Examination of Witnesses
The Clerk of the House of Commons [Robert Rogers]
and Clerk of Legislation [Jacqy Sharpe] (QQ 651-663)
Robert Rogers,
Clerk of the House of Commons, and Jacqy Sharpe, Clerk
of Legislation, House of Commons
Q651 The Chairman:
Mr Rogers, thank you very much for coming. You know what the Committee
is about. Would you care to make a short statement before we ask
you questions? It would be helpful to the Committee to hear your
views first.
Robert Rogers:
Thank you very much, Lord Chairman. Perhaps I may introduce Jacqy
Sharpe, Clerk of Legislation, who sits alongside me. I will begin
by saying that the shape and membership of the future House of
Lords is of course an intensely political question and not one
on which I would venture an opinion. However, as Clerk of the
House of Commons, I have views on the possible effects on the
House that I serve, and I hope that we can explore these in a
moment. Before we do, I will make two general points. I have never
been a supporter of the "zero-sum game" analysis of
the powers of the Commons and the Lords. If it is the job of Parliament
to scrutinise the mighty Executive of the day and to call it to
account, I suggest that the more effective the powers of Parliament
as a whole are—I emphasise "as a whole"—the
better. My second point is that the relationship between the two
Houses is at the moment—and has been for many years—based
on what I might call complementarity rather than competition.
I think that that takes account of the different parliamentary
cultures in each House, and I think that it has great strengths.
The proposals in the Bill would change that and I foresee competition
arising in particular in three areas: finance, the representation
of constituents and the Select Committee system. No doubt we will
be able to explore all three areas in the relatively limited time
you have left, as well as perhaps the practical hazards of regulating
some of these matters in statute.
Q652
The Chairman:
Thank you very much indeed. Well, let us explore them, if we may.
We will take the finance provisions first. At the moment, the
House of Commons is clearly the initiator and, indeed, the ultimate
arbiter of such matters as financial privilege. To what extent
is there a shared understanding between the two Houses of matters
such as financial privilege, and how would that understanding
be affected if the House of Lords were to be elected?
Robert Rogers:
I think that there are some misapprehensions about the way in
which financial privilege operates. Clearly, a distinction between
the powers and the roles of the two Houses is made in the Parliament
Acts. So far as the traffic between the two Houses is concerned,
I think that there is a misunderstanding between an amendment
being made by the Lords to a Bill for which there is already coverage
by way of a money resolution or a ways and means resolution in
the Commons—when, if the Commons reject the amendment, the
reason that they will give is financial privilege—and the
more extreme circumstances of the House of Lords sending the Commons
an amendment for which there is no authority, for the expenditure
that it represents. Standing Order No. 78(3) in the Commons requires
the Chair—who has no alternative—not to put such an
amendment to the House. Those are two very different things. In
the first instance, financial privilege is the reason given and
it does not exclude a second try by the Lords. The second instance
concerns something for which the House with financial responsibility
has not given authorisation. There is a great gulf between the
two.
The second part of your question concerned how that
would change were the Members of the Lords to be elected. The
answer covers a much broader canvas. Perhaps I may put myself—this
is an eventuality that I can only marginally imagine—in
the position of being an elected Member of the House of Lords.
I cannot imagine representing constituents who are taxpayers without
feeling that I should have a role in expressing views about the
way in which money is being spent. Once you start to pull on that
string, perhaps you will end up with the elected Lords feeling
that the Parliament Act settlement is asymmetrical and should
be changed.
Q653 The Chairman:
I will ask you about another financial matter: money Bills. There
is a slight mystery about them in the House of Lords. We are never
certain what constitutes a money Bill or who can certify one.
Can you give us a glimpse of the truth here?
Robert Rogers:
Section 1(2) of the Parliament Act 1911, as amended, gives us
a description of a money Bill. It is perhaps not irrelevant that
my learned predecessor of the day, Sir Courtenay Ilbert, wrote
a memorandum in which he attempted to encompass the definition.
He was very stroppy with the Lord Chancellor of the day who, he
felt, in turning his memorandum into a draft Bill, had made it
much more complicated than he had intended in the first place.
Money Bills, in terms of practicality, are examined by the Clerk
of Legislation. I will hand over to Jacqy to say something about
what she does in that process.
Jacqy Sharpe:
One would look at any Bill—it is hypothetical at that stage—to
see whether it fulfilled the conditions in the Parliament Act.
