4 CAN OUTSIDE APPOINTMENTS
BE JUSTIFIED?
37. The previous chapter examined some of the reasons
why ministerial appointments from outside Parliament may have
occurred. This chapter asks whether such appointments can be justified.
It looks at three issues: the democratic mandate of the Government,
accountability to the House of Commons and the success or failure
of such appointments.
Democratic mandate
38. As we discussed in Chapter 2, there has always
been a proportion of the Government without a personal electoral
mandate. Indeed, Jonathan Powell rejected the idea that election
as a Member of Parliament was integral to establishing a minister's
legitimacy:
I do not really recognise this concept of elected
ministers because no-one is elected as a minister; they are elected
as an MP. It is the Prime Minister of the day who chooses them
as a minister, so all ministers should be on the same footing
from that point of view.[40]
39. There is some truth in this argument. The Succession
to the Crown Act 1707 had required MPs who took up ministerial
office to submit themselves for re-election in a by-election.
In 1919 the requirement was limited and in 1926 it was abolished
completely. Since then, the democratic legitimacy of ministers
has primarily been derived from the confidence of the Prime Minister,
whose own legitimacy derives from his or her party's performance
at the last general election and the confidence of the House of
Commons.
40. However, electoral performance cannot be disregarded.
We have already discussed the case of Patrick Gordon Walker, who
was forced to resign his post as Foreign Secretary following his
failure to win a by-election. A Prime Minister would find it politically
very difficult to appoint someone as a senior minister via the
House of Lords if the person in mind had recently stood for election
to the Commons and lost—especially, as in this case, if
they stood again and lost again.
41. There are two reasons why the appointment of
ministers from outside Parliament to the House of Lords may potentially
call into question the democratic legitimacy of the government.
The first is that ministers who are not MPs should not be allowed
to undermine what Lord Adonis called "the democratic character
of the Government". In other words, they should not form
too large a proportion of the Government as a whole or of its
senior posts.[41]
42. The second is that such appointments can separate
the Government from the parliamentary party. If the Prime Minister
derives his or her mandate to govern from the performance of party
colleagues in the general election, it follows that there is a
reasonable expectation that such colleagues will form the basis
of a Government that reflects the range of opinions across that
party.
43. Lord Turnbull drew a contrast with systems like
that in the United States, where governments are predominantly
or entirely appointed from outside the legislature. In such cases,
checks and balances exist to ensure there is a democratic element
to the appointments process, a separation of powers between legislature
and executive and the election of a President with a personal
mandate to make such appointments. Lord Turnbull did not think
that outside appointments to government could be easily separated
from a package of measures to introduce such safeguards, ultimately
leading to a separation of powers.[42]
Sir John Major did not accept this argument but he did acknowledge
that outside appointments "should not be overdone".[43]
44. Neither of these arguments suggests that outside
appointments should be prevented entirely. However, they should
be limited. As we have seen, countries with Westminster systems
of government that allow outside appointments limit their numbers.
At present no such limits exist in the UK.
45. The use of the House of Lords to appoint ministers
from outside Parliament gives Prime Ministers potentially presidential
powers of appointment, without the checks and balances that would
apply in a presidential system. Such appointments can be justified
if they bring clear benefits to government, but they should be
exceptional. When making such an appointment a Prime Minister
should set out clearly to the House of Commons why the appointment
has been made from outside, under what terms and what he or she
expects the minister to achieve during their time in government.
Moreover, the appointment should be subject to scrutiny by the
House of Commons. This could involve a select committee hearing
and report. If the Committee was not satisfied with the appointment
it could recommend a debate and vote on the floor of the House.
46. As we have seen, the proportion of government
posts filled by Members of the House of Lords in early 2010 was
at around the average for the post-war period. This suggests that
increasing use of outside appointments has not led to a decline
in the proportion of government posts held by elected Members
of Parliament. However, there has been a perceived increase in
the number of senior government posts in the Lords, in particular
of two senior Cabinet Ministers—Lord Mandelson, Secretary
of State for Business, Innovation and Skills, styled as 'First
Secretary of State', and Lord Adonis, Secretary of State for Transport.
