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Published online by Cambridge University Press: 02 January 2018
The assertion was recently made in the House of Commons that ministers have the right, in certain circumstances, to mislead Parliament, either by telling an outright lie, or by keeping quiet. This astonishing statement concerns a central aspect of the British constitution: namely the essential ability of Parliament to acquire accurate information about government, even (or perhaps especially) when the government does not want to give it. Despite popular cynicism as to the ability of politicians ever to tell the truth, not lying to Parliament has long been regarded as being of the utmost importance. The very survival of politicians in office has often been made dependent on whether it can be shown that they have misled Parliament: ‘John Profumo lost office not because of his sexual misbehaviour but because he lied to Parliament. When Mrs Thatcher narrowly survived the Westland affair the debate was on whether Parliament had been deceived’. The ability to ensure the effective acquisition of relevant information is essential to Parliament's key tasks of engaging in meaningful and effective debate, and of scrutinising the work of the executive:
1. Treasury and Civil Service Committee The Role of the Civil Service Minutes of Evidence, 8 March 1994: HC (1993–94) 27(vi).
2. ‘Lies have always been regarded as necessary and justifiable tools not only of the politician's or the demagogue's but also of the statesman's trade’, Hannah Arendt Between Past and Present: Eight Exercises in Political Thought (New York: Viking, 1968) p 227, cited in JA Barnes A Pack of Lies (Cambridge: Cambridge University Press, 1994) p 30. See also Sissela Bok Lying: Moral Choice in Public and Private Life (New York: Pantheon, 1978).
3. Editorial (concerned with Lord Young's role in the sale of Rover) (1991) Times 22 February. See D Woodhouse Ministers and Parliament: Accountability in Theory and Practice (Oxford: Clarendon Press, 1994) p 152.
4. JAG Griffith and M Ryle Parliament: Functions, Practice and Procedure (London: Sweet and Maxwell, 1989) pp 15–16 and p 517.
5. Inquiry into Exports of Defence Equipment and Dual Use Goods to Iraq, chaired by The Rt Hon Lord Justice Scott.
6. Treasury and Civil Service Select Committee: Fifth report: The Role of the Civil Service, HC (1993–94) 27, published in November 1994. The Pergau Dam scandal is perhaps a third influence. Here there was an allegation that ministers had linked aid (in this case to Malaysia) with arms, contrary to the government's stated policy. See House of Commons Select Committee on Public Accounts The Pergau Hydro-Electric Project, HC (1993–94) 155 (17th report) and Foreign Affairs Select Committee, Public Expenditure: The Pergau Hydro-Electric Projects, Malaysia, HC (1993–94) 271. The report of the Foreign Affairs committee states that ‘ministerial replies to certain questions were literally true, though less open and less informative than the House has a right to expect’. Fourthly, there is also the (brief) outcry concerning the then Minister for Disabled People telling the House of Commons of his ‘regret that by not giving a fuller explanation’ of his knowledge of the extent of his Department's involvement in amendments to the Civil Rights (Disabled Persons) Bill ‘the effect of my reply was misleading’ (see HC Deb, col 155, 10 May 1994). The question of misleading Parliament was also at the heart of the political storm generated over Michael Howard's sacking of Derek Lewis, the (former) Director-General of the Prison Service (see The Guardian, 19 and 20 October 1995).
7. See generally, I Leigh, Matrix Churchill Supergun and the Scott Inquiry [1993] PL 630 and R Norton-Taylor Truth is a Difficult Concept: Inside the Scott Inquiry (London: 4th Estate, 1995).
8. The Guardian, 13 January 1994.
9. The Guardian, 24 November 1993.
10. Mr Beston stated that ‘not all questions are answered fully. Information is not necessarily volunteered which goes beyond the strict limits of the question’. Scott LJ asked him if it was the practice ‘to give away as little as possible,’ to which Mr Beston responded that ‘in some circumstances, yes. The avoidance of controversy was not an uncommon concern in the presentation of policy-or in this case, the non-presentation of policy’. The Scott inquiry was told a similar story a few days later by Tony Steadman, another civil servant from the DTI's export licensing unit. Mr Steadman told the Inquiry that an answer he had advised Alan Clark to give in response to a parliamentary question from Labour MP Ann Clwyd in March 1989 was wrong (see The Guardian, 1 December 1993).
