Accountability to the House of Commons
of Secretaries of State in the House of Lords
Introduction
1. On 12 January 2010 the Speaker wrote to the
Procedure Committee asking us to consider the matter of accountability
to the House of Commons of Secretaries of State in the House of
Lords. This matter had been the subject of debate since the then
Business, Enterprise and Regulatory Reform (BERR) select committee
published on 25 November 2008 a report in which it expressed serious
concern about the capacity of the House of Commons to hold to
account the Secretary of State for Business, Enterprise and Regulatory
Reform, following the appointment to the post of Lord Mandelson.
The Committee suggested that a mechanism should be found to enable
parliamentary questions to be answered by Lord Mandelson in the
Commons, and it recommended that the Procedure Committee should
hold detailed discussions about the appropriate mechanism.[1]
2. The Procedure Committee wrote to Rt Hon Harriet
Harman QC MP, Leader of the House, on 10 December 2008, asking
for the Government's view. The letter was answered by means of
the Government Response to the BERR Committee in February 2009.
The response was unequivocal that the Government "does not
support the proposal for Ministers who are Members of one House
to answer parliamentary questions in the other House".[2]
3. This position changed later that year, when,
on 24 September 2009, Mr Speaker expressed his view that Lord
Mandelson and Lord Adonis (who had become Secretary of State for
Transport in the summer reshuffle) should answer questions in
Westminster Hall.[3] The
Prime Minister then wrote to the Speaker, reportedly proposing
that the Lords Secretaries of State should be questioned in the
Commons Chamber.[4] This
new attitude on behalf of the Government was reflected by the
Leader of the Lords when she commented on 7 January 2010 that
the Government saw "no reason why Secretaries of State in
the Lords should not appear before the House of Commons, if that
were the will of the House".[5]
4. The Speaker's letter to us of 12 January 2010
asked us to consider the matter and to address, in particular:
a) whether any proposal should also apply to
Lords holders of particular portfolios within departments.
b) what forum would be appropriate.
c) what form accountability should take.
d) practicalities such as frequency and length,
relationship to the existing Question Times for Business, Innovation
and Skills and Transport, where Ministers might sit, how questioning
should be organised, and chairing arrangements.
5. On 11 March 2010 the Public Administration
Select Committee published its report into ministerial appointments
from outside Parliament. The Report also addressed the matter
of the accountability to the House of Commons of senior Ministers
in the House of Lords. The Committee concluded:
So long as there is an unelected second chamber,
there is a strong argument of principle that senior ministers
should be directly accountable to the democratically elected chamber
as a whole. However, there is a debate to be had about how this
can be achieved. [...] Such a move should not be used as a justification
for appointing more senior ministers via the House of Lords. The
purpose of such a change would be to assert the primacy of the
Commons, not to undermine it.[6]
Precedents and Models
6. There are several precedents for the attendance
in the House of Commons of Ministers who are members of the House
of Lords. Until the first part of the nineteenth century, important
inquiries were entrusted to committees of the whole House. Witnesses
were examined at the Bar. If a member of the House of Lords was
so examined, chairs were placed for them within the Bar and they
were introduced by the Serjeant. Peers sat down, but stood to
answer questions.[7]
7. There is also a long tradition of grand committees
which as general committees broadly follow the procedure of the
House and are frequently used to conduct business which, if time
were available, would be conducted on the floor. The Scottish,
Welsh, Northern Ireland and Regional Grand Committees allow statements
to be made, and questions to be answered, by Ministers of the
Crown 'whether or not a Member of the House'. In the first three
cases such Ministers may not make their statements 'from the body
of the Committee' and may not 'vote, make any motion or be counted
in the quorum'.[8]
8. Following recommendations from the Modernisation
Committee, proposals were drawn up for a Parliamentary European
Committee which would in effect have been a joint general committee.[9]
Attendance was to be open to all members of both Houses; there
would be no 'core' membership. Business would include statements
from Ministers. No progress has been made with these proposals
but they illustrate the potential for adapting current procedures
for innovative ends.
9. The most familiar precedent for Lords Ministers
appearing in the Commons is giving evidence before select committees.
This is a frequent occurrence. Members of the House of Lords may
not be summoned to give evidence to select committees, but this
has not presented difficulties to select committees and there
is no suggestion that they would not appear willingly under any
new arrangement to allow scrutiny by the whole House. House of
Lords Standing Order No. 25 gives leave to any Lord requested
by a committee of the Commons to attend as a witness before it
to attend if he or she thinks fit.
Consultation
10. On 9 February 2010 we wrote to all Members
of the House of Commons inviting their views on this subject.
Of those Members who replied, a clear majority believed that Lords
Ministers should be more accountable. Those against the proposal
of greater accountability included those who opposed blurring
the lines between the different institutions, as well as Members
who were strongly of the opinion that ministers should not be
drawn from the Lords.
11. Members were also asked where such scrutiny
should take place. A slight majority favoured Westminster Hall
over the Chamber. A number of those responses favouring the Chamber
suggested restrictions such as limiting attendance by Lords Ministers
to the bar of the House or to exceptional occasions.
12. Members were also asked whether they would
rather see Lords Ministers responding to questions only, or to
both questions and debates. A small majority supported the 'questions
only' option, and of those who supported questions and
debates, several expressed a stronger preference for questions.[10]
Proposals
13. We recognise the concerns expressed by several
Members regarding the potential consequences of changing procedures
in this way. On a constitutional level, it may be argued that
agreeing to allow a non-Member to be questioned on the floor of
the House or even in Westminster Hall might set a precedent which
was later felt to be undesirable. We recognise that any proposal
to change the status quo must take into account not only procedural
practicalities, but also potential constitutional implications.
