should be noted that the tendency to concentrate on detail can be a weakness as well as strength. The select committees have a crucial advantage over standing committees, in that they have a capacity, all be it limited, to conduct in-depth inquisitorial investigations which can give them considerable information not available to the mass of individual MPs. The committees are not restricted to asking particular questions. The information considered will include not simply evidence before the committee, but also written submissions, departmental (official) briefs, visits (at home and abroad), informal meetings with non-parliamentarians. The published reports, and their accompanying volumes of memoranda, provide MPs with a countervailing source of information to that of ministers and the executive departments. In this sense the committees are of growing importance in holding ministers to account and in questioning civil servants. The departmental committees tend to work more effectively at times when there is a narrow government majority, as this encourages a greater degree of inter-party co-operation[20].

Ministers and senior civil servants appear regularly before the department select committees. The extent to which they rely on the co-operation and goodwill of ministers and officials has been a subject of debate. Ministers (and MP's and peers) can refuse to attend (unless charged with contempt of Parliament and required by a vote of the House of Commons to do so). For example, Edwina Currie, as Agriculture Minister, refused at first to appear before the inquiry into the salmonella in eggs affair (1988) by the Agriculture Select Committee. Ministers can also refuse to allow officials to appear before the committees[21]. This reluctance to permit officials to appear arose in 1992, when the Select Committee on Trade and Industry wished to question two retired named officials in the Ministry of Defence regarding matters arising from the Scott Inquiry concerning information they had about aspects of the controversy surrounding Matrix Churchill and the supergun affair[22]. The Cabinet office guidance to civil servants who are summoned to appear before these committees was revised following the Scott Report[23]. These guidelines have encouraged officials to be helpful, but specifically rule out: disclosing advice given to ministers, interdepartmental exchanges on policy issues, disclosing the level at which decisions were taken, discussing the work of Cabinet committees or their decisions. Furthermore, civil servants are not permitted to express their own views on matters of policy. The select committees are not expected to investigate the conduct of officials or to assign criticism or blame to individual civil servants[24]. This approach supports the view that policy emanates from the politicians and not from civil servants, but, as we shall see later when discussing the controversy surrounding the death of David Kelly, the spotlight is falling increasingly on officials. To some extent limitations in time and resources result in a restricted focus of attention and, in consequence, an invariably selective impact on the issues of the day. Another shortcoming is that the reports of the departmental committees are not debated by the House of Commons as a matter of course.

Freedom of Information

It is important to recognise that the government is in a powerful position in regard to departmental select committees. This position is mainly because it exercises control over the information that is made available. The debate surrounding a freedom of information act was partly concerned with the test which would be used to determine whether information is released into the public domain. The original ‘substantial harm’ test that appeared in the ‘Right to Know’ white paper was diluted to a simple harm test included in the Freedom of Information Act 2000. The Information Commissioner will have an important role in deciding how the guidelines are applied.

It has been recognised that the presentation of evidence is an area where freedom of information might have an important impact in delivering greater accountability and the convention of ministerial responsibility hinges on an obligation to provide information. Indeed, the Freedom of Information Act 2000 s.1 provides a general right of access to information held by public authorities including government departments. But under Part II of the Act there is provision for class based exemptions which permit all information within a particular class to be withheld whether or not the information will cause any harm. This not only includes information relating to security and intelligence matters but any information relating to the formulation of government policy and investigations and proceedings carried out by a public authority. This is subject only to a public interest test which is to deter authorities from routinely suppressing such information. Under the FOI the Information Commissioner can rule that material should be available in the public interest but a major weakness is that the minister retains an ultimate veto over any such decision[25].

Departmental select committees were intended to be more independent than standing committees. This independence was to be achieved by establishing a committee of selection to nominate members thus minimising the influence of the party whips. However, this situation did not long survive the partisanship that dominates the way Parliament operates and the whips have been regularly consulted on the membership of these committees[26]. Indeed, government whips sought to remove Gwyneth Dunwoody from the chair of the Transport Committee and Donald Anderson from the chair of the Foreign Affairs Committee after the 2001 general election. Both of these chairs had earned a reputation for independence and presided over a committees that had made reports that were critical of aspects of government policy. However the failure to renominate these widely respected MPs caused a minor rebellion on the back benchers and their re-appointment was eventually confirmed. This rebellion by ordinary MPs has been regarded as significant. According to Professor Tomkins:

'On the plus side, [these events] suggest that select committees are sufficiently powerful, prestigious and effective to be taken seriously by the government and its whips. If select committees were worthless, or ineffective, why go through the bother of seeking to manipulate their membership and direction? But on the minus side, of course, these committees are supposed to be rigorous and independent committees of inquiry. If the whips can so easily remove thorns from the government’s flesh, will that not discourage rigour? If the whips have control over membership, does that not dilute the extent to which the committees can truly be said to be independent of government? What was unusual about the events of July 2001 was not that the whips tried it on, but that Parliament stood up to them, and won.'[27]

More recently however, following the recommendations of the Modernisation Committee in its second report 2001-2002, the House of Commons rejected the proposal to remove the appointments to committees from the control of the whips. Further the modernisation Committee has recommended that departmental select committees should have a much extended role and perform all of the following tasks: consider major policy initiatives; consider government responses to major emerging issues; propose changes where evidence persuades that Committee that recent policy requires amendment; conduct pre-legislative scrutiny of bills; examine and report on main estimates, annual expenditure plans, and annual resource accounts; monitor performance against targets in the public service agreements ; take evidence from each responsible departmental Minister at least annually; take evidence from independent regulators and inspectorates; consider the reports of Executive Agencies; consider major appointments made by a Secretary of State; examine treaties within their subject areas.