11. This was the line which gave rise to the title of the play about the Scott Inquiry written by Richard Norton-Taylor and John McGrath: Half the Picture. There are many other euphemisms which Sir Robin could have employed, apart from the well-known ‘economical with the truth’ as his predecessor Sir Robert Armstrong infamously put it in a Spycatcher case in Australia. Churchill's favourite euphemism for lies, for example, is reported to be ‘terminological inexactitudes’ but even better perhaps is, from game theory, the phrase ‘strategic misrepresentations’ (see JA Barnes A Pack of Lies (Cambridge: Cambridge University Press, 1994) p 10.
12. Treasury and Civil Service Committee The Role of the Civil Service, Minutes of Evidence, 26 April 1994: HC (1993–94) 27(vii).
13. The member of the cabinet with responsibility for the Citizen's Charter and for open government, among other things.
14. Treasury and Civil Service Committee The Role of the Civil Service, Minutes of Evidence, 8 March 1994: HC (1993–94) 27(vi). Mr Waldegrave cited Lord Callaghan and the devaluation of November 1967 as an example. Lord Callaghan responded to the Committee that ‘Mr Waldegrave is indisputably wrong in asserting that I told the House of Commons a lie’. He then added that devaluation does not justify ‘a Minister in lying to Parliament and Mr Waldegrave's false analogy must not be allowed to become a precedent to justify doing so’, see the letter from Lord Callaghan to the Treasury and Civil Service Select Committee, 19 April 1994, printed at HC (1993–94) 27-III, app 41, p 141.
15. Treasury and Civil Service Committee The Role of the Civil Service, Minutes of Evidence, 8 March 1994: HC (1993–94) 27(vi).
16. See generally, C Turpin ‘Ministerial Responsibility’ (inJ Jowell and D Oliver (eds) The Changing Constitution, (Oxford: Clarendon Press, 3rd edn, 1994) pp 109–151.
17. ECS Wade and AW Bradley Constitutional and Administrative Law (London: Longman, 11th edn by AW Bradley and KD Ewing, 1993) pp 111 and 125.
18. Woodhouse, op cit, p 3.
19. See Ministers and Civil Servants, HC (1986–87) 62.
20. See generally, D Oliver and R Austin ‘Political and Constitutional Aspects of the Westland Affair’ (1987) 40 Parliamentary Affairs 20 and P Hennessy ‘Helicopter Crashes into Cabinet: Prime Minister and Constitution Hurt’ (1986) 13 Journal of Law and Society 427. On the role played by the Prime Minister's Press Secretary (Bernard Ingham) See R Harris Good and Faithful Servant (London: Faber, 1990) pp 128–142.
21. See Woodhouse, op cit, p 186.
22. With regard to the arming of Iraq, M Phythian and W Little in their article (‘Parliament and Arms Sales: Lessons of the Matrix Churchill Affair’ (1993) 46 Parliamentary Affairs 293, at pp 298–99) list six instances where ministers ‘sailed perilously close to lying’ to Parliament on questions of government policy with regard to exports to Iraq.
23. These stories are discussed more fully below in relation to select committees.
24. Woodhouse, op cit, p 18.
25. The views presented by Mr Waldegrave and Sir Robin Butler are outlined and discussed at paragraph 120 of the Committee's report: HC (1993–94) 27.
26. HC (1993–94) 27, para 132.
27. The Civil Service: Taking Forward Continuity and Change, Cm 2748, January 1995.
28. This alleged distinction between matters of policy and operational concerns was at the heart of the recent parliamentary debate over the proper relationship between Michael Howard (the Home Secretary) and the prison service (a Next Steps agency): see The Guardian 19 and 20 October 1995.
