Select Committee

'Select C o m m i t t e e ' by H . STACEY M A R K S . (By kind permission of the City of Liverpool Walker A r t Gallery.)

The Growth of Parliamentary Scrutiny by Committee a symposium by

A L F R E D M O R R I S , MA, Member of Parliament for Manchester,

Wythenshawe

with essays by seven other MPs of the 1966-70 Parliament and a Foreword by The Right Honourable Fred Peart PC, MP, Lord President of the Council and Leader of the House of Commons, 1968-70

PERGAMON

PRESS

OXFORD · NEW YORK T O R O N T O · SYDNEY · B R A U N S C H W E I G

Pergamon Press Ltd., Headington Hill Hall, Oxford Pergamon Press Inc., Maxwell House, Fairview Park, Elmsford, New York 10523 Pergamon of Canada Ltd., 207 Queen's Quay West, Toronto 1 Pergamon Press (Aust.) Pty. Ltd., 19a Boundary Street, Rushcutters Bay, N.S.W. 2011, Australia Vie weg & Sohn GmbH, Burgplatz 1, Braunschweig Copyright © 1970 Pergamon Press Ltd. All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of Pergamon Press Ltd.

First edition 1970 Library of Congress Catalog Card No. 74-140087 Printed in Great Britain by A. Wheaton & Co., Exeter

This book is sold subject to the condition that it shall not, by way of trade, be lent, resold, hired out, or otherwise disposed of without the publisher's consent, in any form of binding or cover other than that in which it is published. 08 016500 1 (flexicover 08 016499 4 (hard cover)

List of Contributors with Brief Qualifications is the Labour and Co-operative MP for Manchester, Wythenshawe. He was Parliamentary Private Secretary to the Minister of Agriculture, Fisheries and Food from October, 1964, to May, 1967, and to the Leader of the House of Commons from April, 1968, to June, 1970.

ALFRED MORRIS

is the Labour and Co-operative MP for Bristol, Central and was earlier the MP for Wimbledon (1945-50). An electrical engineer by profession, and formerly a front bench spokesman on Fuel and Power, he has been chairman of the Parliamentary and Scientific Committee and of the Select Committee on Science and Technology since its inception.

ARTHUR PALMER

is the Labour MP for Kingston-upon-Hull, West and was formerly the MP for Rugby (1950-9). He has served on the Select Committee on Procedure as well as the Select Committee on Agriculture and many other parliamentary committees.

JAMES JOHNSON

CMG, OBE, is the Conservative MP for Dorking. A former civil servant in the Colonial Office, he was the deputy governor of Cyprus from 1955 to 1960 and is now joint secretary of the Conservative Party's Commonwealth Affairs Committee. He has served on the Select Committee on Procedure as well as the Select Committee on Overseas Aid and the Select Committee on Race Relations and Immigration.

SIR GEORGE SINCLAIR

vii

LIST OF CONTRIBUTORS

is the Labour MP for Poplar. He was formerly the MP for Reading (1945-50 and 1955-9) and for Reading, South (1950-5). He was the chairman of the Select Committee on Nationalised Industries from 1966 to 1970.

IAN MIKARDO

was the Liberal MP for Cheadle from 1966 to 1970. A medical practitioner, he has served on the Liberal Party Council since 1961 and was a Member of the Select Committee on the Parliamentary Commissioner for Administration from its inception.

D R . MICHAEL WINSTANLEY

PC, OBE, is the Labour MP for Middlesbrough, East and was earlier the MP for Rochester and Chatham (1945-59). A former Secretary of State for Commonwealth Relations, he has been the chairman of the Select Committee on Race Relations and Immigration since its inception.

R T . H O N . ARTHUR BOTTOMLEY

is the Labour MP for Penistone. He was formerly a lecturer in Political Science and has served on the Public Accounts Committee.

JOHN MENDELSON

viii

Foreword THE RT. HON. FRED PEART PC, MP Lord President of the Council and Leader of the House of Commons 1968-70 IT IS a contemporary platitude that the power of executive government constantly increases, while the power and influence of Parliament constantly diminishes. I think this argument is greatly exaggerated. It generally overstates the independent power of past legislatures and it underrates the extent to which any government has to adapt its policies to the views of Parliament—and indeed to the views of the general public. Nevertheless, the last thirty years have seen a considerable expansion in the range and complexity of governmental activities. It has become increasingly difficult for Parliament to exercise its historic rôle of being an informed and effective critic of the actions of the executive. If it is to continue to perform this vital rôle in our constitution, Parliament must adapt its procedures to take account of these changes. It must have access to the facts of contemporary government in a way which will enable its Members to be properly informed ; and it must have institutions which will enable the informed views of Members to be given their due weight. The last government fully recognised this need. Over the past few years it introduced a number of changes to make more information available in time for Members to influence the government's decisions—and to give back-benchers increased opportunities for the effective scrutiny of the executive. The amount of factual and statistical material published has been extended, as has the practice of publishing the forecasts involved in IX

FOREWORD

policy decisions. One important new feature has been the introduction of "Green Papers"—publications which set out for discussion, by Members and the public in general, major Ministerial proposals while they are still at the formative stage. Examples of such Green Papers are the economic survey covering the period 1968-72 (The Task Ahead) and the proposals for re-organising the National Health Service. One of these Green Papers—entitled Public Expenditure: A New Presentation—put forward an innovation of the greatest importance in the field of parliamentary scrutiny. It proposed that the government should publish each autumn information on public expenditure programmes for the current and ensuing two years, together with outline projections of public expenditure for two further years. This was designed to give Members a more informed and realistic view of the pattern of future expenditure and to provide them with the basis for constructive criticism of the executive's plans at a stage when decisions could still be influenced. The first of these annual public expenditure White Papers was published in November, 1968, and was the subject of a two-day debate in the House of Commons in January, 1969. The last government also introduced procedural changes on the floor of the House designed to give Members increased opportunities of taking the initiative in raising matters of urgent concern. The procedure whereby the Speaker can allow the interruption of the business of the House for emergency debates has been made more flexible ; a change in rules enables Private Members' motions to be more topical ; and a procedure has been introduced whereby the opposition can take at short notice a number of half-days from their Supply Days for debates on urgent matters. These procedural reforms, together with the rationalisation of the use made of parliamentary time and the removal of some archaic procedures, have given more opportunities to Members to debate issues while they are highly topical. The specialist select committee system forms part of this pattern of providing greater scope for Members to inform themselves more fully on, and to influence, government policy. Indeed, the advocates of specialist select committees see them as one of the principal instruments for the revival of the power and influence of the legislature x

FOREWORD

m the contemporary constitutional scene. They look upon these committees as the ground where the balance of power and influence between the executive and the legislature is likely to be determined in the coming years. I have personally for many years believed that a more important rôle should be played by select committees. As Leaders of the House of Commons, Richard Crossman and I introduced a wide-ranging experiment, beginning in 1966, in "specialist'' select committees, covering a number of major topics and departments of state. The House of Commons will soon have to assess the results of this experiment to see what it has achieved, how far it has increased the opportunities for Members to acquire information, and how far that has contributed towards a constructive and informed criticism of the policies of the executive. On the basis of this examination, and taking into account other proposals for increased opportunities for parliamentary scrutiny, the House will have to decide what form of select committee structure it wants for the future. Mr. Morris's symposium comes, therefore, at a most opportune time. It contains a series of essays both for and against select committees. Above all, the contributors base their comments on a great deal of first-hand experience. This book represents an important body of evidence, and I welcome it as a valuable contribution to the debate.

xi

Introduction ALFRED MORRIS MP IN MAY, 1965, three highly distinguished university representatives of the Study of Parliament Group, all of them professors of politics or of government, visited the House of Commons to give evidence to the Select Committee on Procedure, which is a committee composed of back-benchers of all parties who specialise in parliamentary procedure.1 The two sides to this confrontation were extremely well met. The three professors came to present the case for procedural changes which they felt would make parliamentary control more effective and so help to maintain the power and repute of the elected House. Parliamentary control, they argued, means influence, not direct power; advice, not command; criticism, not obstruction; scrutiny, not initiative ; and publicity, not secrecy. This dictum was advanced in a memorandum in which the Study of Parliament Group's university members argued that parliamentary scrutiny of the executive is fundamental to the whole question of parliamentary reform.2 As the study group saw it, the machinery of Parliament had failed to keep pace with the increase in the scope of governmental activity and now had only a "limited ability to obtain the background facts and understanding essential to any detailed criticism of administration or any informed discussion of policy". The Study of Parliament Group drew attention in particular to the extent to which government departments had come to rely on the advice of committees set up by Ministers outside Parliament. This meant that MPs now had to take "filtered" advice from these highpowered committees. The study group's principal suggested remedy 1

THE GROWTH OF PARLIAMENTARY SCRUTINY BY COMMITTEE

was the formation of specialist select committees. The group's representatives pressed for a wide range of these committees, through which Members could scrutinise the work of departments of state and so enable the House of Commons to perform more efficiently its traditional rôle of influencing the executive and informing the electorate. As an initial experiment, they wanted specialist committees of back-benchers on Scientific Development, the Social Services and three other branches of governmental activity.3 The specialist committees would scrutinise the actions of government in their own fields and collect, discuss and report evidence relevant to all proceedings in Parliament. In the long term, the Study of Parliament Group saw specialist committees covering the whole field of administration. As they developed, the Estimates Committee would devolve to them its relevant functions. The outline order of reference which they suggested for the new committees was: " T o examine the assumptions on which policy decisions have been made, and to report on the implementation of policy in the field o f . . . . " 4 The specialist select committees would mainly concern themselves with administration and would normally seek to avoid matters of policy which were controversial between the major political parties. It was argued that this would not infringe the principle of ministerial responsibility and that it would certainly not involve the "weaknesses and defects" of the French and American systems, in that the proposed new specialist committees would be operating in quite different constitutional circumstances. When the Select Committee on Procedure eventually published its recommendations, the Study of Parliament Group's only possible consolation was that even a crust is better than no bread. Instead of a wide range of new specialist committees, the Select Committee on Procedure recommended that there should be only one. It was to be a development of the Estimates Committee and would function through specialising sub-committees. Far from the Study of Parliament Group's aim of having up to one hundred and forty back-bench MPs probing departments of state as Members of the new committees, it was now unlikely that anything like that number of legislators would be so employed. The select committee did in fact make it pikestaff plain that it was not recommending any "large increase" in the mem2

INTRODUCTION

bership of the new committee compared with the numbers then serving on the Estimates Committee. 5 Moreover, if the findings of the Select Committee on Procedure looked like a triumph for the executive over the legislature, it was a majority of the legislature's own back-bench specialists in procedure who had made the recommendations. Only four of the eighteen Members serving on the Select Committee on Procedure voted in favour of a wide range of specialist committees. The Select Committee on Procedure did, of course, attach importance to the evidence of the study group's three academic representatives, but it did not accept their principal arguments. Indeed, the select committee pointedly emphasised the need to provide " . . . all Members with the means to carry out their responsibilities, rather than to elevate any committees of the House to new positions of influence".5 The select committee wanted to preserve the existing relationship of Ministers to Parliament and to avoid procedures which might drain away interest from the proceedings of the House as a whole. The select committee's report noted that a memorandum from the Clerk Assistant, Mr. D. W. S. Lidderdale, had made it clear that the Estimates Committee was already empowered to range over a wide field of governmental administration. Furthermore, Sir Lionel Helsby, who was then the Head of the Home Civil Service, had said in his evidence to the select committee that this range was effectively on the increase: "My impression [said Sir Lionel] is that of recent years the Estimates Committee has seldom directed itself simply at the question, 'Could this be done more cheaply; in other words, could this estimate be cut ?' and has been more concerned to examine the broader question, 'Is value for money being obtained from this expenditure? Are the managerial arrangements under which expenditure takes place fully effective ? Does one get as good results as could be expected ?'." e Yet any disappointment among the members of the Study of Parliament Group need not have been without hope. For there were clearly senior Ministers who were more in sympathy, at least with the broad 3


purpose of what the study group had been seeking, than were the majority of back-benchers on the Select Committee on Procedure. This was made plain when Mr. R. H. S. Crossman, as Lord President of the Council and Leader of the House of Commons, announced the formation not of one but of two specialist committees. Moreover, they were to be select committees specifically designed to satisfy both parties to an unresolved conflict of opinion within the Study of Parliament Group itself. Professor A. H. Hanson, of the University of Leeds, replying to a question from Sir William Robson Brown MP, had told the Select Committee on Procedure on 19 May, 1965: " There are some of us who would be in favour of establishing committees to deal with certain subject matters, such as . . . Scientific Development, the Prevention and Punishment of Crime, and so on. This would mean to say that the terms of reference of the committees would be, so to speak, cross-departmental. [Their] jurisdiction would concern a number of departments. There are others of us, I think, who would be in favour of associating a committee with one department or with a group of related departments and, personally, I am rather of that opinion." 7 This conflict of opinion was accommodated by the government's decision to appoint a "subject" specialist committee on Science and Technology and a "departmental" specialist committee whose operations would begin with a scrutiny of the Ministry of Agriculture, Fisheries and Food. The "subject" committee would conduct crossdepartmental probes for an indefinite period. The "departmental" committee (in the words of Mr. R. H. S. Crossman) would spend "one parliamentary session on each department and then move on". So the government could already claim to have gone further in its response to the Study of Parliament Group's ideas for improving parliamentary control than the majority of MPs on the legislature's own Select Committee on Procedure. Nor was the announcement of two specialist committees the past government's only constructive response to the Study of Parliament Group's ideas. The group's memorandum had detailed possible arrangements for the appointment of a Parliamentary Commissioner

4

INTRODUCTION

for Administration. The late Professor H. Wiseman, of the University of Exeter, had told the Select Committee on Procedure that in the event of an ombudsman being appointed " . . . he should be associated with a select committee of the House of Commons". 8 Although not all of the arrangements proposed by the study group were accepted (for example, it wanted the Parliamentary Commissioner for Administration to receive complaints from any source including, but not solely from, Members of Parliament) the government not only instituted the office of ombudsman but, in keeping with the study group's main proposal, also linked the office with a new select committee of the House of Commons. Nevertheless, few bouquets came the government's way. On the contrary, it was soon to be subjected to some very sharp criticism. In the first place, there were those who questioned the government's good faith and criticised Ministers for doing too little. Two of the early criticisms were that Science and Technology had been chosen for the "subject" specialist committee only because it was "fashionable" and that the "departmental" specialist committee on Agriculture was packed by the Minister, Mr. Fred Peart, to suit what were said to be his personal views on British entry to the EEC. 9 If these criticisms were justified, then demonstrably the experiment was intended to be nothing more than a sham. But in fact neither criticism stands up to serious examination. As to the first criticism, both in the Study of Parliament Group's memorandum to the Select Committee on Procedure and the oral evidence given by Professor A. H. Hanson on 19 May, 1965, "Scientific Development" was named as the first of the subject matters with which the proposed new specialist committees ought to deal.10 The select committee also considered a memorandum from the Parliamentary and Scientific Committee, in which the case for a crossdepartmental specialist select committee on Science and Technology was strongly argued.11 The Parliamentary and Scientific Committee had been considering since June, 1964, the need for improved methods by which MPs could quickly obtain information from scientists about matters likely to be raised in Parliament, as well as the means of establishing more effective parliamentary control over scientific and technological policy. The committee's detailed memor5


andum was the result of this consideration and the need for a specialist select committee was compellingly made out. In choosing Science and Technology for inquiry by specialist committee, the government was thus paying due regard to the evidence submitted to the Select Committee on Procedure both by the Study of Parliament Group and the Parliamentary and Scientific Committee. It was a response more to responsible and informed opinion than to fashion or the fancy of any individual Minister. The accusation (by Mr. John Mackintosh MP) that the first-ever "departmental" specialist committee was packed by the then Minister of Agriculture has been authoritatively answered by Mr. George Jeger MP. Mr. Jeger has given a fair indication that the chairmanship of this committee was originally offered to him. In dismissing Mr. Mackintosh's accusation as unjustified and unfair, Mr. Jeger has stated : " I am in the best possible position to know that the first approach on the chairmanship was made to a known supporter of our entry into the Common Market ; that Fred Peart expressed the hope that he would accept it; and that it was declined only on grounds of health. The membership of the committee gave practically no opportunity for discrimination. They really suggested themselves as being MPs who have taken part in agricultural debates, and have interests in this subject, either personally or in their constituencies." 12 At a later stage, those who felt that the government was doing too little impugned its sincerity in launching the specialist committee experiment with the accusation that Ministers had hurried the "departmental" specialist committee on Agriculture to an early grave. It was argued that this attractive infant's life-span was very much shorter than anyone could have expected. The wrangles with Ministers Mr. George Brown and Mr. Crossman over a projected visit to Brussels were said to have persuaded the government that the committee was getting too big for its boots and the extension of parliamentary scrutiny by specialist committee was again dismissed as a poor charade.13 But such criticism entirely ignores the fact that the "departmental" committee, unlike the "subject" committee on 6

INTRODUCTION

Science and Technology, was formed with the definite intention that it would spend no more than one parliamentary session on any department and then move on. The "subject" committee was always intended to be a continuing committee, like the Select Committee on Nationalised Industries. It was, therefore, conceived as being of a different nature from the "departmental" committee. If this had not been made as clear at the outset as some MPs might have wished, it was plainly stated on 14 November, 1967, when Mr. Crossman came to the House of Commons to comment on the experiment.14 T o say that the specialist committe on Agriculture was not experimental, and that it was intended as a continuing committee, is to accuse Mr. Crossman of misleading the House of Commons on 14 November, 1967. It is also to ignore the reasonableness of the government's assumption that one way of easing the problem of finding enough committee members, and also of covering a fair number of departments within the lifetime of a normal Parliament, was to have a rotating system whereby, after one department had been under scrutiny for a year or two, the spotlight would move on somewhere else. The past government's performance was, in fact, consistently better than Mr. Crossman's original promise, and even this original promise was more favourable to the development of a specialist committee system than were the recommendations of the backbenchers' own Select Committee on Procedure. The number of specialist select committees quickly increased. The government's earlier intention of having only one "departmental" specialist committee was modified by the formation of a second such committee to scrutinise the Department of Education and Science. There followed the announcement by the new Leader of the House, Mr. Peart, of a further specialist committee on Scottish Affairs.15 A specialist committee on Overseas Aid was appointed when the Agriculture committee had completed its report. Meanwhile, the specialist committee on Science and Technology was continuing its work. The government also established, as a completely new departure in this field, the Select Committee on Race Relations and Immigration, which gives back-bench MPs an oversight of one of the most difficult and sensitive problems facing the nation. The Select Committee on the Parliamentary Commissioner for Administration is somewhat

7


different, but it is certainly of some importance as an extension of parliamentary scrutiny. Finally, the Select Committee on Nationalised Industries has had its order of reference extended in a way that enables it to examine the general relationship between the Treasury and the Bank of England, as to both the constitutional position and actual working relationships. While this new order of reference is not as wide as some Members had wished, it represents a further significant increase in parliamentary scrutiny. This record, over a period of less than four years, seems not at all bad for a government most of whose Members are alleged to have wanted to continue their work unfettered by any increase in parliamentary scrutiny.16 The late government can in fact be said to have carried the experiment of increasing parliamentary scrutiny as far as the facilities available would allow, in terms not only of clerks and accommodation but also of shorthand writers and even the printing of proceedings. If ultimately it is decided to establish the specialist committee system on a wider and more permanent basis, additional facilities will have to be provided. As Mr. Peart put it to the House of Commons it was, however, tangible evidence of the determination of Ministers to give the experiment a fair wind that these committees had been set up "to the absolute limit of available resources , \ 17 But strong criticism of the government's performance came not only from those who thought it was doing too little to extend parliamentary scrutiny by specialist committee. There were some dour controversialists, notably Michael Foot MP and John Mendelson MP, who felt that it was doing much too much. Indeed, there were occasions when the attack from the government's critics came closer to being a pincer movement than a frontal assault. Michael Foot was a most thoroughgoing critic of the whole idea of increasing the amount of time spent by MPs in committees upstairs. His opposition was founded on the belief that such committees strengthen the "appalling'' drift towards a consensus in politics. But at least he did not question the reforming intention of what Ministers were doing. He generously saw Mr. Crossman not only as a born moderniser of this world but also as a compulsive reformer in the next. "When he reaches the Elysian Fields," said Foot, " I am sure he will have some scheme for their improved irrigation which he will wish to put 8

INTRODUCTION

through with the assistance of such unemployed MPs as he might find with him at the time, thinking that he will thereby ease their frustrations and give them useful work to do." 18 There followed a withering attack on the entire notion that MPs can work more effectively for the electorate in committee upstairs than in conflict across the floor of the House: "Anybody," he said, "with any experience of committees upstairs knows that the cosier the atmosphere the less the clash between the parties. I am in favour of the clash between the parties and the debates within the parties being in the open, because the public has a right to hear them. The clash at elections should be reflected in the House of Commons." Nor was this the only ground for serious criticism of the trend towards increased specialisation through specialist committees. From other critics, there was the argument that the effect of most committee work upstairs is mainly to increase the information available to individual specialists. There is little evidence, according to this argument, that more specialisation upstairs improves the quality of debate in the chamber or makes for a generally more informed House of Commons. The late Professor Wiseman told the Select Committee on Procedure on 19 May, 1965, that the Study of Parliament Group was " . . . perhaps rather idealistically . . . hoping that the effect of the specialist committees might be to provide more information and more constructive criticism in the course of general debates in the House." 19 Professor Hanson put it to the select committee that " . . . it does seem to me that the material which can be provided for the House by a specialist committee can very often improve the quality and the usefulness of debate." Professor Hanson went on to say that he had considered this in some detail in the context of debates on the nationalised industries : " . . . one of the things I found, or thought I found, was that some of the debates on the nationalised industries were enormously improved . . . not merely on the basis of the reports laid before the House, but on the basis of the report produced by the Select Committee on Nationalised Industries on one particular industry which was being debated." 20 There are others, however, including many Members of Parliament, who would argue that debates on subjects which have been dealt with by select committees are almost always dominated by 9


the Members of the select committees themselves. I think it was Oscar Wilde, returning from the first night of one of his plays, who said that although the play was a great success the audience was a failure. There are MPs who feel much the same about debates on the reports of select committees on which they have served. As Sir Douglas Glover, a Member of the most venerable of all select committees, the Public Accounts Committee, 21 remarked in the House of Commons on 20 November, 1969: " I t strikes me as a little nonsensical that when the House discusses reports of the Public Accounts Committee, as well as reports by (other) select committees, the only people who take part in the debates are the Members of the committees. Other Members of the House . . . should be getting up and criticising our reports. The investigations are a continuing process. We do not get advice from our colleagues because the reports are debated only by the people who produced them." 22 Sir Douglas was speaking on the report of the Public Accounts Committee for the parliamentary session 1968-9.23 The committee had taken evidence for 30 days between 27 November, 1968, and 23 June, 1969, and had interviewed the heads of some seventeen departments or government agencies. Its report, minutes of evidence and appendices (weighing If lb) ran to 615 pages and was sold by HMSO at £3 9s. 6d. The subjects dealt with included an escalation in the cost of the Concorde aircraft without reference to Parliament ; an excessive recruitment of staff by the Land Commission; and a serious failure of financial control in the hiring of married quarters for British troops serving in West Germany. But only one backbencher from outside the committee spoke in the debate, and the whole report was disposed of in 2 hours and 34 minutes by an almost empty House of Commons. In an article in The Times of 24 November, 1969, that paper's political correspondent, Mr. David Wood, described the scene like this : "Chief Watchdog Boyd-Carpenter opened the debate at 4.12 p.m. and was followed by Senior Watchdog Douglas Glover, 10

INTRODUCTION

Watchdog Frank Hooley and Watchdog Edwin Brooks. Apart from one off-hand speech from each front bench, the only outsider who spoke was Watchdog-designate Alistair Macdonald, of Chislehurst. At 6.46 p.m. the Watchdogs lost interest in barking out warnings to one another and slipped away into the night." Clearly, there is a long way to go before we narrow the gap between the Study of Parliament Group's precept and Sir Douglas Glover's somewhat anguished account of existing parliamentary practice. There is one further substantial criticism of the trend toward increased specialisation by MPs that merits our attention. There have been expressions of concern, from MPs and academic observers alike, that although specialist committees of back-benchers may start life as constructive scrutineers of what departments of state are doing, they can easily become, as in the United States and France, very powerful rivals of executive government. Instead of conducting a co-operative dialogue with the executive on its legislative proposals and administrative policy, committees in the United States and France have often preferred a battle à Voutrance with the other side. In the United States, this is because of the separation of powers. There the Minister must not be a Member of the legislature, whereas in Britain he is usually not allowed to be anything else. The chairmen of committees in the United States usually act more like rivals of the President or the Heads of departments than as legislators concerned to scrutinise, criticise and advise on government policy. Nor is there any real similarity between the commissions in France and our specialist committees in the British House of Commons. As the late Professor Wiseman pointed out to the Select Committee on Procedure, there are factors which make any Anglo-French comparison invalid. Nevertheless, he was mindful of the fact that the introduction of specialist committees " . . . might lead to the same kind of defects and disadvantages as, I think we would all agree, exist in the United States and France. ,, He also reassured the Select Committee on Procedure by saying that the study group's representatives had been taught by experts in parliamentary procedure ranging from Lord Butler to the late Lord Morrison of Lambeth that they " . . . should 11


only examine foreign systems of government more for avoidance than for example." 24 This may seem a very insular approach, but it was well attuned to the select committee's obvious desire to link any new experiment in parliamentary scrutiny to the object, not of fighting the executive, but of improving government policy. The principal distinction between the new specialist committees here and the apparently (but deceptively) similar institutions in other countries is that our system is not at present geared into the general governmental system, as is the case in most of the other countries. Most committee systems abroad appear, first, to present a comprehensive cover of all aspects of government policy, and secondly, to be used, rather in the manner of our own standing committees, in the actual legislative process. One other feature that seems common to other countries with "specialist" committees which appear similar to our own is that the number of committees, and their subject matter, is written into some form of constitution or established practice. In this book, there are thoughtful and informed comments on Westminster's new specialist committees, and on other recent and related extensions in parliamentary scrutiny, from MPs of different parties and varying backgrounds. Written towards the end of the last Parliament, they cut right across the whole spectrum of political thought and experience. Some of the contributors came to Parliament with academic experience, others with experience of industry and the professions. They include a former Cabinet Minister, who crossed to the other side of the fence as chairman of the Select Committee on Race Relations and Immigration, and members of the first ever "subject" and "departmental" specialist committees, as well as the chairman of the Select Committee on Nationalised Industries. One contributor, now serving on a specialist committee, was formerly a distinguished civil servant. From another contributor there is a strong but reasoned criticism of the whole trend toward increasing the amount of time spent by MPs in committees upstairs. The reader will draw his own conclusions from the picture they present of recent developments in the field which the university members of the Study of Parliament Group sought to cultivate in 1965. I believe that these developments will make it extremely difficult for any future govern12

INTRODUCTION

ment to turn back. Almost all experiments give rise to unexpected difficulties and very few lead to wholly predictable results. But despite the many problems there have been, and those which still remain to be solved, it is now the essence of likelihood that specialist committees are here to stay as a check on executive government and that they will eventually be a permanent feature of the British parliamentary scene.

