“The precious centre of our Parliamentary democracy”: Commons governance after the Clerk appointment affair

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Barry K Winetrobe examines the current controversy over the appointment of a new Clerk of the House of Commons, and the lessons it has for the better management and governance of the House.

It is exactly a year since I posted a piece on this blog on how the Commons could use the Government defeat on the 29 August 2013 Syria vote as a catalyst for greater Commons institutional autonomy and procedural reform, driven by itself rather than by the Executive.  This was to be led by the Speaker.  Given the current controversy over the appointment of a new Clerk of the House, the Speaker may not now be seen by everyone in such a role.  However, this sorry episode does raise important questions about the governance of what the outgoing Clerk, Sir Robert Rogers, rightly described in his farewell letter as the ‘central institution in our democracy’ and ‘the precious centre of our Parliamentary democracy’.

By the time this piece is posted, the immediate crisis may be in the early stages of resolution, with time-honoured Westminster ad hoc compromises, promises of root and branch governance reviews etc..  However, that the process of appointing the most senior House official has been, for whatever reasons, so controversial is seriously damaging to the House’s reputation. We know from the House Service’s own Strategy for 2013-17 that its vision is that the House be seen as ‘a model of good practice and innovation’ and that ‘the House Service will have the respect of Members of Parliament and of the public for our independence, integrity and professionalism… We will be seen as efficient, responsive, diverse and inclusive.

Of course, this affair is as much a proxy war about the performance of the present Speaker as it is about getting the best Clerk/Chief Executive or deciding what the proper role and functions of the Head of the House Service should be.  In this long recess period, where the usual dearth of official in-House response and rebuttal is even more acute, the anti-Bercow forces have been able to make the running in attacking the Speaker for his handling of the recruitment process and for his apparent favoured candidate.  Their views are set out in their memorandum, which was leaked on the Guido Fawkes blog a few days ago. This document, which is riddled with factual errors and patronising and one-sided arguments, can be basically summed up as:

the top job in the House Service of Clerk/Chief Executive can only be filled, as now, by a ‘real’ Clerk, because the proceduralist side of the role is more extensive and more important than the relatively mundane ‘chief executive’ side, which the Clerk can also do as he/she has been trained to do it on the job.

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Lords appointments urgently need reforming: but how?

Meg-Russell

The appointment of new peers last week has pushed the size of the Lords to its greatest since it was last reformed in 1999. Meg Russell highlights the issues behind having such a large and ‘unruly’ Upper House and argues the situation has now reached crisis point. Reform to both allow existing peers to depart and control new appointments is urgently required.

Recent weeks have seen renewed controversy about David Cameron’s appointments to the House of Lords, with announcement of 22 new peers. Various factors have contributed to frustration about these appointments, particularly among those in the Lords itself. First, they came on the back of the controversy about the Lords Leader being downgraded from Cabinet membership in the reshuffle – a matter that remains unresolved. Second, an August announcement during parliamentary recess necessarily arouses suspicion that Number 10 wanted to avoid this matter being debated (in fact 2014 is the second year in a row to follow this pattern – and while announcements in the so-called political ‘silly season’ may dodge parliamentary scrutiny, they probably exacerbate press attention). Third, the fact that several appointees have been major party donors has reignited concerns about ‘cash for peerages’. But the biggest problems are first, the effect that yet more new appointments will have on the size, and therefore the effective functioning, of the House of Lords, and second, the Prime Minister’s ability to manipulate the party balance in the chamber to favour his own side. Until the system is reformed, each new round of appointments is also destined to attract negative news stories that damage the reputation of parliament and that of the Prime Minister.

It is important to begin with some objective facts. The latest set of appointments pushes the size of the Lords to by far its greatest since it was last reformed in 1999, as shown in the graph below:

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

Source: Figures published by House of Lords information Office (for January each year), updated to August 2014

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The Lords Leader and Cabinet controversies

Meg-Russellrobert_hazell

The Prime Minister has angered peers by appointing Baroness Stowell as Leader of the House of Lords without appointing her to the Cabinet. In a scathing debate last Monday David Cameron was criticised for diminishing the status of the Lords Leader, and thus the chamber itself. Meg Russell and Robert Hazell highlight that the row, and the proposed solutions, point to wider uncertainties about the size of Cabinet and status of Cabinet ministers.

