One part of the government’s civil service reform agenda that has received scant attention is the proposed revision of the Osmotherly Rules – the Government’s guidance on civil servants’ relationship with select committees. As the new Institute for Government paper Civil Service Accountability to Parliament concludes, revising this document – and the conventions summarised within it – is an insufficient solution.
Based on the doctrine of ministerial responsibility, the Osmotherly Rules set out several restrictions on civil servants’ dealings with select committees. The rules state that civil servants appear before select committees "on behalf of their ministers and under their directions", and to provide factual information rather than to explain or justify policy decisions. Margaret Hodge MP has criticised ministerial accountability as an anachronism which is "plain daft" in an age of government complexity. In the 30 years since they were first published, the Osmotherly Rules have never been endorsed by Parliament, and last year the Liaison Committee, comprising the chairs of Commons select committees, rejected the rules outright.
In our paper, we explore the state of the relationship between select committees and Whitehall departments, and examine the nature of frustrations on both sides. Some committees were frustrated that they are unable to question the civil servants they wish to meet. Of greater concern to committee chairs we interviewed, however, is precisely what officials are able to say when present. The chairs we spoke to felt that the scrutiny process was undermined by civil servants sticking tightly to the ministerial line, even when the objective of the hearing was to explore the reasons for operational and implementation failings, rather than to prise open the policy-making process itself.
A further frustration that committees sometimes face is obtaining government information. Some chairs feel that their requests for departmental information may carry less clout than Freedom of Information requests. There is also doubt as to whether committees’ powers to compel the provision of documents or the attendance of witnesses are enforceable in practice. For some chairs we interviewed, the position is therefore untenable and firmer – perhaps statutory – powers for committees are needed. For others the ‘reputational pressure’ on civil servants to comply with committee requests is strong enough as it is.
Ultimately, we found, effective accountability of civil servants to Parliament rests not only on formal powers, doctrines and processes, but on the relationship between committees and departments, and the behaviour which both sides adopt.
On the government side, departments’ attitudes towards parliamentary scrutiny are central to effective accountability. Our research shows that several departments have relatively open relationships with their committees, sharing information with them and accommodating committee visits to the department’s offices. Other departments, however, appear particularly averse to scrutiny. James Arbuthnot MP reflected on his own experience as a junior minister at the Ministry of Defence where "the enemy was not the Russians, it was the Defence Select Committee".
On the other hand, select committees’ behaviour can undermine their own scrutiny if their members are too aggressive and personal in their questioning. Committees are generally seen as acting more assertively this Parliament, and our interviews with civil servants found evidence that this had led to concerns about committees’ behaviour and an associated degree of defensiveness in Whitehall. For example, the decision of the Public Accounts Committee to put the Chief Legal Adviser to HMRC under oath during a 2011 hearing was widely criticised as unnecessary. Moreover, this episode contributed to a wider perception that committee evidence sessions can seem like a ‘bear-pit’. Committees’ questioning techniques were also criticised by one official as "haphazard", giving the impression that some committees are more concerned with political showboating than effective accountability.
Building a stronger and more co-operative relationship between departments and their respective committees should therefore be the objective. This will require positive steps to be taken by both sides. A degree of tension may be inevitable – and indeed healthy – but departments should be willing to actively engage with committees, and to see parliamentary scrutiny as a constructive tool to drive their own improvement. Equally, committees must avoid the temptations of political grandstanding, over-aggressive questioning, and the automatic search for scapegoats.