REFERENCES 1. T h e representatives of the Study of Parliament Group examined by the Select Committee on Procedure on 19 May, 1965, were Professor P. A. Bromhead, Professor of Politics in the University of Bristol; Professor A. H . Hanson, Professor of Politics in the University of Leeds ; and the late Professor H. Wiseman, Professor of Government in the University of Exeter. 2. Fourth Report from the Select Committee on Procedure, Session 1964-5. H C 303 of 1964-5. Appendix 2, p. 139. 3. Ibid., p. 138. 4. Ibid. 5. Ibid. Report, p. viii. T h e select committee's recommendations are set out on p . ix of the report. 6. Ibid. Evidence, Q. 154, pp. 41-2. 7. Ibid. Evidence, Q. 242, p. 58. 8. Ibid. Evidence, Q. 250, p. 60. 9. See, for example, the article by Mr. John Mackintosh M P in New Society, 28 November, 1968. Mr. Anthony Wedgwood Benn is said to have been in favour of the new committees and we are told that this is why the "subject" committee was set to work on the "fashionable" subject of Science and Technology. Of Mr. Fred Peart, whose public advocacy of specialist committees long pre-dates that of the Study of Parliament Group, Mr. Mackintosh says that he was "willing to allow the experiment". Hence the government's decision to choose Agriculture as the "departmental" committee's first job. But Mr. Peart is held to have quietly succeeded in packing the "departmental" specialist committee with MPs who "shared his view" on British entry to the EEC. Mr. Mackintosh states that Mr. Peart was "extremely hostile to British entry to the Common Market" and that "almost all the Labour Members originally chosen to serve—including the chairman, Tudor Watkins—shared his view". Mr. Peart is paradoxically also accused of having tried to indicate that the agricultural aspects of entry to the Common Market would be unacceptable as a subject for inquiry by the committee. 10. H C 303 of 1964-5. Evidence, Q. 248, p. 58. In answer to a later question (Q. 249, p. 60) Professor Hanson did, however, say that if he personally 13


has to plump for only one subject, or group of departments, for investigation, he would choose the Social Services. 11. H C 303 of 1964-5. Appendix 3. See also The Member of Parliament, the Executive and Scientific Policy by Mr. Austen Albu MP, Minerva, Autumn 1963; and Change or Decay, Conservative Political Centre, 1963. 12. New Society, 12 December, 1968. 13. See pp. 36-37 below. 14. H C Deb. 754, cc. 242-376. Mr. Peter Jenkins, writing in The Guardian of 20 December, 1969, referred to the "policy of preventing the specialist committees from acquiring too great a skill in the affairs of any single branch of the executive" as the "Peart policy of 'consolidating' the Crossman era of parliamentary reform". 15. The scope of this committee covers not only the activities of the Scottish Office, but all matters in Scotland which are the concern of the government. Writing in The Times of 13 March, 1969, Mr. John Mackintosh MP described the committee as "a committee on the Scottish Office which is simply to give the government something to point to when attacked by the Nationalists". 16. In discussing the formation of the first two specialist committees in New Society of 28 November, 1968, Mr. John Mackintosh M P stated that: "Most Ministers wished to continue their work unfettered by any such scrutiny." In his article in The Times of 3 March, 1969, Mr. Mackintosh reported that " . . . some of the Cabinet have objections in principle" to the specialist committees. 17. 11 February, 1969; HC Deb. 777, c. 1181. 18. 19 April, 1967; H C Deb. 745, c. 680. 19. HC 303 of 1964-5. Evidence, Q. 245, p. 58. 20. Ibid. Evidence, Q. 246, p. 59. 21. The Select Committee on Public Accounts was first formed in 1851 and is the forerunner of all the parliamentary select committees of today. 22. H C D e b . 791, c. 1549. 23. H C 156, HC 233 and HC 314 of 1967-8. 24. HC 303 of 1964-5. Evidence, Q. 238, p. 56.

14

The Select Committee on Science and Technology ARTHUR PALMER MP Chairman of the Select Committee THERE appears to be an idea about that to be an advocate (as I am) of the increased use by the House of Commons in a modern context of one of its oldest and sharpest instruments, the select committee, is to decry the continuing value of the floor of the House. This is a mistake. As a place for the great occasion—or even the little occasion, for boredom has its proper contribution to make to parliamentary government—there is no substitute for the general assembly of the six hundred or any chance fraction of that number who happen to be scattered on the green benches at any given time. There we have the living beating heart and swelling lungs of the parliamentary system as practised in the United Kingdom. There the two stage-armies of the parties face each other. There Ministers and Opposition leaders take on a special parliamentary shape or stand revealed as hollow shells. There the pompous are deflated, the wits applauded and the tedious left alone to talk to themselves. All this has been told and extolled a thousand times and I would not wish to diminish its glories in the smallest degree. But whether the method of a continuous dramatic performance in fact provides realistic and effective parliamentary accountability has been questioned by many constitutional writers in recent years and the man in the street has had his doubts for even longer. The root difficulty is that under the Westminster system, as it has evolved, there is no ultimate separation of powers between the

15


executive of the state and the legislature and no written constitution exists to define their powers relative to each other. The struggles between the Crown and the Commons in the sixteenth and seventeenth centuries can be interpreted in a variety of ways: political, religious, social and economic. But constitutionally it was a confrontation of irreconcilables: an executive with an inescapable duty to govern and administer, facing a money-and-law granting assembly isolated from the processes of government and administration. As every schoolboy knows, or did know, the conflict was resolved finally, with many false starts and several backslidings, by the Crown drawing its Ministers mainly from those in the House of Commons who, commanding a party majority, could guarantee the executive both its funds and its laws. This has resulted in modern times in a close daily contact and conflict, at least when the House is sitting, between the Members who are Ministers and those who are not. This is usually held to be an outstanding advantage of the British system as against, say, the American system, where the relations between the President's departmental Ministers and Congress are distant, formal and closely defined. But is it such an advantage, even allowing that the minority of MPs who constitute Her Majesty's Opposition for the time being will partially perform the critical and checking rôle that the House as a whole, in the nature of things, cannot do ? Do not the scientific, technical and administrative complexities of many of the questions that modern governments are called upon to decide make the general open debate, where Ministers are backed by the vast, expert resources of the civil service and innumerable fact-collecting agencies and individual Members have only their own reading and time-limited research, a contest of David and Goliath ? It is true that occasionally the well-aimed dialectical stone fells the front-bench pundit, but only occasionally. As for official Oppositions, they are naturally more interested in propaganda arguments that will help to win the next election than in an abstract parliamentary concern that the government should prove its case in a particular area of public policy. All too often a Minister's presumptuous cry from the dispatch box is in effect: " I am advised, by those qualified to advise in this matter, that the course I propose is the only correct one, although I admit it involves the daily lives and future prospects of many millions

16

THE SELECT COMMITTEE ON SCIENCE AND TECHNOLOGY

of our people and the expenditure of vast sums of their money/ ' But is it the correct and only course ? Technology, if not always science, has been with us since mankind took to living in organised societies. It is its extent and complexity, the problems brought about by its acceleration in the last hundred or so years, the increased and increasing specialisation of technology, that now makes things so difficult on democratic assumptions. Even at the start of the industrial age, governments and Parliament could fairly easily make up their minds without too much argument about scientific and technical decisions: for example, the advantages of railways and steam traction over roads and horse carriages, the need for an improved observatory or, say, the desirability of a loading line for ships. But today how is judgement to be made on subjects such as the nuclear reactor programme, the development of carbon fibres, the desirability, or otherwise, of a European nuclear accelerator and the proper part for operational analysis to play in the choice of weapons systems for the armed forces? What technical methods should be used to stem coastal pollution or to further space research ?* Here the House of Commons has to make decisions involving great financial expenditure in fields where it is hard for even the most intelligent and hardworking MP to obtain a firm grasp of the issues. How is he, or she, to decide whether the decision is the right one, without some check beyond the brief moment of a parliamentary question or the uncertain answer to a point raised in debate ? It was to this challenging problem that the Parliamentary and Scientific Committee addressed itself in 1964. I should explain that this influential, unofficial body was established soon after World War II on a non-party and all-party basis to provide a two-way channel of communication between parliamentarians and scientific and technical bodies outside. Some hundreds of Members of both Houses of Parliament support its activities and a wide range of learned institutions and specialist societies of all kinds are affiliated to it. The Parliamentary and Scientific Committee had a great burst of reforming activity in 1960-4 under the urging of several then back-bench MPs who later became Ministers and junior ministers in the Labour * These are all subjects investigated by the Select Committee on Science and Technology since it was set up.

17


government, aided and abetted by several former Conservative junior ministers among others. They established a sub-committee to consider : "(a) if there is need for improved methods by which Members of Parliament can quickly get information from scientists about matters likely to be raised in Parliament ; and (b) what can be done to improve the existing machinery to ensure that Parliament can establish more effective control over scientific and technological policy." The establishment of this sub-committee meant that the unofficial Parliamentary and Scientific Committee accepted its own limitations and reflected the growing apprehension of MPs at their lack of control of public policy in Science and Technology. The sub-committee recommended that, to improve parliamentary control, a select committee be established : " T o consider the reports of such bodies as the Research Councils, the Atomic Energy Authority and the National Research Development Corporation, and also the activities of scientific research groups and establishments in government departments, with a view to informing the House on their work and future." 1 It will be noted that the Parliamentary and Scientific Committee was cautious in making its suggestions about the order of reference for its desired select committee. It was prepared to accept a limiting formula probably because it felt that limitations would in any case be insisted upon by the managers of the political parties in the House. As it turned out, the parliamentary midwives who brought the Select Committee on Science and Technology into existence in 1966, among them Mr. R. H. S. Crossman who had become Leader of the House of Commons a short while before, threw caution to the wind and gave the new select committee an order of reference which is as wide as the world itself. The order charges the committee " . . . to consider science and technology and to report thereon". 2 As chairman of the committee since its inception I must say that these uninhibited terms of reference have been a great advantage to our work. Unlike the late and lamented "departmental" specialist committee on Agriculture, 18


we have not been confined narrowly to the work of a particular government department but have been able to range about according to our own judgement of need. This fact, I think, has had two useful results. Members of the committee have not felt frustrated; equally, particular government departments have not felt singled out for specially critical treatment. There are fourteen members of the committee divided by party colour, as is the usual practice, according to the relative strength of the parties in the House of Commons. This resulted in the 1966-70 Parliament in our having eight Labour Members (including the chairman), five Conservatives, and one Liberal. There have been some changes but on the whole there has been a fair continuity of membership and there remains, I am glad to say, competition among MPs on both sides to be appointed to the committee. In matters of science and technology all legislative assemblies are outstandingly amateur. The House of Commons is no worse served in this respect than other free Parliaments. I give in Table 1 some recent figures I have collected on the position in the United Kingdom, from which it will be noted that the "scientific" professions are out-numbered by the "non-scientific" professions by roughly 10 to 1. I am not suggesting, of course, that professional scientific or technical experience should be a necessary qualification for service on the committee, for that would be constitutional nonsense. In any case a cynic might say that if you made knowledge of a subject a requirement for speaking on it you would greatly limit the freedom of parliamentary debate. But the fact that members of the committee are often experts in their own right, or have acquired specialist knowledge by dint of application since their election as MPs, has been of great value to our work. We have had three chartered engineers, one PhD, and other committee Members have served in industry in an executive or administrative capacity. Nevertheless, I should make it clear that the select committee is not out to do jobs which only those with the necessary skill and responsibilities are qualified to do. We might, for instance, pass an opinion upon the choice of a nuclear reactor in the light of the evidence given to us by those in a position to know, but we would hardly presume to design 19

o

to

Total

Labour Conservative Liberal Scottish Nationalist

4 1 — — 5

9

Scientists

6 2 1 —

Engineers

8

6 1 1 —

Medics

1966

27

18 9 — — '

62

56 5 1 —

Managers Lecturers and and economists teachers

T H E PROFESSIONS IN THE HOUSE OF COMMONS ELECTED IN

TABLE 1.

109

51 55 2 1

Lawyers

18

1 17 — —

Regular forces

M

g

o o S

Kl

w

3 «s

co O So

>

M

> r

TO

w o

-3

§

w O


or specify a better reactor on our own account. This is the answer to some of our purist scientific critics who say the committee has been more concerned with the administration of science and technology than with the combined art itself. We are bound to be. It is wise for Members of the committee to know their limitations and to stick to their true parliamentary task. Their task is to select relevant subjects and to investigate them as thoroughly and critically as possible not only for the better guidance and judgement of government and Parliament, but for opinion generally including particularly scientific and technical opinion. Science and technology have farflung boundaries, if such exist at all, and to cover every subject of a scientific and technological nature which comes before the Parliament of an advanced industrial country would be an impossible task for any organisation, let alone for a group of MPs with innumerable other calls on their time and energy. Yet the committee's work must be topical, relevant and of a standard to command respect. (See Table 2 for a list of investigations completed or still proceeding.) To dart here and there, forming hasty and shallow judgements, would be fatal to the committee's reputation. It is the search for solid achievement, I think, which has led the committee to complete two major investigations. These are : (a) the nuclear reactor programme in the United Kingdom in the parliamentary session 1967-8; and (b) the research and development of weapons system for the armed forces in the parliamentary session 1968-9. The committee's self-imposed criteria for selecting these particular subjects were : 1. 2. 3.

That the subject was of prime national importance. That the nature of the work involved the spending of large sums of public money. That the area was one where it was generally accepted that changes in public policy were required to accommodate technical and organisational evolution.

Each of these major enquiries was conducted by the committee as a whole and each inquiry involved many public sittings to take evidence, T.O.C.S.P.—B

21

THE GROWTH OF PARLIAMENTARY SCRUTINY BY COMMITTEE TABLE 2. SELECT COMMITTEE ON SCIENCE AND TECHNOLOGY PUB LISHED REPORTS 8

Date of publication

Description of field

United Kingdom nuclear reactor programme 8

27 October 1967

Electrical and mechanical engineering

Ministerial Statements. Debate in House. Some recommendations adopted 4

Coastal pollution 5

26 July, 1968

Biological and chemical

White Paper issued. Debate in House on Opposition vote of censure. Some recommendations adopted 6

Carbon fibres7

20 February, Engineering and 1969 industrial chemistry

Report

Defence research 8 27 March, 1969

Remarks on outcome of report

Minister's letter sent to Committee. Industrial action taken

Military science

White Paper issued. Debate in House promised 9

Natural Environment Research Council 10

27 July, 1969

Natural environment and resources

Comment awaited

United Kingdom nuclear power industry 11

24 July, 1969

Electrical and mechanical engineering

Comment awaited

a At the time of writing, Session 1969-70, inquiries have been started into population questions and aspects of the computer industry ; the reasons for breakdowns in new electrical generating plant are also being studied.

as well as a few private sittings. In addition to "home" sittings, there were visits to take evidence at research establishments and at manufacturers' works away from Westminster. For both investigations 22


sub-committees were sent to continental Europe and the United States to bring back reports on the latest developments in those places in order that effective comparisons might be made. The range of evidence collected, written and oral, with complex investigations such as those into the nuclear reactor industry and into defence research, is necessarily wide, involving careful discrimination in the selection of witnesses and much hard work afterwards in sifting and summarising evidence as a preliminary to the drawing of conclusions and the forming of recommendations.* Select committees have power to compel all subjects of the Crown, including Ministers, to come before them ; as the parliamentary phrase has it: "to send for persons, papers and records". Whatever the true willingness or reluctance to come, this is in my experience never made apparent, although departmental witnesses—especially I am afraid from the Treasury—show a caution in answering that can amount to near evasion on occasion. The select committee is under instruction from the House to sit in public unless its Members resolve otherwise. I am much in favour of taking evidence in public wherever possible. Certainly it should be the normal and not the abnormal practice. Apart from the democratic case for public hearings—the right of the public to know—witnesses tend usefully to answer each other as the inquiry proceeds. The process is assisted by the printing of Hansard records of the proceedings as they take place without waiting until the final report is published. Apart from major investigations into specific subjects, such as those I have described (I shall come to coastal pollution, which was a special case, in a moment) the select committee has been haunted by the fearful thought that the government in power is making important, and perhaps irrevocable, decisions almost every month in the scientific and technical field. Should not some of these be scanned ? The breadth of our terms of reference certainly give us the opportunity if only there were the time to use it. In an attempt to exorcise our fears, we have set up a general pur* Select committees now have the useful and necessary power to appoint their own specialist advisers on subjects under investigation. Science and Technology has taken full advantage of this power, but it still rests with the committee to accept or reject the advice given.

23


poses committee to investigate shortly a particular governmental decision—or failure to take a decision—to see if there is, on the face of it, a case for deeper inquiry. We wish to avoid wasting our resources in time and staff if for the moment the government appears to have taken the right course or as near to it as can be judged. Using this method, we glanced quickly at the decision to reduce nuclear fusion research at the Atomic Energy Authority's laboratory at Culham; examined the decision not to support the 300 GeV European nuclear accelerator ; and considered Ministry of Technology involvement in the commercial exploitation of carbon fibres. In this last case, the general purposes committee thought there was a strong case for a deeper investigation and entrusted it to a special sub-committee under the chairmanship of Brian Parkyn, a Member of the committee and an industrial chemist. In its report the sub-committee recommended that the Ministry of Technology should encourage the building of a large-scale plant for the production of carbon fibres in the United Kingdom. The recommendation was taken up in principle by a major chemical company, although there have been difficulties subsequently. The foregoing does not by any means exhaust the activities of the committee in the three years of its existence, as the list in Table 2 demonstrates. We have done, for instance, a great deal of work, under the leadership of Sir Harry Legge-Bourke, on coastal pollution. As I have indicated, the circumstances which led us to embark on thsi investigation were somewhat special. The House of Commons referred the subject to us in the wake of the Torrey Canyon* affair at the request of the government. We did not resent the task as such. Coastal pollution is obviously a good subject for inquiry, but if the government got into the habit of giving the committee jobs to do, however worthy or necessary, then the government would be dictating the committee's activity and limiting our freedom of action. The list of work done shows that we completed in the last session of Parliament two parallel enquiries : one into the progress so far of the Natural Environment Research Council,12 and the other a * The Torrey Canyon was a large oil tanker wrecked off the coast of Cornwall in 1967 causing vast oil pollution on the beaches of South West England and Northern France.

24


further study of the nuclear reactor industry. 13 NERC was looked into because of a feeling in the committee that the detailed examination of research council reports was to be a "bread and butter" task of the Select Committee on Science and Technology. Because of the pressure of so much else we have not had much opportunity as it has turned out to review research council reports, but we have thought it important to do at least one. Opening a long review of the findings (drawn up by a sub-committee with Sir Harry LeggeBourke as chairman) the eminent scientific journal Nature said: " T h e House of Commons Select Committee on Science and Technology has fired several shots across the ambitious bows of the Natural Environment Research Council in the report on the inquiry into the council's operations. Although the general tone of the report will no doubt allow the high officials of NERC to sleep easily in their beds, some of them may also be disconcerted that the committee has uncovered such a great deal of uncertainty in the council's operations." 14 The second nuclear reactor inquiry (1968-9) came about because of the select committee's impatience with the snail's pace reorganisation after the strong recommendations of the committee for major changes in the industry in the first nuclear report of 1966-7. It was, in short, a follow-up inquiry. Mr. Wedgwood Benn, the Minister of Technology, was closely examined when he appeared as a witness and, in the concluding paragraphs of the subsequent report, these strong words were used : "Our opinion is that, in spite of all the time and energy that have been devoted to the reorganisation of the industry, very little has been achieved so far to rationalise, strengthen and make it more competitive in world markets. Apart from the elimination of one of the consortia, and with it the departure of its component firms from the nuclear scene altogether, we do not notice much real change. The two new companies are little different from the two previous consortia and there appears as yet to be little change in the functions of the authority. The shift of emphasis in design work, of which much was expected and of which on paper much is made, appears 25


to mean in fact that the companies are doing fractionally more on existing reactor types, whether commercial or not, than they did previously. This situation may of course evolve into something more rational with the passing of time but in view of the stress placed once upon a time on urgency, the present position is loose and confused to say the least." 15 This quotation touches on a key question: what influence on government policy and affairs at large has the committee achieved ? This is not an easy question to answer in precise terms and I will content myself with general observations only. One outstanding gain from the existence and activity of the committee has been the steady building up of a network of connections, both personal and corporate, with industry, with leading scientific and engineering personalities and with the specialist journals. To them the Select Committee on Science and Technology is an independent centre of power and influence. It is within Parliament but apart from the massive governmental bureaucracy : a centre to which an approach can be made and from which inquiries can come. Another gain is to be seen in the fact-finding mission of the select committee. Apart from any recommendations the committee make on what public policy in a given field should be, the compilation of evidence on the facts of a situation and the unveiling of the motives behind existing policy is in itself an invaluable service to parliamentary and public opinion. Only a body like the Select Committee on Science and Technology possesses the powers that make the compilation possible ; a government department cannot do it. As to the direct effect in influencing or changing government policy, our score of successes cannot be totted up with certainty and in any case these are still early days. With nuclear reactors, coastal pollution and carbon fibres, the recommendations of the select committee have left their mark. For example, there is the promised nuclear fuel company. There has also been the appointment of Mr. Anthony Crosland as a senior Minister responsible for all issues affecting the natural environment and the changes in the responsibilities and powers of the National Research Development Corporation foreshadowed by Mr. Wedgwood-Benn's new Green Paper on government research. 26


It is true that on an important early recommendation of the select committee (that the resources of the United Kingdom for the production of nuclear reactors should be concentrated in one national design and manufacturing organisation) the Minister rejected our view and retained two competing groupings. But here the committee itself was divided. In fact, the Labour Minister ended up by agreeing more with the, as it happened, Conservative minority of the committee than with the Labour majority. This incidentally is the only occasion on which the committee has split more or less along party lines, reflecting not sectarian rivalry or a desire to agree with the government of the day, as we have just seen, but an honest philosophical difference. The Conservatives leaned towards a "market" solution of the industry's difficulties, while the Socialists opted for a ''managed" solution of the same difficulties. In reply to the select committee's important report on defence research and development, the first ever parliamentary inquiry in modern times into the technical working and equipment of the armed forces, as distinct from the cost of providing equipment, the Secretary of State for Defence, Mr. Dennis Healey, has issued a White Paper.16 In our report we had placed great stress upon the following : (a) that the close linking of ideal defence research with foreign policy be properly understood ; (b) that operational analysis should be greatly expanded ; (c) that the supremacy of the Treasury in defence matters is not always a force making for economy and efficiency ; (d) that the use of project managers on a wide scale is desirable; (e) that industry needs to be made conversant with the forward thinking of the defence departments; and (f) that urgent action be taken to encourage the movement of qualified scientists and engineers between industry and government. 17 In the introduction to the White Paper, the government say in reply that they: " . . . welcome this inquiry, in which departments have co-operated with the committee to the fullest extent consistent with national security considerations, and they have given careful consideration to the report since its publication in May. It makes a

27


valuable contribution to public knowledge of defence research and development and thereby assists a process to which the government attach the highest importance." 18 This statement is, I think, perfectly fair and as far as it goes not unsatisfactory to the committee. Naturally, committee Members have examined the sixty-one paragraphs of the government's answer and they approve where the Minister agrees with the committee and disapprove where he rejects their arguments. But the important consideration is that the dialogue is taking place, that changes are coming about and that no one is holding fast to positions that should be abandoned in the face of argument's attack. Debates on the floor of the House on the reports of select committees are important and more parliamentary time obviously should be given to such debates. But it would be superficial to measure the impact of the work of the Select Committee on Science and Technology on public policy simply in terms of the frequency of debates and favourable ministerial replies. For instance, in a confidential comment from an industrial source, I have been told recently that "there has been a considerable increase in the level of communication between the Ministry of Defence and industry since the committee started its investigations." I would argue again, as I did earlier, that the root difficulty about obtaining fuller parliamentary accountability of the executive is the lack of an absolute separation of powers between the government and the legislature under the British constitutional system. I am not suggesting that this situation should be changed, but its continuance means that the extended introduction of open parliamentary committees is an operation of some delicacy until new precedents are established and new methods of working take root. Now we have started, however, there is no way back. For science and technology, the select committee experiment is another instalment in the adaptation of that sturdy old social organism, parliamentary government, to the conditions of a complex industrial society. A next stage might well be the reference of Bills in the sphere of science and technology which are agreed by the parties to be non-controversial (and they are many) to the select committee suitably expanded after Second Reading and not to the traditional standing committees as is the present practice. Under this new arrangement Ministers, civil servants and indepen-

28


dent experts would be examined by the committee as witnesses to justify the Bill's clauses. In the light of the evidence taken, amendments would be made and the Bill reported back to the House for final approval. This would leave the government still free to have its own way, backed by its party majority, if it wished. But in circumstances where the Bill, by agreement in the first place, did not involve party principle or interest and where amendments made were based on the balance of expert opinion openly expressed, it is unlikely that governments would wish, or would dare, to set aside the committee's findings. This new approach would incidentally reduce one of the strongest present practical objections to the extension of specialist select committees, namely, that the Committee of Selection and the Whips already experience difficulty in finding enough Members for the standing committees, which are essential to government business. But the greatest gain of all would be the more intelligent and realistic operation of the House of Commons in the twentieth century.

REFERENCES 1. Fourth Report from the Select Committee on Procedure, Session 1964-5. H C 303 of 1964-5. Appendix 3, p. 143. Memorandum by the Parliamentary and Scientific Committee. 2. 14 December, 1966; HC Deb. 738, c. 477. 3. HC 381 of 1966-7. 4. Ministerial statement, 17 July, 1968; HC Deb. 768, cc. 1428-9. Debate, 23 Mav, 1968; HC Deb. 765, cc. 651 et seq. 5. HC 421 of 1967-8. 6 Cmnd. 3880, 20 January, 1969. Debate, 16 June, 1969; HC Deb. 785, cc. 105 et seq. 7. H C 157 of 1968-9. 8. H C 213 of 1968-9. 9. Cmnd. 4236; December, 1969. 10. H C 400 of 1968-9. 11. H C 4 0 1 of 1968-9. 12. HC 400 of 1968-9. 13. H C 4 0 1 of 1968-9. 14. 7 September, 1968, p. 993.

29


15. 16. 17. 18.

HC 401 of 1968-9, para. 67. Cmnd. 4236; December, 1969. See HC 213 of 1968-9. See Cmnd. 4236.

