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check with the Clerks that they also are aware and that the Committee has in fact been informed. But the Chairman has an overriding discretion to determine what is appropriate in the hearing of evidence.
39. Officials should take care in discussing or giving written evidence on matters which may become the subject of litigation but which as yet do not strictly come under the rules which preclude discussion on sub-judice questions. Such caution should be exercised whether or not the Crown is likely to be a party to the litigation. If such matters seem likely to be raised when a Committee takes evidence, officials should first consult with their own departmental solicitor or the Treasury Solicitor for advice on how to handle the questions which might arise.
Reports Commissioned by Departments
40.
On a number of occasions Committees have made requests to see copies of reports commissioned by Departments. These requests can often cause particular difficulty. Such reports may come from a variety of sources, ranging from the purely internal working group to the major outside committee, but where publication was not intended. The fact that a report is known to have been prepared does not of itself oblige a Department to reveal its contents. In deciding whether to accede to requests for particular reports, the primary consideration must always be the contents of the document concerned, ie whether it contains classified information or information of the kinds discussed elsewhere in this memorandum which should not normally be disclosed.
41.
In addition the following considerations may be relevant:
i.
While Select Committees should not press for internal advice to Ministers to be revealed, they are less likely to accept without argument a refusal to reveal a report from a departmental committee containing outside members, and even less likely to accept a refusal in the case of a wholly external committee. In particular, they will be understandably reluctant to accept a refusal where the establishment of the committee in question has been announced, together with its membership and terms of reference, and where its report is known to exist. These implications need to be taken into account in deciding how much publicity should be given to the establishment of committees of this kind.
ii.
In particular cases Departments may consider that, while a report cannot be published, it would be helpful to provide it to a Committee, provided it was treated in confidence (see paragraph 48).
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