Chapter 2: Holding the Executive to Account
Overview
17. Parliament holds the executive to account
by questioning and challenging the executive's policies and actions,
and requiring ministers and senior officials, in person, to account
publicly for their decisions.
18. Primary responsibility for scrutiny of the
executive rests with the House of Commons, as the elected chamber.
In certain areas, notably public expenditure, the special responsibility
of the Commons for scrutiny of the executive is a long-standing
constitutional convention. While Erskine May states that
"the Lords also express their opinion upon public expenditure",[4]
the House's exercise of such scrutiny functions is limited and,
where it occurs, likely to be controversial. More generally, the
authority of the Government of the day depends on its ability
to command a majority in the elected chamber: only the House of
Commons can bring down the Government by passing a motion of no
confidence. Nevertheless, while accepting that the role of the
House of Lords in scrutinising the executive is secondary to that
of the Commons, we believe that the House can add considerable
value to Parliament's fulfilment of this task.
19. Such scrutiny should, we believe, be—
- Transparent: parliamentary questions and debates
ensure that government does not happen behind closed doors.
- Thorough and evidence-based: scrutiny should
encourage and push the Government to consider all the options
and, at times, to think again.
- Political, but not to the exclusion of non-partisan,
constructive exchange of views.
- Focused, addressing key areas of government action
and policy, whether these are topical or of long-term importance.
- A two-way process, encouraging dialogue between
Members and the executive.
- Continuous—good scrutiny is not a matter
of one-off set-piece displays, but of on-going debate and argument.
20. The House of Lords can make a valuable contribution
to achieving these high standards by using its particular strengths:
the expertise and experience of its Members, its less partisan
character, and the time that its Members, without constituencies
to attend to, can devote to probing the detail of policy using
the House's less constrained procedures.
21. The principal means of scrutinising the executive
available to the House are:
- Oral questions (including balloted topical questions
and urgent Private Notice Questions);
- Written questions;
- Consideration of oral statements in the Chamber;
- Publication of written statements in Hansard;
- The holding of debates (though sometimes serving
an important scrutiny function, debates are considered in the
chapter 4);
- Scrutiny by select committees;
- The laying by the Government of papers before
Parliament.
22. There is a distinction between what might
be called "active" scrutiny (involving question and
answer, taking place in the Chamber, committee rooms, or, in the
case of written questions, in the pages of Hansard) and "passive"
scrutiny—the publication of written statements, and the
laying of papers, as required by statute, before Parliament. We
have concentrated on the first, and more visible, aspect of scrutiny,
with particular emphasis, in this chapter, on oral questions and
statements.
23. A balance also has to be struck between the
House's responsibility to hold the executive to account, and a
further core function, namely to provide a forum for public debate
and inquiry. Some debates may contribute to scrutiny of the executive—the
debate on the Queen's Speech, for example, is an opportunity to
interrogate and challenge the Government on its legislative programme.
Other debates are less focused on scrutiny, and instead allow
Members to discuss matters of general importance with relatively
little direct challenge to or exchange of views with the executive.
Similar considerations apply to much committee work. The question
of whether the House has currently got the balance between its
scrutiny and debating functions right is addressed in chapter
4.
Oral questions
24. The most prominent way in which the Government
is held to account is through oral questions, which occupy the
first thirty minutes of all sitting days except sitting Fridays.
Four such questions are taken each day, but whereas oral questions
may normally be tabled up to one month[5]
in advance, on Tuesdays, Wednesdays and Thursdays the fourth slot
is given to a topical question drawn from a ballot two working
days beforehand.
25. In addition to regular oral questions, Private
Notice Questions, which are an "opportunity to raise urgent
matters on any sitting day",[6]
are allowed by the Lord Speaker if they meet narrowly defined
criteria. Up to 10 minutes is allowed.
26. Finally, Members can also table up to six
Questions for Written Answer every sitting day: the Government's
reply is expected within 10 working days and is printed in Hansard.