30

The Select Committee on Agriculture JAMES JOHNSON MP THE specialist Select Committee on Agriculture was the first-ever select committee of the House of Commons appointed to scrutinise the activities of one ministry or department of state. For our parliamentary system it was a new and major initiative. As a Member of the committee from December, 1967, and as chairman of its subcommittee on Fisheries, I make a strong plea that we should now assess its work without taking too dogmatic a view about what the committee's rôle and life span ought to have been. If we start from what the committee achieved, we can draw some conclusions which will be useful in the still unresolved debate about the part which specialist select committees can play in our Parliament and administration. It seems to me inevitable that in this new situation the Members themselves should have had differing views about the purposes of the committee. Some of us saw it mainly as a watchdog committee, which enlarged parliamentary scrutiny of the Ministry of Agriculture, Fisheries and Food. For this view we had to some extent the support of the Leader of the House of Commons, Mr. R. H. S. Crossman, who said in the debate on 14 December, 1966,1 that the appointment of this select committee would be a "cautious advance in the revival of parliamentary control over the executive,\ In addition to our normal weapons as Members of Parliament interested in agriculture, fisheries or the food industry—intervention, if fairly infrequently, in major debates, the discussion of statutory instruments and other subsidiary legislation, question time, adjournment debates, ministerial correspondence, perhaps membership of a standing committee on a Bill— 31


we now had the opportunity to satisfy ourselves in far greater detail about the way in which the ministry prepared itself for and carried out the execution of policy. This was the rôle which seemed to be most consistent with our order of reference which was to : " . . . consider the activities in England and Wales of the Ministry of Agriculture, Fisheries and Food and to report thereon this session1'. These were somewhat austere terms of reference. We were not called upon to formulate new policies or procedures for the future but to report upon the present activities of the Ministry. Others of us took the view that we should play a bigger part in the formulation of policy, that we should make our influence felt before decisions were taken by the government and that we should have more than an examining rôle. Strictly speaking, this may have gone a little beyond our order of reference and the circumstances in which the "departmental" specialist committee was appointed. But it could hardly be expected that a group of back-benchers, given a new rôle to play, would play it sotto voce. Here was a field of tremendous interest to the House of Commons and to a wider public, namely, the way in which Parliament, not the government, could assert its authority in the creation of policy. Parliament, through its specialist Select Committee on Agriculture, was almost bound from the first to be tempted by the more ambitious approach. Of course, these two approaches are not entirely at variance. We made this point ourselves in paragraph 3 of our report of 12 February, 1969.2 We stated there that we considered both of these functions to be proper to a select committee. We added that specialist select committees should enable a body of Members of Parliament to acquire a greater breadth of knowledge and experience within a particular field. In making this third point we were, of course, thinking of the need for specialist select committees to be appointed in every parliamentary session or at least to be given a definite period of appointment. I supported these views strongly. I felt it to be most important that we should learn from our experience of the Select Committee on Agriculture and make the best use of similar committees to be appointed in the future. But I did not feel strongly, as some of my colleagues may have done, that we had been misled at all upon appointment. I had envisaged the Select Committee on Agriculture as an experiment

32

THE SELECT COMMITTEE ON AGRICULTURE

and had expected it to be mainly engaged upon the investigation of administration. I think that this is also what the government intended. The uneasy balance between the limited objectives of the specialist select committee's terms of reference and the wish of some of its Members for a more permanent rôle in the formulation of policy can be seen at times in the record of the committee's work. But I should not wish this to detract in any way from the realisation that it did a good job. I believe that its reports were good reports and tackled the issues squarely. They are eminently well worth reading. The Select Committee on Agriculture was appointed on 14 December, 1966, for the session 1966-7. The session was by then well under way. No doubt there had been a lot of thinking on the government's part about the likely outcome of a select committee concerned with the work of a single ministry. There may possibly have been some haggling among departmental Ministers about who should be the first to foster this possible cuckoo in the nest. I do not think that Mr. Fred Peart, then the Minister of Agriculture, Fisheries and Food, can be accused of holding back. He is on the record over the years as being a very strong believer in the extension of select committees. But in any event, the Members were not nominated until 30 January, 1967. They were Mr. Tudor Watkins (chairman of the committee), Mr. Peter Bessell, Dr. John Dunwoody, Mr. Tony Gardner, Mr. Garrett, Mr. Bert Hazell, Mr. J. E. B. Hill, Mr. Bryant Godman Irvine, Mr. Michael Jopling, Mr. Clifford Kenyon, Mr. Peter Mills, Mr. Elystan Morgan, Mr. Derek Page and Mr. Patrick Wall. There were no surprises here. The committee had, of course, to have a balance between the political parties. But these Members were all known in the House to have an interest in agriculture, fisheries or the food industry. Some had an important constituency interest. Others, like Mr. Tony Gardner, were known to be particularly concerned about the representation of the consumer interest. On 24 February, 1967, two Scottish Members, Mr. Alick Buchanan-Smith and Mr. John P. Mackintosh, were added to the committee, although the committee's order of reference did not extend to the work of the Department of Agriculture and Fisheries for Scotland. I suppose that this was an assertion of the established practice that all Members of the House should be free to scrutinise the whole administration, not 33


only that part of the administration which directly affects their constituencies. The "departmental" committee had adequate powers for its job. In the somewhat archaic words of the House of Commons, it was : "Ordered, That the Committee have power to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to admit strangers during the examination of witnesses unless they otherwise order." 3 In its choice of subject the select committee veered towards the more ambitious interpretation of its rôle. It decided to examine: " T h e scope and adequacy of the inquiries made by the Ministry of Agriculture, Fisheries and Food concerning the effects of possible entry into the European Economic Community on Britain's agriculture, fisheries and food."4 In its report of 27 July, 1967,5 the committee makes clear the reason for this choice. First, it was thought best to begin work on a subject which concerned events taking place rather than matters already decided. Secondly, it was agreed to take a subject which was highly topical. It was a sufficiently important subject to call for adequate investigation. But it inevitably, of course, carried the committee at some points away from the responsibilities of the Ministry of Agriculture, Fisheries and Food into the responsibilities of the Foreign Office. This in turn led to the somewhat Ruritanian episode of the trip to Brussels described in paragraphs 17-21 of the committee's report of 27 July, 1967. We had taken on a large task. But although we were not nominated until 30 January, 1967, it was decided that the committee should aim to complete its work by the end of July. This limited the number of witnesses which the committee had time to hear and also the number of visits it could make. Nonetheless, the committee completed its work and arrived at a firm conclusion on the main issue. Here it seems to me most important to emphasise two points. First, this inquiry was successfully and efficiently completed. Secondly, it concluded that, broadly speaking, the Ministry of Agriculture, Fisheries and Food had done a good job and was properly prepared with an assessment of the implications of membership of

34


the European Economic Community. This was an encouraging result in a matter of great importance to the nation. We should not lose sight of it in our concern with some minor irritations which befell the committee. The committee concluded that the overall impression of the preparations made by the Ministry of Agriculture, Fisheries and Food, in the light of Britain's possible entry into the European Economic Community, was that of thoroughness. The ministry fully appreciated the very considerable complications of the regulation of agriculture and food in the Common Market. The detailed assessment was continuous and up to date. Furthermore, on the three most important points on which information was needed—the effect of a common agricultural policy on British farming, on consumers, and on the balance of payments—the committee formed the view that the ministry had produced an assessment which was not disputed and which had clearly been based on solid foundations. The committee drew attention to the fact that full information on the possible effect of joining the European Economic Community on Britain's agriculture, fisheries and food had been assembled and, moreover, published, unlike that on other aspects of our economic and political institutions. The committee considered that it was perhaps doubtful whether this would have happened if it had not been appointed. For myself I believe that the attention which the committee devoted to this question did inspire even greater application to it within the ministry. This has been carried through into the most recent White Paper Britain and the European Community: an Economic Assessment of February, 1970.e There has been comment that the agriculture and food chapter of this White Paper was most carefully argued and assessed. The committee had some reservations about the adequacy of the ministry's information on the flexibility of the EEC's common agricultural policy in operation. There was perhaps a slight difference of judgement between the Members and the official witnesses. The committee recognised that the reason for reticence on this question had been the ministry's desire not to prejudice the bargaining position of the government should negotiations take place—a valid point— but thought that this could be carried too far if it resulted in an

35


assessment which did not deal with issues where the directives and regulations of the common argicultural policy would clearly have to be modified in order to make room for new entrants. The committee also commented on the limited extent of consultations between the ministry and agriculture and food interests in the United Kingdom. There were, however, a few thorns among the roses. There were two particular difficulties with the Foreign Office. The committee had trouble in obtaining some information which it wished to have from the Foreign Office and also could not understand that department's attitude to the visit which the committee wished to make to Brussels. It was only after some months delay that a short visit by five Members was arranged. The arrangements for this, including the moving of the necessary motion in the House of Commons giving the committee leave to hold sittings in Brussels, were the subject of a remarkable riddle-me-ree. The committee was concerned about the staffing of the British missions in Europe and commented particularly on the staffing of the British mission in Brussels. They thought that the work of informing the government about the development of the common agricultural policy had been handicapped by shortage of staff in these missions. Apart from the recommendations on the substance of its inquiry, the committee drew attention to one or two administrative problems which it had encountered in the hope that its experience as one of the first specialist committees might be helpful to others in future planning. These problems included shortage of time—just over five months to complete the inquiry and shortage of staff to assist the committee. The committee was also concerned whether the inquiry had been publicised widely enough so that all those who might have wished to give evidence were aware of the opportunity to do so. They considered that in future it would be useful to advertise in the press. They also suggested that, instead of working from a verbatim report, there might sometimes be advantage in working from a summary of evidence with a verbatim report recorded on tape for reference.7 The committee had decided in general to hold its meetings in public and thought that this had not inhibited any of the witnesses when giving evidence. It was a principle which the committee endorsed strongly, particularly in view of the fact that its terms of 36


reference were to report to the House. Evidence given in confidence could only have a limited use as a foundation for such a report and they considered that it was to the House, and through the House to the people it represents, that they owed their first duty. Departmental observations on the committee's report were presented to Parliament in November, 1967.8 The Ministry of Agriculture, Fisheries and Food expressed its gratification that the committee should have commended the thoroughness and accuracy of its assessment and endorsed its main conclusions. On the subordinate points on which the committee had expressed certain reservations, the ministry confirmed that the committee itself was right in attributing some reticence on the flexibility of the common agricultural policy to the need not to prejudice negotiations. They pointed out that this reticence did not imply any ignorance of the way in which the common agricultural policy is operated in the European Economic Community as it now exists. At the time when the ministry's witnesses gave evidence, no statement had been made about the government's negotiating objectives for agriculture. The Ministry also maintained that its consultations with interested bodies had been adequate. The Foreign Office in its reply9 stressed the confidentiality of the papers which the committee had requested and explained that it was unable to meet the committee's wish to see certain correspondence because it related to the internal administration of the department and was confidential. The Foreign Office also defended its concern over the committee's visit to Brussels on the grounds that it was inopportune at that particular time. The department had said that it would have no objection if the chairman and vice-chairman and one or two others were to visit the delegation in Brussels in order to complete their investigations. The report and the departmental observations were debated in the House of Commons on 14 May, 1968.10 This debate covered most of the ground which I have described. Members of the committee reiterated the value of this new venture and its conclusions, while accepting that it was still an experiment. The Minister of Agriculture drew attention to the amount of work which the setting up of a select committee of this kind inevitably meant for the ministry. The preparation of 30 memoranda of written evidence and the giving of oral

37


evidence which covered 190 pages of the printed record were described by the Minister as the tip of the iceberg. The attention which the select committee had attracted, and the general welcome in the House of Commons for its work, led to its reappointment for the session 1967-8. The membership of the committee was increased to twenty-five and the following members were nominated : Mr. Tudor Watkins (chairman of the committee), Mr. William Baxter, Mr. Peter Bessell, Mr. Terence Boston, Mr. Alick Buchanan-Smith, Dr. John Dunwoody, Mr. William Edwards, Mr. John Farr, Mr. Tony Gardner, Mr. Garrett, Dr. Hugh Gray, Mr. Paul Hawkins, Mr. Bert Hazell, Mr. J. E. B. Hill, Mr. Bryant Godman Irvine, Mr. Peter M. Jackson, Mr. James Johnson, Mr. Michael Jopling, Mr. Clifford Kenyon, Mr. John P. Mackintosh, Mr. Peter Mills, Mr. Elystan Morgan, Mr. Derek Page, Mr. Patrick Wall and Mr. John Wells. During 1968, Mr. Peter Bessell, Mr. Elystan Morgan and Mr. Terence Boston were discharged and Mr. Alistair Mackenzie, Mr. Ednyfed Hudson Davies and Mr. Andrew Faulds were appointed in their places. On its second haul the committee again directed its attention to a very major issue and chose to examine the Ministry of Agriculture, Fisheries and Food's departmental assessment of food requirements over the next few years. We also considered how far it would be both practicable and in the national interest to increase the proportion of production from home sources, together with the methods of ascertainment of costs of production, returns to producers and all matters relevant thereto. 11 During the summer of 1968 we received an important report from the Economic Development Committee for Agriculture on agriculture's import-saving rôle.12 That this was a major report was indeed shown later by the part which it played in the government's decisions on the rolling forward in November, 1968, of the selective expansion programme for British agriculture. The committee concluded that it could not adequately consider this report and the related topics before the end of that session of Parliament. It therefore asked to be reappointed in the following parliamentary session to continue its work. This was agreed and the committee was reappointed in November, 1968, and ordered to report by the end of February, 1969.13 38


We published our report at the beginning of March, 1969.14 We reached a number of straightforward conclusions, even though this was a time at which the agricultural policies of the government and the opposition had begun to diverge. We were all agreed that the rate of agricultural expansion should be increased and that there should be a positive substitution of home grown food for part of the present imports of temperate foodstuffs. This would be technically within the capacity of the farming industry provided that the government offered adequate incentives, that the outflow of agricultural labour was reduced by higher wages and that expansion was no longer inhibited by rigid provisions in international agreements with overseas suppliers. We thought that the use of extra resources in agriculture to save imports was justified. We accepted the advantage of further investment in agriculture but thought that its extent should depend on the relative benefit in import saving of the use of these resources in agriculture as opposed to increased investment in other industries. Calculations had been made for agriculture but similar information was not available for industry. We thought that it should be. We found considerable differences of opinion and attitude between the government departments principally concerned. The Ministry of Agriculture appeared to accept a policy of expansion but for the Board of Trade the interests of exporting industry or manufacturing industry appeared to obscure the contribution which agriculture could make. The Department of Economic Affairs, particularly in relation to agricultural wages, displayed a similar attitude. We thought that the Treasury's concern with the annual cost of supporting agriculture had prevented a full appreciation of the long-term needs and potentialities of the industry. We also drew attention to the central problem of assessing the merits of alternative methods of supporting home production and limiting imports and indicated that further work on this was essential. We were not satisfied that adequate consideration was being given to the long-term implications of the permanent loss of land from agriculture. But not only did the select committee make these major recommendations, it also gave special attention to horticulture and to fisheries, a subject in which I have a very special personal and constituency interest. 39


On 1 February, 1968, we appointed a sub-committee on Horticulture to consider: " . . . probable future demand and supply; the impact of international trade on the industry; the operation of the system of tariffs, import controls and state aid for horticultural products ; and the methods by which production and profitability can be increased.'' The members of the sub-committee were Mr. J. Wells (chairman), Mr. John Farr, Dr. John Dunwoody, Mr. Tony Gardner, Mr. J. E. B. Hill and Mr. Derek Page. The report of this sub-committee was published on 26 November, 1968.15 It laid great emphasis on the horticultural industry's capacity for expansion and import saving and made numerous detailed recommendations for its benefit including more research, swifter use of anti-dumping machinery and the construction of new markets. Again this was an authoritative statement of Parliament's views across party boundaries. I was appointed chairman of the sub-committee on Fisheries set up on 1 February, 1968. We decided to give our attention to the " . . . probable future demand and supply; the impact of international trade on the industry; the operation of a system of state aid to the industry ; and the methods by which production and profitability could be increased. The other Members of this sub-committee, apart from myself, were Mr. Alick Buchanan-Smith, Dr. Hugh Gray, Mr. Alistair Mackenzie, Mr. Peter Mills and Mr. Patrick Wall. Our report was published in July, 1968, as part of the third special report from the main committee.16 We concluded that, although some sections of the fishing fleet were doing reasonably well, others (notably the deep sea fleet) were in great trouble. Our recommendations included a statutory minimum prices scheme, a government financed advertising scheme, the encouragement of further research into and development of a mother ship system and consideration of methods of improving quality control at the ports. We called for consideration to be given to increased protection for the whole industry. We questioned the future of the White Fish Authority and recommended that there should be an examination to determine whether it should be abolished or given more real power. We also thought that it would be desirable to have a Minister of State for Fisheries.

40


I believe that, although our report was drawn up fairly hastily, it did go to the heart of the major issues facing the industry. Finally, the select committee thought it right to put into one document its considered views on the future of specialist select committees. 17 This is a landmark in a hitherto uncharted landscape. For the efficient working of the specialist committee system we recommended : 1. That the committees should have a measure of permanence. 2. That they should be consulted over changes in their duration, size and membership. 3. That specialist committees should in general be subject committees covering a topic rather than the work of a particular department. 4. That specialist committees should be limited in size to about sixteen members. 5. That a staff adequate to service the committee should be provided and that staff economies should not be allowed to limit the development of the new system. 6. That specialist committees should not be inhibited by government from considering policy in its formative stages, nor should they be prevented from considering matters due for legislation. I believe that our inquiries were valuable in themselves and that these guidelines for the future of specialist select committees are valuable in a wider context. I do not myself think that specialist committees must always be permanent. But I do strongly favour clearly defined subjects and an agreed timetable. As for Agriculture, I think it can now benefit from a period of fallow. REFERENCES 1. HC Deb. 738, c. 494. 2. Special Report from the Select Committee on Agriculture, Session 1968-9. HC 138 of 1968-9, para. 3. 3. First Special Report from the Select Committee on Agriculture, Session 1966-7. HC 349 of 1966-7, p. 2. 4. Ibid., p. 3.

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5. Report from the Select Committee on Agriculture, Session 1966-7. HC 378-XVII of 1966-7, para. 3. 6. Cmnd. 4289. 7. HC 378-XVII of 1966-7, paras. 5-11. 8. Cmnd. 3479. 9. Ibid. 10. HC Deb. 764 cc. 1117 et seq. 11. First Special Report from the Select Committee on Agriculture, Session 1967-8. HC 110 of 1967-8. 12. Economic Development Committee for Agriculture. Agriculture's Import Saving Role. HMSO-NEDO, 1968. 13. 15 November, 1968; HC Deb. 773, c. 827. 14. Report from the Select Committee on Agriculture, Session 1968-9. H C 137 of 1968-9. 15. Report from the Select Committee on Agriculture, Session 1967-8: Horticulture. HC 445 of 1967-8. 16. Third Special Report from the Select Committee on Agriculture with Report from the Sub-committee on Fisheries, Session 1967-8. HC 309 of 1967-8. 17. Special Report from the Select Committee on Agriculture, Session 1968-9. HC 138 of 1968-9.

42

The Select Committee on Overseas Aid SIR GEORGE SINCLAIR CMG, OBE, MP T H E Select Committee on Overseas Aid was one of the newer specialist select committees. As it did not make a formal report to the House of Commons before its work was brought to an end by the dissolution of Parliament for the General Election in June, 1970, it is not possible to attempt any settled assessment of the impact that its work was making or was likely to make on the government's aid policies or programmes or of its usefulness in other ways. Moreover, under the current doctrine of parliamentary privilege, it would be a breach for a Member to discuss outside the Committee either its deliberations or the unpublished memoranda submitted to it before these have been covered by a report. I must, therefore, limit myself to what is allowed by this doctrine and, in particular, to the consideration of important questions affecting the committee's structure. But, since I served also as a Member of the Select Committee on Race Relations and Immigration, which has already submitted its first report, I am able to draw to some extent on experience of that committee in commenting on this one. The Overseas Aid committee was first appointed on 24 April, 1969, simply to consider the activities of the Ministry of Overseas Development. It was given the usual powers to "send for persons, papers, and records" and to examine witnesses and report minutes of evidence to the House. It consisted of sixteen members, with a quorum of eight, but was not at first given powers to set up sub-committees. These powers were provided on 9 June, 1969. In its second special report, the committee asked that it should be reappointed without delay in the next session and that its order of reference should include

43


the power to set up sub-committees to conduct inquiries because: "Experience has shown that a committee of sixteen Members is too large to examine witnesses satisfactorily. ,,1 In the 1969-70 session the committee was reappointed on 4 November, 1969, with its size increased to eighteen members and a quorum of nine. The new order of reference included the power to appoint two sub-committees and, on 18 November, 1969, this power was extended to include the appointment of additional sub-committees to hear evidence abroad. At the same time, the committee was given the power to appoint specialist advisers " either to supply information which is not readily available or to elucidate matters of complexity within the committee's order of reference". The evidence taken by the committee in the previous session was also referred to the new committee. Otherwise, that evidence, on which no report had been based, could not have been used when the committee reported. In both sessions, Miss Margaret Herbison MP, a former Minister, was chosen as chairman of the full committee ; she was also chosen as chairman of sub-committee B, while Mr. Bernard Braine MP was chosen as chairman of sub-committee A. The committee was set up as one of the third round of specialist select committees. It was a "departmental" committee, appointed to investigate the work of a particular government department rather than a "subject" committee covering the work of several departments. This distinction has some importance. It was emphasised by the then Leader of the House of Commons (Mr. R. H. S. Crossman) when the first two specialist committees (Science and Technology and Agriculture) were appointed that such committees were to be experimental. 2 It emerged subsequently that "experimental" implied, in the case of "departmental" committees, a limited life of two to three sessions and this pattern was already established by the time the Overseas Aid committee came to be set up. Thus it seemed possible from the start that the committee would have only a relatively short existence. Two further uncertainties faced it. When it was set up, the future of the specialist committee system was in some doubt and this doubt has not yet been resolved. The Select Committee on Procedure recently proposed that the present ad hoc system should be replaced, at least partly, by a series of expenditure sub-committees of a reorgan-

44

THE SELECT COMMITTEE ON OVERSEAS AID

ised Estimates Committee. 3 Also, the committee was appointed when the last Parliament had a life of, at most, two years. The combination of these factors meant that the committee had to plan its work on the assumption that it would have a maximum of two sessions in which to conduct its inquiries. Beyond these internal factors affecting the committee, in the world outside there had been a series of major reviews of overseas aid. At the international level, the World Bank Commission on International Development (the Pearson Commission) published its report in September, 1969 ;4 Sir Robert Jackson's Study of the Capacity of the United Nations Development System was published in December, 1969 ;5 and the United Nations Committee for Development Planning, under the chairmanship of Professor Tinbergen, published in May, 1969, guidelines for the Second United Nations Development Decade, which begins in 1971. β Each of these reports received widespread publicity and the Pearson Report, in particular, apart from providing much useful information and statistics, has already had a noticeable influence on thinking about aid at both national and international levels. Apart from these official international documents, there has also been a large volume of material published, in the press and in various learned journals, on both the political and economic aspects of over seas aid and the economics of developing countries. The existence of all this material, much of it directly relevant to the committee's work, has placed on Members the heavy additional task of making them selves familiar with a wide range of documents. Members have many other regular parliamentary duties, both within the chamber and outside it, which make increasing demands on their time and interest. On the other hand, information and ideas on aid, recently collected from all over the world and evaluated by experts, were available on almost any topic which the committee might choose to investigate. The committee was considerably influenced in choosing the subject of its inquiry by the work done on Overseas Aid by the Estimates Committee in the 1967-8 parliamentary session and by the favourable reactions to that committee's report. 7 The Estimates Committee received evidence from the government departments mainly con cerned with administering the aid programme and from some outside 45


bodies with particular interests in the subject. It also made a journey to the Lebanon, Pakistan and India. Its report was wide-ranging and the evidence provided a working base for our new select committee, since it was recent enough to be taken as a good starting point. This meant that the select committee was able, from the beginning, to look at more detailed aspects of the work of the Ministry of Overseas Development and to spend less time considering the general background. But in the three working months, from its appointment to the end of the 1968-9 session (October, 1969), the committee was not able to conduct a full inquiry and produce a considered report. It concentrated, instead, on hearing evidence from the Minister of Overseas Development, the Overseas Development Institute, the Board of Trade and the Foreign and Commonwealth Office and used this evidence as a background for its work in the following session.8 As we have seen, the committee's experience in the 1968-9 session had led it to conclude that, with a full attendance, sixteen Members was too many for the satisfactory examination of witnesses when conducting a detailed inquiry. When in the 1969-70 session we were empowered to divide into two sub-committees, Mr. Bernard Braine's sub-committee was given the task of reporting on the size, cost and nature of the aid programme, capital investment and trade. This might include multilateral and bilateral aid and the Commonwealth Development Corporation. Miss Margaret Herbison's subcommittee was to report on rural development, aid management and trade. This may include aid management, both at home and overseas, industrial training, technical and scientific manpower, entrepreneurial expertise, agriculture, small industries, education, health, and housing. Neither sub-committee reached the report stage before Parliament was dissolved. But both had found it necessary to concentrate on examining in depth specific topics within their terms of reference rather than to attempt to cover the whole field. Each subcommittee received evidence from the Ministry of Overseas Development and other government departments, as well as from interested organisations and individuals. Though the committee had not, before its work was ended by the General Election, evaluated the evidence which had been received, it was already clear that an important problem was the existence of too much rather than too little material.

