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.

The immediate questions relate to (a) what the top job(s) should look like and (b) what should the appointment process be.

First, what should the House’s top official post look like? Should the Head of Service – the official where, to quote Sir Robert Rogers, ‘the buck must stop’ – combine the ‘Clerk’ and ‘Chief Executive’ roles? If so, in what ways and what should that mean for the skill set required for the post-holder?  Should the Head be (as in the past) the ‘Chief Clerk’, the head of the procedural side, with perhaps a ‘chief Executive’-type deputy? Or should there be a ‘Chief Executive’ (designated ‘Clerk of the House’ formally for statutory and ceremonial purposes) with the requisite managerial and administrative expertise, to whom the ‘Chief Clerk’, the head of the proceduralist services, reports as one of the House’s senior departmental bosses?

Second, should there be a formal recruitment process, to apply to all future such appointments, involving one or more of, say, the Speaker, HC Commission members and other internal, external or lay members? Should there also be, as has been suggested, some form of pre-appointment, confirmation hearing before a select committee?  Though a Crown appointment, need there be any role at all for the Prime Minister/Downing Street, or could the House deal directly with the Monarch in such important matters?

Third, what lessons can be learned from other similar ‘Westminster Model’ parliaments with experience of varying models of Clerk/Chief Executive post(s), such as Holyrood or Commonwealth parliaments, such as those in Canada? Would a model of a non-clerkly chief executive have led to a different culture in the House, and different outcomes in recent scandals like the 2009 expenses affair? Could it be a more effective model for future challenges, such as the proposed major, disruptive refurbishment of the Palace of Westminster?

Wider questions remain about the governance of the House.  It seems to suffer the perfect storm of both being under-managed, in terms of expertise at the most senior levels, and being over-managed, in terms of the byzantine complexity of committees set up over time to run, supervise or audit the House’s operation (again, see my 2013 post), the ‘fruits’ of many previous governance reviews etc..

Running a parliament is a unique function, involving not just the obviously ‘procedural/parliamentary’ (chamber and committee business etc.) and the obviously ‘institutional’ (security, catering etc.), but the huge area between these two extremes, the interface between the ‘parliamentary’ and the ‘institutional’.  It is here that the most complex and sensitive issues can arise, as the 2009 expenses scandal – and the long-standing culture that enabled it to develop – explosively demonstrated.

Add to that, the powerful hold the Executive has, not just over the parliamentary calendar and business of the House, and thereby the scope for initiating procedural reform, but its over-mighty influence over the more institutional and quasi-institutional aspects of the House’s operation.  Too often – the current crisis is just the latest example – many Members, the media and academics look first to Ministers, especially the Leader of the House or the Prime Minister, to ‘deal with’ House issues.  Look where that got us in 2009.

If there is to be yet another ‘governance review’ it needs, for once, to be, not just truly independent, but also truly comprehensive, taking full account of the parliamentary, institutional and ‘interface’ aspects of the House.  And it would be good for our democracy if it was to be conducted in an open and transparent manner, with the engagement of the public, who are, after all, what our representative, parliamentary democracy is supposed to be about.

Barry K Winetrobe has taught constitutional law and government for many years, and has written many articles and book chapters, and given evidence to parliamentary and other committees, on Scottish/UK constitutional developments.