5 BRINGING OUTSIDERS INTO GOVERNMENT
70. In the previous two chapters we examined why
a Prime Minister may wish to draw upon people from outside Parliament
when appointing a government and some of the arguments against
such a move. In this chapter we examine the ways in which such
appointments are made.
Appointment to the House of Lords
71. As discussed in the previous chapter, bringing
outsiders into government is a long-standing practice, with the
majority in recent times being brought in through appointment
to the House of Lords. Such individuals are appointed as life
peers by the Queen on the recommendation of the Prime Minister.
72. Several of our witnesses raised concerns that
the House of Lords was not an appropriate vehicle for appointing
such ministers, but that it was being used in the absence of a
better alternative. They drew attention to several issues around
this use of the Lords, some of which are discussed below.[67]
73. It is important to acknowledge that all three
main parties are committed to the reform of the House of Lords.
The decision still outstanding is whether the reformed Chamber
is either wholly elected or substantially elected. This development
can be expected to have significant implications for the way in
which Ministers are recruited. However, it does not seem sensible
to use the prospect of wider Lords reform, which has been a slow
and indefinite process, as a reason for failing to consider immediate
improvements to the current system for appointing ministers.
LIFE MEMBERSHIP?
74. The appointment of ministers via the House of
Lords brings with it the complication that the Prime Minister
is also appointing a life-long member of the legislature and of
the peerage. A Member of the Lords, once appointed, remains a
Member for life, even if, for example, they were simply appointed
in order to take up a ministerial job that they then held for
a relatively short period of time. The Justice Committee has drawn
attention to some of the implications:
The present Prime Minister has appointed 11 people
to be life peers so that they could serve as ministers or as an
adviser to the Government, some of whom have already given up
ministerial office but remain members of the House of Lords. These
measures accentuate a trend towards an appointed second chamber,
contrary to the view expressed by the three main parties and by
the House of Commons. Moreover, it is likely to lead to a continuous
trend in future governments appointing peers to rebalance the
numbers and this is unsustainable.[68]
75. A possible resolution to part of this problem
would be to allow Members of the Lords to resign their seat, a
measure we have previously recommended.[69]
This proposal was supported by Lord Jay of Ewelme, the Chairman
of the House of Lords Appointments Commission, giving evidence
to us in July 2009.[70]
Government amendments have been tabled to the Constitutional Reform
and Governance Bill that would permit this. There have also been
suggestions that some Members of the House of Lords could be appointed
for fixed periods.
76. This would, however, only partially resolve the
issue. Former ministers who had been directly appointed via the
Lords would be under no obligation to resign and it could therefore
remain an incentive for Prime Ministers to appoint many such ministers
in order to boost the numbers of their party in the Lords. Sir
John Major argued that ministers appointed to the Lords should
only hold their seat in the Lords for as long as they serve in
government.[71]
77. Lord Darzi defended his continued membership
of the Lords, and that of other former directly appointed ministers.
He argued that former ministers had skills and experience that
allowed them to become successful parliamentarians.[72]
78. Former ministers bring valuable experience
to the work of Parliament. However, we do not believe this is
a sufficient reason to allow ministers appointed from outside
Parliament via the House of Lords to retain their seats after
they leave government, especially when then is no requirement
on them to be active members of the House.
79. We support moves to allow peers to resign
and recommend that the Ministerial Code require ministers who
were appointed to the House of Lords in order to take up their
duties to resign from that House upon their departure from government.
Those former ministers who wished to remain active members of
the House of Lords could seek reappointment through the party
nomination process or, if they could convince it of their independence
from party politics, the House of Lords Appointments Commission.
80. A related issue is the automatic association
of a title with membership of the House of Lords and whether former
ministers should keep such titles after they resign. Lord Turnbull
regarded the giving of titles to Members of the Lords as an undesirable
complication, referring to the whole issue as "this ghastly
business". His view was that "basically you should just
be Andrew Turnbull and everything else that describes what you
are or have been comes after your name".[73]
81. The giving of titles for life to ministers
who may only be in government for a short time will, rightly or
wrongly, raise the suspicion of patronage. We have previously
recommended that the honour of a peerage should be separated from
a place in the legislature.[74]
We continue to hold this view and believe it is especially relevant
where an individual is made a Member of the House of Lords in
order to take up ministerial duties. On ceasing to be a minister,
such a person should be required to relinquish the title too.