46


A particular feature of the committee's work was the arrangement of three visits abroad to countries receiving British aid. The Estimates Committee had commented that it could not emphasise too strongly the value of such a visit because, in a subject such as Overseas Aid, it is impossible to appreciate the problems involved without first-hand experience of the impact of aid particularly as seen by the receiving country. Though the committee's work came to an end before we were able to evaluate the results of these visits by our subcommittees, there seems so far to be no reason to disagree with the Estimates Committee's comment. Each visit was of approximately two weeks and was undertaken by four Members, with different Members going each time. The countries visited were selected to cover as wide a range of conditions as possible and to include some of the major recipients of British aid. The first visit was to India and Pakistan; the second to the Middle East; and the third to Kenya, Ethiopia and the Sudan. The appointment of these travelling sub-committees posed problems. First, British overseas aid reaches many developing countries dispersed over the world and the economic circumstances of each are different. Visits covering a representative sample are bound to be expensive. So the sub-committees had to be small. Secondly, Britain's aid effort in each of the countries selected was of concern both to sub-committee A and to sub-committee B. Both sub-committees are, in fact, represented on each of the travelling sub-committees. These travelling sub-committees, therefore, cut across the divisions of subjects allotted to sub-committees A and B. How this overlapping pattern would have worked out is not yet clear. Because the select committee was prevented by the General Election from producing a full report, it is impossible to assess, for example, its effectiveness in influencing the activities of the departments principally concerned. There are, however, some general questions which had already arisen and which are of relevance to the future work of such a committee, as well as to that of other specialist committees. The Overseas Aid committee differed from the other specialist committees in that the work of the Ministry of Overseas Development lay mainly outside the United Kingdom, whereas the other com-

47


mittees were concerned primarily with domestic affairs. The ODM has to work within the context both of the policies of the countries to which British aid is given and of a large international effort in the development field, including the various United Nations agencies involved, as well as the World Bank, the International Monetary Fund and such multilateral organisations as the Development Assistance Committee of the OECD (known often as the Donor's Club). But it needs also, because of the relevance of aid to Britain's external relations, her trade and her overseas investment policies, to co-operate closely with other departments, especially with the Foreign and Commonwealth Office, the Board of Trade and the Treasury. Indeed, it is one of the problems, if British overseas aid is to yield the best advantages to both recipients and donors, that there must be close co-ordination between the Ministry of Overseas Development and these three departments. The committee is, by its order of reference, concerned directly with the activities of the ODM. But it has found that, if it is to consider the whole field of development assistance, it must consider also some of the activities of the other three departments. Outside the House, arguments have been advanced in favour of having a single Ministry of external affairs responsible also for overseas trade, overseas investment and overseas aid. It is perhaps significant that although the government has, despite some strong backbench pressure, consistently refused to set up a specialist committee dealing with foreign affairs, it agreed to establish a committee which would inevitably become somewhat involved with foreign affairs' Since the Overseas Aid committee was set up, the aid programme clearly moved to a lower position in government priorities. Aid as a percentage of our Gross National Product has fallen since 1964. The aid ceilings announced by the outgoing government for the period up to 1972-3 were higher than those operating during their period of office, but they were still nowhere near the targets suggested by the Pearson Report. The Minister of Overseas Development no longer had a seat in the Cabinet. It is difficult to avoid the conclusion that setting up a specialist committee was regarded partly as a gesture to show the government's continuing concern for its aid programme in the face of financial difficulties and partly, perhaps, as a means of keeping the back-bench aid lobby occupied. 48


Another question of wider interest which arose in relation to Overseas Aid was the type of inquiry which a specialist committee should undertake. There are two main approaches which a committee can adopt. It can conduct a wide-ranging inquiry and consider the major issues affecting the work of a particular department, or it can investigate much more specific topics. Each of these approaches has its attractions. The wide-ranging inquiry will probably be more superficial, but it may concentrate discussion on major policy issues. This could lead a committee towards attempting to exercise a major direct influence on overall government policy. If this resulted in a direct challenge to a major part of its policy, the government, or indeed an opposition expecting shortly to form the government, might well become hostile to the continuance of such a specialist committee and tend to ignore its work. The more specific inquiry will enable a particular topic to be discussed in depth. While this may not lead to major policy changes, it may help the department concerned in a particular aspect of its work and lead to important modifications of practice or policy. To some extent the choice is influenced both by the expected length of a committee's existence and by the experience of its Members. A committee such as the Overseas Aid committee with a short life-expectation may well choose wide-ranging subjects of inquiry in the hope of making a significant impact on the work of the department concerned. Specialist committees with a longer life-expectation may choose to start with the narrower type of inquiry. It has been argued that a new committee should, in any case, start with relatively small and limited inquiries in order to gain experience and detailed knowledge of the area of its work before attempting to consider major issues (vide the Select Committee on Nationalised Industries and the Select Committee on Race Relations and Immigration). The choice will obviously be influenced by the interest and experience of the Members of the committee concerned, as well as by the volume and nature of information already available about the subject within the committee's order of reference. The Overseas Aid committee chose a middle way between the two approaches by dividing itself into sub-committees each with specific terms of reference but nevertheless covering fairly wide aspects of the subject. How successful this approach would have been is impossible to say. T.O.P.S.C.—C

49


This may be the best place to state that the selection of the chairmen of specialist select committees is of cardinal importance. Experience of the subject and personal interest in it will help him or her, early on, to draw up a coherent programme of work and, when witnesses are being examined, to achieve a pattern in the questioning. Otherwise much time, effort and money may be wasted not only by Members of the committee, but also by government departments, other organisations and individual witnesses. It is also essential to the success of a specialist select committee that it should have the fulltime services of a House of Commons clerk, who is both experienced in procedure and able to establish and keep control of the mass of papers that need to be produced for the Members. The existing cadre of able and experienced officers has many heavy demands upon its time. How far can it be stretched to serve the increasing number of the various select committees especially if these travel overseas ? A further point which has arisen on the servicing of the Overseas Aid committee has been the provision of research assistance. The committee has been able to call on a member of the staff of the research division of the library of the House who has attended meetings and has supplied relevant material published in, for example, the press and learned journals. The resources of the library have enabled the member of staff concerned to monitor the appropriate literature and pick up suitable material in the course of normal day-today work as well as to collect material to meet requests made by the committee. Similar assistance has been provided by the library for some other specialist committees such as those on Race Relations and Immigration, Agriculture, Science and Technology and Education. The main question raised by the provision of such assistance seems to be how far it is reasonable to expect such a service to be available within the House. Clearly, there is an important distinction to be made in this context between what can probably more correctly be called "information'' assistance and the advice which an acknowledged expert in a particular field can be expected to give. It seems unreasonable to expect the Library of the House to have on its permanent staff experts in all the fields in which even the present limited range of specialist committees might possibly conduct inquiries. For this type of service, specialist committees will probably have to continue to go 50


outside the House. They have powers to appoint specialist advisers and most have done so. On the other hand, the library staff is accustomed both to the nature and timing of parliamentary business and should be able to assess with some accuracy the needs of specialist committees for material relating to their inquiries. In particular, staff of the House who are in daily contact with Members are probably more likely to be aware than those outside the House that specialist committees are not academic working parties and do not have the same needs where published material is concerned. Thus there do appear to be advantages in providing such a service from within the House. If the specialist committee system is extended and if the committees increase their calls on the library's research division, this service, which is already meeting increasing ordinary demands from individual Members, may well need strengthening. How far a specialist committee can influence government policy in an area such as Overseas Aid is difficult to determine, particularly when there are several other independent outside organisations with an active interest in the subject also seeking to influence government policy. Experience of the work of these specialist select committees so far suggests that they can, during their work and even before they reach the report stage, have an influence on policy. In the course of their discussions and examination of witnesses, Members find their own views being developed. But it is clear also that the preparation of papers for the committee and the dialogue that takes place in meetings has, on occasion, also influenced the thinking of government departments. My experience with the Select Committee on Race Relations and Immigration has been that the thinking of government departments, and of some of the local authorities which we visited, and of independent organisations working in that field, was significantly changed by this process. Another important channel through which policy can be influenced during the work of a select committee is the informal but natural liaison between the chairman from the government side of the House and Ministers on the one hand and the senior opposition spokesman and "Shadow Ministers" on the other. The existence of a formal forum, where all those concerned can discuss their views—as opposed to informal contact through the 51


"usual channels"—has some obvious advantages, particularly with such organisations as the Overseas Development Institute and the Institute of Development Studies which have extensive academic knowledge of the subject. In the case of overseas aid, a frequent criticism of British policy by these bodies has been of its lack of any clear priorities. If this criticism is valid, then a specialist select committee may have an important part to play in helping to sort out the priorities and in creating a more coherent policy. It has frequently been argued by the opponents of the specialist committee system that such committees remove parliamentary scrutiny and control from where they belong—on the floor of the House—to the relative seclusion of committee rooms upstairs. This argument has obvious merits but it does not take into account two factors. First, that time on the floor of the House is limited and the pressures on it are increasing; and secondly, that apart from the committee stage of Bills the floor of the House may not be the best place for the type of detailed discussion which can take place in a select committee. Both these factors apply to the case of overseas aid. Government spending on aid is a very small proportion of total expenditure and the subject receives only a small proportion of parliamentary time for debate, as opposed to Questions. One of the last full debates on overseas aid took place on a Private Member's Motion on a Friday, despite the pressure for a debate resulting from the publication of the Pearson Report. 9 Overseas Aid is also, like some other subjects, highly technical, and there appears to be a case for keeping much of the discussion of such specialised topics as, for example, the various aspects of aid management, to a select committee where they can first be examined in detail with the officials concerned. The knowledge gained by Members in this way is not wholly denied to the House itself, since it encourages better informed participation in debates when they are held. But if the House is to make full use of the work of these committees time must be found to debate more of their reports soon after these are presented. At present this opportunity is not being fully used and so a good deal of the hard work of the committees is being wasted. It has been argued that select committees are an expensive and time-consuming method of educating Members of Parliament and 52


raising the standard of debates. But it can be argued equally that it is not only the Members who are educated. As I have tried to show, the views of government departments, local authorities and independent bodies are affected ; so, possibly, could the views of governments of overseas countries visited by specialist select committees. Nor is the information that Members gain used only on the floor of the House. If specialist committees are regarded as being complementary to the House itself, they can both extend and improve parliamentary control through giving Members more detailed and extensive knowledge of the subjects which arise. This question of "informed participation" was discussed by the Select Committee on Agriculture.10 Specialist select committees could, if their reports were promptly debated in the House, become one of the most effective weapons we have against closed government by well-meaning and well-intentioned but wilful Whitehall departments. At the lowest estimation, they preserve the principle that public policy and administrative action are accountable and open to discussion and that information on the workings of government can, and should, be made available not only to Members but to the wider public of the governed. REFERENCES 1. HC 394 of 1968-9, p. v. 2. Motion to appoint the Select Committees on Agriculture and Science and Technology, 14 December, 1966; H C Deb. 738, c. 470. 3. First Report from the Select Committee on Procedure, 1968-9: Scrutiny of Public Expenditure and Administration, H C 410 of 1968-9. 4. Report of the Commission on International Development (the Pearson Commission) of the International Bank for Reconstruction and Development, Partners in Development, London, Pall Mall Press, 1969. 5. A Study of the Capacity of the United Nations Development System, United Nations, 1969. 6. United Nations Economic and Social Council. Report of the Fourth and Fifth Sessions of the Committee for Development Planning (Chairman : Professor J. Tinbergen), United Nations, 1969. 7. Seventh Report from the Estimates Committee, Session 1967-8: Overseas Aid. HC 442 of 1967-8. 8. This evidence is published with the Second Special Report from the Select Committee on Overseas Aid, Session 1968-9. H C 394 of 1968-9. 9. 28 November, 1969; HC Deb. 792, cc. 773 et seq. 10. Special Report from the Select Committee on Agriculture, Session 1968-9. H C 138 of 1968-9.

53

The Select Committee on Nationalised Industries IAN MIKARDO MP Chairman of the Committee 1966-70 W E CAN all learn from experience. When I voted against the setting up of the Select Committee on Nationalised Industries I little thought that I would find myself in the chair of the committee ten years later; still less would I have expected to write, nearly fifteen years later, that my work as chairman has been among the most worthwhile products of a fairly full and varied public life. I have enjoyed my work on the committee ; I feel I have done a useful job ; and I believe that since it was first appointed the committee has done a good job. I do not want to delve deeply into the earlier history of the committee. The reports, early debates and other documents are there to be read, and academic writers have studied and discussed the committee's conception, birth and earlier years of life.1 But it is educative, salutary and sometimes amusing to look back at those early reports and debates of 1953, 1954 and 19552 that preceded the first, effective, appointment of the committee. The quality of the evidence and of the speeches was undoubtedly high ; the arguments for the establishment of the select committee were forcefully put and equally forcefully rejected. At the time it appeared that no pro or con had been left uncanvassed. Yet, with the advantage of experience behind us, we can now see how many great and wise men were surprisingly wrong in much that they feared or forecast. Certainly it is true that many of the problems of parliamentary scrutiny of the nationalised industries, problems that continue to

55


intrigue us today, were identified in these early deliberations. It may well be precisely because some of the warnings were heeded by the committees that the fears on which they were based were falsified. Nevertheless, it is notable how many of the anxieties expressed about the appointment of such a novel committee were proved, in practice, to be groundless. It must also be admitted that some of the bolder claims about the committee's potential value have been disappointed. Two examples will suffice. The leading parliamentary opponent of the proposal to establish a Select Committee on Nationalised Industries was the late Herbert Morrison. The creation of a committee, he told the select committee under Mr. Ralph Assheton which had been appointed to consider the proposal: " . . . would create a rather unnerving prospect for the ordinary businessmen who are running . . . the publicly owned industries. It might unnerve them and tend to develop in them a rather red-tapish, unadventurous and conventionally civil service frame of mind." 3 Later he quoted with approval Sir Geoffrey Hey worth's famous cautionary comments on the inhibiting effect on management of people "looking over my shoulder all the time" and added that he was against the proposal because he did not want the management to be "so distracted one way and the other that it cannot get on with its job". 4 In practice, these fears have proved totally unfounded. There is not the slightest evidence that the managers of the nationalised industries have been in any way inhibited by the occasional requirement to explain their actions and decisions to the select committee, although our periodic inquiries do, of course, create some extra work for them. On the contrary, some of them have found it a helpful and stimulating experience.5 In my personal experience, I have never found such distinguished chairmen as Lord Robens, Sir Ronald Edwards, Sir Henry Jones or Sir Anthony Millward unnerved by the select committee's inquiries. Nor did they appear red-tapish and unadventurous, or even particularly conventional, when they gave evidence before us. Equally some of the hopes of those who were most enthusiastic for the creation of the committee have been disappointed. There was much talk, especially among some on the Conservative benches who 56

THE SELECT COMMITTEE ON NATIONALISED INDUSTRIES

were most hostile to nationalisation, of the need for continuing critical examination of all the publicly owned industries. All those searching questions that Members were prohibited from asking on the floor of the House could be pressed. Through the committee, the awful secrets of the monopolistic giants could be presented to the public gaze. The eyes of the electorate would be opened to what was going on. 6 Put another way, there was a fairly common demand for some form of efficiency audit. But again, practice has been different. The very number of the industries has prevented anything approaching a continual review and, rightly or wrongly, many of the criticisms made by consumers—dirty coal, late trains, inefficient maintenance of domestic gas and electricity appliances—and on which MPs often wish to ask questions, have not been pursued by the committee. On the matters that concern them directly, ordinary citizens are probably little better informed than they were before the creation of the committee. And the committee has certainly not conducted an efficiency audit. In general, therefore, although the committee has its shortcomings, they have not been those feared by its original critics. Conversely it has not provided answers to all the problems, as some of its proponents expected. But I make an exception and pay one tribute. Of all those who claim paternity of the select committee, the men with the strongest claims are Mr. Hugh (now Lord) Molson 7 and Mr. Ernest Davies. 8 Both showed from the beginning how a committee could do a useful job without interfering with the day-to-day management of the industries or falling into the dangers which alarmed Herbert Morrison and others. Mr. Molson said: " I believe the committee which I am advocating should elucidate what I call deep problems of policy. I am sure there is a need to avoid day-to-day interferences with detail but there is, I think, a great need that from time to time Parliament should have an opportunity of taking stock." 9 Eighteen years later these still seem wise words and accurately describe the work of the committee since it was first set up in 1956. Looking back at those early debates, I believe the chief lesson to be learned—this is my first theme and one to which I will return—is the danger of prognoses about the development of political institutions. Matters seldom work out in practice as predicted. Left to themselves 57


to find their own answers, new institutions like specialist select committees will often find their own proper place in the system and do a useful job, even if it is not the one expected of them. Here again lessons may be learned from the history of the Select Committee on Nationalised Industries. The over-precise, restrictive order of reference given to the committee when first appointed was difficult to operate.10 With a much broader order of reference, the committee found worthwhile work to do without entering to any great extent on most of the fields—especially wages and conditions of employment, the consumer consultative machinery and matters of day-to-day administration—from which Ministers had earlier sought to exclude it. Much of the committee's later success is due to the Members and their staff in those earlier years, notably to Sir Toby Low (now Lord Aldington) who was chairman from 1957 till 1961. Without his wise guidance and imaginative conception the committee —born in disagreement and working in a politically highly controversial field—might well have either blown itself up with internal conflict or frittered away its talents in tame platitudes or dreary factual descriptions. It did neither. The committee started cautiously but, emboldened by increasing experience, it proceeded to produce unanimous reports that nevertheless said interesting and sometimes provocative things about British Railways, the gas and electricity supply industries and BOAC. This was an outstanding achievement in the development of parliamentary scrutiny. The message seems clear. If their orders of reference are restrictive, committees will seek to find ways round the restrictions; given a broad, open road they will be on their best behaviour, act responsibly and interpret their orders of reference in a manner acceptable to the House. I have dwelt on some features of the genesis of the committee because it has proved the forerunner for other specialist committees ; because I believe that these later committees can learn from its experience ; and because Ministers might also learn from this experience in setting up further specialist committees. It will be clear that I do not think there is much gain from speculation about how a new committee will turn out. This the committee will (and should) largely decide for itself. Much more is to be learned from examining the actual experience 58


of committees and their development of new approaches and new techniques. I have been able to pilot several such developments while in the chair of the Select Committee on Nationalised Industries. I shall, therefore, say little else about the committee's earlier history and concentrate on describing the work, developments and achievements of the committee in the last five years. Finally, I will risk a little speculation of my own regarding the future. Under its present order of reference, the committee is empowered to examine over a dozen industries. 11 Since 1956, it has actually examined the North of Scotland Hydro-electric Board, the National Coal Board (twice), the Air Corporations (once together and once each separately), British Railways, the gas and electricity supply industries, London Transport and the Post Office. The committee has also made a special, multi-industry study of the exploitation of North Sea Gas, and between 1966 and 1968 it undertook a major and comprehensive review across-the-board of ministerial control of the nationalised industries. We are now examining the Airports Authority and the Bank of England. The only major industry so far unexamined is the British Steel Corporation. The principal subjects considered in the committee's reports have been the industries' investment and pricing decisions, their financial objectives, the rôle of Ministers vis-à-vis the industries and the fulfilment of social obligations, that is, services provided either on their own initiative or as requested by Ministers for social or public interest rather than commercial reasons. Other frequent topics have included organisation, staffing problems, research and development, maintenance of equipment, education and training. From all these inquiries three principal themes have emerged. The first is the need to clarify the criteria for sanctioning capital expenditure by the industries and to improve the techniques for appraisal of individual capital projects. The second is the need to clarify the financial obligations of the industries, in which both investment and pricing policies are subsumed. The third and most important is the need to clarify the respective responsibilities of Ministers and of the boards of the industries, particularly in regard to investment, pricing and social obligation decisions. In its reports up to 1966, the committee succeeded in identifying 59


these themes in relation to individual industries and emphasised its chief contention which is that, in so far as Ministers exercise influence over the industries, the extent of their influence should be made public and their responsibilities should be publicly accepted; and further, in so far as ministerial decisions adversely affect financial performance, the cost of the decisions should normally be borne by public funds and not by the industries themselves. As Ministers are also intimately involved in essential investment and pricing decisions, it was clear to the committee that the whole question of ministerial relations with the industries lay at the heart of many of their problems. If Ministers played the wrong rôle things could go very wrong. If ministerial control was well conceived, the industries were more likely to fulfil the purposes for which they were nationalised. Partly as a result of the reports of the select committee, the government themselves began to redefine the financial obligations of the nationalised industries, and, to some extent, the responsibilities of Ministers. In particular, they adopted the practices of agreeing precise financial objectives for each industry.12 But there still appeared to be confusion about these obligations and responsibilities, and lack of consistency in their application in individual industries. This was why the committee decided to depart from its practice of examining one industry at a time and to conduct an across-the-board inquiry into the industries' relationships with government departments and with Parliament. The Treasury, the principal Ministers concerned and their senior civil servants, the chairmen and officers of the main Boards of nationalised industries and independent witnesses were extensively examined. The committee's report, entitled Ministerial Control of the Nationalised Industries, appeared in the summer of 1968.13 This report was the first examination in depth by any official body of the relations between the industries and government. It attempted to elaborate a pattern of Ministerial responsibility—especially for investment and pricing, financial and social obligations—that was related to the basic purposes of nationalisation. It was inevitably controversial.14 The government, although accepting much of the analysis and many of the detailed recommendations made in the report, was unable to accept some of the main recommendations, 60


particularly on the structure of government for controlling the industries. 15 But I am sure no one would dispute the value of the report in bringing together a mass of relevant evidence on the subject, and in stimulating public discussion and considerable re-thinking both within Whitehall and the industries. Ministerial Control of the Nationalised Industries represents the high-tide of the committee's thinking about the fundamental problems of nationalised industries. Ideas that were evolving in the committee over the years, under different chairmen and varying political composition, were brought to a focus in this report. By creative thinking and learning the lessons of its earlier inquiries, this all-party committee had now evolved a new philosophy of nationalisation. The report also illustrates the evolution of the committee itself. The attention it gave to fundamental questions of investment and pricing policy, of ministerial control and the structure of government, was a far cry from the emphasis in earlier reports on the facts about limited aspects of individual industries that were currently of public concern. Of course, both types of inquiry are needed even today. I am only emphasising that a body set up for one purpose has, in practice, fulfilled another and much more ambitious purpose. Again, the lesson is plain. If a specialist committee is given a broad order of reference18 and a fair measure of autonomy, it can, if it proceeds wisely and with a proper mixture of caution and imaginative experiment, develop a useful rôle far beyond that originally conceived for it. We can learn from experience ; but unless we are allowed to get experience we can never learn. I have so far discussed the evolution of the committee's thinking. But there have been parallel developments in the way the committee has worked. From the outset, it has been an inquiring committee, not a debating forum. It has proceeded by taking both written and oral evidence, deliberating on this in private and then considering and agreeing documented reports. The committee has consistently preferred to look at one subject at a time in some depth, rather than attempt short "instant" inquiries into matters of current public excitement. This accords with the traditional method of most select committees. There have, however, been changes in the methods used. 61


Until 1966, the committee had no power to appoint subcommittees. Since then it has been enlarged from thirteen to eighteen members and has had the power to appoint sub-committees. This has been valuable in several ways. The chief advantage has been to enable more than one inquiry to be conducted at the same time. With the growing number of industries liable to examination, this is now essential to avoid too long an interval between inquiries into any one industry. I think the ideal interval is between 6 and 8 years. But sub-committees are also helpful in giving the full committee time for occasional across-the-board or inter-industry inquiries. Sub-committees have other uses. For example, two sub-committees were used to examine separate aspects of that enormous industry, the Post Office. Small sub-committees have also been used to travel away from Westminster to learn from the experience of relevant organisations overseas and to report back to the full committee or to one of the main sub-committees. I believe we could experiment further with the use of small sub-committees, composed of the Members most interested, to go in more detail into specific aspects of an industry's affairs than the committee as a whole could spare the time to do. We were one of the first select committees to use the technique of sending small sub-committees overseas. In the course of the Post Office inquiry, we sent a sub-committee to New York and New Jersey for a few days to study and report on the work of the Bell telephone system in the United States. Other sub-committees have gone overseas to meet officials of central banks as part of the Bank of England inquiry, to see foreign airports and to study problems connected with the exploitation of North Sea Gas. There has also been an increasing readiness to seek evidence within this country but away from Westminster. The opportunity to visit establishments and to meet local officials has proved most valuable. Until 1967 the committee heard all its evidence in private. In common with some other committees, we then decided to experiment with hearing some of our oral evidence in public. In the Ministerial Control inquiry both Ministers and board witnesses were mainly heard in public, often with a number of pressmen present. Civil servants were heard in private. This is still experimental and one of the sub-committees has preferred to hear all its evidence in private. 62


It may now be timely, however, to evaluate the results of this experiment. Much was claimed for public hearings, especially by the press. It was claimed that this would create great public interest in the work of the committees, stimulate outside thinking and help educate the wider public regarding the industries' problems. Equally some damage was forecast. It was feared that Members would make speeches instead of asking questions, that witnesses would become almost tongue-tied in the presence of the press and that valuable evidence would be withheld for fear of unfavourable publicity. But in practice there is very little change in the nature of our hearings when the public and press are admitted. The hopes and fears have been falsified. There has been little press coverage of the committee's proceedings outside the more technical press. I suspect this is largely because of the technical nature of many of our problems and the shortage of good press reporters. Other committees, for example Race Relations and Immigration and Education and Science dealing with more "popular" topics, have had a different experience. But even when Mrs. Barbara Castle was giving fascinating evidence about the central problems of her job as Minister of Transport, 17 there was surprisingly little press coverage or public interest. On the other hand, public hearings have not encouraged verbosity among Members or tongue-tied our witnesses. Some indeed, such as Lord Robens, have clearly taken full advantage of the opportunities for publicity. To sum up I believe that apart from when we were receiving evidence which may have to be treated as confidential, a slight but clear balance of advantage lies in public hearings. These help to keep both Members and witnesses "on their toes" and at least some of the public informed about our work. The recognition that what we are doing is known outside (a few genuine "public" sometimes even come and listen) is an encouragement to those Members who give so many hours, with very little reward, to this work. One day we may even be televised. While I would not claim that the committee would rival Coronation Street in the charts, I believe that occasional TV coverage would be of interest to many viewers and would help demonstrate what valuable work is done by MPs in committees upstairs as well as on the floor of the House. Another fairly recent experiment has been to hear Ministers as well 63


as civil servants. In my experience, there has been little advantage in this. On the technical and detailed matters that mainly concern the committee, civil servants, especially those directly responsible and not necessarily the top chaps, can give as good evidence as and often better evidence than their Ministers. It is argued that the Ministers can answer on policy matters. But this again is not true. When policy has been decided, senior civil servants are nowadays as willing and able to explain the policy, even why it has been adopted, as any Minister. When policy has not yet been decided, Ministers are no more willing than civil servants to answer or speculate. Indeed, on some lesser political policy questions, civil servants may be freer to 4 * think aloud' ' and to canvass alternative policies than their Ministers.18 Hence I believe that Ministers should normally be called before the committee only at the end of an inquiry when major matters of policy may have been identified on which a ministerial view is essential, or when, as in our Ministerial Control inquiry, they are to be questioned on their own activities or personal responsibilities as Ministers. Otherwise, official evidence should be heard from civil servants. In its earlier days the committee took nearly all its evidence from government departments and the chairmen, board members and officers of nationalised industries. More recently we have also taken evidence from people in private industry, the trades unions, economists and other outside experts. These new sources of evidence, broadening the experience available to the committee, have been wholly helpful and have often stimulated new lines of inquiry. The last development I want to discuss relates to the committee's staff. It was also recognised from the beginning that the type of staff the committee was given would considerably determine the kind of job it could undertake and, vice versa, the kind of work it wanted to do would determine its staff requirements. The select committee which proposed, in 1953, the setting up of a nationalised industries committee gave much attention to this. It was recommended that, in addition to the normal provision of a clerk from the clerk's department of the House of Commons, the committee's staff should include an officer of the status of the Comptroller and Auditor General, at least one professional accountant and other staff as required.19 The govern64


ment, anxious that a committee with such staff would attempt to exercise a continuing efficiency audit over the industries, rejected this proposal. It did, however, suggest that the help of a Treasury liaison officer would be valuable.20 When the committee was first appointed, it had only the normal services of a clerk. The rôle of the clerk should not be minimised. He works full-time with the committee and so is able to read widely in the relevant fields and make useful contacts with people in the departments, the industries and outside. In addition to his procedural advice and administrative functions, he is available to advise the committee on the selection of subjects for inquiry, the programme of work, the selection of witnesses, the written evidence required and fruitful lines of inquiry when witnesses are to be examined. He also plays a major part in preparing the first drafts of reports. Normally the chairman and the clerk work very closely together and discuss all aspects of the inquiry. The early success of the committee owed much to the hard work and sound advice of its clerk as well as to its chairman. The committee reconsidered its staffing requirements in 1959. It rejected the idea of having a permanent officer of the status of the Comptroller and Auditor General. Members came down in favour of the appointment of a further clerk, although they did not reject the idea of additional help from an outside expert on a part-time basis.21 Since the end of 1960, the committee has had two full-time clerks. This brought clear advantages. It enabled more work to be done, for example the detailed examination of the electricity supply industry between 1961-3. Moreover, we now had two staff minds working on all major problems. This last advantage was reduced in 1967 when the committee, through its sub-committees, began conducting two concurrent inquiries. The further addition of an executive officer from the clerk's department since 1969 has been helpful in relieving the clerks of some of the more routine work. There has been one other important staff development. In 1967 the committee was empowered to appoint on a part-time basis an outside specialist assistant, expert in the subject on hand, for the purpose of particular inquiries. Under this power it appointed a professor of economics (Professor Maurice Peston) to advise on certain aspects of the inquiry into Ministerial Control of the National65


ised Industries, the exploitation of North Sea Gas and the National Coal Board. Similar specialist assistance has been enlisted for later inquiries into the Airports Authority and the Bank of England. The experts in our service have studied all the evidence, given frequent advice and contributed to the consideration of the reports. They have been of much help also in drawing the committee's attention to economic arguments, relevant to the inquiries, which a lay committee might otherwise have neglected. Our recent reports have, therefore, been economically more sophisticated than they might otherwise have been. They have not been research workers, digging out new material that was not available through evidence. While they have helped interpret the evidence, the reports have continued, as they should, to be largely founded on published evidence and not on the unpublished advice of the committee's expert advisers. The committee's staff requirements will continue to be of decisive importance. Our reports must be founded on evidence. As far as possible expert advice on the subject-matter of the inquiry should be sought in publishable evidence. Expert assistants and the clerks can play a valuable rôle in elucidating, analysing and interpreting this evidence. But ideally they should be technique experts, not subject experts. They should help train the guns on the target, not be supplying the ammunition. If this is accepted, and if select committees are to continue to do a parliamentary job, scrutinising and criticising various aspects of government but not controlling it in the sense of taking decisions (for example, if the nationalised industries committee is to stop short of running an efficiency audit on the industries), then they do not need a large staff. The select committees do not need staff on the scale of Congressional committees in the United States which perform a legislative rôle alien to our constitution. Nor do they need their own permanent research workers. I am not at all anxious to see the responsible experts in Whitehall and the industries having, in effect, to answer for all their decisions to non-responsible (I do not say irresponsible) experts at Westminster whose advice would not be published. I fear that, if the committees were to build up large, subject-expert staffs, their authority would be weakened, not strengthened. There would be a real danger of their simply rubber-stamping reports drawn up by their expert advisers. I hope that the Select 66