I have on my desk, and will continue to have, a copy of the relevant
section of the Act. It would be for Mr Speaker to certify a Bill
as a money Bill. He would not consider that until the Bill had
been through the Commons, because what might on first appearance
look like a money Bill could be altered if other provisions were
added by amendment during its passage through the Commons.
Robert Rogers:
Having been Clerk of Legislation myself for three years, I should
add that Parliamentary Counsel, as representatives of the Government,
address the Clerk of Legislation on these subjects—sometimes
quite persuasively. However, something that I can knock firmly
on the head is the idea that the Government of the day can decide
what is or is not a money Bill. That is decided after due consideration.
Advice is given to Mr Speaker and it is a rigorously impartial
and detached process.
The Chairman:
Presumably your comments about the effect of an elected House
on the previous matters would apply also to a money Bill: namely,
that elected Members would eventually turn round and say, "Look,
this affects my constituents, so we should have power over it."
Robert Rogers:
If you revisit the 1911 settlement, it is Liberty Hall.
Q654
Lord Trefgarne:
We are asked to believe—the Minister said this in his evidence
and it appears in the White Paper—that if the Bill becomes
law, the primacy of the House of Commons will be maintained principally
by the Parliament Acts. That could mean that the Parliament Act
would have to be applied half a dozen times a week or 10 times
a year, which has not been the custom so far. Would that be practical?
Robert Rogers:
If the circumstances arose. Of course, however many times the
circumstances arose that fitted the requirements of the Parliament
Act, the action could be taken, but we would be talking about
a situation of disagreement and disharmony between the Houses
that would have reached a very advanced stage, so a lot of other
things would have to be taken into account. By your leave, Lord
Chairman, we might come back to the question of primacy as potentially
a legislative and indeed justiciable concept. As far as I know,
this is the first time that this has been attempted in statute.
That brings in a whole range of other factors.
Lord Trefgarne:
The Parliament Act would seem to be a very blunt instrument if
its primary purpose is to secure the primacy of the House of Commons
in a situation where the Lords suddenly became largely elected
and much more legitimate.
Robert Rogers:
On the scenario that you put forward, it would be a resented instrument
if it were blunt.
Lord Trefgarne:
But that is the scenario in the Bill.
Q655 Baroness Shephard
of Northwold: Mr Rogers,
please could you expand on your anxiety about the representation
of constituents—perhaps not anxiety, but the fact that you
mentioned this as one of the three issues of concern you have
about the Bill. You may or may not have been here to hear Mr Allen
say that there would be a less legitimate relationship between
the electorate and Members elected to a second Chamber. He was
pressed on this by Lady Andrews and by Lady Symons. Last week,
we heard from Paul Murphy, who indeed has in his constituency
Members of the Welsh Assembly—actually two sorts, elected
by different methods. The impression that Mr Murphy gave us is
that such elected people, and certainly electors, do not feel
that there is a less legitimate relationship: a vote is a vote
and if you have elected someone you expect them to do something
for you. This seems to have been given the lie by Mr Allen for
the reasons that he explained: he is so keen on getting at least
part of the House of Lords elected that he is willing to put up
with these inconveniences. Within the context of what I have set
out, could we hear your reservations, or at least the points that
you would like to make, about the representation of constituents?
Robert Rogers:
I read Mr Murphy's evidence to the Committee. I was present for
part of Mr Allen's evidence and I heard him say a "less intimate"
relationship rather than a "less legitimate" relationship,
but he may have said both.
Baroness Symons of Vernham
Dean: I thought I heard
"less legitimate".
Robert Rogers:
Right. I certainly would not comment on legitimacy in this context.
Less intimate, yes—the proposals somewhat dilute the relationship,
perhaps. My concern is along the lines that, once one is elected
to represent constituents, that is what one expects to do, in
whatever revised circumstances might exist in a future House of
Lords. So far as the House of Commons is concerned, and I must
come back to the competition point that I made earlier, it seems
inevitable that the House of Lords would not want, for example,
to have opportunities to raise constituency issues. It has been
said that it is expected that those issues would be of a bigger,
broader character—regional, economic issues and things of
that sort. I doubt that, because hard cases come to individuals,
and individual representatives then decide how they are going
to raise them. I think that there would be proceedings which were
related to constituency problems—perhaps the equivalent
of the half-hour Adjournment Debate that we have at our end of
the building. It might affect the sorts of Questions that Members
wish to ask of Ministers. I am quite certain that Ministers would
be signing a great many more letters than they do now on similar
matters.