27. First we consider oral questions. The problems
currently being encountered in respect of oral questions, including
topical questions, fall under two headings: the conduct of question
time itself, and the process whereby questions are tabled. The
recent large increase in the size of the House, and increasingly
active membership, has added to the difficulties being experienced
in both areas.
QUESTION TIME
28. The conduct of oral questions is the topic
which, to judge by the responses to our invitation for views,
concerns Members of the House more than any other at present.
The procedure is, in outline, that when an oral question has been
asked and answered, the questioner and then any other Member can
put supplementary questions. There is no selection of these questions.
Members wishing to raise a supplementary question stand and begin
putting their question. If more than one Member stands, they give
way to each other; if there is a dispute about who should give
way, the sense of the House determines which Member should speak,
interpreted through the Government front bench if necessary.
BOX 1
Question Time: History
| The procedure for oral (formerly "starred") questions began in 1919, following a Committee recommendation that "it shall be in the power of any Peer who asks a question for the purpose of information only, and not with a view to making a speech or to raising a debate, to indicate his intention by prefixing an asterisk to his question when he hands it in".[7] At this stage it was envisaged that proceedings on a starred question would be broadly equivalent to those on a written question: no supplementary questions would be asked, and certainly no debate would ensue. Nor did such questions have a fixed place on the Order Paper (business being tabled in the order in which it was sent in to the Table); nor was there any limit on numbers or time taken.
However, by the 1940s there was pressure to give precedence on the Order Paper to starred questions and to limit their numbers, both to avoid keeping ministers waiting for hours while other business was being conducted, and to prevent possible abuse. These led to a recommendation by the Procedure Committee, in April 1943, that starred questions be limited to Tuesdays and to one per Member; that they take precedence over other business; and that they be time-limited to 15 minutes in total.[8]
Though this particular recommendation was not adopted by the House, from the 1940s onwards the House's procedures for asking oral questions were gradually formalised. Oral questions in their current form date from as recently as 1991, when a firm time-limit of 30 minutes, for four questions, was established; other rules, for instance limiting Members to one oral question on the Order Paper at any one time, were adopted as recently as 1998, following a recommendation from the Leader's Group chaired by Baroness Hilton of Eggardon.[9]
Thus for almost a century the House has struggled with the need, during question time, to strike a balance between the freedoms enjoyed by Members, the orderly conduct of business, and the principles of self-regulation.
|
29. The outcome is widely regarded as unsatisfactory.
As the brief history of oral questions in Box 1 shows, the House
has for almost a century sought to balance self-regulation with
the need for orderly conduct of business. But the adoption
of a rigid allocation of time to each question, combined with
the increasing size and level of activity of the House, militates
against effective self-regulation. With an average of only seven
and a half minutes available for the question, answer and supplementary
questions and answers, there is, instead of self-regulation, regulation
by clock. Time is short; opportunities to intervene are few. The
convention that supplementary questions come from the different
parties/groups in a rough rotation adds to the difficulty, meaning
that a Member who thinks it likely that his or her party/group
will not have time to come in again has no incentive to give way
in the hope of intervening later. When the political character
of question time is combined with the larger size of the House,
the result is an increasingly fractious and at times aggressive
atmosphere at question time.
30. The result is that many Members, from whom
the House might wish to hear, and whose knowledge and experience
would be particularly valuable in contributing to informed scrutiny
of the Government, are discouraged from participating in question
time. The unique contribution of the Lords—the breadth of
knowledge and experience of its Members—is wasted, and the
Government is less effectively held to account.
31. There will always be a political component
to question time. But it should not be exclusively political or
partisan. In an environment where only members willing to seize
the floor are able to ask questions, less partisan, evidence-based
and constructive questions are likely to be lost. This in turns
militates against the establishment of a productive dialogue,
which might prompt ministers to give more considered, informative
and helpful replies.