There have also been other ministers who have been entitled to
attend Cabinet despite not being members of it. These included
Lord Drayson, as Minister for Science and Innovation, and Lord
Malloch-Brown, as Minister for Africa, Asia and the United Nations.
47. The presence of Cabinet Ministers in the House
of Lords has diminished markedly since the turn of the twentieth
century, when there were nine Members of the House of Lords in
the Cabinet, including the Prime Minister. Attlee's first Cabinet
in 1945 and Macmillan's in 1957 contained five Lords, and Churchill's
in 1951 included seven. By the mid-1960s, however, it had become
the norm for an incoming Prime Minister to recruit only the Leader
of the House of Lords and the Lord Chancellor from the House of
Lords into his or her Cabinet.
48. There were, however, exceptions to this rule
such as Lord Carrington's appointment as Secretary of State for
Defence in 1970. Margaret Thatcher's governments included several
Secretaries of State based in the Lords, including Lord Carrington
as Foreign Secretary from 1979 until 1982, Lord Cockfield as Trade
Secretary from 1982 to 1983, and Lord Young as Employment Secretary,
from 1985 to 1987, and subsequently Secretary of State for Trade
and Industry, from 1987 to 1989. However, it was not until Tony
Blair's government briefly included Baroness Amos as Secretary
of State for International Development in 2003 that there were
two Secretaries of State based in the House of Lords at the same
time[44]—the first
time this had occurred since Macmillan's Government in the late
1950s.
49. Whilst this might suggest that having two Secretaries
of State in the House of Lords has been very rare, Lord Adonis
argued:
It is true in that we do have two secretaries
of state in the House of Lords but, of course, the Lord Chancellor,
pre the latest reforms, was tantamount to a secretary of state.
The Lord Chancellor ran a department, and a very important one.
It was quite often the case that you had a secretary of state
in the House of Lords and, of course, the Lord Chancellor, so
having three Cabinet ministers in the Lords, of whom two headed
departments, has been a frequent occurrence in recent decades.[45]
50. So long as there is a predominately appointed
House of Lords, there will be members of the Government who are
not elected Members of Parliament. Since the 1960s this has tended
to be around 20% of the Government including a maximum of three
Cabinet Ministers. The inclusion in this group of a small number
of ministers appointed from outside Parliament does not threaten
the democratic legitimacy of the Government. Any substantial increase
in the overall number of ministers in the Lords, and any increase
at all in the number of Cabinet ministers, would do so.
Accountability to the House of
Commons
51. As discussed above, it is important that ministers,
especially senior ministers, are directly accountable to the people's
elected representatives. As Jonathan Powell put it:
If you put these ministers who you bring in from
outside in the House of Lords, they are not accountable to the
elected representatives of this country and that is wrong.[46]
52. At present, ministers' personal accountability
to the House of which they are not a member is restricted to appearances
before select committees and grand committees.[47]
Although in principle the Commons may request that a Member of
the House of Lords attend at the Bar of the House, this has not
happened since the nineteenth century.[48]
53. The presence in the House of Lords of two senior
Cabinet Ministers holding departmental portfolios has led to a
new procedure for questions in that place. It has also led to
increasing calls for Cabinet Ministers who sit in the Lords to
be more accountable to the Commons. For example, the Speaker of
the House of Commons said in a recent speech to the Hansard Society:
I suspect that both of these individuals [Lord
Mandelson and Lord Adonis] would concede that they should be responsible
to backbench MPs and would be more than willing to participate
in an experiment in which they were made available publicly through
Westminster Hall, as one option, and I intend to consult on how
we might take this forward.[49]
54. Lord Adonis himself said that he had arranged
to answer questions from the Transport Select Committee on a regular
basis. However, he was willing, even eager, to answer questions
in the Commons if requested to do so. In his words:
I think it is right that ministers in the Lords
should be as accountable to the House of Commons as the House
of Commons wishes to make them.[50]
55. The Business and Enterprise Committee examined
this issue in relation to the then Department for Business, Enterprise
and Regulatory Reform in November 2008. It observed that a new
element in the current situation was the relative lack of senior
ministers able to speak on behalf of the department based in the
House of Commons. It recommended that "a mechanism is needed"
for Secretaries of State based in the House of Lords to answer
questions in the House of Commons.[51]
56. A survey of eight bicameral legislatures undertaken
in 2000 shows that the UK is "unusual" in only permitting
ministers to speak in the House of which they are a member. Of
the eight countries, the only other one to have such a rule was
Australia. Legislatures as diverse as Canada, the Republic of
Ireland, Germany, France and Italy all permit ministers to address
both chambers—in some cases because ministers do not have
to be or are not allowed to be a member of either chamber.[52]
57. Understandably, however, the proposal that ministers
should be able to appear in a House other than that to which they
belong has raised concerns about giving greater legitimacy to
ministers who do not have a personal electoral mandate. It has
been argued that this would encourage government to appoint more
ministers in the House of Lords. Such views have been expressed
by, among others, the Shadow Secretary of State for Business,
Innovation and Skills, Kenneth Clarke, and the former minister
Tony Benn.[53]
58. 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. We understand that the Procedure Committee
is investigating this issue and look forward to the House being
given the opportunity to debate any proposals that may emerge.