The current controversy began on 15 July with the Cabinet reshuffle, when the previous Lords Leader (Lord Hill of Oareford) was nominated as Britain’s next EU Commissioner. This vacancy was to be taken by Baroness Stowell. But while Lord Hill had been a Cabinet member, it soon emerged that Baroness Stowell would not be; instead she would join the ranks of ministers merely ‘attending’ Cabinet. Following criticism that a male Lords Leader was being replaced by a female one at a reduced level of pay, the Prime Minister offered to top up her salary to the level of a Cabinet minister from Conservative Party funds. Baroness Stowell showed her mettle by publicly rejecting this offer. On the day after the reshuffle peers had made it clear (from col. 594) that they considered it inappropriate for a minister formally representing the whole House of Lords to be part-paid by one political party.

The most fundamental principle at stake concerns the representation of the House of Lords at Cabinet level. This is the first time the chamber has had no representation among full members of Cabinet. In a quick report issued on 25 July, the Lords Constitution Committee commented that all previous Leaders of the House of Lords have had Cabinet rank. But the nature of the change goes far further. The position of Lords Leader dates only to 1846, when Lord John Russell became Prime Minister in the Commons. Before this Prime Ministers had more commonly been drawn from the Lords. It was also common until the 19th century for a majority of Cabinet members to be peers. This subsequently declined, but Lords representation had always been guaranteed by presence of the Lord Chancellor: a centuries-old post held consistently by a peer until reform in 2005. Hence until nine years ago the Lords effectively had two guaranteed seats in Cabinet. Suddenly it has none.

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Defining the office of Prime Minister

The British Prime Minister has extensive and growing powers, yet the role is ill-defined in UK constitutional documents. Graham Allen argues in favour of clarifying the role of the Prime Minister. He also suggests it should become a directly elected office, to ensure that it is properly answerable to the UK public.

It is symptomatic of the British constitution that the more important something is, the more vaguely defined it is, and the harder it is to make it democratically accountable.

This principle certainly applies to the office of Prime Minister.

We do not know for certain when it came into existence. Historians tell us that the most important person in this process was Sir Robert Walpole, in the early eighteenth century. His reputation for corruption hardly makes for the most auspicious beginning for any great institution of state. Anyway, he did not actually officially create anything and always denied that he was a ‘Prime Minister’. The fact is that the most important job in British government has come about over a long period of three hundred years without anyone ever knowing precisely what it was; and without Parliament or the public ever having been consulted about it.

The House of Commons select committee of which I am the elected chair, the Political and Constitutional Reform Committee, has been looking at the office of Prime Minister for a number of years now, and we recently published a report on the subject. One of the surprising things we learned when investigating the subject was how little formal definition there is, even today, of the office of Prime Minister. The most that can be found is a few lines in a document published in 2011, The Cabinet Manual. Yet this text is – as the name suggests – an operational guide for government, aimed mainly at officials and ministers. It is not a full public definition of the prime-ministership, nor does it have proper legal force.

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Pressures are growing for Commons bill committee reform

In June 2013 the Constitution Unit published Fitting the Bill: Bringing Commons Legislation Committees into Line with Best Practice, proposing a series of changes to Commons bill committees. Last week the issue was brought back into the headlines, as John Bercow emphasised the need for reform.

Last Monday at a lecture for the Study of Parliament Group, the Commons Speaker John Bercow suggested that reform of Commons public bill committees is overdue. His remarks closely chimed with proposals made in a Constitution Unit report published last year (and summarised here). With the end of the current parliament fast approaching, this topic should be high on the agenda for those planning for the parliament of 2015.

Bercow’s lecture commemorated Michael Ryle, who together with the late Sir Bernard Crick founded the SPG in 1964. One of the key proposals coming from Crick (and the Group in its early years) was the establishment of permanent specialist committees for the Commons. This led to the creation of today’s select committee system. But as we summarised in our report reformers originally wanted the committees to deal with government bills as well as general inquiries. This failed to happen, and legislative scrutiny remained in the hands of temporary non-specialist committees. Since then the reputation of the select committees has steadily grown, while the reputation of bill committees has generally been poor. Especially since the reforms recommended by the Wright committee were implemented in 2010, the gap between the two types of Commons committees has grown.

This gap is graphically illustrated by another event of the past few weeks – the election of Conservative backbencher Sarah Wollaston as chair of the Commons Health Select Committee (commented on here). Wollaston is a former GP, elected to the role by fellow MPs under the system facilitated by the Wright committee. Before this system came into force, select committee members were controversially chosen by party whips (albeit with some oversight by the Commons chamber). This could lead to MPs considered too independent-minded (sometimes including subject experts) being kept off. But the old whip-based system still applies to the public bill committees, and its most controversial use in the 2010 parliament applied to Wollaston herself. She had sought appointment to the committee considering the coalition’s Health and Social Care bill, but was kept off – which attracted significant media attention and criticism of parliament. Her treatment under the two systems could not be more starkly different. The (elected) select committee system valued expertise; the (appointed) public bill committee system did the reverse.