32. As the Companion states, "the
role of assisting the House at question time rests with the Leader
of the House".[10]
In practice this means that when the House reaches a stalemate,
with two or more Members competing to ask a supplementary question,
and none of them being willing to give way, it is for the Leader
(or another Government minister) to rise and seek to give expression
to the sense of the House. This may be by indicating that it is
the turn of one particular party or group, or that the House may
wish to hear from the Lords Spiritual (bishops), or, where two
or more Members from the same party are in competition, by suggesting
which should be heard.
33. Some Members suggested that it was inappropriate
for the Leader of the House, as a member of the Government, to
assist the House in this way; that it gives the impression that
the Government's own front bench chooses the questions that the
Government would best like to answer. Several Members also noted
that, while trying to observe and interpret the mood of the House,
the Leader has his back to almost half its Members. The Leader's
role as a senior minister has to be combined with that of expressing
the sense of the House and advising the House on matters of procedure
and order, including at question time: statistics show that successive
Leaders have acted in the latter role with complete impartiality.
At the same time, performing this role has become increasingly
difficult.
34. How do we address the decline in standards
of behaviour at question time? There are four main options, which
could be pursued either singly or in combination:
- To leave the procedure at question time unchanged,
but to reinforce the House's tradition of self-regulation, for
instance by encouraging senior members of the House (including
the Leader and Chief Whip) to intervene more frequently, with
what one Member called "a clear recital, reminder and underlining
of the rule or rules".
- To change the procedure by introducing a greater
measure of self-regulation, for instance by removing time limits,
and placing the responsibility for orderly conduct of question
time firmly on the House as a whole.
- To transfer the responsibility currently exercised
by the Leader of the House to the Lord Speaker.
- To limit self-regulation during question time,
by conferring upon the Lord Speaker the power to "call"
supplementary questions, and determine when the House should move
on to the next question.
35. We believe that in the current circumstances,
and with a view to encouraging the greatest range of the House's
Members to participate in question time, asking the greatest range
of questions in an atmosphere more conducive to dialogue and to
effective scrutiny of Government, it is time to consider adopting
the third of these options, on a trial basis. We accept that simply
transferring to the Lord Speaker the reactive role currently performed
by the Leader may not, in itself, address the fundamental problem.
However, it is worth an experiment—we trust that the force
of interventions from the Woolsack, rather than from the Government
front bench, may be such as to foster greater self-restraint across
the House, so making such interventions less frequent. The Lord
Speaker is also physically better placed to interpret the will
of the House.
36. If, on the other hand, there is no improvement
in behaviour after a trial period, which we suggest should be
set at one year, it would be for the Procedure Committee to review
the options set out above, with a view either to abandoning the
experiment and reverting to the status quo, or looking
again at the more radical fourth option.
37. Irrespective of whether the procedure at
question time is changed, in a self-regulating House all Members—and
particularly the front benches—remain responsible for good
order, and in particular for calling to order those who transgress
the rules of the House.
38. We recommend that consideration be given
to conferring upon the Lord Speaker the role currently performed
during question time by the Leader of the House, for a one-year
trial period in the first instance, beginning no sooner than 5
September 2011. In the event of the Lord Speaker's unavoidable
absence from the House, we recommend that the same task be performed
by the Chairman of Committees.
QUESTIONS TO MINISTERS
39. At the end of the last Parliament, with a
view to enhancing the House's scrutiny of the two Secretaries
of State then sitting in the House of Lords, the Procedure Committee
recommended, on a trial basis, that those Secretaries of State
should, on one Thursday each month, answer three oral questions
addressed to them in their ministerial capacity. Fifteen minutes
were set aside for such questions.
40. This experiment was, in our view, a success.
Although it has been discontinued, as no Secretaries of State
now sit in the Lords, we believe that the principle established,
of oral questions directed to specific senior ministers, enhances
the House's scrutiny of Government, and should be developed further,
in particular by introducing a regular question time for the Leader
of the House. Such questions should focus on matters for which
the Leader is responsible as Leader.
41. We recommend that the procedure adopted
in early 2010, whereby Secretaries of State sitting in the Lords
should answer three oral questions, on one Thursday each month,
directed to them in their ministerial capacity, should be made
permanent, with a view to its revival as appropriate.