Committee on Nationalised Industries will continue to be primarily staffed by committee clerks. Two, or perhaps three to provide training and ensure continuity, should normally suffice. But on a temporary and/or part-time basis we should also have technique experts— accountants, management consultants, statisticians, industrial relations experts and economists—for the purpose of special aspects of particular inquiries. There is one other source of assistance which I believe committees might seek. Although relevant factual evidence is mostly available from government departments, the industries and other official bodies, evidence is required from time to time which cannot be produced without detailed or extensive research. To obtain this, closer relationships should be established with universities and other research institutions. Here the Social Science Research Council could play a valuable rôle. It could keep us informed of work being done in the universities relevant to our inquiries ; it could also keep the universities informed of current inquiries by specialist committees and of their potential interests. Select committees should be empowered to commission specific pieces of factual research directly relevant to their inquiries.22 For this to be effective, one other major change has to be made. Research on any significant scale takes time to commission and even longer to carry out. At present most select committees work on a session-tosession basis and do not plan their work more than a year ahead. By the time they have identified their research requirements for any one inquiry, it is nearly always too late to get the research completed before the end of the inquiry. To commission useful research, therefore, committees would have to plan their work for several sessions ahead and try to identify likely research requirements. This in turn requires that select committees should be guaranteed an existence for several years ahead, instead of living on annual sufferance as most of them now have to do. It requires that they should at least be appointed for the life of a Parliament and I know of no good reason why this should not be done. I now want to attempt to sum up some of the achievements of the nationalised industries committee. The first lies in the sheer publication of facts and of the opinions of people involved, both in the 67


government and the management of the industries. Over the last fourteen years a wealth of information has been made public about the industries, their commercial and operating policies and their relations with government that would not otherwise have been available. The committee has been able to develop a bipartisan approach to many, although inevitably not all, of the problems of running the industries. This has clearly been a useful additional factor to the salutary experience, now shared by senior people in both major political parties, of being responsible for the successes and failures of the industries. Although Conservative and Labour opinions on the merits of nationalisation are still poles apart, a large measure of agreement has been reached on many questions affecting the running of industries once nationalised. There is increasing agreement about how the efficiency of management should be judged and the rôle of Ministers vis-à-vis the industries. This agreement has found detailed expression in the committee's reports. The committee came near to spelling out in its report on Ministerial Control of the Nationalised Industries a rationale of nationalisation, based on a clear recognition of the separate responsibilities of Ministers both for the commercial efficiency of the industries and the wider public interest, that went well beyond what has been evolved by any of the political parties. We succeeded in describing an effective framework for ministerial control which can be accepted by socialists and capitalists alike. Governments of different political complexions would extend this framework over differing areas of industry. They would operate within the framework in different ways and would have different views of the public interest. But I am convinced that what we elaborated, far from being a betrayal of socialism as some have suggested,23 was a conceptually richer analysis of nationalisation which could be used by socialists to justify the public control of industries in ways and to an extent previously not clearly described in Labour Party thinking. The industries themselves, far from resembling, as Robson suggests, ordinary joint-stock companies, could then become effective instruments as they are not today for securing the public interest. Here, however, I depart from my Conservative colleagues on the committee... . Recent developments in thinking would not have been possible 68


unless members on both sides had been determined to make the committee a success and to get some value from it. It is remarkably true that, if men of goodwill sit for weeks on end listening to and thinking about detailed evidence from responsible people, after a while the facts begin to talk. Certain conclusions become inescapable, whatever the differing political assumptions of those who have to pronounce on the evidence. But much depends on the lead given by influential Members of the committee. As chairman, I have been greatly indebted to the loyal support and hard work of the senior Conservative Member of the committee, Colonel C. G. Lancaster MP. I believe my Conservative predecessors in the chair likewise benefited from the support they were given by senior Labour Members. Over the years, few matters have been pressed to a division. The committee has worked as a team and its work has been such as only a team can produce. This is a significant parliamentary achievement. Looked at from outside, measured in terms of influence on the industries, on government and on Parliament itself, there has also been some achievement, although the extent of this influence is difficult to define without detailed internal knowledge of government and industrial decisions. The report on British Railways clearly had some influence on the development of improved techniques for appraising capital schemes. The report on the gas industry influenced the structural development of the industry, even though the committee's main specific recommendations on organisation were rejected. The report on the Post Office influenced the subsequent re-organisation and the report on Ministerial Control has clearly stimulated the re-thinking, Jby government and the industries alike, on many of the detailed financial and administrative aspects of departmental control. In other cases the committee's findings, even the process of inquiry, may have speeded decisions and changes that would otherwise have been delayed. The last achievement by which the committee should be judged is the influence of its reports and evidence on debate in the House. Here I am sometimes disappointed. I know some of our reports have been long and fairly solid reading, but I am not convinced that many of my fellow MPs actually read them. Members cry out for more 69


information on many topics. When it is provided they say it is for the expert and do not always trouble to study it. The fault may partly be that the House has inadequate opportunities to debate committee reports. In recent years only the BOAC and London Transport reports have been fully debated, the debate on the former being a major political occasion. Even the report on Ministerial Control, which was both controversial and important enough in its subject to provide material for an excellent full day's debate, was not debated. Yet there has been some less direct gain. Material from our reports is often used in the other debates both in the House and standing committees. There are numerous examples of this. I think most observers would agree that debates on the nationalised industries have been better informed, and much more constructive, since the committee began its work. Even if information from the reports has not been directly used, more Members have shown a better understanding of the problems involved. To use Mr. Molson's words again, the committee has helped to " elucidate . . . problems of policy" and it has enabled Parliament to take stock of the industries. But what is to be the committee's future rôle ? Here I revert to my original theme. We should be careful not to dogmatise about what this or any other committee could, should or will do. Left to get on with its work, it will adjust to new circumstances and find new tasks to tackle. Nevertheless, I have a few thoughts on the future. We must accept that as problems change new approaches may be needed. There is no longer the anxiety there was about individual industries. Thus it may well be that the wide-ranging comprehensive survey of individual industries—like those on the gas, electricity and the Post Office—will be less appropriate. It is likely that the committee's work in reviewing major commercial policies, particularly the industries' investment and pricing policies, will be taken over by authoritative and expertly assisted outside bodies such as the National Board for Prices and Incomes (which has already re-trodden ground covered by the committee) or similar bodies proposed for the future. It is undesirable for the committee to attempt the same tasks as these bodies. If this is accepted, I believe the committee could profitably turn its attention to two matters, both of which are politically significant and 70


of concern to Parliament. The first is consumer relations. In the past, the committee has concentrated on major investment, questions of finance and organisational questions. These clearly affect consumers in the long run, but the committee has given little attention, except in the London Transport and Post Office reports, to services directly affecting consumers or users, such as the supply and maintenance of domestic gas and electricity appliances or the handling of passengers and their luggage at railway stations. Yet these are the topics by which many ordinary people judge the industries and about which they complain to MPs. The committee could well examine them. We could also concentrate on matters common to several industries and examine them across-the-board. Another interesting possibility would be to examine the relations between the industries and other institutions of the national economy, such as those responsible for regional development. Steps in all these directions have been taken in recent reports (for examples, see the BEA, North Sea Gas and National Coal Boards reports). But the process could be taken further. Finally, we must recognise that the need for a separate nationalised industries committee could be reduced, or removed entirely, if the House sets up a wide range of "subject" or "departmental" specialist committees, as I hope will be done. If there were to be separate power, transport and civil aviation committees they could carry out many of the studies of problems in the individual industries previously undertaken by the nationalised industries committee. If there were to be an economic affairs committee—and my experience on the Ministerial Control and Bank of England inquiries strongly reinforces my belief in the need for such a body—that committee could carry out the inter-industry or industry-economy types of inquiry I have just outlined. The future of the committee must, therefore, be assessed in the light of other developments in the machinery of Parliament. I conclude where I began. In the development of parliamentary practices, procedures and institutions we must be willing to experiment. The story of the Select Committee on Nationalised Industries has been one of the natural and fruitful evolution of a valuable piece of parliamentary machinery. The committee paved the way for other specialist committees. In planning the future we should not seek 71

THE GROWTH OF PARLIAMENTARY SCRUTINY BY COMMITTED

definite solutions. We should continue to learn through and from experience.

REFERENCES 1. See especially David Coombes, The Member of Parliament and the Administrator: The Case of the Select Committee on Nationalised Industries (Allen & Unwin, 1966). See also A. H. Hanson, Parliament and Public Ownership (Hansard Society, 1961); Leonard Tivey, Nationalisation in British Industry (Jonathan Cape, 1966), Chap. 6; and W. Thornhill, The Nationalised Industries (Nelson, 1968), Chap. 3. 2. Report from the Select Committee on Nationalised Industries, Session 1952-3. HC 235 of 1952-3 (the committee which recommended the appointment of a select committee); HC Deb. 523, cc. 833-962 (the debate on 8 February, 1954 on the committee's report); HC Deb. 530, cc. 279-81 (the government's first decision on 13 July, 1954); Special Report from the Select Committee on Nationalised Industries, Session 1955-6. H C 120 of 1955-6 (the abortive committee); and HC Deb. 560, cc. 593-662 (the debate on 24 November, 1956 that concluded with the appointment, on a division, of the first effective committee). 3. Minutes of Evidence given before the Select Committee on Nationalised Industries, Session 1952-3. HC 235 of 1952-3, Q. 383. 4. 8 February, 1954; HC Deb. 523, cc. 853-4. 5. E.g. Lord Robertson, 31 January, 1968; H L Deb. 288, cc. 803-4, and Sir Ronald Edwards, Stamp Memorial Lecture, 1967. 6. Diplomatic, and therefore muted, expressions of this view are revealed in several of the speeches in the debate of 8 February, 1954. 7. His article in The Times of 8 September, 1949, was one of the first statements of the case for a committee by a public figure. 8. See Ernest Davies, National Enterprise, 1945. 9. Minutes of Evidence given before the Select Committee on Nationalised Industries, Session 1952-3, H C 235 of 1952-3, Q. 317. 10. Special Report from the Select Committee on Nationalised Industries, Session 1955-6. HC 120 of 1955-6. 11. The order of reference was extended to include the Post Office in 1965 and further extended to include the Bank of England and other bodies in 1969. 12. See White Paper on the Financial and Economic Obligations of the Nationalised Industries, Cmnd. 1337; 1961 (later further elaborated in a White Paper entitled A Review of Economic and Financial Objectives, Cmnd. 3437; 1967).

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13. First Report from the Select Committee on Nationalised Industries» Session 1967-8. HC 371 of 1967-8. 14. See articles in The Times, The Financial Times, The Daily Telegraphy The Economist, The New Statesman and The Spectator following publication (11 September, 1968); see also articles by Prof. W. A. Robson in Political Quarterly, January-March, 1969, and by Prof. A. H. Hanson in Public Administration, Spring, 1969. 15. Ministerial Control of the Nationalised Industries, Cmnd. 4027; May, 1969. 16. The government partially resisted the nationalised industries committee's desire to extend its order of reference to include the Bank of England and other industries. (See Special Report from the Select Committee on Nationalised Industries, Session 1967-8: The Committee*s Order of Reference. HC 298 of 1967-8; and HC Deb. 777, c.c 1181-1274, 11 February, 1969.) 17. See Ministerial Control of the Nationalised Industries, H C 371 of 1967-8, Vol. II, Evidence, Qs. 1511-1604. 18. See, for example, the evidence given by the Director-General of the Post Office about Post Office pricing policies (First Report from the Select Committee on Nationalised Industries, Session 1966-7. H C 340 of 1966-7), and the evidence given by the senior Treasury witness on Ministerial Control of the Nationalised Industries (First Report from the Select Committee on Nationalised Industries, Session 1967-8. H C 371 of 1967-8). 19. Report from the Select Committee on Nationalised Industries, Session 1952-3. H C 235 of 1952-3, paras. 28-34. 20. 8 February, 1954; H C Deb. 523, c. 842, and 18 July, 1954; H C Deb. 530, c. 281. 21. Special Report from the Select Committee on Nationalised Industries (Reports and Accounts), Session 1958-9. H C 276 of 1958-9. 22. This was done on a small scale by the Acton Society Trust in 1965 when they conducted a survey of undergraduate attitudes towards employment in the civil service for the benefit of the Estimates sub-committee then investigating the Civil Service Commission (Sixth Report from the Estimates Committee, Session 1964-5. H C 308 of 1964-5). 23. See, for example, Prof. W. A. Robson, Political Quarterly, JanuaryMarch, 1969.

73

Britain's 'Ombudsman"— His Rôle in the Process of Parliamentary Scrutiny DR. MICHAEL WINSTANLEY MP 1966-70 O N 4 August, 1966, the Prime Minister designated Sir Edmund Compton, the then Comptroller and Auditor-General, to fill the post of Parliamentary Commissioner for Administration. Sir Edmund has now been functioning as ombudsman for more than three years and it is timely both to examine his performance and pose certain questions about this still relatively new office and the parliamentary select committee to which it is linked. Where does the new office fit into the whole complex of machinery which exists to scrutinise the activities of those who wield power ? Can this essentially Scandinavian institution, pioneered in countries with small populations, work successfully in a densely populated industrial community such as ours ? When the proposal to appoint a British ombudsman was being considered, it produced some sturdy opponents. Some said that the proposal would weaken the power of individual Members of Parliament and thus do more to jeopardise individual rights than to protect them. Others said that the office would rapidly become a reductio ad absurdum. It was argued that the ombudsman's department would in the end become so large as to require some kind of independent external scrutiny for itself. In other words, we would just be creating yet another layer of bureaucracy which would ultimately need its own ombudsman. It was also suggested that the appointment of an ombudsman would force civil servants into defensive attitudes and so increase the kind of caution and inactivity from which many of the citizen's frustrations, if not his

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actual grievances, flow. What is the verdict of time on these gloomy forebodings ? How do they look in the light of Sir Edmund Compton's first three years of work? Have we, in fact, created the "fatherfigure" type of investigator for whom many had hoped ? Or have we evolved a different kind of ombudsman suited to our own special circumstances and conditions? To answer these questions and others like them it is necessary, in addition to looking at Sir Edmund's record as revealed by his reports and those of the select committee, to look briefly at the events preceding his appointment and what was said by those responsible at the time. For years in Britain there had been increasing anxiety about the growing power of government and the increasing insensitivity of bureaucracy. In the years between the wars, books like Lord Hewart's The New Despotism1 expressed this anxiety. But in general people looked to Parliament for the remedy. It was not until the 1950s that Britain was gripped by what has subsequently been called ombudsmania. This spread among people of many shades of political opinion and gained real impetus with the publication of the Whyatt report in October, 1961, by the organisation known as Justice.2 Sir Oliver Franks, as he then was, commenced his foreword to this report with the words: "The struggle between liberty and authority, which characterises all human societies, is unending.'' He thus not only paraphrased the problem but also accepted the impossibility of a total solution. Justice put forward a proposal which it hoped would at least provide a partial solution. The summary of conclusions in Chapter fifteen of the Whyatt report had this to say : "Our conclusion regarding complaints of maladministration is that Parliament is and must remain the most important channel for making representations to the executive about grievances. We think existing parliamentary procedures . . . would be more effective if they were supplemented by machinery which would enable such complaints to be investigated by an impartial authority if the Member requested it. We have, therefore, proposed that an officer to be called the parliamentary commissioner . . . with a status similar to that of the Comptroller and Auditor-General should be 76

BRITAIN'S "OMBUDSMAN"

appointed and, subject to certain conditions, should investigate complaints of maladministration against government departments received from M P s . " This proposal was adopted; but in three important respects the government's scheme went further than Justice. First, the Bill discarded Justice's suggestion that, before starting an investigation, the parliamentary commissioner should notify the Minister of the department concerned, who would be entitled to veto the investigation. Secondly, the Bill gave the commissioner access to all departmental files including internal minutes. These would have been denied to him by Justice. And thirdly, the Bill left Ministers without the right to claim Crown Privilege in respect of documents. 3 Had he lacked these advantages, our ombudsman would indeed have been the ombudsmouse that Lord Wade, in a debate in the House of Lords, was later to call him. At the time of their publication, none of the political parties seemed wildly enthusiastic about the Justice proposals. In the course of a reply to a question put to him about the report by Dr. Donald Johnson MP, the Attorney-General (the late Sir John Hobson) said: " . . . Justice made two proposals: first, that the Council on Tribunals should survey the area in which there is at present no right of appeal against a discretionary decision made by or on behalf of a Minister, with a view to providing a right of appeal in such cases to an independent tribunal ; and secondly, that a parliamentary commissioner should be appointed to investigate cases of alleged maladministration. The government consider that there are serious objections in principle to both proposals and that it would not be possible to reconcile them with the principle of Ministerial responsibility to Parliament. ,, Sir John went on to say that the government believed the appointment of a parliamentary commissioner would seriously interfere with the prompt and efficient dispatch of public business. The government took the view that there was already " . . . adequate provision under our constitutional and parliamentary practice for the redress of any

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genuine complaint of maladministration, in particular by means of the citizen's right of access to Members of Parliament". 4 No official comment was made on this particular occasion by a front bench spokesman for the Labour opposition. But in an earlier debate Sir Frank Soskice, who was presently to become Home Secretary in a Labour government elected on a manifesto which included a firm commitment to establish an ombudsman, had damned the whole idea with faint praise. He felt that pressure and interventions on behalf of their constituents by MPs were "effective'' and that, although cases did arise in which the result was unsatisfactory, this was not always the fault of the department. "Sometimes," said Sir Frank, "it is impossible to concede the relief which the hon. Member is claiming." 5 Labour's former Home Secretary seemed concerned here to disprove the need for an ombudsman. Nevertheless, in the preface to the Labour party's manifesto for the 1964 election, entitled The New Britain, it was asserted that new ways must be found of ensuring that the growth of government activity did not infringe the liberties of the subject. It went on: "This is why we attach so much importance to humanising the whole administration of the state a n d . . . why we shall set up the new office of parliamentary commissioner with the right to investigate the grievances of the citizen and report to a select committee of the House." When the Bill was ultimately introduced, 6 it emerged that our ombudsman was to be very different from and, in many ways, less powerful than his Scandinavian counterpart. He was to be empowered to investigate complaints of maladministration by government departments put to him by MPs on behalf of individuals claiming to have suffered injustice. He was to be excluded from the field of local government and from the police, the prisons, the armed forces, the nationalised industries, most of the National Health Service and other spheres set out in Schedule 3 of the Bill. He was also to be specifically excluded from investigating actions taken outside the United Kingdom. Except in special circumstances, he would be unable to inquire into matters for which a remedy was available through the courts or by appeal to any statutory tribunal. He was not to be permitted to comment on the quality of a decision which fell within a Minister's 78


discretion, but would be able to look for maladministration in the events leading up to the decision. If the ombudsman found that maladministration had taken place and that injustice had arisen, he would be able to report to Parliament and recommend an appropriate remedy. His powers of remedial action would begin and end with his report to Parliament. But it was hoped that his very existence would prevent acts of maladministration which might otherwise occur. In addition, a select committee of the House of Commons was to be appointed. While its powers were not defined and its purpose was not spelled out, it was assumed that it would present further reports to the House and might advise the parliamentary commissioner on his actions. Many criticisms were made of these proposals. They were answered at the end of the Second Reading debate 7 by Mr. Niall McDermot MP, who replied on behalf of the government. His detailed analysis of the issues involved showed quite remarkable foresight. Although controversies continue, almost nothing new has been said to disturb the balanced assessment in Mr. McDermot's speech of some four years ago. He made nine points which, taken together, not only explained the limits of Sir Edmund's powers and anticipated the problems he would face, but also predicted the way in which the British system of inquiry-by-ombudsman would develop. I give but two examples of his approach, but would strongly emphasise that his speech should be read in its entirety. First, he dealt with the reason for channelling complaints to the commissioner through Members of Parliament and why the citizen would not be allowed to complain direct. This, said pMr. McDermot, stemmed directly from the whole conception of the commissioner as an officer of Parliament. He envisaged the commissioner supplementing rather than supplanting Members of Parliament as protectors of the rights of individuals and attached much importance to Members' acting as a screen for complaints which could be better dealt with by other methods. Secondly, in dealing with the question of discretionary decisions, he saw this as a straightforward matter of principle: "Do we want government by commissioner? If we say, as we do in a mass of statutes, that we impose a discretionary power of decision upon a Minister which he will either exercise directly himself 79


or exercise through his officials, do we want in all those cases to interpose a sort of right of appeal to the parliamentary commissioner who can then investigate whether he thinks that the Minister, having considered the whole matter perfectly properly and perfectly fairly, and having taken account of all the relevant circumstances and dealt with the matter in a thoroughly judicial way, nevertheless has been wrong and that the decision ought to have been different ? Surely that is not what we want. It is not what we mean by maladministration. ,, The questions raised in this speech are precisely those with which the select committee has wrestled since its appointment. On many of them, including discretionary decisions, the actions of local authorities and the National Health Service, developments are pending or have already taken place. Every one of the reports issued both by the commissioner himself and the select committee has, to some extent, dealt with points made by Mr. McDermot in his speech. The Bill received the Royal Assent on 22 March, 1967, and Sir Edmund Compton commenced his work quietly and almost unnoticed. Members occasionally mentioned complaints they had referred to him. Others discussed whether to investigate cases first themselves or to pass them direct to the commissioner. There was also some talk about what did and what did not come within the commissioner's orbit. Small paragraphs appeared in the press hinting darkly, but without giving any real information, that the ombudsman was burrowing away industriously like a busy mole in the corridors of power. But it was not until 8 November, 1967, when Sir Edmund published his first report, that anyone really knew what he had actually been doing. It was an interim report, additional to the annual reports which are required by the Act. Sir Edmund explained its purpose was to provide an account of his experience in the first seven months of operating the Act, for the information of Parliament and the consideration of the select committee. He indicated developments that had already taken place in the interpretation and application of the Act on which an early report to Parliament was required if the select committee was to consider them and, if they thought fit, give guidance. 8 The report was not generally regarded as impressive and many people looked on the whole institution as something of a damp squib. 80


It was revealed that, during the period April to October, 379 Members of the House had put forward a total of 816 complaints. Of these, 616 cases had been looked into and 405 had been rejected as being outside Sir Edmund's jurisdiction, 86 had been discontinued after partial investigation (because administration had not been involved or the complaint was stale or there were existing remedies open to the complainant) and 125 cases had been fully investigated and reports made to the MPs concerned. A further 200 cases were still receiving attention at some stage in the commissioner's office. Out of the 125 cases on which results had been reported, some element of maladministration had been found in 10. From what Sir Edmund went on to say in his report, it seemed unlikely, however, that his discovery of maladministration would prove to be of much help to the complainants. In no case was maladministration within a department of a seriously culpable character. It usually consisted rather of mistakes or deficiencies in administrative performance, such as misapplication of rules (2 cases), unjustifiable delay (2 cases), loss of papers (2 cases), inadequate correspondence and wrong advice (4 cases). In none of these cases had the commissioner any criticism of the action that the department had taken to remedy injustices so caused.9 The report went on to give some interesting information about the way in which different MPs were using the new institution and then came to two other very important matters, namely, the extent of the commissioner's jurisdiction and the nature of maladministration. In the section on jurisdiction, Sir Edmund explained the procedure he had adopted as follows: " T h e Act restricts my jurisdiction with a number of detailed and specific provisions. The result is that, before I can accept any complaint for investigation, it has to pass a "screen" of no less than ten jurisdictional tests." 10 These tests are summarised in Appendix II of the report. In addition to the requirements that the request for an investigation must come in writing from an MP and must be accompanied by evidence of the complainant's consent, they comprise mandatory provisions on the excluded areas and departments contained in the schedules to the Act and several discretionary provisions, including the time limit and the existence of a remedy through the courts. From these and what Sir Edmund had to say about them it was clear that, unless


changes were made, he would be dealing with but a fraction of the complaints presented to individual MPs. The parliamentary commissioner himself pointed to a possible way of widening his scope. As was foreseen in the debates when the Bill was passing through Parliament, the more difficult area of definitions is that of maladministration attendant upon a discretionary decision in government. What a complainant usually wants, and also his Member, is a review of the decision. Section 12(3) of the Act prevented this from being done if the decision was taken without maladministration. Often during the first seven months, Sir Edmund had been asked to question a discretionary decision because the Minister's finding in that decision was alleged by the complainant to be "biased" or "perverse" and bias and perversity had been listed as types of maladministration in the debates on the Bill. Sir Edmund's practice had been to regard the area for his investigation to be the administrative processes attendant on the discretionary decision: collection of the evidence on which the decision was taken, the presentation of the case to the Minister and so on. When he found a defect in these processes which was detrimental to the complainant,11 he had inquired into the prospects of a remedy by way of review of the decision. But if he found no such defect, then he had not regarded himself as competent to question the quality of the decision even if, in an extreme case, it had resulted in manifest hardship to the complainant. The commissioner's report went on : " I need not add that these distinctions (between the quality of the procedures attending the decision, and the quality of the decision itself) are difficult to draw in my case work and give dissatisfaction to complainants and their Members, so that I shall welcome any guidance that the select committee can give me in the application of these, the central provisions of the Act."12 In due course the select committee made its recommendation on this point13 and Sir Edmund, in a further report,14 announced his intention of following it. Before this, however, there arose the Sachsenhausen case which was specifically related to the controversy about discretionary decisions. This case became the subject of the commissioner's third report 1 5 and did much both to restore the ombudsman's image 82


and repair the damage which may have been done by his first report. Sir Edmund's second report had dealt with a complaint about aircraft noise in the neighbourhood of London airport.16 In this case he found that no maladministration had taken place and he was, therefore, unable to suggest a remedy, but the detailed survey of the whole problem which he undertook encouraged many people with regard to his possible powers in dealing with generalised problems of this kind. Thus it caused little surprise when Mr. R. H. S. Crossman, as Leader of the House of Commons, suggested that the Sachsenhausen case, which was the subject of a Motion on the Order Paper signed by more than half the Members of the House, might properly be referred to the parliamentary commissioner. Mr. Airey Neave MP, who had led the campaign in the House, then formally passed the complaint to the commissioner. The case was about the failure of the Foreign Office to pay compensation to various persons in respect of the suffering and persecution they had endured in the Nazi concentration camp at Sachsenhausen. The difficulty lay in the rules (the Butler rules as they are now called) which were adopted by the Foreign Office in assessing entitlement to compensation. These rules laid it down that a person who had been confined in a concentration camp was assumed automatically to have suffered Nazi persecution while in all other cases specific evidence of persecution and suffering had to be presented and proved. The compensation of some distinguished British ex-servicemen had hinged on whether or not that part of the Sachsenhausen camp in which they were detained was, for the purposes of the Butler rules, part of the concentration camp or a prisoner of war camp. Sir Edmund's investigation revealed serious maladministration by the Foreign Office. But on the question of a remedy, Sir Edmund was less specific. For the complainants, it was an essential part of a distinguished and gallant war record that they had been held in a concentration camp and had suffered Nazi persecution there. Any denial that they were so held impaired their reputation and called into question their veracity. This was an injustice which, in the commissioner's opinion, would be remedied by the publication, and he hoped acceptance, of his finding that they were all held by the SS in premises which were part of the Sachsenhausen complex. He 83