PROPRIETY
82. Members of the Lords who are appointed as 'working
peers' by their parties are subject to propriety checks by the
House of Lords Appointments Commission. However, those who have
been ennobled in order to take up ministerial office are not vetted
in this way. Lord Jay told us that he recognised that pressures
of time meant that ministers appointed during a reshuffle might
not be able to be vetted, but
where I think there is a real anomaly which can
be corrected, straight away are those ministerial appointments
which take place outside reshuffles where there is no particular
time pressure—and I cannot see any reason why the Commission
should not be asked to vet those in the usual way.[75]
83. Lord Turnbull did not agree. He argued that the
Prime Minister was responsible for the appointment of ministers
and should therefore be responsible for all aspects of those appointments.[76]
Jonathan Powell said that there was a "standard process"
for vetting all ministerial appointees.[77]
84. We agree that in principle the Prime Minister
should be responsible for propriety checks on ministers. However,
making an individual a Member of the Lords to take up ministerial
office means that they also become a life-long member of the legislature.
So long as this situation holds we believe that the House of Lords
Appointments Commission should be allowed to vet ministerial appointees
for propriety in the same way as for any other working peer.
LIMITS
85. These two issues indicate the fundamental problem
with the use of the House of Lords in this way. It is in effect
a constitutional fudge, a device to allow Prime Ministers directly
to appoint people of his choosing to government. We have already
acknowledged the need for limits on such appointments and the
fact that most Westminster systems that allow direct appointments
have such limits. The only limit that applies to the Prime Minister
in making such appointments is the extent to which he or she is
willing to endure political discomfiture.
Appointment without being a member
of either House
86. Problems such as these tend to flow from the
use of the legislature to facilitate the outside appointment of
ministers. An alternative was proposed initially by Sir John Major
and the former Foreign Secretary, Lord Hurd of Westwell. They
suggested that a small number of ministers could be appointed
who were not members of either House, but who would be directly
accountable to either the Commons or both Houses.[78]
87. This suggestion is not entirely unprecedented:
the posts of Lord Advocate and Solicitor General for Scotland
have, at times, been held by non-parliamentarians.[79]
A similar system to that proposed operates in South Africa, where
up to two ministers may be appointed who are not members of the
legislature.
88. Non-parliamentarians have also been appointed
to ministerial posts in time of war, although not without controversy.
In 1942, for example, the then Prime Minister, Winston Churchill,
appointed Richard G. (later Baron) Casey, then Australian Minister
for America, as Minister Resident in the Middle East. Responding
to questions in the House Churchill argued that it was unnecessary
to make Casey a member of the Commons.[80]
Since Casey was to be based in Cairo it was impractical that he
should appear in the Commons to answer questions. A member of
the War Cabinet therefore answered on his behalf.[81]
89. Several of our witnesses supported the idea of
appointing ministers who were appointed to neither House, but
were answerable to the Commons or to both. They saw the issue
of House of Lords membership as a distraction, which brought with
it unnecessary complications concerning titles, length of service
in the House and the balance of the parties in the House of Lords.
For them, the key issue was to ensure proper accountability to
the House of Commons (discussed in the previous chapter).[82]
90. Appointing a small number of junior ministers
directly, without requiring them to be Members of either House,
would resolve some of the problems resulting from appointment
via the House of Lords. It would also provide a mechanism to place
clear limits on the number of ministers that could be appointed
in this way and their role. Whilst not completely without precedent,
this would be a considerable constitutional innovation. It is
an idea that deserves further consideration.
91. What is clear is that this whole issue of
the external appointment of ministers needs to be considered in
the round. It is not appropriate for moves in this direction to
take place in isolation from a consideration of the wider constitutional
implications.
67 Q 1 [Jonathan Powell]; Q 12 [Professor King]; Q
43 [Lord Turnbull] Back
68
Justice Committee, Eleventh Report of Session 2008-09, Constitutional
Reform and Renewal, HC 923, para. 58 Back
69
Public Administration Select Committee, Second Report of Session
2007-08, Propriety and Peerages, HC 153, para. 147 Back
70
Oral evidence taken before the Public Administration Select Committee
on 16 July 2009, HC (2008-09) 744-i, Q 36 Back
71
Q 161 Back
72
Q 145 Back
73
Q 16 Back
74
Propriety and Peerages, para 141 Back
75
Oral evidence taken before the Public Administration Select Committee
on 16 July 2009, HC (2008-09) 744-i, Q 8 Back
76
Q 62 Back
77
Q 65 Back
78
Sir John Major and Lord Hurd of Westwell, "Bring outside
talent to the dispatch box", The Times,13 June 2009 Back
79
Following devolution these posts ceased to UK ministerial posts
and became part of the Scottish Executive. They were replaced
by at UK Government level by the Advocate General for Scotland.
Back
80
House of Commons Debates, 19 March 1942, vol. 378, col. 1665 Back
81
House of Commons Debates, 19 March 1942, vol. 378, col. 1664 Back
82
Q 12 [Professor King]; Q 13 [Jonathan Powell]; Q 16 [Lord Turnbull];
Q 83 [Lord Adonis] Back
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