42. We further recommend that there should
be a monthly question time dedicated to questions on House of
Lords matters addressed to the Leader of the House.
PRIVATE NOTICE QUESTIONS
43. A member wishing to ask a Private Notice
Question submits it in writing to the Lord Speaker by noon (or
10am if the House is sitting in the morning). The Lord Speaker,
after consultation, decides whether the question "is of sufficient
urgency and importance to justify an immediate reply".[11]
The Lord Speaker's decision is final.
44. Private Notice Questions are rare. Since
the start of the present session only 2 out of 17 applications
have been accepted, reflecting a long-standing reluctance to grant
Private Notice Questions and thereby delay the start of the main
business of the day. In contrast, the new Speaker of the House
of Commons announced early in his term in office that he would
allow more Urgent Questions. He fulfilled this undertaking by
allowing no fewer than 17 Urgent Questions between the start of
the present session and the end of 2010. Although many of these
have been repeated as oral statements in the House of Lords, the
growing disparity between the two Houses reduces this House's
ability to hold the Government to account.
45. We recommend that the Lord Speaker interpret
the criteria for allowing Private Notice Questions more liberally.
We believe that the presumption should be that if an issue is
an urgent matter of national importance, the application should
be granted.
SAVING TIME
46. The confusion of question time is compounded
by the use of wordy and unnecessarily obscure procedures. Oral
questions are all but impossible to follow unless the observer
is equipped with the Order Paper, as the Member putting the question,
having been called by the Clerk, simply stands to say "My
Lords, I beg leave to ask the question standing in my name on
the Order Paper", without reference to the text, before the
minister stands to answer. The process of asking supplementary
questions is equally bewildering to the uninitiated, with Members
on all sides standing, speaking and even shouting, and with sedentary
Members calling out the name of the Member they wish to hear.
It is often hard for an outsider to discern the purpose of the
spectacle.
47. Members also on occasion make unnecessarily
time-consuming interventions. Too much time is spent on introductory
remarks, for instance thanks to the minister or unnecessary declarations
of trivial non-financial (and non-registrable) interests. There
is a tendency of Members from all sides, including the Government
front bench, to ignore the clear guidance in the Companion
that "supplementary questions ... should be short and confined
to not more than two points ... should be confined to the subject
of the original question ... ministers should not respond to irrelevant
questions."[12]
48. We recommend that instead of Members seeking
leave to ask the questions "standing in their name on the
Order Paper", Members should read out the text of the question,
using the formula "My Lords, I beg leave to ask Her Majesty's
Government ...." To ensure that this does not take up too
much time, we further recommend a mandatory limit of 40 words
for oral questions (excluding the introductory formula given above).
49. To ensure best use of question time, we
re-affirm the existing guidance in the Companion
on the conduct of question time, while recommending that it be
supplemented by the following guidance, based on that already
found in the Guide to the Code of Conduct:
- Members should not take up the time of the
House making trivial declarations of non-financial and non-registrable
interests.
50. Finally, we recommend the addition of
the following new guidance in the Companion:
- Questioners should not thank the Government
for its answers, nor ministers thank questioners for their questions.
Statements
51. The Government makes both oral and written
statements to the House on matters of public importance. Most
oral statements taken in the Lords are repetitions of statements
made first in the Commons. The statement is read out by a Government
minister or spokesperson, which is followed by up to 20 minutes
of questions from the Opposition front bench and Government answers,
and then a further 20 minutes of questions from the backbenches
and Government answers.
52. Written ministerial statements are printed
in Hansard, and are not discussed in the Chamber.
53. While questioning the Government on oral
statements is an essential part of holding the Government to account,
the timing of statements is problematic. If a statement is made
first in the Lords, it will be taken straight after oral questions,
but if, as is almost always the case, it is repeated from the
Commons, it will be taken "at a convenient moment" at
which the House's business can be interrupted, after the Commons
minister has begun speaking.
