Time was when our MPs had powers of life and death over those who offended them. Some 350 years ago a judge described the Commons as a “den of thieves” – a term of abuse that has a strangely modern ring to it. Back then parliament was so outraged that it condemned the good judge to death.
In the event, the judge was reprieved but questions about the powers of parliament vis-a-vis citizens, be they bankers, company CEOs or civil servants, have today become a live issue. Within weeks we’ve had two businessmen and one Brexiteer refusing to appear before MPs; the shadow leader of the House, Chris Bryant, saying that refusing to give evidence should be a crime; and yet another example of MPs trying to bully a top official – Olly Robbins.
The shabby treatment of Mr Robbins was eloquently described in a recent CSW column by the FDA union's Dave Penman. And it raises pertinent questions about the special arrangements for officials appearing before MPs, the so-called Osmotherly Rules which date back nearly 40 years. Named after the Cabinet Office civil servant who drafted them, they lay down that an official may speak only as his minister directs. With government becoming more complex and committees more assertive, this raises special difficulties for civil servants.
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The fearsome powers of MPs to punish have long since fallen into disuse. They haven’t fined anyone since 1660 and they haven’t sent anyone to prison since the 1880s. (They had a special prison in the Big Ben clock tower, though it wasn’t exactly durance vile: not only was the “cell” rather roomy with ornate Pugin wallpaper but the prisoner’s friends were usually allowed to visit.)
The only way today’s MPs could revive the old powers of punishment would be to pass a new law – but there would be a huge drawback. The courts would be able to intervene and insist MPs adhere to Article 6 of the European Convention on Human Rights which guarantees a fair trial. MPs do not want the judges meddling.
So they rely on old style grandstanding. This provides good theatre, attracts widespread publicity and inflicts severe reputational damage. Some of those who appear before select committees are dubious types who deserve everything they get. Moreover they often have armies of lawyers to advise them and if they defy MPs they know they will not face any penalty. The same isn’t true for civil servants.
“Condemnation can be just as damning, if not more so, when it is done courteously”
Officials know if they answer MPs’ questions frankly they will sometimes incur the wrath of their ministers – ministers who can scupper their careers. The National Audit Office points out that officials today worry about challenging ministers precisely because it may damage their career prospects. Yet if mandarins equivocate in a committee, some MPs take it as an invitation to start hurling abuse.
What’s to be done? Almost everyone accepts the shortcomings of the present system. One ex-official said that if any civil servant kept to the rules his or her evidence would be “at best anodyne or at worst positively misleading.” Parliament itself has never accepted the Osmotherly Rules. A report by the Lords’ Constitution Committee said – rightly – that it was “unrealistic, even absurd to expect a minister to be responsible for everything done by his department”. There have been some reforms. MPs have put a stop to the old wheeze whereby officials would say “Ask the minister” and the minister would insist “Nothing to do with me! Ask the civil servants.” More formally, officials who become “senior responsible owners” of major projects are now directly answerable to parliament.
"Tough questioning doesn’t have to be humiliating"
Yet more needs to change. For a start MPs must display more self discipline. Laying into an official before he has barely had time to open his mouth is not acceptable or necessary. Tough questioning doesn’t have to be humiliating. And unless there is evidence, the insinuation that witnesses are acting in bad faith must stop. Somebody – the Speaker? the chair of the Liaison Committee? – needs to read the Riot Act. Condemnation can be just as damning, if not more so, when it is done courteously.
Secondly, when a politically sensitive issue is involved, departments need to sort out their line-to-take before Sir Humphrey is sent to face the Westminster wolves. If, for example, a budget has not yet been finalised, ministers must be made to sign it off or come up with a plausible reason why not.
And if ministers can’t make up their minds, then they should be made to accompany their officials to the hearing. Sir Humphrey would then find it much easier to say: “One for you, minister.” At present, committees have power, in theory, to send for people and papers except for members of the Commons or Lords. Why ever not? The whole point of select committees is to hold the government to account. It is a job they have been doing far more effectively in the last few years, particularly since they have been elected by fellow MPs instead of being controlled by party whips. The rule that ministers cannot be compelled to appear must change.
After all, one of the last people to be thrown in the prison with the Pugin wallpaper in Big Ben was...an MP.