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Concerns about the Steel/Byles Lords reform bill: a summary

David Steel’s Lords reform bill (previously sponsored in the Commons by Dan Byles) had its second reading in the chamber on Friday. Last night the Constitution Unit and Constitution Society jointly hosted a meeting in the Lords to discuss concerns about the bill. Its main provisions – allowing peers to retire, and for the expulsion of serious criminals – have been widely welcomed. But concerns have been raised about the detail, and possible unintended consequences, by the Unit’s Meg Russell and various others (in addition to the links below, see here). The meeting was addressed by David Steel and Meg Russell, and chaired by Ruth Fox of the Hansard Society. The text below is an edited version of Meg Russell’s speech, summarising her concerns.

Audio recording of Dr Meg Russell’s speech and Lord Steel’s response from the event held on 1st April 2014

I should start by saying that I regret that this discussion is happening for two reasons. First, because I have become a proponent of incremental Lords reform. As I have frequently written and said, including in my book last year, history tells us that large-scale Lords reform invariably fails, but that incremental changes can both succeed, and be important. I have also emphasised how urgent it is to get on with the next, small steps. Second, because I am an admirer of David Steel – in part, obviously, for his tenacity on this issue. So I have no desire to make his life, or his task, more difficult.

Nonetheless, I have very real concerns about the likely unintended consequences of his bill. I wholeheartedly welcome the opportunity for peers to retire, and the expulsion of criminals. But my concern is with clause 4, subsection 5 of the bill, which reads (in the context of a section titled “Effect of ceasing to be a member”):

If the person is a peer other than a hereditary peer, the person is not, by virtue of that peerage, disqualified for—

(a) voting at elections to the House of Commons [so far so good…], or

(b) being, or being elected as, a member of that House.

My concern, in short, is that the Lords will become a training ground for future members of the Commons. This change will be inadvertent, at least on David’s part, and may be gradual, but I believe it is a virtual certainty.

It has not been comfortable to step in and raise these problems. I am very aware of the timing difficulties, this being a private member’s bill, now nearing the end of the session. I thought carefully whether I should raise the concerns at all. But my work for the last 16 years has included providing objective, evidence-based advice about the prospects for Lords reform, and crucially its detailed implementation. So it would seem a dereliction of duty not to explain what the evidence suggests about David’s bill. I have no vested interest whatsoever in expressing these concerns. My sole motivation is that I think them serious and important. It is a basic principle of good policy-making, usually adhered to in the Lords, that people should take decisions carefully, in the light of the available evidence.

So I would like to present five bits of evidence that indicate a problem. I will then briefly say a word about timing, then try to end more constructively, on what can be done.

The first bit of evidence relates to the consequences of the 1999 reform. I have written extensively about this, and how it strengthened the Lords by making it a more confident and assertive institution. But few people predicted such an outcome. I hardly think Tony Blair, in legislating to remove most hereditary peers, envisaged that the new chamber, stripped of hundreds of Conservative legislators, would make it harder to get his policy through. Indeed, he almost certainly believed the reverse, as did many commentators at the time. So the first lesson is that reform can have major unintended consequences, even when quite clever people have tried to think it through.

The second bit of evidence is related. As my book describes, that reform had immediate consequences, in terms of party balance, and thereby assertiveness; but it had equally important longer-term effects, in changing the types of people appointed. And this is the central problem with David’s bill. No one suggests that lots of peers are poised to jump ship and run for the Commons. After all, current members took their peerages knowing they would be barred from standing for election. The real difference comes in those appointed after the bill has passed. Party leaders will no longer have to rule out those who might consider a future Commons career, and when such people are offered peerages they will not need to rule themselves out, either. They might try the Lords for a few years, get a taste of parliament, and then run for the Commons. It could certainly suit party leaders to appoint such people, who would be more controllable than current peers. But it would clearly change the Lords fundamentally, bringing in more political point-scoring, local campaigning, and so on. As I say, the 1999 reform has already changed the type of people appointed, with fewer party grandees and far more emphasis on active service. So in some ways this could even seem a natural next step.

Some people suggest that these projections are far-fetched. But the third bit of evidence, about the profile of today’s party peers, suggests otherwise. Around 30% of them are former MPs. An additional 30% have stood for the Commons sometime in the past. So 60% of party peers have at one time fancied a Commons career. The crucial point is that they now have to renounce such ambitions before entering in the Lords. Under David’s bill, that would cease.