54. Moreover, as the Companion states,
"Ministerial statements made in the Commons are repeated
in the Lords if the usual channels so wish".[13]
In practice, this means that the decision as to whether or not
to repeat a statement is taken by the Opposition front bench.
Nor is there any limit on the number of ministerial statements
that can be made in one day. The Companion states that
"lengthy interruption of the business of the House is not
desirable", but if three statements are repeated on the same
day they can interrupt the day's main business (for instance,
consideration of Government legislation), in prime time, for two
hours or more.
55. However important as an element of scrutiny,
statements can significantly hold up the business that the House
was expected to conduct. Important debates and votes may be deferred
late into the evening or even a subsequent day. The impact on
the scheduling of business is further compounded by the increasing
numbers of Urgent Questions being allowed in the Commons (see
above, paragraph 44), which are often repeated as statements in
the Lords. The resulting increase in the frequency of oral statements
is illustrated in Figure 5 above; more precise figures are given
in the table below:
| Session | Number of oral statements
| Average per sitting day
|
| 2004-05 | 23
| 0.37 |
| 2005-06 | 71
| 0.34 |
| 2006-07 | 59
| 0.42 |
| 2007-08 | 63
| 0.38 |
| 2008-09 | 66
| 0.49 |
| 2009-10 | 23
| 0.34 |
| 2010-12 (up to 6 April 2011)
| 84 | 0.62
|
56. When a statement is repeated in the Lords,
the entire text of the Commons minister's statement is read out
by a Government spokesperson before questioning begins. This does
not normally present any difficulty—such statements typically
take between five and ten minutes to read. But occasionally such
repetition does not represent a good use of the House's time:
reading the entire Comprehensive Spending Review statement on
20 October 2010, for example, took over an hour, and even though
the statement had been read in full in the Commons three hours
beforehand (where members of the Lords may watch from the galleries),
broadcast on live television, and made available in print from
the Lords Printed Paper Office.
57. We recommend that the usual channels should,
in deciding whether to repeat a statement in the Lords, also consider
whether it would be a good use of the House's time for the statement
to be read out. In exceptional cases (for instance a long statement,
which has been publicly available for some hours) it may be appropriate
for the text of the statement to be reproduced in the Official
Report without being read out; the remaining oral exchanges would
take place in the Chamber as at present.
58. A balance needs to be struck between the
House's core functions. Some statements will be of critical importance,
and should certainly be discussed in the Chamber, in "prime
time". But in general we do not consider that devoting two
or more hours of prime time to statements, and thereby interrupting
the House's vital work of legislative scrutiny, always represents
the best use of the House's resources.
59. We recommend that, on days when more than
one oral statement needs to be taken, the option should be available
to take the second and subsequent statements in the Moses Room.
Such statements would take precedence over other business scheduled
in the Moses Room.
60. Nor do proceedings on statements necessarily
make best use of the House's time or the skills and knowledge
of Members. The Companion is clear that statements "should
not be made an occasion for immediate debate". But this is
qualified by the statement that "brief comments and questions
from all quarters of the House are allowed". Members have
differing views on what constitutes brevity—some Members
may make contributions lasting three or four minutes, significantly
reducing the number of Members able to intervene. This leads to
increasingly intense competition, with Members refusing to give
way, with similar problems being experienced during oral statements
as during question time.
61. Where two or more Members wish to intervene
during proceedings on an oral statement, the same procedure is
followed as during oral questions—it is the task of the
Leader (or another Government minister) to rise and seek to give
expression to the sense of the House as to who should be heard.
The same considerations apply to oral statements as to oral questions,
and for the same reasons we believe that the Leader's role during
oral statements should, for a trial period, be transferred to
the Lord Speaker.
62. We recommend that the guidance on backbench
contributions on oral statements be clarified, by removing the
reference to "brief comments". To avoid speech-making,
and with a view to increasing the number of Members who can intervene
on statements, we recommend that backbench contributions should
be limited to questions to the minister.
63. We support the practice of increasing
the time available for backbench questions to 30 or 40 minutes
in exceptional circumstances.