believed that the veracity and sincerity of the complainants had been vindicated by the result of his investigation. He felt that the next step was for the Foreign Office to review the evidence and take a fresh decision in the case of each of the complainants. Whether a financial award was appropriate would depend upon the result of this review. The report concluded with the statement that the Foreign Office had informed Sir Edmund that it intended to review all of the cases.17 The events which followed the publication of this report are crucial to the present position and indeed the whole future of the parliamentary commissioner and his select committee. The then Foreign Secretary, Mr. George Brown, chose to initiate a parliamentary debate on 5 February, 1968,18 before the select committee had any opportunity of considering the matter. The debate took place on a Motion to "take note of the third report of the Parliamentary Commissioner for Administration'' and the Foreign Secretary made it clear that he did not accept Sir Edmund's findings. He repudiated the charges of maladministration, but agreed to compensate all the persons whose cases had been considered by the commissioner. Lest there could have been any doubt about the attitude expressed in his opening speech, the Foreign Secretary reiterated his position in a succinct intervention in a speech made by this writer. Hansard reports Mr. Brown's intervention as follows: " I made it plain and gave my own judgement that I thought that the parliamentary commissioner was wrong. I said that earlier. Nevertheless, having helped to establish his position, I said that I would accept his judgment. I have, therefore, authorised payment to these people. . . ,"19 Here then, with the commissioner's third report, we now had the inevitable but long-awaited clash between the ombudsman's rôle and the doctrine of ministerial responsibility. Here also were the beginnings of a dispute about procedure to be followed after the publication of a report from the commissioner requiring ministerial action. This last problem has been further emphasised by the Duccio case, which was the subject of the commissioner's third report during the parliamentary session 1968-9.20 He did not find maladministration in the case, but implied that injustice had arisen as a result of a statement 84


made in the House by Mr. Anthony Crosland, the then President of the Board of Trade. 21 The select committee in its report on the Duccio case, which was published on 3 December, 1969,22 suggested that a further statement from the Minister might be appropriate. This has not yet been made. Nor has either report been debated. So the parliamentary commissioner's only real power to enforce a remedy, namely the presentation of a report to Parliament, has not so far proved wholly effective. But what of the work of the select committee in this connection ? Our rôle and functions were not rigidly defined in the Act. When the committee was first appointed it was, therefore, able to develop its own method of working. Clearly, the committee's main function is to receive and consider reports from the commissioner. But in considering reports we can summon witnesses, call for papers and make recommendations on the effectiveness of the remedy which has been applied, as well as on the need for any further remedy or action within a department to prevent further maladministration of the same kind. It is clearly not the committee's business to re-try cases reported on by the commissioner but it can, if it so desires, consider the adequacy of the commissioner's scope and powers and recommend changes. The select committee's first report on the Sachsenhausen case published on 16 May, 1968,23 was important in relation to all the important issues which had been raised by the Foreign Secretary's statement about the case in the parliamentary debate to which I have referred. The committee had taken evidence at length, notably from the permanent under-secretary of state and the senior legal adviser at the Foreign Office. We reported as follows on the remedy taken by the Foreign Office in consequence of the commissioner's report : " T h e result, as announced by the Foreign Secretary to the House . . . was a decision to make financial awards to all the twelve claimants . . . apparently on the ground that the decision whether these were in or out of the camp was always a borderline matter. No evidence was given of a case by case review in order to reassess the merits of each claim in the light of the information now available. The Foreign Office still thought their previous decision to exclude these claims was correctly taken, but they had now reversed 85


their decision out of respect for the commissioner's judgement and to support the authority of his office. . . . Your committee recognise that the new decision of the Foreign Office has had the effect of providing a financial remedy.. . . They cannot, however, commend the new decision as a proper procedure for a department to adopt in order to remedy an injustice caused by maladministration. They think that the commissioner correctly described the proper procedure when, having questioned the original decision, he said the next step should be for the Foreign Office to review the evidence and take a fresh decision. . . . " We pointed out that the commissioner would have exceeded his powers if he had acted as the Foreign Secretary said he had done, that is, if he had taken it upon himself to suggest what the fresh decision should be. But he had done no such thing. His report had carefully argued that whether a financial award was appropriate for any of the claimants would depend upon the result of the department's review. It was, therefore, not Sir Edmund but the Foreign Office which was responsible for the merits of the decision to make financial awards to all the claimants. The select committee's report then turned to other implications of the maladministration found by the commissioner in the Sachsenhausen case. We pointed out that Ministers were not exempt from examination by the commissioner or the committee and that they were, in fact, included in our criticisms of the actions of the Foreign Office in this case. Another question raised in the report was how to deal with the situation where, in the course of our proceedings, officials were named who had not been the subject of the complaint investigated by the commissioner and so were not protected by the statutory safeguards of the Parliamentary Commissioner Act or by the commissioner's administrative procedure. This question involved important constitutional procedural issues. The select committee had taken evidence from the Attorney-General on these issues and we mentioned our intention to deal with them in a future report to the House on the general question of Ministerial responsibility in relation to the office of the Parliamentary Commissioner. Meanwhile we deferred publication of the Attorney-General's evidence. In view of our finding 86

BRITAIN'S "OMBUDSMAN''

that the advice to Ministers in the Sachsenhausen case was the collective responsibility of Foreign Office officials, we also refrained from publishing with our report passages in the evidence which referred to an official by name. On the quality of the rules under which the Foreign Office had acted, the select committee recalled that the commissioner had considered himself to be unauthorised to question the merits of the rules. We felt that the commissioner may have taken too narrow a view of his authority here. His findings of fact made it clear that the application of the Butler rules had produced results in the Sachsenhausen case which were anomalous and indeed unfair as between individual claimants. The committee then stated that its views on this aspect of the case would form part of its general consideration of the proper treatment by the commissioner of administrative rules producing unfair or harsh results, on which they would be taking evidence from other departments and reporting to the House. 24 We were thus left with two clearly defined but still unresolved conflicts. These were dealt with in the select committee's third report. 25 In this report we felt better able to offer guidance to the commissioner on the definition of maladministration. We gave our reasons thinking that within the terms of the Act the commissioner could concern himself with the bad decision and the bad rule, two matters that so far he had regarded as being outside his scope. The Act itself leaves some room for manoeuvre with regard to the bad decision. Section 12(3) states that nothing in the Act " . . . authorises or requires the commissioner to question the merits of a decision taken without maladministration by a government department or other authority in the exercise of a discretion vested in the department or authority." The select committee felt that this provision should be much more widely interpreted than hitherto. We argued that the object was to make it clear that it was not the commissioner's function to substitute his decision for that of the government and that we were giving him no encouragement to do this. We suggested, however, that if he found a decision which, judged by its effect upon the aggrieved person, appeared to him to be thoroughly bad in quality, he might infer from the quality of the decision itself that there had been an element of

87


maladministration in the taking and ask for its review. We put the view that the commissioner would then be able to act in some types of case where, judging by the legislative history, it was clearly the intention of Parliament that he should operate. This, we argued, would particularly apply to decisions alleged by the complainant and found by the commissioner to be biased or perverse for, as we have seen, bias and perversity were listed as types of maladministration in the debates of the Bill. The select committee also had no doubt, after hearing evidence and studying the detailed reports on individual cases submitted by the commissioner, that there was room for much more latitude in dealing with the bad rule. We emphasised our wish to encourage the commissioner to extend his scope in cases where the aggrieved person was found to have sustained hardship and injustice through the correct application of an administrative rule. Sir Edmund had drawn attention to two such cases in his first report: the "agricultural condition" imposed by the Ministry of Housing and Local Government at Battle and the same department's refusal to decide the designation of Hockley in advance of the whole of the Essex County development plan. But the most striking instance was provided by the application of the Butler rules in the Sachsenhausen case. The select committee felt it would be proper for the commissioner to inquire whether, given the effect of the rule in the case under his investigation, the department had taken any action to review the rule. If the rule had been seen to be defective and had been revised, what action had been taken to remedy the hardship sustained by the complainant ? If it had not been revised, had due consideration been given by the department to the grounds for maintaining the rule ? We felt the approach implied in these questions would allow the commissioner to find that the complainant had sustained injustice in consequence of maladministration if his inquiries showed that there had been deficiencies in the departmental process of reviewing the rule.26 A further matter which the committee considered and which had also previously been indicated as a possible source of friction was the effect of the commissioner's activity on the civil service. Evidence on this point was taken from Sir William Armstrong. While the committee reported that it was too early to judge the extent of the impact 88

BRITAIN'S "OMBUDSMAN''

of the parliamentary commissioner on the civil service, it recommended that future consideration should be given to this, with particular reference to weighing the beneficial effects of the existence of a commissioner against the possibilities of the slowing-down of work through over-caution and meticulousness. Meanwhile, we endorsed the hope of the commissioner that departments would not be over-cautious in giving "extra-statutory" advice, even at the risk of additional complaints being made to him. The select committee did not agree with a suggestion that it should confine itself to taking evidence from the principal officer of a department when considering what the department should do to remedy administrative defects disclosed by the commissioner's report on an investigation. As the Attorney-General acknowledged, the select committee has an undoubted right under its order of reference to call for evidence from any persons who, in the opinion of its Members, can assist them in their inquiry. We agreed that generally the appropriate witness would be the principal officer, in view of his responsibility and authority for the administrative systems of the department. But we insisted that there could well be infrequent occasions when the select committee would judge it necessary to inform itself on the nature of a defect in the system, as well as about the measures taken to remedy that defect. For that and other purposes we may need to obtain the evidence of those officials who have been concerned at first hand with the actions under investigation. The committee was satisfied that it would be able to take evidence from subordinate officials for this purpose without exposing them to unfair publicity or criticism and it felt able to rely on departments to indicate the appropriate witnesses.27 The final matter of importance which arose in this report was the exclusion of the hospital service from the commissioner's jurisdiction. Once again the committee pressed for an extension of the parliamentary commissioner's scope. We did not consider the reasons given by the principal officers justified the exclusion of the hospital service from the commissioner's jurisdiction. But we decided that it would be appropriate to reconsider the position of the commissioner in relation to hospital services only after progress had been made in the discussions about the future structure of the National Health Service to which the principal officers had drawn our attention. 28 All 89


this happened within two years of the select committee's inception. It is an impressive pressure from the parliamentary select committee for an extension of the commissioner's powers into new territory. We also declared ourselves for a less rigid definition of the commissioner's terms of reference so as to allow him greater freedom of action. In its next report, of 29 January, 1970,29 the committee recommended an even bigger extension of the commissioner's powers to cover personnel matters in the civil service and the armed forces. We had given this careful consideration and felt that the exclusion of personnel matters in relation to the Crown set out in paragraph 10 of Schedule 3 to the Parliamentary Commissioner Act was not justified. The establishment of the parliamentary commissioner was conceived as an extension of the MP's powers of investigation. Civil servants and members of the armed forces are already a special class of employee in that Members can question Ministers about them. The select committee noted that the practice of Members questioning Ministers on personnel matters neither impaired the non-political character of the civil service nor did damage to the Whitley Council machinery. This was why we saw no reason to conclude that damage would occur if the existing practice of MPs were to be reinforced by giving the commissioner power to investigate on behalf of members. In relation to the armed forces, the select committee recognised that various Service Discipline Acts exist for dealing with personnel grievances. But in the committee's opinion, the commissioner's investigations would not affect the operation of this machinery. Indeed, his investigations would be directed towards seeing that the machinery had been properly used. The committee did, however, accept that in the area of purely disciplinary matters the intervention of the parliamentary commissioner might be considered embarrassing. With all these recommendations, the select committee has now tackled all but one of the nine points raised by Mr. Niall McDermot in his remarkably far-sighted speech in the Second Reading debate. All that remains is the question of maladministration by local authorities and on this the government has now announced its intentions.30 Along with local government reorganisation, we are to have a system of local ombudsmen for local government and this too was predicted 90


by Mr. McDermott. It has also been announced that the hospital service is to have its own scrutineers. 31 What is disappointing is the failure of the government so far to provide any opportunity for the reports to be debated, save for the ill-timed and hastily arranged debate on the Sachsenhausen case. It is this that excites doubt as to the future effectiveness of the ombudsman and the select committee. It is true that the commissioner's most recent report (his annual report for 1970)32 continues the mixture as before. But if his power is to be wielded solely through Parliament, his reports must not be pigeon-holed indefinitely. Until we have a full-scale debate and review of the whole subject by the House of Commons, any verdict on the way in which the institution of ombudsman is evolving must be tentative. But it is nevertheless worth trying to arrive at a verdict, if only in anticipation of the debate. In some three years, the parliamentary commissioner has had some 3000 cases referred to him About half of them have been outside his jurisdiction and of the remainder he has found maladministration in a little over 10 per cent His powers have already been marginally, though significantly, widened and further extensions are being considered. The effect of his operations on Members of Parliament, the public and civil service cannot yet be accurately assessed. So far as the civil service is concerned, it seems probable that the ombudsman's activities have had both favourable and unfavourable effects in that civil servants have become more careful, which is a good thing, but also more cautious, which is not such a good thing. MPs have found the parliamentary commissioner a useful tool for use in a small proportion of the cases which come to them. When the Member has failed by normal parliamentary procedures to get an injustice remedied, he can now call upon someone who can get right inside the department, look at the papers and find out what has really happened. This new process will become increasingly helpful to Members as they learn how best to use it. But it must still be remembered that in the vast majority of cases brought to an MP there is no question of maladministration or other misconduct. The constituent really wants a different decision or the operation of ministerial discretion in his favour. The MP has his own weapons to use in trying to achieve his constituent's purpose and, in many cases, he 91


will not turn to the ombudsman until these have failed. For its part, the select committee will continue to perform its rôle of ensuring the effectiveness of the parliamentary commissioner without, at the same time, weakening the power of Parliament. The ombudsman has been helpful. He could well become even more so. But it would be a sad day for justice and liberty, as well as for parliamentary scrutiny, if we ceased to regard the M P as the principal protector of his individual constituents.

REFERENCES 1. Ernest Benn, 1929. 2. The Citizen and the Administration: The Redress of Grievances. 3. Parliamentary Commissioner Act, 1967, cap. 13. 4. 8 November, 1962; H C Deb. 666, cc. 1124-6. 5. 19 May, 1961; H C Deb. 640, cc. 1746-50. 6. Bill 86 (HC) of 1966-7. 7. 18 October, 1966; H C Deb. 734, cc. 42-172. Mr. McDermot's speech iscc. 162-72. 8. First Report of the Parliamentary Commissioner for Administration, Session 1967-8. H C 6 of 1967-8, paras. 2-3. 9. Ibid.y para. 17. 10. Ibid., para. 22. 11. Ibid.y para. 35. 12. Ibid.y para. 38. 13. Second Report from the Select Committee on the Parliamentary Commissioner for Administration, Session 1967-8. H C 358 of 1967-8, para. 14. 14. First Report of the Parliamentary Commissioner for Administration, Session 1968-9. H C 9 of 1968-9. 15. Third Report of the Parliamentary Commissioner for Administration, Session 1967-8. H C 54 of 1967-8. 16. Second Report of the Parliamentary Commissioner for Administration, Session 1967-8. H C 47 of 1967-8. 17. H C 54 of 1967-8. 18. H C Deb. 758, c. 107. 19. H C Deb. 758, c. 156. 20. Third Report of the Parliamentary Commissioner for Administration, Session 1968-9. H C 316 of 1968-9. 21. 18 March, 1969; H C Deb. 780, cc. 214-23. 22. First Report from the Select Committee on the Parliamentary Commissioner for Administration, Session 1969-70: Duccio. H C 49 of 1969-70. 92

BRITAIN'S " O M B U D S M A N "

23. First Report from the Select Committee on the Parliamentary Commissioner for Administration, Session 1967-8; Sachsenhausen. HC 258 of 1967-8. 24. Ibid., paras. 11-16. 25. Second Report from the Select Committee on the Parliamentary Commissioner for Administration, Session 1967-8. H C 350 of 1967-8. 26. Ibid.y paras. 9-17. 27. Ibid., paras. 19-23. 28. Ibid., paras. 36-7. 29. Second Report from the Select Committee on the Parliamentary Commissioner for Administration, Session 1969-70: Area excluded from Parliamentary Commissioner's investigation. HC 129 of 1969-70. 30. Statement by the Prime Minister (Mr. Harold Wilson), 22 July, 1969; H C Deb. 787, c. 1501. 31. See paras. 95-8 of the Green Paper on The Future Structure of the National Health Service, HMSO—Department of Health and Social Security, 1970. 32. Second Report of the Parliamentary Commissioner for Administration, Session 1969-70; Annual Report for 1969. H C 138 of 1969-70.

93

The Select Committee on Race Relations and Immigration THE RT. HON. ARTHUR BOTTOMLEY PC, OBE, MP Chairman of the Select Committee IT HAS been my privilege to be a member of four governments. My experience has made me aware that the many complex problems which governments are now called upon to tackle have added enormously to the functions and work of Ministers. These problems are little understood by the public at large whose interests are nevertheless directly affected. This points to the need for improved machinery for enabling people to understand just what governments do on their behalf. In particular, it emphasises the need for greater co-operation and understanding between government departments and other public and private bodies and organisations. This is well brought out by an incident which occurred quite early in my ministerial career. When I was Secretary for Overseas Trade at the Board of Trade, there were two departments dealing with overseas trade. They were the commercial relations and treaties and the export promotions departments. Businessmen pointed out to me the waste of time involved in having to go to two departments and that the work could be done more adequately and efficiently if the departments were combined. Initially there was resistance to my suggestion that the departments should be amalgamated ; indeed, later I learned that some civil servants referred to it as Operation Confusion. How well it has worked can be judged by the fact that when, not long ago, I asked how the arrangement was working out, I was told that the two departments I referred to had never existed, but that there certainly was a commercial relations and export department. 95


The increasing complexity of government, and the extension of its powers into many new fields, have also highlighted the inadequacy of the traditional concept of parliamentary control. No longer can the House of Commons, by questions and debates on motions and bills, expect to exercise an effective check on all major decisions and acts of government. But I do not believe that the increasing power of the executive to direct the affairs of the nation should be matched by an increasing power of Parliament to control, in the direct sense, the use of executive power. For that would lead both to frustration and ineffective government. I do, however, believe that the growth in the executive's power to govern should be matched by an improvement in Parliament's opportunities and techniques for questioning and criticising the executive's use of its power. If we are to avoid the dangers of government from behind closed doors, we must seek more and better occasions for requiring Ministers and their officials to justify their policies, their decisions and their actions. It is not enough for MPs merely to inform themselves about the working of the executive or to seek to influence Ministers of the day. If parliamentary criticism is to be effective it must be related to public criticism and opinion, since that, as liable to be reflected in the votes cast in elections, is what all governments must heed. It was Lloyd George who said that Parliament must be the sounding board of public opinion. This, in its turn, means that Parliament must both speak directly for the people and to the people. The House of Commons must openly communicate public anxieties, criticisms and preferences to the government; it must also seek to clarify for the electorate both the decisions and acts of government and the policies of the opposition as the alternative government. This I believe to be the heart of the case for an extension of parliamentary select committees. They may not be the principal means, but they are certainly a very valuable means of improving contact between Ministers and their officials and groups and individuals in the community. They are an essential method of improving contact between government departments and Parliament, with information and ideas flowing in both directions. And they provide a valuable channel for improving communication between Parliament and the people, again in both directions. 96

THE SELECT COMMITTEE ON RACE RELATIONS AND IMMIGRATION

The specialist committees established in recent years have, in different ways and in differing degree, fulfilled these functions. They have enabled MPs to participate in discussions on matters on which the government have to take decisions. They have given people from outside a chance to put their points of view to representative and responsible people. They have provided a means of eliciting information and presenting it both to Parliament and the public. They have also afforded a means of testing the wisdom of government policies when they have been formulated. In this essay, I shall seek to illustrate how these purposes have been achieved by the Select Committee on Race Relations and Immigration, of which I became the first chairman. Here I must put in a personal note. I have an abiding and deep affection for the Commonwealth and for its peoples. I have long held dear the philosophy that imbues this great family of nations, namely, that we should learn to live together in a spirit of mutual tolerance and understanding, whatever our different policies and political systems and whatever our race, colour or creed. But I have never believed that the Commonwealth idea should stop at the English Channel. Its essence is the mutual respect of peoples, not just of nations. The Commonwealth idea ought to be of importance to people of all races in this country and to others who wish to settle here. We should judge people according to what they are, by their abilities, attitudes and beliefs, not by the colour of their skins or their racial or national origins. I have always worked for improved race relations in this country. I was therefore delighted to be asked in November, 1968, to take the chair of the new Select Committee on Race Relations and Immigration. I believe that if the committee does its work well, it should be able to make a significant contribution towards improved race relations. Indeed, it is my ambition that, ten years from now, people may look back at our work, note our warnings, recognise the value of our practical recommendations and agree that this specialist committee, by working on an all-party basis for improved race relations, itself helped this come about. The genesis of the committee was itself significant. Most select committees have been established in response to back-bench demand by Members interested in various subjects. But the Select Committee 97


on Race Relations and Immigration was first proposed by the government itself. It happened like this. 1968 had been a dramatic year for controversy about race relations and immigration. The government's basic policy, as announced in 1965, was that improvements in race relations required both a firm "control on the entry of immigrants so that it (would) not outrun Britain's capacity to absorb them" and "positive measures designed to secure for the immigrants and their children their rightful place in our society". 1 This policy was taken two steps further in 1968. First, the Commonwealth Immigrants Act2 imposed further controls on the entry of Commonwealth citizens. And secondly, the Race Relations Act3 made it illegal to practice race discrimination over a wide area of life. Both measures were controversial. In regard to race relations, in particular, there were some who argued that the novel form of law embodied in the Race Relations Bill was liable to result in undue infringement of civil liberties and a dangerous restriction of citizen rights. On the other hand, many people argued that the Bill was too weak and would be ineffective in preventing racial discrimination in employment, housing and so on. More generally, there was a danger, in the spring of 1968, especially following Enoch Powell's first speech on the subject, of political feelings running high regarding race relations and immigration. The Home Secretary, Mr. Callaghan, therefore proposed that a select committee of the House of Commons should be set up to watch over the operation of the new law.4 This proposal was quickly agreed to by both the Conservative and Liberal parties. When the motion for the appointment of the committee was tabled in November, 1968, 5 1 was delighted to see that the order of reference was sensibly broad so that the committee would be able to decide for itself how best to cover the field. The order enables the committee to cover both policy and administration in regard to both race relations (with particular reference to the work of the Community Relations Commission and the Race Relations Board) and immigration of Commonwealth citizens and aliens. The specific mention of policy was itself an important innovation in the powers of a select committee. There is, however, one restriction. The committee is precluded 98


from considering individual cases. For my part, I think this is absolutely right. Our job, as Members of the committee, is to review the problems, the policy and the system, not to become directly involved in the day-to-day operation of the Acts. Clearly we should be aware of and consider individual problems, and we have done so in both our inquiries to date. But we should not attempt to solve them individually. As chairman, I receive numerous individual complaints of racial discrimination and appeals for assistance by people who wish to settle in this country. These I pass on to the bodies concerned, usually the Race Relations Board and the Home Office. If the committee had been empowered to take up such cases it would have been in grave danger of interfering with the work of the responsible statutory bodies. It would also have found it very difficult to get on with its proper work. How then has the committee gone about its work ? In common with other select committees, we have proceeded by choosing a specific subject for inquiry, taking evidence, deliberating, and then agreeing a report based on the evidence. We do not, for example, hold debates or have wide-ranging general discussions on any matter that interests us. Nor do we look into the many topics of current interest as they arise. To work in this way would be superficial. Instead, the committee has chosen to inquire into one topic at a time in some depth, reserving other important topics for later inquiry. Faced with a wide remit, the committee decided, at the beginning of 1969, to pursue its first inquiry in the field of race relations rather than immigration. This choice followed our receipt of general background evidence on the responsibilities of the Home Office, the Race Relations Board and the Community Relations Commission. I am sure the choice of race relations was right. As we argued in our first report :6 "As a nation we must accept the consequences of the policies we have adopted in the past. Whatever we do in future there are living in this country over a million coloured people who were born in other Commonwealth countries but who have chosen to make Britain their home, together with their descendants who are British by right of birth." Increasingly they will know no other land. But the presence of large numbers of Commonwealth immigrants in some areas of Britain, partly because of colour discrimination and partly because of the problems inherent in differences of language, education, customs 99


and attitudes, has created problems of race relations which are there to be tackled and which, short of mass deportation, will be with us in this country for some time to come. I believe also that were it not for race relations problems, the anxiety about immigration would be substantially less. An inquiry in this field therefore seemed likely to take us to the heart of our problems. I would like to put it another way as well. For the first time for over fifty years we have a minority problem in Britain, which is made all the more acute because of colour. This is a situation which has grave implications for our way of life and for our international reputation. Upon an earlier occasion when a minority problem had to be tackled, it was felt necessary to establish a Royal Commission. This was set up in the early 1900s to deal with the Jewish immigrants from Eastern Europe. 7 An extract from evidence given concerning young people said: "Their desire is to become English, to identify themselves fully with English loyalties. ,, This did not mean departing from their own religious thinking or culture. It did mean a combination of thoughts and attitudes which could strengthen and maintain our way of life. Race relations is a problem of minorities. In a free society it is important to protect the rights of any minority. The most important issue in any minority-majority conflict is the behaviour of the majority. It is easy to make a minority the scapegoat for our own failings. It is necessary for public opinion to be sufficiently wellinformed to enable immigrants to make a worthwhile contribution to the country of their adoption. The only way to avoid racial conflict is through tolerance and understanding of the other man's point of view. This again pointed to an inquiry into some aspect of race relations as a first priority for the committee, so that the public would be better informed and the problems of the immigrant community could be better understood. Within the field of race relations we chose as our first subject the problems of coloured school-leavers. These include their problems of education, of finding employment and of social integration. They were problems likely to be of continuing importance which seemed to us to have received little previous attention or study. Furthermore, they represent a test case in race relations. If we cannot ensure a fair deal for the children of coloured immigrants—children who increas100


ingly are receiving the benefits of British education—then the chances of succeeding elsewhere are slight indeed. This subject of inquiry offered one other advantage from the select committee's point of view. The committee is comprised of MPs from all three major parties and comprises a wide range of opinion. Much of the field before us is highly controversial and on some subjects, for example general immigration policy, the committee could easily have found itself deeply divided. But committees work best when they are attempting to seek agreement. At least until the committee had become used to working together, there appeared to be advantage in taking a fairly uncontroversial topic. The problems of coloured school-leavers suited us admirably, for there is widespread sympathy with the aspirations of young people of all races. I think we learned from the experience of other select committees that it is wise to begin carefully. This is not the place to summarise the committee's first report, but some indication of its nature may be of interest. We based ourselves on the propositions that " special problems need special treatment . . . " and that " . . . in so far as they [coloured schoolleavers] are handicapped in competing with others of their age, then special assistance is needed to give them equal opportunity.'' We then made a fairly large number of specific, practical proposals for solving some of the problems of immigrants and coloured children on leaving school.8 It is most encouraging that nearly all of these have been agreed to by the government, in so far as they lie within its power.9 In assessing the achievement of the committee's report, the test must partly be to what extent the necessary help is actually given to coloured school-leavers in schools and colleges and whether they are finding more equal opportunity in factories, shops and offices. Here much depends on local authorities and employers and I believe the committee has been influential in pushing things in the right direction. We have certainly made public a great deal of very relevant information on the subject.10 In the current parliamentary session (1969-70) the committee has turned to an examination of the working of Commonwealth immigration controls. While I cannot say anything at this stage about the committee's findings, we have been looking in detail at how the present controls are operating, 101