There is also an issue about people of different
parties representing the same area. You can of course say that
that can be the case with the devolved arrangements or indeed
with Members of the European Parliament. But if one is talking
about—if I can call it this—constituency case tourism,
where one goes to the Member who one thinks is the most likely
to give one a satisfactory outcome to a problem, I think there
is scope for some confusion there. Certainly, the convention in
the House of Commons—as I do not need to tell anybody round
this table—is that Members are punctilious about not straying
on to the territory of a neighbour whose first duty is to represent
a constituent in that constituency. There might be issues there.
Q656 Mrs Laing:
Mr Rogers, it is often said that the House of Lords, or a second
Chamber, is a revising Chamber and that its main role is revision.
Given what you said, particularly in answer to the last question,
do you consider it possible that there might be danger of duplication
of the work of the two Chambers, first, as you have just put it
very well, in constituency and representative work, and, secondly,
in the work of dealing with and examining legislation, the
actual day-to-day Committees and sittings? Is there a danger that
the revising role currently held by the House of Lords would become
a duplicated role, so that the two Chambers become more like each
other?
Robert Rogers:
Perhaps I can take the legislative point first. In any bicameral
system where there is an Executive within Parliament, there is
a tendency to use either House as a vehicle for government amendment.
For example, in the 2007-08 Session, there were nearly 5,000 amendments
tabled by the Government to their own Bills, but almost exactly
half and half between the Lords and the Commons. Certainly, as
we have seen with the handling of Bills in this unusually long
legislative session, the Lords has taken a lot of time in Committee
of the Whole House, on the Floor. I would not leave aside the
concept that either House can be used as a vehicle for governmental
second thoughts, however they emerge, whether as a result of criticism
or undertaking or drafting on the hoof, of which the last from
our point of view, is something that we would prefer not to see.
I take as the implication of your question the issue
about Select Committees, which is at the moment a perfect example
of complementarity. In the House of Commons, we have what one
might call a vertical system of Select Committees: it drills down
into each government department. In the House of Lords, there
is a horizontal system of Select Committees: it looks across issues
such as the constitution, economic affairs or communications.
Again, with the financial element that we spoke about earlier,
I would be not in the slightest bit surprised—indeed, I
would expect it—if a House of Lords reformed or changed
along the lines proposed wanted to have a direct handle on the
doings of individual departments. If that were to occur, we would
have a lot of competition between the Lords Committee on X and
the Commons Committee on X. I see a potential disadvantage for
Parliament as a whole if that were to occur because, although
it is fine when Committees agree on something, the Government
of the day which was offered a menu of a Commons Committee supporting
something and a Lords Committee criticising it—or the reverse—would
have a very good excuse for dismissing the recommendations of
both.
The Chairman:
Lord Rooker, I have got you on my list but I am not sure whether
you actually put your hand up.
Lord Rooker:
Yes, I have had my hand up since 5 o'clock.
The Chairman:
Everything comes to he who waits.
Q657
Lord Rooker:
Robert, going back to your earlier comments, it is quite clear
to me that you reckon that the status quo which this Bill envisages—in
the relations between the two Houses and the way we work together—is
unacceptable. You have a sense of foreboding in terms of clashes
and having to write down the rules and revisit them. Let us look
at the advantages and disadvantages. A resolution for the conventions
is unenforceable. If you put the conventions into statute, that
means that in effect that the Commons controls everything, because
the Parliament Acts would have control over legislating the conventions
into law. It would be making the conventions so we all know what
they are and we all know what the rules are. The Commons is effectively
setting up an elected second Chamber but would have total power.
There is a dilemma in the status quo of doing nothing. It is very
comfortable at the moment, because Ministers can say, "Everything
will be okay, we'll evolve". That is more or less what Graham
Allen said. You foresee some difficulties in this respect. Which
way would you jump in terms of getting the codification or legislation—those
words are used interchangeably—with the conventions, so
that we do not have these clashes between the two Houses, which
will not serve anybody well.
Robert Rogers:
I am not sure that I go all the way with your description of what
I said earlier on. I think it takes me into a broader political
arena in which I am not comfortable, but if we are now turning
to the hazards of legislating, I think that there is a whole hierarchy
of questions that you need to address. I think at least two of
your Members were Members of the Joint Committee on Conventions—Lord
Tyler and Baroness Symons. The Committee's very wise report drew
away from codification of conventions because the argument was
that these are changing and the practice changes with them. I
think that you can codify in some sort of exchange between the
Houses. There was the very good example from not long ago of the
concordat—if I can put it that way—on packaging of
amendments to Bills between the two Houses. That in a sense was
a codification. There was a Written Ministerial Statement—or
a planted Question, as they were in those days—and it was
quite clear what the two Houses had agreed as a matter of practice.