14. Although we recognise that the exceptionally
high profile of the current Secretaries of State in the Lords
may not be a feature of all Cabinets, we believe that these questions
are likely to recur in future years and need to be properly addressed.
In the light of this, and the representations received from Members
of the House and the Speaker himself, we
consider that it would be appropriate at this time to conduct
an experiment of procedures for Lords Ministers being questioned
in the Commons.
15. In considering the conditions under which
such an experiment would take place, we were guided by the following
principles. First, any experiment should not impinge upon the
constitutional primacy of the House of Commons. Secondly, any
experiment should take place as far as possible within the existing
procedures of the House. It is for this reason, in line with the
preferences expressed by the Members who responded to our consultation,
that we believe the experiment
should consist solely of questions and should take place in Westminster
Hall. At present business in Westminster
Hall on a Thursday afternoon is the responsibility of the Chairman
of Ways and Means under Standing Order No. 10(3).[11]
Recent proposals from the House of Commons Reform Committee recommend
that this becomes time available for Backbench Business. However,
we anticipate that the House would be prepared to pass a motion
to allow questioning of Secretaries of State from the Lords to
take forty-five minutes out of this time on an experimental basis.
16. If the experiment were considered successful
and if it were felt necessary to further develop and strengthen
the scrutiny it permitted, there might then be a case for considering
more radical options including, perhaps, questions on the floor
of the House. Until that point we would consider it prudent to
take a measured approach. The experiment in Westminster Hall may
reveal new issues, be they constitutional or practical in nature,
which could be valuable in deciding whether and how such scrutiny
should continue.
17. We consider that an experiment
of oral questions in Westminster Hall should take place under
the following conditions:
a) the experiment should last
for one Parliamentary Session,
b) the experiment should apply
only to departmental Secretaries of State in the House of Lords,
c) subject to the length of
the Parliamentary Session, each Secretary of State should be subject
to two question sessions,
d) each session should consist
of a thirty minute period of 'normal' questions, followed by a
fifteen minute period of topical questions,
e) the session should complement
rather than replace the regular departmental Question Time on
the floor of the House, which should continue to take place as
normal,
f) Secretaries of State should
not be able to delegate questions to junior ministerial colleagues
from either House,
g) the question session should
be chaired by a Deputy Speaker,
h) supplementary questions should
be permitted,
i) opposition frontbench spokesmen
should be accorded the same priority as at question time in the
Chamber,
j) tabling and shuffling arrangements,
and notice periods, should be the same as for question time in
the Chamber,
k) the session should take place
as the first item of business on Thursday afternoons.
One question that must be answered
is that of where the Secretary of State would sit during the session.
The Standing Orders provide for instances where a Minister of
the Crown who is not a Member of the Commons makes a statement
to a Grand Committee, and prevents the Minister from doing so
'from the body of the committee'. Arrangements are instead made
for the Lords Minister to sit at the dais, immediately to the
right of the Chair, at a seat which would otherwise be occupied
by an official. We acknowledge the importance of maintaining a
measure of 'otherness' so that Lords Ministers are not seen to
be taking a conventional part in proceedings. A Lords Minister
participating in a question session from the dais is not being
accorded a special status; rather his position outside the body
of the room is underlining precisely
that he does not possess the special status of a Member of the
House of Commons. However, we accept that using the dais in this
way for this experiment may give a misleading impression that
the Secretary
of State is occupying a
privileged position, not least because he would then be sitting
alongside the person chairing the session. We therefore believe
that it would be more appropriate to
follow the Select Committee model, where the witness is on the
same level as the Members of the Committee but at a separate table.
18. We have proposed this experiment
on the basis of concerns regarding the accountability of the House
of Lords as currently constituted. In the event that a future
Government introduced legislation to alter the composition of
the House of Lords, we would expect the matter to be revisited.
19. We recommend that the House
be given the opportunity in this Parliament to approve a motion
enabling Lords Secretaries of State to appear in Westminster Hall
under the conditions listed above in the first Session of the
next Parliament.
1 Business and Enterprise Committee, Fourteenth Report
of Session 2007-08, Departmental Annual Report and Scrutiny
of the Department for Business, Enterprise and Regulatory Reform,
HC 1116, paragraph 15. Back
2
Government Response to the Fourteenth Report of the Business and
Enterprise Select Committee of 2007-08, Cm. 7559. Back
3
Speech to the Hansard Society, 24 September 2009. Back
4
Daily Telegraph, 25 October 2009 Back
5
HL Debates, 7 January 2010, c199 Back
6
Public Administration Committee, Eighth Report of Session 2009-10,
Goats and Tsars: Ministerial and other appointments from outside
Parliament, HC 330, paragraph 58. Back
7
Erskine May, 10th edition, 1893, p 362-3 and 409 (chairs were
also place for judges and the Lord Mayor of London, but they were
only permitted to 'rest with their hands upon the chair backs.') Back
8
Standing Orders Nos. 96(4), 105(4), and 112(4). Back
9
Select Committee on Modernisation of the House of Commons, Second
Report of Session 2004-05, Scrutiny of European Business,
HC 461-I and -II, paragraphs 55-64. Back
10
See Annex 1 for analysis of responses and Ev pp 1-6 for the responses
in full. Back
11
Standing Order No. 10(3) states: "Subject to paragraph (13)
below [debates on Select Committee Reports], the business taken
at any sitting in Westminster Hall shall be such as the Chairman
of Ways and Means shall appoint and may include oral answers to
questions under arrangements to be made by him." Back
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