This is a government response to a report by the Procedure Committee on Commons scrutiny of Secretaries of State in the House of Lords
Commons scrutiny of Secretaries of State in the House of Lords
Date Published: 17 April 2024
The Procedure Committee published its First Report of Session 2023–24, Commons scrutiny of Secretaries of State in the House of Lords (HC 338), on 23 January 2024. The Government Response was received on 27 March 2024 and is appended below.
The Government is grateful to the Procedure Committee for its report on Commons scrutiny of Secretaries of State in the House of Lords. Our response is set out below, with the Committee’s conclusions and recommendations indented.
We firmly believe that all MPs, as representatives of their constituents, should have the opportunity to conduct thorough, effective and timely scrutiny of foreign policy, and this includes scrutiny of Lord Cameron himself who bears ultimate responsibility for the work of the FCDO. (Paragraph 42)
We agree with our predecessor Committee that proposals for greater scrutiny should respect the democratic primacy of the Commons and that as far as possible, proposals should not change existing procedures. Inviting Lords Secretaries of State to appear at the despatch box would risk blurring the boundaries between the two Houses. (Paragraph 43)
However, we believe it is important that all MPs can participate in scrutiny of Lords Secretaries of State and that room capacity should not be a barrier to participation. On balance, we consider it appropriate to conduct scrutiny of Secretaries of State in the House of Lords in the Chamber of the House of Commons and we recommend that such scrutiny should happen at the Bar of the House. (Paragraph 44)
We fully agree that the public, through Parliament, must be able to scrutinise the foreign policy of the Government.
The appointment of a Member of the House of Lords to the Cabinet is not unprecedented. Lord Frost, Baroness Morgan of Cotes, Lord Mandelson, Lord Adonis and Lord Carrington are examples of Peers in modern times who have served as Secretaries of State across governments of both parties. Indeed, Lord Mandelson was appointed as First Secretary of State—by definition, one of the most senior members of the government—and played a vitally important role in the last Labour administration, yet scrutiny arrangements in the House of Commons were unaltered.
Despite these examples, the Government notes that the majority of Cabinet-level positions are normally held by MPs and fully respects the primacy of the elected chamber and its scrutiny role. Lord Cameron’s appointment reflects his particular strengths, knowledge and experience as well as his reputation on the international stage.
As expressed by the Parliamentary Secretary to the Cabinet Office in his oral evidence to the Committee, precedent is a vital consideration in deciding how to proceed in our constitution. Throughout its history, the Commons has called non-Members to give evidence in various formats, and in living memory the preferred format for scrutiny of non-Members has been via select committees. This is an arrangement that has worked well in facilitating Commons scrutiny of Secretaries of State in the House of Lords, and Lord Cameron has already given evidence to select committees in the Commons since his appointment.
By contrast, the use of the Bar of the House for routine scrutiny of non-Members is entirely untested.1 Indeed, there is no evidence yet brought forward that suggests any Peer has responded to routine scrutiny from Members of Parliament at the Bar of the House of Commons.
A lack of modern—or even historic—precedent does not mean that the Commons should not consider novel measures to achieve the level of scrutiny it demands. It does, however, demand thorough consideration of the potential consequences of such a procedural change, and a full appraisal of the existing tools at the Commons’ disposal, and, of course, of the work conducted by the House of Lords.
Of concern, the Committee’s proposal could have an impact on the complementary nature of both Houses, as well as the principle of exclusive cognisance. The Commons does not have the power to summon a Peer and such a proposal could represent a significant trespass on the privileges of the Lords. As the Procedure Committee notes, the Lords would need to be engaged on any recommendations which require Lords ministers to appear before the Commons.
We would welcome further consideration of how this proposal respects the complementary nature of the bicameral system, aligns with the principle of exclusive cognisance, and how it might be implemented in practice. For example, it is unclear whether the Committee’s recommendation would lead to calls for parity between the Houses with a provision for Commons Ministers to answer to the Lords in a similar way. Further, the proposals might risk a Secretary of State in the Lords facing a higher scrutiny obligation than Secretaries of State in the Commons. Not only would this undermine the complementary nature of both Houses, but could result in significant practical issues.
As well as appearances before, and future commitments to appear before select committees, the Foreign Secretary and FCDO ministerial team have engaged with Parliament in a varied and enhanced way since his appointment. The Department responds to a significant and high volume of select committee scrutiny, more so than other departments.
The Foreign Secretary is scrutinised by several select committees across both Houses:
There are also other committees that conduct ad hoc scrutiny of the FCDO’s work. For example, the following select committees are currently undertaking inquiries into FCDO policy areas:
Lord Cameron and other Ministers have engaged proactively with committees and will continue to do so.