I think that, if you are talking about legislation,
a great many undesirable consequences follow from that. If you
start to regulate the internal processes of Parliament by legislation,
there is only one way of deciding any difference and that is through
the courts. It may take a fairly long time to decide something
or resolve an issue that the two Houses might well decide in parliamentary
business overnight or in the course of a sitting day. Also, because
the courts are going to have to look at parliamentary materials
to come to a decision, that will drive a coach and horses through
Article 9 of the Bill of Rights. That is an outcome about which
I would be extremely concerned.
Q658
Lord Rooker:
We are talking in the context of two elected Chambers—that
is what we have to envisage. We have a second elected Chamber
in a unitary state where effectively all the power stays in the
first Chamber under the Parliaments Acts. We have our own internal
debating rules and the Commons have theirs, but under this procedure
the Commons could actually write, effectively, the Lords debating
rules—what you can consider and how far you can consider
it under the new arrangements. In that case, why should elected
Members of the Lords, in a dispute with the Commons, not go to
the courts? The courts are the arbiter. You could be an elected
Member of the Lords and feel that the Commons keep bossing you
about. You would think, "I am elected, the rules are like
this, we want to do this, say that, or vote on this, but we cannot.
I would rather let the courts decide." That is the minefield
we are going into, is it not?
Robert Rogers:
You very vividly put the idea of unelected judges deciding what
it is that elected representatives may or may not do. That has
clear hazards. I would be very concerned because that process
means that you are regulating the proceedings of what should be
a sovereign Parliament by reference to the operation of the law.
Let us take, for example, the issue of primacy, which we mentioned
a few moments ago. That is stated in Clause 2 of the Bill, because
it says that nothing is to affect the primacy of the House of
Commons. Of course this is the first time that the idea of primacy
is proposed to be put in a statute, and so a whole series of questions
are begged immediately. What does "primacy" mean? Let
me just give you a cheeky example. Would it mean, for example,
that on a Joint Committee such as this the will of the Commons
Members should prevail, even if they were in a minority? You would
say immediately, "No, of course not", but who is to
determine that? You could argue that, if nothing in the Bill affects
the primacy of the House of Commons, there must be a primacy there
to be worked through. What is the extent of that primacy? As long
as you put that concept in legislation, the only people who can
tell you are the judges.
Q659
Lord Rooker:
I have one more short question. Earlier on, Robert, you gave us
a very good example about the certification of a money Bill. In
the circumstances of doing nothing—that is, the status quo
on conventions—who would certify to Mr Speaker that a Bill
is a manifesto Bill? Who would give that advice to the Speaker,
bearing in mind the precision by which manifestos are drafted
by the political parties?
Robert Rogers:
I think that you have just about answered your own question. It
is not a job that I would eagerly undertake to give advice to
the Speaker. Of course you can look at the manifesto and say,
"What sort of congruence is there between this Bill and a
fairly outline indication in the manifesto?" because of course
you can follow through a principle but, in the detail in which
you propose to implement it, you may subvert, change or substitute
the effective elements of that principle. You could have some
difficulty.
Lord Rooker:
But that is the problem. One of the conventions deals with manifesto
Bills. How do we get over this dilemma? Is there a special way
that they are dealt with here? An elected Chamber may say no.
Robert Rogers:
As long as you are non-codifying, it is like a camel—it
may be quite hard to describe but, when you see it, you know what
it is.
Q660 Gavin Barwell:
At the start of your evidence, you gave us a very succinct phrase
to describe the choice before us, saying that the current relationship
is complementary and not competitive. In many areas of public
policy, there is a view that competition actually improves the
service that people get. I would be interested in your views on
why that might not be the case in this situation. Let
me take one specific example—you
gave us three—in relation to Select Committees. You are
quite right that the House of Commons Select Committees are mostly
departmental ones, but until recently I sat on the Science and
Technology Committee, for which there is an almost exact parallel
in the House of Lords, and in my experience those two Select Committees
certainly worked very well together. I am not sure, from the practical
evidence we have, that that kind of competition would necessarily
cause a problem.
Robert Rogers:
My concern is not only competition; it is also duplication. I
could give you a very good example of European financial instruments
where there was quite a tussle between the Treasury Committee
in the Commons and the Economic Affairs Committee in the Lords.