The fourth bit of evidence relates to other parliaments. Our centuries-old tradition is that political careers can start in the Commons and move to the Lords, but not the other way around. Some countries are not so fortunate. The key example is Ireland, where respected political scientist Michael Laver describes the Senate as ‘a convenient berth for political hopefuls on the way up (or down) or for those who consider themselves to be “resting” from the Dáil following what they hope will be a temporary election setback’. Irish MPs who lose their seats can use a place in the Senate to retain an income and public profile, while nursing a constituency to run again. As Laver says ‘It gives the impression of the Senate as a kind of political second division, to which fading stars can be relegated and from which rising talent can be promoted’. This feeds public cynicism about the Senate, and reduces its effectiveness.

The fifth bit of evidence is more concerned with how these other points have previously been viewed. To avoid such problems occurring in the UK, the Royal Commission on House of Lords Reform recommended a 10 year cooling off period before those departing the Lords could run for the Commons. This basic principle was later reiterated by the Commons Public Administration Committee, by a cross-party group of senior MPs co-ordinated by Paul Tyler, and crucially by the government. So the 2007 White Paper stated that ‘To counteract the possibility of members using the House of Lords to build a political base, members who have held a seat in the House of Lords should be prevented from seeking election to the House of Commons for [5 years] after their Lords’ term expires’. Nick Clegg’s 2011 White Paper said something very similar. His bill included a four year cooling off period. David’s bill, of course, does not.

Turning to timing, it is doubtless troublesome to raise these concerns now. But they have been raised consistently ever since it became clear this bill might actually reach the statute book. The lack of a cooling off clause was one of the main objections at Commons second reading in October, and the bill’s then sponsor Dan Byles responded that ‘we could consider whether some small amendment might be made in committee’ to resolve the problem. When I myself spoke in early January to one of the bill’s main organisers, Philip Norton, he indicated that a committee stage amendment was coming. It did not. I and others then raised the concern before Commons report. Ministers clearly considered an amendment, but for some reason decided against. By then the bill’s supporters had come down against the idea. I am genuinely mystified why. To me this was a very unfortunate error.

But we are where we are, so what can be done?

As I have pressed throughout, and former Royal Commission members have echoed, the only sure solution is an amendment inserting a cooling off period, as appeared in the Clegg bill. By now the only realistic means of achieving this is probably for David to move an amendment with government support. But it is clear that he does not want to. In terms of whether an amendment would kill the bill, this is debatable. In short, if the government wants the bill enough it can happen. Only a tiny corner of Commons time would be needed to put it through in amended form.

But if not an amendment, some have sought government assurances that the new patronage powers in the bill will not be used opportunistically by party leaders, and that if they are, further legislation will follow. This was the clear position of the Lords Constitution Committee. It was pressed during the bill’s second reading in the Lords on Friday by former Appointments Commission chair Lord Jay, supported by Baroness Hayman, and also by Lord Haskel. Any assurances are clearly unenforceable, but even what was offered at the end of the debate was very weak. Lord Hill simply said that ‘were that to become a problem in the future, we would want to review the situation. There is always an option to legislate to sort it out’. Yes, of course there is always an option. But would it be used? The assurances from Labour were even weaker.

Another viable solution would be empowering the Appointments Commission to vet party peers. Unlike Crossbench candidates, party nominees are not interviewed by the Commission about their commitment to the Lords, and it can only reject them on grounds of propriety, not suitability. So John MacGregor, who dismissed these concerns on Friday, was wrong to suggest that ‘The Appointments Commission would obviously be asking questions’ of such candidates. It has no power to do so. Lord Norton, speaking via Patrick Cormack, suggested that ‘It could be brought within the remit of the Appointments Commission, in examining every nominee of a party leader’. I agree that this would help sort out the problem, and indeed have argued for years that regulating appointments is far the most urgent small-scale Lords reform. But where are the assurances on this? We have had precisely none.

David said in his opening speech in the debate on Friday that he believed concerns from myself and others on this matter were “somewhat fanciful”. I hope I have demonstrated that this is not the case: these concerns are not frivolous, they have been expressed for years, and by very serious people. But if we are to trade adjectives, I think the ones I would use to describe what the bill’s promoters are doing might include “overoptimistic”, “ risky”, or perhaps even “reckless”. There is a real danger that in seeking a short-term gain for the Lords today, peers leave bigger long-term problems for their institution. That is clearly not what I want to happen, and it’s also not what I want David to be remembered for. So even at this late stage I hope that a more convincing solution can be found.

Does Commons “financial privilege” on Lords amendments need reform?