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.
59. We also heard two practical arguments for going
further and introducing a change that would not simply allow Cabinet
Ministers from the Lords to speak in the Commons, but would also
allow senior ministers from the Commons to address the Lords.
The first argument relates to the size of government. Sir John
Major argued that the number of ministers could be reduced simply
by changing parliamentary rules
so that senior ministers may appear in both Houses,
but only vote in the House to which they are a member. If you
did that you would automatically diminish the number of duplicated
ministers which are at present necessary to make sure that both
Houses have a proper representation.[54]
60. The second argument concerns the presentation
and scrutiny of policy, particularly legislation. Sir John Major
and Lord Turnbull both argued that allowing the minister in charge
of a particular piece of government business to appear in either
House would improve both the presentation of the business and
the scrutiny of it.[55]
Lord Turnbull said that, under the current arrangements:
a bill would be taken through by a Secretary
of State and then it would be handed over to a Lords minister,
who could well have been a hereditary or something, and was not
really plugged into the department. Some of those ministers really
struggled. In some ways I think it is now the other way round.
The Human Embryology and Fertilisation Bill was taken through
the House of Lords by Lord Darzi, and he made a million times
better job of it than the person who took it through the House
of Commons.[56]
61. Allowing ministers to present their policies
and answer questions in both chambers could have benefits for
both government and Parliament. It would allow government to ensure
that their policies were being presented in the most effective
way by the person best placed to debate them. It would ensure
that Ministers based in the House of Lords were fully accountable
to the primary, elected House and expose Secretaries of State
from the Commons to the very different style of scrutiny practised
in the House of Lords. It would also remove the need to appoint
Members of the Lords as ministers to ensure departmental representation
in both Houses.
Successes and failures
62. It has been argued that, whatever their other
skills, a lack of political experience means that outside appointees
to government have tended to be unsuccessful as ministers. Certainly
there have been ministers who have been appointed from outside
government and whose careers have been seen as failures. Similarly,
there have been ministers who have left government expressing
discontent with elements of their time there. Lord Jones of Birmingham,
for example, described the experience of being a junior minister
as "dehumanising" whilst Lord Malloch-Brown was reported
as having seen the running of government as being "chaotic"
and "cobbled together".[57]
63. Further evidence in support of this assertion
derives from the fact that five of the ten ministers directly
appointed via the House of Lords by Gordon Brown since June 2007
have since left the government. Another such minister was moved
from the post to which she had been appointed on the basis of
her particular experience. These six had an average time in office
of 514 days.[58] This
apparently short time in office has been taken by some commentators
to indicate that they had been failures.[59]
64. Professor King, however, disputed that this was
an accurate inference to make. He pointed out that:
attention is drawn to the ministers who have
been brought in from outside who have been failures. They are
never matched against the people who have been brought in from
outside who are successes, and they are never matched against
the people who have been brought in from inside who have been
failures. I am not at all clear that the ratio would be…against
people brought in from the outside.[60]
65. Our witnesses gave various examples of ministers
who came straight from non-parliamentary backgrounds into ministerial
posts and whom they believed to be successes. Professor King identified
Ernest Bevin, Herbert Morrison and Stafford Cripps—although
it is worth noting that all three were major political figures
before they entered Parliament.[61]
Sir John Major identified three 'goats' as successes, arguing:
Plainly some of those brought in are going to
be a success, have been a success I think, and others perhaps
less so, but that is true of all ministers and all political careers.[62]
66. Professor King's argument is supported by a rough
comparison between the average terms of office for ministers appointed
from outside Parliament and those for all ministers. The average
time in one post for a government minister during the present
Parliament was 509 days, very slightly less than that for those
outside appointees who have entered government since June 2007.[63]
Where there is a difference it is that most ministers will have
moved to other jobs in government, rather than out of government
entirely. In a sense, however, this does not reflect their relative
successes or failures, but rather the difference between a career
politician and a non-career politician. Lord Darzi stressed that
he saw his job as different to that being undertaken by other
ministers. As he put it, when discussing his resignation:
I felt I had done what I was brought in to do…It
is a bit like surgery you know, you need to know when you have
done the job and discharge the patient.[64]
67. As with ministers from all backgrounds, there
have been both successes and failures among ministers appointed
from outside Parliament. There is no evidence to suggest that
such ministers are, as a group, less likely to be successful than
other ministers.
68. Where ministers with non-parliamentary backgrounds
have not been successful, it has tended to be because—in
Jonathan Powell's words—"they can't do the politics".
[65] There are
many reasons why this may be the case. However it does not help
that, as Lord Darzi said, no-one tells incoming ministers what
"being a minister" or "being a parliamentarian"
actually involves, and that these competencies have to be learnt
on the job.[66]
69. In our report on Skills for Government
we recommended that more could be done to professionalise the
ministerial side of government and, in particular, that there
should be more professional development opportunities for ministers.
We have previously recommended that government should pay more
attention to the professional development of ministers. There
would be particular advantages to doing so where a minister does
not have prior experience of politics or Parliament. We note
that the National School of Government has begun to offer professional
development programmes for ministers.
40 Q 66 Back
41
Q 149 Back
42
Q 17 Back
43
Q 154 Back
44
The other being Lord Falconer as Secretary of State for Constitutional
Affairs and Lord Chancellor. The post of Secretary of State was
created in June 2003 as part of the reform of the position of
Lord Chancellor. Back
45
Q 135 Back
46
Q 27 Back
47
Standing Orders allow a "Minister of the Crown, whether or
not a Member of the House, to make a statement" to the Scottish,
Welsh, Northern Irish and Regional Grand Committees. Back
48
See Ministers in the House of Lords, p. 8 and 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, para. 13 Back
49
Rt Hon John Bercow MP, 24 September 2009, Parliamentary Reform:
From here to there, A Speech by the Speaker of the House of Commons,
http://www.hansardsociety.org.uk/files/folders/2188/download.aspx
accessed 19 January 2010 Back
50
Q 133 Back
51
Departmental Annual Report and Scrutiny of the Department for
Business, Enterprise and Regulatory Reform para. 15 Back
52
Ministers in the House of Lords, pp. 13-14; see also, Reforming
the Lords: Lessons from Overseas, pp. 199-200 Back
53
"Hung parliament would be a disaster, says Kenneth Clarke",
The Guardian, 10 November 2009; "Coming soon, Peter
Mandelson's question time for MPs", The Guardian,
15 October 2009 Back
54
Q 155 Back
55
Q 155 [Sir John Major]; also Q 12 [Professor King] Back
56
Q 3 Back
57
Public Administration Select Committee, Eighth Report of Session
2008-09, Good Government, HC 97-II, Q 283; The Times,
12 July 2009, "Minister Lord Malloch-Brown tells of 'chaos'
under Brown" Back
58
Figures supplied by the House of Commons Library Back
59
For example, "The Lost Herd", The New Statesman,
23 July 2009 Back
60
Q 35 Back
61
Q 25 Back
62
Q 154, Q 160 Back
63
Figures as of 27 January 2010, supplied by the House of Commons
Library Back
64
Q 139 Back
65
Q 35 Back
66
Q 145 Back
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