29. Questions of Procedure for Ministers, Cabinet Office, first published 1992, para 27.
30. Woodhouse, op cit, p 30.
31. Westland: The Government's Decision-Making, HC (1985–86) 519, para 235. See Woodhouse, Ibid, p 30.
32. The Guardian, March 9, 1994.
33. Erskine May Parliamentary Practice (London: Butterworths, 21st edn, 1989) pp 142 and 681: ‘witnesses who give false evidence, prevaricate, present forged or falsified documents … with intent to deceive’ may be found in contempt.
34. Letter dated April 5, 1994, emphasis added. Cited in the government's response to the recommendation in para 134 of the Treasury and Civil Service Committee's report on the Role of the Civil Service: The Civil Service: Taking Forward Continuity and Change (Cm 2748).
35. Standards in Public Life (first report of the Committee on Standards in Public Life, Chairman Lord Nolan, Cm 2850, May 1995). The Nolan committee was established by the Prime Minister, John Major, in October 1994 to ‘examine current concerns about standards of conduct of all holders of public office … and make recommendations’. The committee's first report focuses on three groups: MPs, ministers and civil servants, and quangos.
36. Nolan, ibid, Principal Conclusion to chapter 3: ‘The Executive, Ministers and Civil Servants’ page 46.
37. Nolan, ibid, para 3.14.
38. Nolan, ibid, para 3.15.
39. Nolan, Ibid, para 3.16. This bland wording is very disappointing. Perhaps it was necessary in order to achieve unanimity among the ten members of the committee, but nonetheless, not to have grappled with any of the important (if difficult) matters of detail which it should properly have considered leaves at least this aspect of the Nolan report looking very thin and anodyne indeed.
40. G Drewry and T Butcher The Civil Service Today (Oxford: Blackwell, 1988) pp 153–54. While this may be most clearly demonstrated in the area of ministerial resignations (or, often, non-resignations) it is not confined to this aspect of responsibility. On questions of resignation, see generally Woodhouse, op cit, and R Brazier ‘It is a Constitutional Issue: Fitness for Ministerial Office in the 1990s’ [1994] PL 431.
41. Nolan, op cit. para 3.22.
42. These issues are further complicated, of course, where the civil servant(s) concerned work for a Next Steps agency as was the case with regard to the dispute between Michael Howard and Derek Lewis, the former Director-General of the Prison Service: see The Guardian, 19 and 20 October 1995.
43. HC Deb, Vol74, cols 128–130 (WA) (26 February 1985); revised HC Deb Vol 123, cols 572–575 (WA) (2 December 1987). See R Brazier Constitutional Texts (Oxford: Clarendon Press, 1990) pp 488–492.
44. W Plowden Ministers and Mandarins, (London: Institute for Public Policy Research, 1994) p 112.
45. Questions of Procedure for Ministers, op cit, para 55.
46. Cited by the Treasury and Civil Service Committee: HC (1993–94) 27, para 93.
47. Ibid. Vernon Bogdanor has also criticised the statement in Questions of Procedure for Ministers that ministers have a ‘duty to refrain from asking or instructing civil servants to do things which they should not do’ as imprecise and tautologous: HC (1993–94) 27, para 93. The government, however, remains happy in the face of these criticisms. Sir Robin Butler informed the Treasury and Civil Service Committee that he regarded it as ‘inconceivable’ that a minister would ever ask a civil servant to do something which was not in line with the constitution. The Prime Minister, John Major, said in his evidence to the Scott Inquiry that ‘in my experience, if a minister attempted to change a draft answer in any way that was thought to be misleading, then the civil service would object … the British civil service is a pretty rigid instrument in determining that things are honest and truthful and I think it is the better for being so’ (see HC(1993–94) 27, para 95). The first report of the Nolan committee simply restates the existing position without adding more: ‘ministers must keep their party and ministerial roles separate. They must not ask civil servants to carry out party political duties or to act in any other way that would conflict with the civil service code’ (op cit, para 3.16). As indicated above, the Nolan committee disappointingly made no recommendation as to sanctions or enforcement.
48. Cabinet Office memorandum to the Scott Inquiry, placed in the House of Commons Library at the request of the Treasury and Civil Service Committee, and reproduced in the Committee's report on the Role of the Civil Service, HC (1993–94) 27, para 90.