During its initial passage through the House of Lords in 2011-12, the government suffered seven defeats on amendments to the Welfare Reform Bill. The defeats concerned highly contentious policies, including changes to housing support (the “bedroom tax”), the introduction of a benefit cap, disability benefits, and the reform of the child maintenance system. When the bill returned to the Commons, MPs overturned all seven defeats and asserted their “financial privilege” (or primacy over tax and spending matters). It was argued that, by convention, the Lords could not then insist on its changes. The episode revealed significant confusion about the process, and led to claims that the government had abused parliamentary procedure to avoid unwelcome scrutiny of its policies.

Even to seasoned observers of parliament, financial privilege may be something of a mystery. To shed light on it, Meg Russell and I conducted a research project into the operation of financial privilege between 1974 and 2013, funded by the Nuffield Foundation. The aim of our research was twofold: to clarify how financial privilege works in practice; and to consider whether arrangements in Westminster should be reformed. Yesterday we published our conclusions in Demystifying Financial Privilege, and launched these at an event in parliament, with responses from well-respected Crossbencher and senior barrister Lord Pannick, and former first parliamentary counsel Sir Stephen Laws.

One major complaint voiced is that the government controls financial privilege for its own political purposes. In reality, ministers have far less involvement than is sometimes assumed. When Lords amendments are received by the Commons, an impartial clerk first identifies whether any have tax or spending implications (or “engage” financial privilege). Government officials will often argue their case – which, as we identify in the report, is a potential problem – but it is ultimately for the clerk to make a decision based on precedent. The next step is for MPs to decide what to do with each amendment. They have three broad choices: if they agree it, financial privilege is automatically “waived”; if they make an alternative proposal (eg an amendment in lieu), financial privilege does not arise; and if they reject the amendment outright, financial privilege is “invoked”. Although the government usually determines the Commons’ choice (by virtue of its majority), it does not determine whether privilege was engaged on the amendment in the first place.

A second complaint, particularly made since 2010, is that financial privilege is being used in a way that it wasn’t in the past. Financial privilege is certainly not a new innovation: it is one element of the Commons’ “financial primacy” over the Lords, a principle that dates back centuries and was formalised in the late 17th century. The Commons claimed financial privilege on Lords amendments throughout the period we studied (160 amendments, 1974-2013), with the highest absolute number (36) in the 1974-79 parliament. However, in 2010-13 the Commons asserted financial privilege in response to a particularly high proportion of Lords defeats: 24%, compared to just 6% in 2005-10. But this change did not result from privilege being interpreted more broadly than before (although we do identify the possibility of “creep” over a longer period); instead, the key political battlegrounds are now over spending matters, which means that a higher proportion of Lords defeats engage financial privilege.

An important complaint is that the financial privilege process lacks transparency. At present there are no clear definitions as to what falls within Commons financial privilege. And once privilege has been invoked on an amendment, the Commons gives no explanation as to why. Such lack of transparency makes it difficult for peers to anticipate whether financial privilege will be applied to their amendments, and has fed perceptions outside parliament that the process is being abused. There is also some lack of transparency about how the Lords may respond when faced by a claim of Commons financial privilege. Notably, some overseas legislatures manage arrangements better in this respect: in Australia, statements are published explaining how and why an amendment is judged to be financial, while in Canada statements have specified the costs involved.

It seems clear to us that existing arrangements surrounding financial privilege are unsatisfactory, and that more could be done in particular to improve transparency. Both Houses (especially the Commons) should consider how clearer information could be provided about financial privilege, for example by expanding the text on the parliament website. We believe it is reasonable for peers to be given an explanation of why their amendments engage privilege, including an indication of the amount of money involved. Most importantly, the Commons should publish a clear definition of what types of amendment it considers to be covered by privilege. The Lords should also make clearer in its own guide to procedure its interpretation of how the Lords may respond to the Commons’ claim of financial privilege.

Commenting on the report at the launch event, Lord Pannick (who has experienced his own amendments being rejected on financial privilege grounds, without clear reasons) said “the Constitution Unit, Meg Russell and Daniel Gover have done a very great service in identifying the principles of financial privilege” and said that the report was “particularly persuasive” with respect to transparency. He concluded saying “I hope the report will encourage the Commons’ authorities to look again at their procedures. At the moment, the procedures are indefensible”.

Ultimately, however, our report notes that arrangements around financial privilege rest entirely on convention, and (contrary to some claims) there are currently no absolute restrictions on how the Lords may respond. All parties – and especially the government, when determining how the Commons responds to Lords amendments – should thus exercise caution, to ensure that tensions are not inflamed too far.