I want now to describe how the committee has developed its work. First, we studied the problems at ground level and took evidence, much of it factual, from people directly involved. This enabled us to identify and isolate problems. Only after this did we turn to reviewing policy. It could, of course, have been done the other way round. The committee could have started by questioning the basic policies and considering alternative policies, and then have discussed these with the people in the field. But while such a radical approach would be challenging, it would also appear to be ill-informed and possibly tend to be misdirected. In my view, a political or lay committee such as ours is well advised to learn the problems before seeking the answers. This approach has meant that the committee has not only taken evidence from senior civil servants and others with major responsibilities in the field. Such witnesses, essential as they are for many purposes, inevitably speak with only second- or third-hand experience of many of the problems they are concerned with. We wanted to hear from those directly involved. To give two examples. In our first inquiry, we visited six towns in this country. We toured schools, colleges, factories and youth clubs. We took evidence from local education authority officers, teachers who teach coloured teenagers, youth employment officers, employers, local trades union officials, local people working on community relations bodies, youth club workers, the police, local immigrant leaders, parents of coloured children and (informally) young coloured pupils, students and school-leavers. In our current inquiry into immigration controls, we have visited six countries overseas and met and taken evidence from immigration officers who deal with individual applications to come to this country (as well as High Commissioners) and local officials of Commonwealth governments (as well as their senior civil servants). We have visited towns and villages where immigrants come from. Moreover, we have met and talked to many would-be immigrants. To enable the committee to do this we have made extensive use of sub-committees. Apart from the practical difficulties of taking the full committee away from Westminster, we have found that this kind of detailed evidence-taking at local level is best done by a small group of Members. In addition to finding the facts for ourselves at the "grass roots" 102


level, we have been anxious to give interested bodies an opportunity to put their points of view before the committee, either in public or for eventual publication. We have done this at both local and national level. In our school-leavers inquiry, for example, we took oral evidence from, among others, the Race Relations Board, the Community Relations Commission, national immigrant organisations, local authority associations, professional bodies, the CBI and the T U C . We also received written evidence, over 160 memoranda in all, from interested bodies. In these various ways we provided, to put it simply, a means by which the people could speak to Parliament and, through Parliament, to the government. But we also took evidence from a Home Office Minister and senior civil servants from that department, from the Department of Employment and Productivity, and from the Department of Education and Science. This achieved three purposes. They described their policies, gave facts and figures that were not otherwise available and, in justification of their actions, they answered criticisms about policy and administration. Thus the government was enabled to speak, as it were, through the specialist committee and Parliament, to the people. Finally, through our published report, we as Members of the specialist committee have been able to participate in the development of policy in this important area of race relations. All of this would not have been possible if the committee had not worked well together as a team. We came to the problems facing us with a great variety of experience and an equal variety of attitudes. But we were all willing to learn from the evidence we took and the facts and figures we were given. Of course, we did not all agree on every question. But the fact that we were able, from very diverse starting points, to agree in the end a report that nevertheless said significant things about a potentially controversial subject is itself a testimony to the value of specialist select committees. A new feature of our work, compared with that of older committees such as the Public Accounts and Estimates Committees, has been the extent to which we have dealt directly with both official and unofficial bodies outside government. In particular, in the school-leavers inquiry, we had to examine the policies and administration of local 103


authorities and not just those of the government. This was a novel situation. The initial reaction of the local authorities was unfavourable. In the past they had been called to Westminster to give evidence about matters for which the government is responsible. Now there was a feeling on the part of some authorities that a parliamentary select committee was interfering with the work and responsibility of local government itself. These fears were soon dispelled. Indeed, the Mayor of one town invited us back. All the civic leaders and officials we met ultimately agreed that the select committee's visits had been worthwhile. Far from interfering with the work of local government leaders, the visits of the committee had been helpful to them. For the purpose of our visits was to see how legislation passed by Parliament was affecting local authorities, and, as we saw for ourselves, it was the local authorities which had taken the strain caused by the arrival of immigrants. Following our visits, Members of the committee were much better informed to put the local authorities' point of view to Parliament. It is very important that there should be closer co-operation between those responsible for policy and those who have to face up to the problems caused by government action. This applies both to Members of Parliament and representatives of other public bodies. During our investigations, we met very few people who resented our inquiries once they understood their purpose. Witnesses who were initially hostile or feared facing a parliamentary select committee afterwards expressed their satisfaction with the proceedings. The public interest in race relations and immigration naturally gave rise to much outside curiosity in our work. This was reflected both in the national and local press and on radio and television. The greatest need in this field is to avoid misunderstanding. And this means giving as much publicity as possible to the facts and problems of race relations, as well as enabling the opinions and experience of the people directly involved to be disseminated as widely as possible. Thus one of the main values of our committee is to open up public discussion of the issues and to promote an open dialogue between responsible people. It is important that the immigrants, for example, should learn about the policies of the government and local authorities. At the same time, official bodies should heed the opinions of 104


immigrant organisations and have regard to their problems. In all of this, the committee can be a useful catalyst. We pursued this objective in several ways. We heard as much evidence as possible in public. Indeed, on the school-leavers inquiry, we heard all witnesses in public unless they otherwise requested. But for various reasons most of our evidence on immigration controls has had to be heard in private. It is our aim to publish as much as possible of our evidence, whether heard in public or in private. The value of public hearings was especially noticeable during our two-day visits to some of the towns in this country where immigrants have settled in large numbers. In all these places we sat in public for many hours in the town halls. The representatives of local authorities, community relations bodies, immigrant organisations and similar groups were present and heard each other give evidence. The local press gave very full coverage to our proceedings. We have given the press advance notice of public meetings and I have held press conferences from time to time, especially on the publication of our report. When we visited Wolverhampton the BBC made a short film for the programme Westminster at Work. This included scenes of the committee visiting schools, a college of further education, factories and youth clubs and interviews with witnesses and Members of the committee. The film was extremely well done. When it was shown many favourable comments were made about bringing Parliament to the people and showing how much work is done by MPs outside the debating chamber. Television is not allowed while the committee is carrying out its major task of hearing evidence. All that emerged from Wolverhampton was an impression, based on interviews and film of informal visits, rather than a film of the committee at work. To this extent, less was conveyed than could have been of the matters being investigated. This we believe to be wrong. In the light of the Wolverhampton experience, we unanimously agreed a special report recommending that the House of Commons should authorise the televising, sound recording and photography of the committee's proceedings when hearing evidence in public away from Westminster. 11 Disappointingly no action has been taken on this recommendation. But I am still hopeful. I hope that one day the television cameras may be allowed 105


into all of our public meetings so that the evidence we take can be given as wide publicity as possible. I am convinced that the more that is published, and openly discussed, the better it will be for race relations in this country. I should like to see one other development in our public relations. At present there is much research in universities and elsewhere, for example, by the Institute of Race Relations on the problems of race relations and, to a lesser extent, immigration. It was important that we should be acquainted with this research and, with the help of the institute, we have been able to achieve this. But looking ahead I can see the need to harness more research to the needs of the committee. I hope, therefore, that we may be enabled in future to plan our inquiries for some time ahead, to allow time for the results of research to be produced, and that we may be able to commission research projects directly relevant to our inquiries. Looking back, I believe that this is something we missed in our school-leavers inquiry. We amassed many facts, but we may have obtained even more if we could have commissioned, for example, specific statistical surveys about the employment of young coloured people. It is most important that the various bodies studying race relations should work together in this way. Finally, how do I see the Select Committee on Race Relations and Immigration within the broader development of specialist committees? I am a little disturbed by the heavy emphasis put by some people, for example, by the Select Committee on Procedure in their recent Report on the Scrutiny of Public Expenditure and Administration.12' The report speaks of the need to have a range of departmental committees concerned with public expenditure. Of course, Parliament must look closely at the use of public money. But MPs should look no less carefully at the use of public power. And in many fields, including race relations and immigration, the exercise of power that directly affects the lives of individual people is even more important than the spending of money. As I know from a long personal experience of holding office, many ministerial decisions are only indirectly connected with expenditure. I am convinced, therefore, that some specialist committees are needed to provide parliamentary scrutiny of important matters which have very little to do with expenditure. 106


Select committees can also be of great value in keeping an eye on how legislation, especially new legislation, is working out in practice. We spend a great deal of time in Parliament looking at new legislative proposals, but we have perhaps not devoted enough effort in the past to reviewing the working of this legislation in the light of experience. One of the reasons why I am delighted that the Race Relations and Immigration committee was set up is that it does just that. I am sure this should continue and be taken further in other areas. Looking ahead, therefore, I believe there is a continuing rôle for the Select Committee on Race Relations and Immigration working within the context of a wide range of select committees specialising in different areas of government. With my colleagues on the committee, I have learned much. Our experience has given us all a keener interest in the problems we are tackling and we are becoming more and more informed. We are now better equipped to take part in public debate. The contacts we have made have enabled us to rethink the facts and to face the problems of race relations and immigration afresh. So long as these continue to be live problems in this country—as I fear they will be for a long time to come—there will be a need for a parliamentary select committee in this field. This is why the House of Commons should allow us to continue our work in future sessions. Eventually, of course I hope that partly as a result of our work race relations will cease to be a major problem in this country. When that time comes we shall have worked ourselves out of a job. It will be a time for genuine pride and thankfulness.

REFERENCES 1. White Paper on Immigration from the Commonwealth, Cmnd. 2739, August, 1965, para. 1. 2. Cap. 9. 3. Cap. 71. 4. 23 April, 1968; H C Deb. 763, c. 67. 5. 15 November, 1968; H C Deb. 773, c. 826. 6. Report from the Select Committee on Race Relations and Immigration, Session 1968-9: The Problems of Coloured School Leavers. H C 413 of 1968-9, para. 2.

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7. Report of the Royal Commission on Alien Immigration, with Evidence and Appendix. Vol. I Report, Cd. 1741,1903. 8. Summarised in Chapter 10 of the Select Committee's Report. HC 413 of 1968-9. 9. White Paper on The Problems of Coloured School Leavers, Cmnd. 4268, February, 1970. 10. See the Minutes of Evidence taken before the Committee, and the Appendices. HC 413-11, III and IV of 1968-9. 11. Second Special Report from the Select Committee on Race Relations and Immigration, Session 1968-9. H C 196 of 1968-9. 12. First Report from the Select Committee on Procedure, Session 1968-9 : Scrutiny of Public Expenditure and Administration. HC 410 of 1968-9.

108

The Chamber as the Centre of Parliamentary Scrutiny JOHN MENDELSON MP ONE of the regular discoveries made by writers on politics in every generation is the very strong position of the executive in the British Constitution. The discovery was first made by Montesquieu in the eighteenth century and has since been made over and over again. A consequence of the latest rediscovery is the spreading of alarm about the alleged decline in the relative power of Parliament vis-à-vis the executive. It is a subject that provides frequent opportunities for our leader writers to fill in the dreary days when there is nothing else to write about, rather in the same way that "the decline of liberalism in America" is favoured by their contemporaries in the United States. The last time this particular topic was vastly exaggerated in America was in the era which ended with the election of Governor Roosevelt to the Presidency and the greatest revival of American radicalism since William Jennings Bryan. The alleged alarming growth of the power of the executive in the United Kingdom is currently accompanied by a strong wave of committee-mania. We are told that the only effective way of controlling the executive is to have a greatly enlarged committee system in the House of Commons. In recent years we have seen the development of the demand for a large number of specialist select committees both from Members of the House of Commons and political scientists outside. Each select committee is to cover a particular subject or department and all subjects and departments are eventually to be included. There have, of course, been special demands from time to time 109


concerning particular subjects. For example, ever since I have been in Parliament I have heard the request for a specialist select committee on Defence put forward by Conservative and Labour Members alike. These were normally Members with a close interest in the subject and they wanted to take it "out of politics , \ They wanted the good and the wise from all parties, preferably with some specialist knowledge in defence matters, to provide the membership of this specialist select committee. They expressed the hope that in such a committee the Minister of Defence would be able to speak more freely than he can in the House of Commons. As a result of this far more information would be supplied to the Members of the select committee. They would be able to elicit many more facts and figures from the Ministry of Defence than would otherwise be possible. The specialist committee on Defence would have executive or secret sessions, it is argued, but would from time to time compile reports. These reports would be submitted to the full House of Commons for their consideration. All Members of Parliament would be able to study them and would, therefore, be much better informed for the purpose of questioning the government and controlling its actions. This particular proposal is worth examining in some detail, for its implications are extremely serious in constitutional terms. The Minister of Defence would supply the specialist committee with three categories of information. First, published information which is accessible to all Members of Parliament and to the public at large. Second, classified information not available to the public and given to the select committee on a confidential basis. Information supplied in this second category would not strictly speaking be secret but it would be confidential in the sense that it was not simultaneously available in published documents. And thirdly, Ministers and their staff, it is hoped, would speak their minds more freely, while the Members of the committee would be able to question them more effectively than is possible in the House of Commons. It is not assumed by either the supporters of this proposal or by their critics that the Minister of Defence would supply any top secret information to the select committee at any time. This, of course, is only common sense. In my opinion this system would, over time, create two classes 110

THE CHAMBER AS THE CENTRE OF PARLIAMENTARY SCRUTINY

among Members of Parliament : first-class Members (in matters of defence) and second-class Members. The latter group would be composed of all those Members of Parliament who were not Members of the specialist committee. The Members of the specialist committee on Defence would come to meet their colleagues and discuss defence matters with them but only up to a point. There would be occasions when they would have to tell their parliamentary colleagues that they could not supply any additional information to support their point of view because, although they knew very much more, alas, part of their knowledge was confidential. When taking part in defence debates in Parliament the Members of the select committee and the Minister of Defence would speak as members of a magic circle possessed of higher knowledge denied to all others. They would be "the club within the club"; and they would be able to take many things for granted without having to explain matters to the rest of the House. Far from increasing the ability of the average Member of Parliament to question and control the executive, under this proposal he would find himself reduced in political status and excluded from important areas of information and debate. In consequence of this same development, the Minister of Defence, if he managed to obtain the support of the majority of the select committee, would now be able to claim that his policy was backed by a committee of experts. This would considerably strengthen the executive vis-à-vis Parliament and would, therefore, be a move to reduce parliamentary control. But my main objection to the proposal concerns the implied intention of taking defence out of politics. This is a wholly undemocratic proposition. Defence and foreign policy are inextricably intermingled. Defence is decisively a political subject and must be debated openly and in political terms. The electorate's claim to be taken into the confidence of the government on matters of defence policy is that the electorate must underwrite the consequences of any such policy. The aim of a select committee composed of defence experts would inevitably be directed towards agreed solutions to defence problems. Anyone who has served on an important select committee (the author of this essay has been a Member of the Public Accounts Committee) knows well the strong desire to reach agreement and to ignore party positions on such committees. This can be defended, 111


although sometimes with difficulty, so long as the subject matter of the committee deals only with administration and not with policy. But the new proposal for an all-party Defence committee prominently includes policy-making and the questioning of Ministers by the committee. With the passing of very few years, I would expect Members of the select committee to move closer to the executive. They would regard their conclusions as vastly superior to those of the far less well-informed Members of Parliament who were not on the committee. Certainly experience in the United States Congress confirms this assumption. The United States committees have shown a tendency to hold secret or executive sessions with ever-increasing frequency. This development inevitably has had a very serious effect on Congress and has severely reduced both the power of the House of Representatives and its influence as a centre of national debate. There are many critical voices, including Professor Charles A. Beard's in his book American Government and Politics. Discussing the Congressional committee system after a life-time of teaching and researching into the American system of government, Professor Beard had this to say : 4

Owing to the high prerogatives enjoyed by committees, to the secrecy that surrounds their operations, and to the pressure of lobbies on them, a great deal of criticism has been directed against the whole system as a piece of legislative machinery.... It would be idle to contend that the indictments brought against the committee system are to be lightly dismissed. In the House of Representatives, at least, it certainly tends to break responsibility into thirty or more fractions and to reduce the chamber to the level of a " rubber stamp" for committee reports. Since debate on the floor is likely to be ineffective, the secrecy that surrounds committee proceedings is made all the more objectionable. ,, That is a classic statement of the position from a highly reputable American source. The danger here is that we would be faced with a decline of the House of Commons as a debating chamber capable of influencing the executive and a growth in the power and influence of the specialist 112


committees with an in-built tendency towards bipartisan government and consensus politics. This would be a denial of the wisdom of centuries. The history of the House of Commons should tell us how essential it is that in the forum of national debate there should not be any blurring of policies by the getting together of people who believe that, because they know a few more facts, they can find a neutral solution to all major problems. The proposal to create more and more specialist committees could completely undermine one of the major purposes of the House of Commons, namely, at all times to carry on the great national debate on the important issues of the day. The idea, once accepted, that in these specialist committees, expertly advised, one could always get some sort of sensible agreement on what ought to be done would both stultify and falsify debate. Nor would the tendency towards consensus politics be confined to specialist committees. It would soon spread to the House of Commons. It could ultimately destroy the main element in the functioning of Parliament, which is the ability to mount a real political challenge by one side against the other and, if necessary, by a combination of Members on both sides of the House against the executive. In recent years there have been some powerful examples illustrating the power of the House of Commons. The first was the ill-fated Parliament No. 2 Bill. There the two front benches had been together in secret conclave and had cooked up a Bill1 for the reform of the House of Lords. Throughout the negotiations back-benchers on both sides of the House were kept in ignorance of what was being prepared. The party leaders knew full well that the whole operation depended upon secrecy up to the last possible moment. Had the main provisions of the Bill been known in advance they would have been criticised and laughed out of court long before the executive had introduced the legislation. After agreement had been reached between the government, the Conservative front bench and the Leader of the Liberal Party, the government undertook to introduce the Bill. The executive argued that this was government legislation and demanded support from Labour Members in the normal way. Government Whips were put on and the growing opposition to the Bill among government back-benchers was ignored. On the opposition side also there were back-benchers who were T.O.P.S.C.—E

113


opposed to the Parliament No. 2 Bill. Their views had been completely ignored by the opposition in their negotiations with the government. At the end of the negotiations, the Bill had, of course, to be introduced by the government as its own legislation. As opposition to the Bill developed in the House of Commons and became more and more determined, the leaders of the Conservative Party started to move away from the Bill and left the government holding the baby. Government Ministers had to try and pilot the Bill through a long and weary committee stage which was taken on the floor of the House. The leaders of the Conservative opposition were noticeable by their absence from these debates, notwithstanding their responsibility for the legislation as joint parents of the scheme. They clearly saw what was happening and did not wish to be publicly associated with the débâcle. For many weeks the debates were initiated and dominated by back-benchers on both sides. Long, learned and relevant arguments were advanced in support of many amendments and more and more back-benchers were drawn into the debate. Meanwhile, as the Bill made no progress, the government back-benchers who were not strong supporters of the Bill, and had voted in general support of the executive, were becoming more and more lukewarm in their attitude to the legislation. Only a small number of government supporters, some Conservative Members and the Leader of the Liberal Party were fully behind Mr. Callaghan and Mr. Crossman. As the debate dragged on it became increasingly clear that the opponents of the legislation were only getting their second wind and were becoming ever more adroit and inventive in using their tactical advantage. The government were faced with a classic parliamentary confrontation. There was other urgent legislation which they wished to introduce. At any rate, some of the legislation was regarded as urgent by the government although this was not necessarily the view of all Labour Members of Parliament. Legislation like the Merchant Shipping Bill was eagerly awaited by all Members of the Parliamentary Labour Party, including many Ministers, and the Leader of the House of Commons was bombarded every week with a growing number of requests to introduce this particular Bill at the earliest possible moment. But the Parliament No. 2 Bill was still consuming a 114


great deal of parliamentary time each week and was blocking the way. In the end the executive had to concede defeat and the government had to withdraw the Bill after large numbers of Labour backbenchers had indicated that they were not prepared to go on spending days and nights supporting this legislation. It was a remarkable defeat of the executive by the House of Commons, brought about by determined groups of back-benchers who gradually persuaded more and more of their colleagues that the game was not worth the candle. Moreover, it was a defeat inflicted upon the government in Parliament in broad daylight with the country able to listen in. No such defeat of the executive would have been possible in a committee tucked away somewhere at the end of a long corridor and meeting in an atmosphere of bipartisan politics. The Members of such a committee would have been carefully selected by the two front benches through their Chief Whips and they would have made quite sure that there was a majority for the Bill in the committee. It was only because the legislation was debated throughout on the floor of the House of Commons that, in this case, back-bench Members of Parliament could collect their strength and make themselves effective. The problem was not one of assembling academic knowledge or political information by questioning Ministers in committee. The backbenchers had plenty of knowledge and information at their disposal. The problem was to force the executive to disclose more and more the political calculations and intentions that had been in their minds when the Parliament No. 2 Bill was framed in secret talks with the leaders of the opposition. All this could never have been done anywhere else but on the floor of the House of Commons. That is where the rights of Parliament were successfully defended and where its political powers were openly revealed. That is the way it has always been throughout the history of the modern House of Commons and that is the way it will be, if our institutions are not weakened, for many years to come. I turn now to another celebrated example in recent years of the government being frustrated in their original intentions by the Members of the House of Commons. I refer to the saga of the penal clauses in Mrs. Castle's proposed Industrial Relations Bill. This Bill which, in its original form, included penal clauses never saw the light of day.2 115


Its introduction was countermanded by an expression of majority opinion among Labour back-benchers. When this opinion finally became clear the Cabinet abandoned the penal clauses and reached a compromise with the Trades Union Congress. Of course, the Labour back-benchers who opposed the penal provisions of the government's White Paper and who had firmly indicated that they would not support the Bill, did not work in a vacuum. The whole trade union movement was bitterly opposed to the penal sanctions in Mrs. Castle's proposed legislation. Many members of the Labour Party in the country took the same view. But Mrs. Castle had the support of the Prime Minister and, initially, also of the Chancellor of the Exchequer. This was a powerful combination and other Ministers either gave their support or allowed them to carry on. There were a few Ministers who were doubtful of the wisdom of penal clauses from the start, but they were over-ridden even if (and we cannot be sure about this) they had openly and firmly expressed their views at the beginning of the enterprise. Later on, after the government had been forced to abandon the penal clauses, it became increasingly difficult to find any Minister who had ever supported the idea, except for Mrs. Castle and the Prime Minister. But this is not really surprising—as is well known, success has many parents but failure is always an orphan. Here again the check on the executive came from the House of Commons as a body and not from one of its specialist committees. It was the goverment's realisation that they could not rely on a majority in the House that produced the decision to abandon the penal clauses. It is another classic example of the need of the executive to retain the support of a majority in Parliament for all its major policies. At the same time, this interesting and important episode illustrates the underlying power of Parliament which, although it is always present, is not often used. Of course, modern British governments are not openly defeated by a vote in Parliament. When the government in office finds that it does not carry majority support it has to compromise with the majority in good time or there is a change either in the composition of the government or in the person of the Prime Minister. This second possibility was well illustrated in the famous case of the changeover from Neville Chamberlain's premiership to that of Winston Churchill in 1940. I well remember attending the famous 116

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"The House of Commons I960" by Alfred R. Thomson. (By kind permission of the Rt. Hon. The Speaker, House of Commons. Crown Copyright.)