49. See the government's response (Cmnd 9841, 1986) to the report of the Treasury and Civil Service Committee: HC (1985–86) 92. The revised version can be found at HC Deb Vol 123, cols 572–575 (WA) (2 December 1987).
50. HC (1993–94) 27, para 97. See also Nolan, op cit, para 3.53.
51. HC (1993–94) 27, para 98.
52. HC (1993–94) 27, para 101.
53. HC (1993–94) 27, paras 105–117.
54. The Civil Service: Taking Forward Continuity and Change (Cm 2748, January 1995) page 26.
55. Ibid, para 2.15. The Nolan committee has argued that the new civil service code should be implemented with immediate effect, without waiting for legislation: op cit, para 3.55.
56. Nolan, op cit. para 3.51.
57. Nolan, op cit, para 3.53.
58. The Nolan committee suggested that this reform ‘represents something of a novelty’ (para 3.54) but there is a (sort of) precedent within the civil service: namely the Security and intelligence Services Staff Counsellor (see KD Ewing and CA Gearty Freedom Under Thatcher (Oxford: Clarendon Press, 1990) p 171 and L Lustgarten and I Leigh In From The Cold: National Security arid Parliamentary Democracy (Oxford: Clarendon Press, 1994) p 430. The Nolan committee's recommendations are strengthened by further suggestions, first that ‘the Cabinet Office should continue to survey and disseminate best practice on maintaining standards of conduct’ and secondly that ‘there should be regular surveys in departments and agencies of the knowledge and understanding staff have of ethical standards which apply to them’ (paras 3.59 and 3.61 respectively).
59. See generally, Erskine May Parliamentary Practice (London: Butterworths, 21 st edn, 1989) pp 61 1–662; Griffith and Ryle, op cit, ch 11.
60. Erskine May, op cit, p 1019.
61. An exception, however, is the Privileges Committee, which has recently been investigating-in secret-aspects of the ‘Cash for Questions’ scandal.
62. This is the technical position. In practice these powers are generally kept in reserve with select committees preferring more informally to invite witnesses wherever possible.
63. Standing Order 22(HL) provides that any peer requested by a Commons committee to attend shall have the leave of the House (of Lords) to attend if he thinks fit.
64. Woodhouse, op cit, pp 180–183. See also Griffith and Ryle, op cit, pp 280 ff and Erskine May op cit, ch 25.
65. HC Deb, vol 996, col 1312 (January 16, 1981). In such circumstances it would be for members of the committee to argue why the House should exercise its powers to require the production of papers, and for ministers to explain the reasons of public policy for withholding them. No such formal confrontation has yet arisen.
66. Trade and Industry Committee: Second report: Exports to Iraq: Project Babylon and Long Range Guns, HC (1991–92) 86. For the government's response, see Cm 2019 (1992). See Phythian and Little, Parliament and Arms Sales: Lessons of the Matrix Churchill Affair (1993) 46 Parliamentary Affairs 293 at p 295, where they argue that: ‘initially set up to investigate British arms sales to Iraq, it backed off when it discovered the enormity of the task and decided to concentrate solely on the Supergun affair. It then transpired that key officials had been prevented from giving evidence. For example, under cross-examination at the Old Bailey [in the Matrix Churchill trial] Eric Beston admitted that he had been summoned by the committee but ordered by Peter Lilley (the minister) not to comply because of the risk that “dirty washing” might be aired to the consequent embarrassment of the government.’.
67. Woodhouse, op cit, p 107.
68. According to the Defence Select Committee in their report: HC (1985–86) 519, para 162.
69. HC (1985–86) 519.
70. HC Deb Vol 103, col4 15 (29 October 1986).
71. HC (1988–89) 108.
72. HC (1988–89) 108. See Woodhouse, op cit, p 186.
73. Woodhouse, op cit, p 211.
74. Erskine May, op cit, p 629. In 1986 the government argued that a select committee was not a suitable instrument for inquiring into or passing judgment upon the actions or conduct of an individual civil servant. After some discussion the government agreed that if a civil servant was unable to answer a question asked by a departmental select committee because he or she was inhibited in his or her duty to (or by the instructions 00 a minister, then the relevant minister would himself be prepared to attend the committee. Further, the government also argued that if the conduct of a civil servant was called into question then the committee should take this up with the minister concerned who should look into the matter and inform the committee of the result.