Further, the parliamentary scrutiny the FCDO receives across both Houses is no less on account of the Foreign Secretary sitting as a Member of the House of Lords. Indeed, the Department now receives uniquely more scrutiny than other Government departments.
In addition to departmental questions in the Commons every five sitting weeks led by a Cabinet Minister, a high volume of oral questions in the Lords, and statements and debates in both Houses, there is now also a specific standalone question time for the Foreign Secretary in the Lords every sitting month. Unlike departmental questions, Secretary of State questions in the House of Lords are for the Foreign Secretary alone, last 40 minutes, and see him answer approximately 30 oral questions at each monthly session. It should be noted that on Lord Cameron’s appointment to the House of Lords, with the Foreign Secretary’s agreement, Secretary of State oral questions were not just reintroduced, but the sessions were made longer and moved to a more prominent time in the week. Meanwhile, the volume of FCDO oral statements in the Commons has seen no meaningful reduction compared to when there was a Secretary of State sitting as an MP.
Since Lord Cameron’s appointment, he has participated in:
We agree that new scrutiny mechanisms should be complementary to existing arrangements with select committees, and echo Sarah Champion’s sentiment that each forum is unique in its mandate, function and purposes. Secretaries of State in the Commons expect to be scrutinised both in Commons select committees and on the floor of the House, and similar arrangements should apply to those in the Lords. (Paragraph 45)
With regards to the frequency with which Secretaries of State in the Lords should be scrutinised by Commons select committees, we would expect the same frequency to apply as applies to all Secretaries of State if additional Commons scrutiny of such Lords Secretaries of State is provided. In the absence of such additional scrutiny, enhanced select committee scrutiny would be necessary. In the absence of the recommended additional scrutiny in the Chamber, Secretaries of State in the Lords should expect to appear before Commons select committees at least every six weeks. (Paragraph 46)
It is for these reasons that we believe Secretaries of State in the House of Lords should appear before the House of Commons at departmental question time; and for those statements and urgent questions, where it would be normal for the Secretary of State to appear. Where possible, such statements should be made to the elected House first. (Paragraph 47)
Since his appointment, the Foreign Secretary has given evidence to select committees roughly every six sitting weeks, appearing before the European Affairs Committee on 14 December 2023 and the Foreign Affairs Committee on 9 January 2024. He was also due to give evidence to the European Scrutiny Committee, however this was postponed by the Committee.
The Foreign Secretary intends to continue this level of cooperation and engagement with select committee evidence sessions roughly every six sitting weeks. Accordingly, dates have been offered to the relevant select committees up until the summer recess.
We make clear that our recommendations are time-limited and are aimed at addressing the issue the House is currently faced with and should not set a precedent for the future. (Paragraph 48)
We therefore recommend that the House be given the opportunity to approve a motion enabling Secretaries of State in the House of Lords to appear at the Bar of the House of Commons for departmental question time, and for statements and urgent questions, for the remainder of this Parliament. (Paragraph 49)
The Government disagrees with the Committee that, if implemented, the Bar of the House proposal would not set a precedent for any future scrutiny arrangements.2
Members of the House of Lords must be granted leave to participate in Commons proceedings.3 Moving ahead with the Committee’s proposal regarding appearances at the Bar of the House, even if on a time limited basis, could undermine the principle of comity between the two Houses, namely that the Houses are constitutionally separate and each responsible for regulating their own affairs. As such, the Lords would need to consider whether the House would consent to such a proposal and how it would be implemented in practice, particularly in light of the role and privileges of the House of Lords which may seek reciprocal arrangements.
Whilst we appreciate the rationale behind the suggestion, there are significant constitutional implications in requiring Secretaries of State in the House of Lords to appear at the Bar of the House of Commons for departmental question time, statements and urgent questions. We do not, therefore, consider that the proposal should be taken forward at this stage.
1 Three examples of non-Members are cited by the Committee, but none of these equate to routine scrutiny of a Government Minister. The most recent was in 1957 – this concerned the parliamentary admonishment of the journalist John Junor, who had criticised MPs for receiving fuel allowances during the Suez Crisis. The Committee also referenced the Duke of Wellington in 1814 and Lord Melville in 1805. The Duke of Wellington asked to come to the House of Commons to thank the House for its support and give an account of what happened in Spain during the Peninsular War. In response, he received acclamation from MPs for his success. Conversely, Lord Melville faced proceedings for impeachment by the Commons. He used the Bar of the House to give evidence and clear his name.
2 As the Committee’s use of the Duke of Wellington example demonstrates, the use of any novel procedure could set a precedent that future parliaments may seek to use
3 House of Lords (2021) Standing Orders of the House of Lords, Standing Order No. 22.