64. We recommend that consideration be given
to conferring upon the Lord Speaker the role currently performed
during oral statements by the Leader of the House or the Government
front bench, for a one-year trial period in the first instance,
beginning no sooner than 5 September 2011. In the event of the
Lord Speaker's unavoidable absence from the House, this task would
be performed by the Chairman of Committees or by another Deputy
Speaker.
Who speaks for the executive?
65. Finally we address an over-arching issue
affecting the way the House scrutinises the executive. For such
scrutiny to be effective, it is important that those engaging
with the House on behalf of the Government are ministers and officials
with specific policy responsibility in the area being scrutinised,
rather than those whips who are not ministers or junior officials
who cannot fully represent decision-makers and answer for them.
The Royal Commission on Reform of the House of Lords, chaired
by Lord Wakeham, recommended in 2000 that ministers should continue
to be drawn from and directly accountable to the second chamber,
and suggested that "it would be desirable if the second chamber
were to continue to furnish several ministers of State and at
least two members of the Cabinet."[14]
66. However, whereas the end of the previous
Parliament saw no fewer than three members of the Cabinet, including
two Secretaries of State, in addition to the Attorney General,
sitting in the House of Lords, in the current Parliament there
are no Lords-based Secretaries of State, and only two members
of Cabinet in the Lords.[15]
The number of Ministers of State in the Lords has fallen from
four to three.[16] This
dilution of Government representation in the House undermines
the ability of the House to assist the Commons in holding the
Government to account.
67. Nor have alternative means to enable Members
to scrutinise the Government been proposed. Towards the end of
the last Parliament, concern in the House of Commons over the
presence of two Secretaries of State in the Lords, and the resulting
perceived shortfall in accountability, led the Commons Procedure
Committee to look at ways in which Lords ministers could answer
questions in the other House.[17]
The problem has now been reversed, as Members of the House of
Lords find themselves unable to challenge responsible ministers
across the spectrum of Government policy.
68. As long ago as 2000 the Royal Commission
pointed out that the lack of ministerial accountability to the
second chamber meant that "the wider perspectives and relevant
expertise of members of the House of Lords cannot be brought to
bear directly and regularly on those senior members of the Government
with the lead responsibility for most major areas of public policy".
The current lack of direct accountability to the House of Lords
is contributing to a reduction in the level of scrutiny by Parliament
as a whole, and is therefore contrary to the public interest.
The Royal Commission recommended that "a mechanism should
be developed which would require Commons ministers to make statements
to and deal with questions from members of the second chamber".[18]
69. We recommend that renewed consideration
be given, possibly by the Procedure Committees of the two Houses,
to the means whereby ministers sitting in either House may be
enabled to make statements to and answer questions in the other
House.
4 Erskine May, 2004 edition, p. 918. Back
5
The Procedure Committee has recently recommended that this notice
period be reduced to four weeks: see Procedure Committee, 4th
Report, 2010-11 (HL Paper 127). Back
6
Companion to the Standing Orders, 2010 edition, p. 100. Back
7
See the House of Lords Journal, vol. 151 (1919), p. 113. Back
8
Procedure Committee, 1st Report, 1942-43, debated and referred
back to the Committee on 5 May 1943. Back
9
See Procedure Committee, 1st Report, 1998-99 (HL Paper 33). Back
10
Companion, p. 61. Back
11
Companion, p. 100. Back
12
Companion, p. 98. Back
13
Companion, p. 91. Back
14
A House for the Future, report of the Royal Commission
on House of Lords Reform, Cm 4534 (2000), p. 81, recommendation
44. Back
15
The Leader of the House and Baroness Warsi, the Minister without
Portfolio. Back
16
Lord McNally, Lord Howell of Guildford and Baroness Neville-Jones. Back
17
House of Commons Procedure Committee, Accountability to the
House of Commons of Secretaries of State in the House of Lords,
3rd Report, 2009-10 (HC 496). Back
18
Op. cit., p. 81. Back
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