75. The Osmotherly Rules were first issued in September 1976 and were published by the Procedure Committee: HC (1977–78) 588, app D. The most recent version was published in 1994 and is available from the Machinery of Government Division of the Cabinet Office.
76. Departmental Evidence and Response to Select Committees (Cabinet Office, 1994) para 45.
77. Cm 2290 (1993).
78. Departmental Evidence and Response to Select Committees (Cabinet Office, 1994) para 62.
79. In 1994 Peter Hennessy told the Treasury and Civil Service Committee that in his view these rules were an affront to Parliament and that all they do is provide civil servants with sixty ways of saying no to select committees: see HC (1993–94) 27, para 130.
80. HC (1989–90) 19.
81. P Hennessy, Whitehall (London: Fontana, 1900) pp 362–3.
82. HC (1993–94) 27, para 130.
83. See Erskine May, op cit, p 630. In 1985 the Leader of the House stated that the government did not intend to take advantage of a select committee's inability to order papers from a Secretary of State.
84. Woodhouse, op cit, p 189.
85. HC (1979–80) 773, see Woodhouse, op cit, p 188.
86. Griffith and Ryle, op cit, p 451.
87. See generally, Griffith and Ryle op cit, pp 254–261 and pp 366–377; Erskine May, op cit, pp 281–297.
88. See RL Borthwick ‘On the Floor of the House’, in M Franklin and P Norton (eds) Parliamentary Questions (Oxford: Clarendon Press, 1993) p 73.
89. Woodrow (now Lord) Wyatt Turn Again, Westminster (London: Andre Deutsch, 1973) p 31, cited by RL Borthwick, ibid.
90. M Rush Parliamentary Government in Britain (London: Pitman, 1981) p 207, cited by RL Borthwick, Ibid. In British Government and its Discontents (London: Pitman, 1981, p 126). G Smith and N Polsby argue that Question Time is an occasion not for the serious examination of the issues or for eliciting information in any depth from ministers, but displaying one's opponents to the greatest possible disadvantage.
91. On parliamentary questions in the House of Lords, see D Shell ‘Questions in the House of Lords’, in M Franklin and P Norton (eds) Parliamentary Questions (Oxford: Clarendon Press, 1993) ch 6.
92. See HC (1990–91) 178, para 63.
93. An example of a ruling made in relation to this requirement is the one Speaker Betty Boothroyd made in February 1994 banning one Labour MP, Llew Smith, from asking ministers any further questions on the Scott inquiry and related matters. See The Observer, 17 February 1994.
94. Erskine May, op cit, p 295.
95. There appears to be a relatively low rate of ministers flatly refusing to answer questions: as an example of what they say is a typical parliamentary day, Griffith and Ryle (at p 374) take 20 April 1988, on which day only 9 out of 298 questions asked were not answered ‘because the information was not readily available’. However, Griffith and Ryle do conclude that ‘it is impossible to compel a minister to tell everything he knows on every topic. However … it is difficult for a minister to avoid giving even politically embarrassing information unless he is willing specifically to refuse it … This is rare’.
96. HC (1990–91) 178.
97. For example, with regard to ‘blocks’: see paras 110–114 of the Committee's report (ibid).
98. See HC (1971–72) 39.
99. HC (1996–91) 178, para 135.
100. See M Franklin and P Norton ‘Questions and Members’, in M Franklin and P Norton (eds) Parliamentary Questions (Oxford: Clarendon Press, 1993) ch 4.
101. Ibid, pp 107–109.
102. HC (1990–91) 178, para 136.
103. See generally, P Bennett and S Pullinger Making the Commons Work: Information Analysis and Accountability (London, IPPR).
104. HC (1993–94) 27, para 134.
105. The Observer, 13 February 1994.