I think that this is something where case law, despite your giving
one example and my giving another, is at this stage not going
to be that helpful. One has got to stand back from a scenario
and say, "Look, if it is like this, what are the likely outcomes?"
Q661
Lord Hennessy of Nympsfield:
Robert, would I be right in thinking that when you state that—as
I am sure is the case—this is the first time that the concept
of primacy will have appeared on the face of a Bill, that already
means that the crust is broken so that the judges' hands can go
straight into the relationships between the two Houses, if the
Bill proceeds as drafted?
Robert Rogers:
There are several provisions in the Bill that would lead to a
result like that, if its operation were challenged. Of course,
that is the key proviso. Clause 58, for example, seems to be a
good instance of specifying exclusions. If the proceedings of
the House of Lords are not to be called into question for the
reasons there stated, how, where and why may they be called into
question? If we have a statutory provision that says that those
provisions, with those savers, are not to be called into question,
where does that leave the Commons, where we do not have a similar
statutory protection? Of course, we say that the statutory protection
is that of a sovereign Parliament protected by Article 9 of the
Bill of the Rights, but the moment you start opening doors in,
into and through Article 9, you have a problem.
Lord Hennessy of Nympsfield:
If we wanted to make this Bill judge-proof—if we saw that
as our function as a Joint Committee—what must we do? It
is a big job to make this judge-proof as drafted.
Robert Rogers:
I do not think that the courts like all-purpose ousters. I think
that you will need to look for greater legal learning than I possess
as to how one might do that. My essay at an answer is that it
would not be easy while preserving the effect of what is intended
here.
Q662
Baroness Symons of
Vernham Dean: Let me
go back to one of the questions raised by Lady Shephard, on the
relationship of the individual Member elected into the House of
Lords being less intimate than the one in the House of Commons.
I absolutely see that, if you have an electorate of 60,000, there
will be a more intimate relationship with your MP than there would
be if you have an electorate of 570,000, as I think the White
Paper says for individual Members of the House of Lords. On the
other hand, if you have been elected with the opportunity for
60,000 people to vote for you and someone else has been elected
with the opportunity for over half a million to elect them, which
would you say was the stronger mandate?
Robert Rogers:
I can very happily and immediately tell you that you are taking
me way out of my comfort zone. I am not going to try to answer
that one.
Q663 Lord Trimble:
You mention Select Committees being complementary and that that
complementarity is vertical rather than horizontal. I have just
come from spending over two hours in the Lords European Union
Select Committee, which is horizontal. It covers exactly the same
ground as that in the Commons but we do not clash because we do
things differently. In other words, in the Lords, provided that
we have people who have just come up from the Commons properly
acculturated, we avoid political issues. I remember when we did
a report on 10 years of the euro. We did that report and got complete
unanimity in the Committee because we never asked the question
that they would start within the Commons and never get past: whether
the United Kingdom should join the euro. But that would change
if you had elected Members. The political issues would come straight
in. That is more of an observation than a question.
I will make my other observation
quickly. You talked about people in the Commons being punctilious
in abiding by the convention of not interfering in the constituencies
of other Members. That might be the convention that exists in
England, but it did not exist in Northern Ireland. In my time
in the Commons in Northern Ireland, I would go every other week
to hold meetings in other people's constituencies and do so in
a very public way. I did that so that my party could be in competition
with the party of the man who was then the Member of that area.
That was just something he had to put up with.
Robert Rogers:
I think that the European Union Committee and the European Scrutiny
Committee are an example of complementarity because the House
of Lords Committee does many fewer documents but in much greater
depth and the House of Commons Committee reports on about 1,200
a year, finding that about 600 or 700 merit a substantive report.
It is a perfect example of complementarity.
Lord Trimble:
But it is unlikely to survive the arrival of elected Members.
The Chairman:
I do not understand that. I do not want to intervene in the argument,
but as a Member of the same Committee as Lord Trimble I just question
the point that he made. Why does he say that?
Lord Trimble:
We avoid what are called the political issues—the issues
that would catch the imagination and attention of the public presently.
That would not be the case were there elected Members.
The Chairman:
Well, there we are. Thank you very much for coming. By the time
we have finished this vote, the House of Commons will be into
their vote, in which case we will be non-quorate and not here.
Thank you very much for coming. I thought that it was revealing
and helpful.
Robert Rogers:
I would be very happy, should the occasion arise, to assist you
on matters of conciliation and the suggestion that it might be
illegal to vote against the Second Reading of a government Bill
in a reformed House of Lords. That may be for another occasion.
The Chairman:
Thank you very much indeed.
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