Norway debate as a listener in the public gallery of the House of Commons. It was a two-day debate and it was held against the background of events in Norway at the beginning of May, 1940.3 A number of British officers who were Members of Parliament turned up in uniform and attended the debate. I recall that Admiral Sir Roger Keys wore his uniform and all his military decorations when he rose to speak. It was in this debate that Lloyd George made his famous and devastating attack on Mr. Chamberlain. On the first day of the debate there had been no Motion before the House. Overnight the Labour Opposition tabled a Motion to which Herbert Morrison spoke on the second day of the debate. Mr. Chamberlain welcomed the challenge and referred to his political friends in the House. This phrase gave Lloyd George his opportunity for attack and he used it to good purpose. At the end of the debate Mr. Chamberlain's government had its majority reduced to 80 in the division. While on the surface he still had a substantial majority, it was quite clear that the government would not survive another such occasion. But there was no next occasion. Leaders of the government and the Conservative Party anticipated the possibility of defeat and, under the combined pressure of the Labour Party and some Conservatives, Mr. Chamberlain was replaced by Mr. Churchill and a new government was formed. Again in this case it was opinion in the House of Commons which produced effective action against the executive and it was the underlying, ever-present power of the House of Commons that brought about the change. My argument so far leads to the conclusion that, if there has been a diminution in the power of the legislature in relation to the executive, the remedy lies in strengthening the position of Members of the legislature. This means providing the facilities and equipment for Members of the House of Commons which would enable them to use their own sources of information and so become more formidable in challenging information provided by the government. It means providing a research assistant for each Member of the House, a secretary and suitable offices. It is essential that the individual Member should be able to travel all over the United Kingdom and abroad in order to inform himself and to see for himself. The Member of Parliament must be able to make his own decision as to what he 117


wishes to see and whom he wishes to talk to. There should be fewer conducted tours organised by government departments and more individual enterprise. The individual Member must be enabled to do his own research with the help of his assistant. He must be empowered to determine the direction of his research and facilities must be open to him in industry and public institutions, so that he can check information provided by the executive against knowledge acquired by his own efforts. The provision of a research assistant for each Member may appear a revolutionary proposal at first sight. It is, of course, long-established practice in the United States Congress. The individual Member of Parliament should be given access to more departmental information at the formative stage of policy making. Obviously policy decisions within the government must be prepared in confidence and arrived at in private. But the materials upon which the arguments about policy are based should be more freely provided to all Members of the House of Commons. There is far too much secrecy in this field and it is secrecy that particularly applies to Members of Parliament. In recent decades the legitimate practice has grown up of close consultation between the government and interested organisations in the country. These organisations are undoubtedly representative of important groups of people and sectors of industry. Thus it is right that they should be consulted and taken into the government's confidence before policy is finally decided. The result of this practice, however, has led to a most unsatisfactory situation from the point of view of the House of Commons. Quite frequently in debate in the House, and particularly in standing committee, the Minister piloting a Bill through Parliament will announce that he has reached agreement with interests concerned after long and laborious negotiations and that he is not, therefore, prepared to reopen the matter and consider substantial amendments. This procedure carries with it the danger of seriously reducing the legislative power of Parliament by frustrating one of its major functions in amending legislation. Here there is indeed a case for redressing the balance. This must be done in two different ways. In the first place the government must engage in serious consultation with its parliamentary supporters about proposed legislation. 118


This consultation must take place at a time when the government has not yet finally made up its mind. This in turn means that it would be parallel in time with consultation between government and representative organisations in the country. In this way the views of Members of the legislature would influence the government at the time when policy is formed and could be checked against the views expressed by the interests involved. I have always taken the view that wild talk about possible development of a corporate state under the surface of our parliamentary institutions is highly exaggerated and inaccurate. But if there is any substance in such fears I would submit that my present proposal is the most effective means of checking danger in good time. The exercise of political influence is very much a matter of timing. The argument dear to all governments when presenting new legislation to Parliament is always the same: "Well, as a government we have now committed ourselves to these proposals and if you want us to continue in office you must swallow them as they are." The argument immediately raises the spectre of a government crisis. Butthe rigid application of this doctrine is unnecessary and hostile to the effective functioning of a parliamentary democracy. A loosening of this rigidity on the part of the executive is a perfectly legitimate aim for parliamentary reformers. It may be argued at this point that I have only dealt with the formulation of policy. There remains the scrutiny of public expenditure. Here I regard the Public Accounts Committee as an effective and suitable instrument of control as far as it goes. This committee deals with transactions that have been completed or are in the process of being completed. It is, therefore, an instrument of supervision after the event. Its job is to make sure that public money has been spent for the purposes decided by Parliament and that it has been spent as effectively as possible. The concern of some parliamentary reformers, however, is with accountability of the executive to Parliament in advance of the expenditure of vast sums of public money. Their purpose is to influence, rather than control, the executive in deciding on the allocation of public funds for specific ends. They want to make more effective the old principle of control by the purse. The great difficulty that arises concerns the timing of major government expenditure in the second half of the twentieth century. Major 119


projects take three to five years to reach fulfilment. The planning process must be checked and modified as execution begins. Hence the recurrent complaint about large supplementary estimates. These are often due in part also to the inability of government departments to be more accurate in their forecasts. But no system of parliamentary control of finance will change that. Improvement can only be brought about by improving the quality of the staff and the work of the various government departments concerned. Parliament's financial control over the executive could, however, be made more realistic if the House of Commons were to be taken more into the government's confidence at an early stage. Here the recent publication of the government White Paper on Public Expenditure is a step in the right direction. But the further proposals for the reform of the Estimates Committee raise very serious problems.4 These proposals, if implemented, would change the Estimates Committee into a select committee modelled on Congressional committees in the United States of America. When this was first suggested to the members of the Select Committee on Procedure some of them were very coy about it. But now we have it on the authority of the chairman of the Estimates Committee, Mr. William Hamilton MP, that under the proposed reforms the existing specialist select committees would disappear and their place would be taken by the new sub-committees of the proposed new committee on expenditure. Speaking in the parliamentary debate on Public Expenditure on 22 January, 1970, Mr. Hamilton said: "I believe profoundly that the guts of the problem lies in the creation of the new sub-committees of the proposed Expenditure committee, the idea of which was put forward by the Select Committee on Procedure.'' Later in his speech, Mr. Hamilton spelt out the details : "I want to make it clear—and it was implied in the select committee's report, although never explicitly said—that other specialist committees would disappear. We had better face that fact honestly. If we are to have this new system working properly, the select committees on Agriculture, Education and Science, Overseas Aid and Race Relations will be wiped out because all the subjects they are investigating can be covered within the terms of reference of 120


the eight sub-committees suggested. If we do not do that one will not get the bodies to man these committees. Nor have we the physical capacity in this building to house them. Nor will we get clerks to service them. There are all kinds of difficulties to contend with unless we face these problems realistically."5 In his usual straightforward manner, Mr. Hamilton had shown us the clear long-term purpose of the proposed changes. The Select Committee on Expenditure would become an Appropriations committee and the sub-committees of the Expenditure committee would in fact be sub-committees of the Appropriations committee. The farreaching nature of this explanation disturbed even some of those Members of Parliament who are in general support of the proposed reform. One of them, Mr. Frank Hooley MP, interrupted Mr. Hamilton at this point in his speech and said : "I am in sympathy with the general argument of my hon. Friend the Member for West Fife [Mr. William Hamilton]. However, there are certain sectors where the expenditure is not the major or only consideration, for example, race relations.,,e If it is right to assume that the ultimate aim of the supporters of the new proposals made by the Select Committee on Procedure is the creation of an Appropriations committee, what are the objections to this aim ? Here we must draw upon the experience of the United States and indeed it would be quite wrong, not to say irresponsible, to ignore that experience. This view was upheld by another Member who spoke in the same debate on Public Expenditure, Mr. Peter Hordern, the Member for Horsham. Mr. Hordern argued: "It would be wrong to assume that we should not be forced to accept and to follow the procedure followed in the United States."7 The Appropriations committee would be fully fledged. Certain Members of Parliament would assume the powers of chairmanship and vice-chairmanship. A number of powerful chairmen of subcommittees would acquire considerable political influence. This is precisely what has happened in the United States. In the United States today, although the administration and a majority of Congress may be in favour of certain proposals which will cost money, the chairman of appropriation sub-committees can bottle them up and prevent their implementation, so avoiding the expenditure involved 121


for a number of years. There is always a case to be made for not doing things and the danger of inaction, particularly in the field of social expenditure, is all the greater the more consensus politics is at work. Very often the chairman of the Appropriations committee in the House of Representatives is supported by a small group of senior members from both parties in opposing new expenditure on vitally needed legislation. This has led to the "tyranny of the chairman of Appropriations". In some instances, essential social reforms have been delayed for three, five and even more years by this procedure. Parliament should do nothing to advance consensus politics. Indeed, it would be highly dangerous to do so. The place for urgent debate, first of all, is in the country. That is where ideas germinate. The debate will then be taken up in the political parties and the argument will be carried forward into Parliament. The main debate in Parliament always has been, and will be in future, about political choices. The proper place for these great debates is the chamber of the House of Commons. Control of the details of expenditure is a matter for technical experts and other specialists who can do their work in committee and report to the House of Commons. But overall control of expenditure, that is the allocation of large sums of money for particular purposes, must be political control. This must be centred in the chamber of the House of Commons. Any movement away from the chamber as the central place of argument and debate about the political choices that have to be made is dangerous and hostile to the purpose of Parliament. REFERENCES 1. Bill 62 of 1968-9. The Bill was debated in Committee of the Whole House on eight days: 12, 18, 19, 25 and 26 February, 18 March, 2 and 14 April, 1969; HC Deb. 777, cc. 1324 et seq.; 778, cc. 219 et seq., 479 et seq., 1351 et seq., and 1740 et seq.; 780, cc. 229 et seq.; 781, cc. 504 et seq. and 811 et seq. 2. The proposals which were intended to form the basis of the Bill were set out in the White Paper In Place of Strife, Cmnd. 3888; January, 1969. The White Paper was debated on 3 March, 1969; H C Deb. 779, cc. 36 et seq. The decision not to proceed with the proposed legislation was announced by the Prime Minister on 19 June, 1969; H C Deb. 785, c. 800.

122


3. 7 and 8 May, 1940; H C Deb. 360, cc. 1073-196 and 1251-362. 4. See First Report from the Select Committee on Procedure, Session 1968-9: Scrutiny of Public Expenditure and Administration. H C 410 of 1968-9. 5. H C Deb. 794, cc. 759-62. 6. Ibid., c. 761. 7. Ibid., c. 789.

123

Conclusion ALFRED MORRIS MP THESE essays substantially reflect the deepening controversy among MPs on the future of parliamentary scrutiny by select committee. As experienced parliamentary scrutineers, all of the contributors know the limitations of the recent experiment with specialist committees. Whether the experiment with these committees has succeeded is still a matter for highly subjective judgement. Clearly, there are some MPs who would not have wanted the experiment to succeed. They regard the floor of the House of Commons as the principal forum for parliamentary scrutiny. They sense the danger, which some see in other countries with a strongly developed committee system, of a tendency for the executive to seek influence and co-operation only with Members of the committees rather than the legislature as a whole. There are others, occupying positions of great influence among backbench MPs, who would argue that specialist committees can only work effectively at the expense of standing committees and that a full range of specialist committees would require a total reorganisation of the methods by which legislation proposed by the government and others is now considered by the legislature. Thus it is argued that the parliamentary advocates of increased specialisation are seeking an executive rather than a legislative function and that this is the advocacy not so much of parliamentarians as of would-be administrators. The question does indeed arise whether such advocates, perhaps unwittingly, are seeking an increase in power for the legislature which could be achieved only by a formal separation of powers between the executive and the legislature, with the historic constitutional upheaval that this would represent. The question is one of substance, and it 125


has not yet been satisfactorily answered by those who want to see a permanent specialist select committee for every government department. The first broad category of objections are principally those of simple practicality. It was not easy to staff adequately the extended select committee system. How then are sufficient numbers of supporting staff to be found to work a major further extension of the system ? When are the committees to meet and can the House and the electorate afford to run the risk that some Members may become almost fulltime committee men? It is a central requirement of an effective specialist select committee system that the findings and reports of those who specialise should achieve wider publicity and greater influence by being linked to debates on the floor of the House. But in a House of Commons where the pressure of other business is constantly increasing, how can enough time be found for debates on yet more reports from select committees ? If sufficient time is not found, will not select committees become increasingly ingrowing? Their work might still be influential in these circumstances, but would that not justify Mr. Mendelson's very real fears about reducing the central rôle of debate on the floor of the House ? The second bastion of those who remain sceptical of the last government's intentions in instituting the specialist select committee experiment is essentially Machiavellian. No government, say the sceptics, since the beginning of time has ever voluntarily given up a single particle of its real power. They saw the government's proposals, purporting to extend the power and influence of back-benchers through select committees, not as a sharing of powers between executive and legislature but as a total sham. If they had ceased to be a sham, say the sceptics, the experiment would have been stopped. As one who believed in the sincerity of the late government's intentions in introducing this experiment, I find this line of argument both cynical and superficial. The government was genuinely seeking a durable way of increasing the sources of information available to the legislature. Its aim was to give back-bench MPs the opportunity to participate in more informed criticism of the executive and to cooperate in the widest sense in the examination and broad formulation of policy. The select committee experiment thus formed part of a 126

CONCLUSION

general extension of the sources of information available to the House that included such innovations as the new form of presentation of the Budget proposals and the new annual expenditure debate. But if we accept the view of the sceptics to the extent that in the last analysis no government is going to put itself into the position of being governed by select committees of its own creation, it is still essential to define more clearly the constitutional rôle which select committees should play. As with the severely practical questions of staffing, sittings and time for debate, we must try to see what lies beyond the generalities. For example, some of the more ambitious supporters of an extended select committee system and of increasing the power of the back-bencher argue that in future the civil service should operate, as it were, at two levels by giving the same facts to all Members as to Ministers, but giving policy advice as well only to Ministers. This is attractively simple in principle, but one has only to think of its detailed application to such matters as foreign and defence policy to appreciate its full effect both on the constitutional rôle of the civil service and the doctrine of ministerial responsibility. There is need also to consider the sheer volume of work and additional staff in the civil service that would be entailed. It may be that the growth of novel techniques of managerial accountability and more sophisticated methods of data preparation would assist the suggested new process. But I suspect that it will be in those areas where government is acting in a quasi-commercial rôle, rather than in the traditional central areas of government policy, that these new techniques will make their impact on the processes of policy formulation in the foreseeable future. This question of access to the government's and Ministers' own sources of information is clearly critical to the future functions of select committees, and indeed to the rôle of the back-bencher in Parliament. It is equally important to define clearly the status of the advice and reports of select committees and the rights of these committees to be consulted by the executive in the processes of policy making. Even some of the strongest advocates of specialist select committees disavow any intention of interfering in policy making, but obviously they expect the views of these committees to be influential. Otherwise the whole exercise is robbed of its main purpose. 127


But any appraisal of the realities of political life must appreciate that a government will retain some reserved powers and that there will be areas of policy-making into which select committees are unlikely to penetrate. What seems badly needed is the detailed working out of a body of agreed conventions and lines of demarcation between policy and administration. It will be necessary to take fully into account the conventions which have enabled such well established parliamentary committees as the Public Accounts Committee and the Estimates Committee to function so smoothly in their relations with the executive, without detriment to their effectiveness. What is certain is that it will be decisions of the executive which will determine whether specialist select committees are to be a permanent parliamentary institution. Subsidiary questions which government will also have to decide, if specialist select committees are to continue, will include whether the "departmental" committee is preferable or complementary to the "subject" committee and whether, if specialist committees are to become a permanent feature of our parliamentary system, there will eventually be need for a thoroughgoing reorganisation of the whole existing committee system in the House of Commons. Above all, it is for government to suggest how, in modern conditions, an effective system of parliamentary control over the executive can be reconciled with executive management of a parliamentary majority. If what the late Professor H. Wiseman called "the defects and disadvantages" of the US and French specialist committee systems are to be avoided, it will be an exercise requiring considerable erudition and political skill. The need for long-term decision is emphasised by the further report of the Select Committee on Procedure published in September, 1969.1 The committee then recommended the conversion of the Estimates Committee into a Select Committee on Expenditure. The proposed new committee would have eight functional sub-committees, each with the power to examine the activities of government departments falling within its sphere of operation. The Select Committee on Procedure had already noted in 1965 that the Estimates Committee is empowered to examine any of the estimates presented to the House of Commons and to report on how, if at all, the policy implied in the estimate could be carried out more economically. 128

CONCLUSION

Members of the Estimates Committee are, therefore, able to range over the whole field of ministerial administrative policy. From evidence given to the Select Committee on Procedure by the chairman of the Estimates Committee, Mr. W. W. Hamilton MP, there was the further point that his committee already has the power to form itself into specialising sub-committees. The proposal for transforming the Estimates Committee into a Select Committee on Expenditure with specialising sub-committees is not, therefore, as revolutionary as it may at first have appeared. This new proposal has been seen as an attempt by the Select Committee on Procedure to counteract the disappointment felt by the MPs who argue that progress towards increased specialisation since the committee's report of July, 1965, has been too slow. These MPs recognise that the Estimates Committee, unlike the new specialist committees, enjoys a more permanent status which is recognised in the Standing Orders of the House. The specialist committees formed as part of the experiment begun in December, 1966, could only be appointed session by session on a motion introduced by the government. They were thus extremely vulnerable to executive control, whereas it is felt that a transformed Estimates Committee could possibly provide comprehensive arrangements for the scrutiny of government departments without executive interference. Yet the unquestionable power of the executive to determine the form of legislative committee procedure, through its control of a parliamentary majority, still leaves the government with the initiative in determining the future of select, including specialist, committees. As Mr. Arthur Bottomley's essay emphasises, however, there are MPs who feel very strongly that financial control should not be the only lever for extending parliamentary scrutiny. They are concerned that value for money, and the managerial arrangements under which expenditure takes place, may become the one consideration in which Members of select committees are expected to interest themselves. They argue that there are other parliamentary purposes to be achieved where too close a correspondence with executive organisation can be a handicap. They point to the example of the new specialist committees in looking at their subjects" on the ground" and in holding regular 129


meetings away from the precincts of the Palace of Westminster. This they regard as an important break with the ritual followed by some select committees of examining civil servants and particularly accounting officers. Manifestly, these Members will not be satisfied with the suggestion that the future of specialist committees should be determined on the basis of the recommendations of the report from the Select Committee on Procedure of September, 1969. This report is in fact already dated by the transfer of functions order under which the new "super" departments of Technology and Power and Local Government, Transport and Regional Planning were created very soon after the Select Committee on Procedure's recommendations were debated. The order immediately called into question the validity of the fields of reference for the eight functional subcommittees proposed by the select committee. The result is that, if the government were to accept the select committee's report, each of the new departments would be called upon to give evidence before two or more functional committees. This again points to the difficulty of trying to match procedural changes in the legislature with the pace of change in Whitehall. The way ahead is still extremely difficult to chart. Even to reconcile the attitudes of Mr. Palmer, Mr. Mendelson and Mr. Kenyon 2 would be an outstanding triumph of mediation. Ministers are eminently unlikely to accept that the experiment with specialist committees has been as unsatisfactory as some of its critics have contended. They are just as unlikely to accept that the experiment in increasing parliamentary scrutiny threatens the primacy of crosschamber conflict and ought never to have been tried. It must be hoped that the new government's proposals will not be regarded merely as a compromise solution which is unacceptable both to those who see in the development of the select committee system a panacea for most of our constitutional problems, and also to those who see this growth as a serious threat to the primacy of debate on the floor of the House. If that is the case, the more ambitious constitutional reformers may have to console themselves with a thought expressed to the Select Committee on Procedure by the present Speaker of the House of Commons, Doctor Horace King, that "every Member here knows that the things he has argued for in one year, if he is lucky, he finds 130

CONCLUSION

are achieved ten years later". This, in Mr. Speaker's view, is part of the democratic procedure.

REFERENCES 1. First Report from the Select Committee on Procedure, Session 1968-9: Scrutiny of Public Expenditure and Administration. HC 410 of 1968-9. 2. A memorandum sent to the author by Mr. Clifford Kenyon MP, who was chairman of the Committee of Selection from 1965 to 1969, is reproduced in the Appendix.

131

Appendix A Memorandum by CLIFFORD KENYON MP Chairman of the Committee of Selection, 1965-9 IN MY view, standing committees must be regarded as the most important committees of the House, for they deal with proposed legislation. Their membership must reflect the relative parliamentary strength of the government and the opposition. The standing committees have a membership of from sixteen to thirty MPs. On a committee of sixteen, the government has nine and the opposition seven members. If we set up a committee of thirty, it is because we wish to include a Liberal Member. The numbers are sixteen government and fourteen opposition, including one Liberal. It is necessary for the Committee of Selection to watch by-election results carefully as these may justify a change in the proportion of Members on the standing committees. The Committee of Selection is always willing to appoint Members who wish to be on certain committees because of their special interests. Otherwise, our usual method is to accept the names put forward by the Whips, as they are in the best position to know about the availability of members. MPs who serve on select committees are not exempt from service on standing committees. Nor should they consider themselves to be exempted. Over the past few years, the work of the Committee of Selection has been made extremely difficult by members of select committees refusing, or seeking to refuse, membership of standing committees. The House has given the Committee of Selection authority to place any MP on any committee. The duty of seeing that Members attend then rests with the Whips appointed to the particular standing committee. It has nothing to do with the Committee of Selection. 133


The Committee of Selection is often placed in difficulty when it becomes necessary to appoint Members to a Private Member's Bill committee. The usual practise is to ask the Member sponsoring the Bill for the names of those who wish to serve. Unless there is some objection, these Members are usually appointed. But difficulty arises when the Committee of Selection has to allow both for party strength in the House and the vote taken on Second Reading. Usually, these Bills are not party political in content. Government and opposition MPs often find themselves split when it comes to a vote on a Private Member's Bill. The limitation that the Second Readings of Private Member's Bills shall only take place on Fridays is unsatisfactory from many points of view. Unless they are very specially interested in the purpose of such a Bill, Members from outside London will already have left for their constituencies and take no part in debate or the vote. Such Bills are, therefore, always passed on a minority vote. It is very doubtful if either the Homosexual or Abortion Law Reform Bills would have been given Second Readings in a normal House. Even if they had been, the result would have been more satisfactory to the country and we should not have been subject to the repeated attempts of opponents of the Bills to have them amended. Measures which affect the lives of so many people, and upon which strong views are held, should not be decided on a day when so few Members attend. If some procedure could be found for Private Member's Bills to be introduced on a day when most MPs are present, it would remove the uneasiness now felt by the Committee of Selection when appointing Members to a committee for a Bill which has passed the House on a minority vote. While opposed Private Bills are regarded by many Members to be of little importance, they are of very great importance to the authorities seeking powers under such Bills. Usually, four Members are appointed to consider a measure of this kind and the committee sits as a semi-judicial body. For the authorities concerned, these Bills can be very costly. The Committee of Selection must, therefore, ensure that there is no delay in starting the committee. The Private Bill committee will usually begin at 11 a.m. on a Tuesday morning and, in the past two sessions, the Chairman has been placed in a very difficult position by Members informing him after 6 p.m. on the 134

APPENDIX

Monday evening that they were not prepared to sit on the committee. By Standing Order 120, each Member appointed to a Private Bill committee is sent a declaration which he must sign and return "forthwith". Many Members ignore this request and delay until the very last minute, thus causing much inconvenience to the agents and counsel of the authorities involved. Members often do not realise that they can be reported to the House for not signing the declaration "forthwith". Nor is it widely appreciated that the House is empowered to take severe measures against any Member who refuses to sign the declaration or sit on the committee. In order to avoid having to report certain Members to the House, the chairman of the Committee of Selection himself had to step into the breach three times in the last session and serve on the Private Bill committees. This is hardly a satisfactory state of affairs and Members who are now busily advocating more and more select committees should certainly reflect on the intimidating problems already facing the Committee of Selection.

135

Index Administration, Parliamentary Commissioner for 4 Advisers, specialist 51 Agricultural expansion 39 Agriculture departmental specialist committee on 4, 6 import-saving rôle 38 Select Committee on 31-42 appointment 33 members 33, 38 order of reference 32 reappointment 38 visit to Brussels 36, 37 Appropriations committee 121 Armed forces, investigations on behalf of members 90 Bills in science and technology 28 Bottomley, Arthur, MP 95 Brown, George, MP 6, 84 Butler rules, in Sachsenhausen case application 88 on Nazi persecution 83 Carbon fibres, commercial exploitation 24 Chairman, selection 50 Chamber, The, as the centre of parliamentary scrutiny 109-23 Chamberlain, Neville Lloyd George attack on 117 replacement by Winston Churchill 116 Churchill, Winston, replacement of Neville Chamberlain by 116

Citizen rights 98 Civil liberties 98 Civil servants, evidence from 64 Civil service investigations on behalf of members 90 Ombudsman's activity effect on 88 Clerk rôle 65 services 50 Coastal pollution 24 Coloured school-leavers problems 100 sources of evidence 103 Commonwealth Immigrants Act 98 Commonwealth immigration controls 101 Complaints forwarded to ombudsman, statistics 81,91 Compton, Sir Edmund 75 first report 80 second report 83 third report 84 Consultations between government and organisations 119 Consumer relations 71 Criticism of select committee system 56 Crossman, R. H. S., MP xi, 4, 6 Debate, open 16 Debates on reports 9, 28, 52, 70, 91, 126 Defence, specialist select committee on disadvantages 111

137

INDEX

Defence, specialist select committee on—(cont.) proposals 110 Defence research and development, select committee report on 27 Departmental specialist committee 71,128 on Agriculture 4, 6 Departments, evidence from members of 89 Discretionary decisions 82 Duccio case 84 Economic affairs committee 71 Estimates Committee 128 reform proposals 120 work on overseas aid 45 European Economic Community, inquiry into effects on Britain's agriculture 34—7 Expenditure, Select Committee on, proposals 128 Fact-finding missions, Select Committee on Science and Technology 26 Fisheries, sub-committee report on 40 Foot, Michael, MP, attack on specialist committees 8 Foreign affairs 48 Forum, formal 52 General purposes committee 23 Glover, Sir Douglas 10, 11 Government departments, influence on 51 Green Papers x Hansard records 23 Herbison, Margaret, MP 44, 46 Horticulture, sub-committee report on 40 Hospital service exclusion from commissioner's jurisdiction 89

scrutineers for 91 House of Commons power 113 research assistant for each Member 117 House of Commons clerk rôle 65 services 50 House of Commons Library, use of 50 House of Lords reform Bill 113-15 Immigration controls inquiry into, overseas visits 102 private hearings on 105 Industrial Relations Bill, penal clauses 115-16 Industries examined by select committee 59 inquiries into, time interval 62 ministerial relations with 60 Information, access to 127 Informed participation 53 Injustice through correct application of administrative rule 88 Inquiries into industries, time interval 62 Institute of Race Relations 106 Johnson, James, M P 31 Jurisdictional tests 81 Justice organisation, report on ombudsman 76 Kenyon, Clifford, MP

133

Legislation, amendment of 118 Library of House of Commons, use of 50 Lloyd George, attack on Neville Chamberlain 117 Local authorities evidence on race relations 104 maladministration by 90

138

INDEX

McDermott, Niall, MP, speech on ombudsman proposals 79 Mackintosh, John, M P 6 Maladministration by local authorities 90 within departments 81 Mendelson, John, M P 109 Mikardo, Ian, MP 55 Ministerial Control of the Nationalised Industries, report 60 Ministerial relations with industries 60 Ministerial responsibility, recommendations 60 Ministers evidence from 64 responsibilities 60 Minority votes 134 Morris, Alfred, M P 1, 125 Nationalised Industries, Select Committee on 8,55-73 achievements 67 future rôle 70 order of reference 59 sources of evidence 64 staff 64-7 sub-committees 62 subjects considered 59 Natural Environment Research Council 24 Nazi persecution, Butler rules on 83 Norway debate 117 Nuclear fusion research 24 Nuclear reactor industry, inquiry into 25 Ombudsman 5 access to documents 77 activity of, effect on civil service 88 authority 87 cases referred to, statistics 81, 91 establishment 80 jurisdictional tests 81 local 90

objections to 75 powers 78 proposals, Niall McDermott's speech on 79 rôle 75-93 and ministerial responsibility 84 scope 88 Whyatt report on 76 Overseas aid and development, published reports 45 co-ordination of departments 48 programme 48 Select Committee on 43-53 appointment 43 appointment of sub-committees 44 constitution 43 order of reference 43, 44 re-appointment 44 sub-committee investigations 46 visits abroad 47 Overseas Development, Ministry of 47 Overseas visits by sub-committees 62 Palmer, Arthur, M P 15 Parliamentary and Scientific Committee 17 Parliamentary Commissioner for Administration 4 Pearson Report 52 Peart, Rt. Hon. T. F., M P ix Policy matters, evidence on 64 Pollution, coastal 24 Powell, Enoch, MP, speech on immigration 98 Premiership, changeover 116 Press coverage of public hearings 63, 105 Private Member's Bill Committee appointment to 134 signing of declaration 135 Private Members' Bills, Second Readings 134 Procedural reforms x

139

INDEX

Procedure, Select Committee on 1 recommendations on specialist select committees 2 report 128 Professions in House of Commons elected in 1966 19 Public Accounts Committee 119 Public expenditure scrutiny 119 White Papers on x, 120 Public hearings of evidence 62 press coverage 63 select committees 23 television coverage 63 Publicity for select committee inquiries 36 Race relations local authorities' evidence on 104 public hearings on 105 Race Relations Act 98 Race relations and immigration research into 106 Select Committee on 95-108 choice of topics 99 establishment of 98 sub-committees 102 Racial conflict, avoidance 100 Racial discrimination 98 Research 67 into race relations and immigration 106 Research assistance 50 Research assistant for each Member of House of Commons 117 Sachsenhausen case 82-4 Butler rules in, application 88 examination of Ministers 86 Foreign Office remedy 85 School-leavers, coloured, problems 100 sources of evidence 103 Science and Technology criteria for selecting particular subjects 21

Select Committee on 15-30 constitution 19 establishment 18 fact-finding missions 26 order of reference 18 published reports 21 subj ects investigated 17 specialist select committee on 5 subject specialist committee on 4 Secrecy 110, 111, 113, 118 Select committees approaches to inquiries 49 power 23 public hearings 23 value 107 Selection, Committee of 133 functions 133-5 Service Discipline Acts 90 Sinclair, Sir George, M P 43 Social Science Research Council, rôle in inquiries 67 Specialist advisers 51 Specialist assistants, appointment of 65 Specialist select committee on Science and Technology 5 Specialist select committees constitutional rôle 127 foreign systems 11-12 future 125 increase in numbers 7 objections to 125 recommendations on 41 reports, debates on 9 scepticism 126 service on 133 system x criticism 56 proposed reorganisation 128 Standing committees membership statistics 133 service on 133 Study of Parliament Group 1-6, 9, 12 Sub-committees, uses 62 Subject specialist committee 71, 128 on Science and Technology 4

140

INDEX

Tape recordings 36 Television coverage of public hearings 63,105 Torrey Canyon affair 24 United States, mittee United States system

Appropriations com121 Congress, committee 112

Universities, relationships with

Verbatim reports

36

Whyatt report on ombudsman Winstanley, Michael, MP 75

141

67

76