Officials as Advisers

38 Officials, generally public servants, may be called upon to appear before select committees as witnesses or as advisers. This is usually in relation to bills, though they may also assist a select committee in its inquiries. Public servants from the department of the Minister in charge of a bill frequently act as advisers to a select committee. They assist the committee by providing information about the draft legislation and issues associated with its implementation, commenting on evidence received by the committee, producing departmental reports on submissions, and making recommendations for amendments.

39 Officials sometimes assist with negotiations between the Minister and the committee chairperson on the detailed content of the bill. It is up to the select committee whether it seeks to use officials as advisers, or treats them as witnesses (but see para 15). It may also seek advice from other sources to supplement advice received from officials.

40 It is open to committees to seek advice from officials who are members, employees, or office holders in the wider State sector, whether on bills or inquiries undertaken by the committees. 18 Potentially committees could rely extensively on other sources of advice for bills rather than on public servants. When officials in the wider State sector are used they may simply be another source of advice, used in a similar way to public servants. In the event that public servants are invited to comment on or respond to that advice, they may comment on the technical or operational implications of proposals, but on matters of policy should be guided by the general principles concerning commenting on policy set out in paragraph 20 above.

41 A select committee may seek the assistance of officials, including their attendance at any meeting of the committee to assist in its consideration of any matter. 19 Acting as an adviser to a select committee does not change the duties of an official to the Minister and the Government. Ministers are accountable for matters within their portfolios. Therefore, it is ultimately up to the Minister to decide whether officials will be made available as advisers, the form any assistance will take (including what limits there may be to that assistance), and which of them should attend. In practice, the Minister may leave these decisions to the departmental chief executive, or board chairperson. If there are any limitations placed on the involvement of officials these should be made clear to the committee.

42 Officials appearing as advisers on a bill should be clear from the outset about the Minister's position on the bill. They should also be clear on the extent to which there may be latitude in this position, so that they can work constructively with the committee. They must keep their Minister well informed about a select committee's consideration of a bill, and if uncertain about Government policy should seek clarification from their Minister. When an official is uncertain about the Government's view he or she should avoid committing the department, other agency, or the Minister. The Minister may wish the official acting as an adviser to a committee to relay the Minister's views to that committee.

43 In most cases the bills on which officials act as advisers are Government bills, which means that the Government policy on the bill is reasonably clear. If a committee requires assistance with amendments to a bill which clearly go beyond Government policy, officials should clarify with their Minister the role that they are to play in suggesting amendments to the bill. In general, it will be preferable for these issues to be dealt with on an informal basis.

44 Officials should be aware of the potential conflict of interest involved in being an adviser to a committee, and must be competent to manage them. If there is a serious policy disagreement between the committee and the Minister this potential conflict becomes a real one. Officials have played this role, despite the potential conflicts, because it can have significant advantages for the Government and for the committees themselves. It enables the committees to receive technical advice that would otherwise not be available, from people with a detailed knowledge of the legislation and administrative practice.

45 Officials are admitted to meetings of committees to which the public are not admitted. They must exercise care with information obtained from such meetings. Standing Orders require that such information remains confidential until the committee has reported to the House. 20 Inappropriate disclosure of information or documents can be regarded as a contempt of the House.

46 Officials advising committees are representing the Government as a whole. Committees can expect them to undertake consultation with Ministers and other departments to ensure the advice represents Government policy rather than a narrow departmental view. 21 Officials do not need to obtain committee permission to do this. However, they should ensure that those with whom they consult understand the confidential nature of any committee proceedings under discussion.

47 If advisers need to consult or obtain factual information outside the Public Service, they must obtain the committee's approval before disclosing any committee proceedings. Again, those involved must be cautioned about the confidential nature of committee proceedings.

48 When a committee's report to the House proposes an amendment to a bill with implications for the Crown's fiscal aggregates, the advising departmental officials should draw this to the attention of their chief executive, the Minister and the Treasury as a matter of urgency. This is so that the Government has as much time as possible to consider whether it should exercise its right to the financial veto (See CO [07] 2 and para 66).

49 The Office of the Clerk produces a booklet aimed specifically at the core Public Service and those in the wider State sector who are required to work with select committees. This booklet Working with Select Committees provides detailed guidance for advisers, information on the role of select committees and how they progress their business. This booklet is available on the website of the Office of the Clerk.

Members', Private and Local Bills

50 Select committees request the help of officials with Members' bills, subject to Ministerial agreement. Advising officials should clarify with the Minister or Cabinet, as appropriate, the Government's policy toward the legislation, the level of resources to be made available, and the nature of the assistance to be provided. Even when the Government is opposed to the policy in a bill, it may make officials available to assist committees. This is because of the public interest involved in producing good quality legislation.

51 The Government may choose to make a submission to a select committee on a Member's bill. As noted earlier, this requires the approval of the Cabinet Legislation Committee. The same considerations apply to Private or Local Bills, particularly when they affect the interests of the Crown.

18 Standing Order 213-214.

19 Standing Order 212-213.

20 Standing Order 241.

21 Cross-party consultation is undertaken by or under the direction of Ministers' Offices.

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