House of Lords - Constitutional implications of coalition government

Constitutional implications of coalition government - Constitution Committee Contents

CHAPTER 4: OPERATION OF GOVERNMENT AND PARLIAMENT UNDER COALITION

61. In this chapter we examine how coalition government operates in practice. We consider in particular the convention of collective ministerial responsibility, the process for reaching collective agreement, the process for appointing ministers and how having a coalition government affects the House of Lords. Although many of the examples cited in this chapter occurred in the current coalition, our conclusions and recommendations also apply to any future coalition government.

Collective ministerial responsibility

62. At the core of the convention of collective ministerial responsibility is that the government collectively accounts to Parliament for its policies, decisions and actions. The convention developed in the 18th century as a means of preventing royal interference with the business of government; by presenting a united face the government prevented the monarch from reacting to unfavourable policies by singling out ministers for condemnation. Since then collective responsibility has developed and is viewed by many as in practice requiring the government to present a collective front to the public and the media.[64]

63. There are two sides to how the convention operates. First, it involves government policy being developed collectively—that is, in cabinet committees and, for important decisions, in the Cabinet itself—using established processes. The convention traditionally is thought to require discussions on policy formulation to be confidential, such that ministers can express their views frankly and test the robustness of a policy proposal. The second side to the convention is that, once a decision is reached, it is binding on and supported by all ministers.[65] This means that ministers must speak and vote in favour of the policy in Parliament, and must not dissent from it publicly. A minister who feels unable to support government in a policy or decision is normally expected to resign. This convention has been under strain in the recent past.

64. Collective responsibility features in the Ministerial Code[66] and the Cabinet Manual.[67] The Coalition agreement for stability and reform, drawn up in May 2010, sets out how collective responsibility applies currently:

"2.1 The principle of collective responsibility, save where it is explicitly set aside, continues to apply to all Government Ministers. This requires:

(a) an appropriate degree of consultation and discussion among Ministers to provide the opportunity for them to express their views frankly as decisions are reached, and to ensure the support of all Ministers;

(b) the opinions expressed and advice offered within Government to remain private;

(d) full use being made of the Cabinet Committee system and application of the mechanisms for sharing information and resolving disputes set out in this document.

There are certain standard exceptions to the principle of consultation—the Chancellor's Budget judgements, quasi-judicial decisions and opinions of the Law Officers in particular. Budget judgements will require consultation with the Chief Secretary; when the Prime Minister is consulted the Deputy Prime Minister should also be consulted."

65. It is notable that the principle of collective responsibility has been considered sufficiently important and conducive to good government that it has been followed scrupulously by the devolved administrations in Scotland and Wales—in both single-party and coalition governments.[68] In Scotland, the relationship between Cabinet collective responsibility and access to information is explicitly recognised in the Scottish Ministerial Code and in its own guide to collective decision-making:

66. The convention of collective responsibility is constitutionally important for two main reasons. First, the process of collective decision-making within government makes it more likely that better decisions are reached. The need to consult and compromise means that policy can be more nuanced or better crafted. The second reason is that it enables Parliament to hold the government as a whole responsible for its policies, decisions and actions. Ministers cannot absolve themselves of responsibility for a policy by claiming other ministers decided it. So when, for example, a minister is being questioned in Parliament, Parliament can expect to be informed of the agreed government position. Collective responsibility also imbues a government (and, indeed, Parliament) with authority; when the discipline it imposes is departed from, that authority is undermined.

67. The operation of collective responsibility has ancillary benefits. It means, at least in theory, that the government speaks with one voice to the public and the media, thus preventing accusations of being divided. It requires governments to act as a team. It means that, when a decision has been reached, the civil service (and others affected) can go about implementing it safe in the knowledge that the decision will not be reversed unless there is a collective decision to do so.[70] It also means that the monarch can act on ministerial advice knowing that the advice represents the collective view of the government. The convention has been broadly adhered to by single-party governments, although it is not unknown for policy differences between ministers to be expressed publicly.[71]

AGREEMENTS TO DIFFER

68. The Ministerial Code, Cabinet Manual and Coalition agreement for stability and reform all state that the principle of collective responsibility applies "save where it is explicitly set aside". Before 2010 there had been three occasions when collective responsibility was formally set aside—known as agreements to differ. The first was in 1931 over tariff reform, when there was a coalition government. The second was in 1975 during the referendum campaign on membership of the (then) European Economic Community, when the Labour government agreed that ministers could, outside Parliament, argue against the government position. The third was in 1977, when the Labour government agreed that ministers could vote in Parliament against legislation creating direct elections to the European Parliament. On all three occasions the Cabinet collectively agreed that collective responsibility should be set aside in respect of the particular issue.

69. The current Government's Programme for government specified five areas where the parties to the coalition might adopt different positions:

· the AV referendum (both parties would be whipped to support the bill for a referendum, "without prejudice to the positions parties will take during such a referendum");

· university funding (arrangements would be made for Liberal Democrat MPs to abstain, if the Government's response to Lord Browne of Madingley's report was one the party could not accept);

· the renewal of Trident ("Liberal Democrats will continue to make the case for alternatives");

· nuclear power (the Programme provided for a Liberal Democrat spokesman to speak against the relevant National Planning Statement, but for Liberal Democrat MPs to abstain); and

· a tax allowance for married couples (where provision would be made for Liberal Democrat MPs to abstain on the relevant budget resolutions).

DEPARTURES FROM COLLECTIVE RESPONSIBILITY IN THE CURRENT PARLIAMENT

70. Arguably the most contentious departure from collective responsibility without a formal agreement to differ in the current Parliament occurred in early 2013, when Conservative and Liberal Democrat parliamentarians, including ministers, voted in opposite lobbies on an amendment to the Electoral Registration and Administration Bill. The amendment delayed the review of parliamentary constituency boundaries that was due to occur under the Parliamentary Voting System and Constituencies Act 2011—a policy that was in the coalition agreement. The Deputy Prime Minister had announced in summer 2012 that he would instruct Liberal Democrats to vote against the boundary review after the House of Lords Reform Bill was withdrawn due to an apparent inability to obtain a Commons majority for a programme motion on it. The decision by the Deputy Prime Minister to support the amendment was not taken by the Government collectively.

71. This issue arouses strong opinions. David Laws MP, a Minister of State at the Cabinet Office, explained to us that where parties make agreements and one side of the coalition then diverts from those agreements, "that can have consequences for other areas of agreement. That is what we saw in the Lords [reform] versus boundaries issue ... I do not think either coalition party would say that the other can simply walk away from serious commitments made during the coalition talks without there being consequences."[72] Lord Strathclyde, the Leader of the House of Lords from 2010-13, described the decision to delay the boundary review as "an outrage ... extraordinary behaviour."[73] He thought that the coalition agreement had been that the boundary review would take place in return for there being a referendum on introducing the Alternative Vote: "To see this stymied, pulling the rug away from us at the last moment ... was a terrible and dirty trick. I am trying to find the right words to describe it; 'dirty trick' does not quite emphasise it strongly enough."[74] Lord Falconer of Thoroton said:

We do not seek to arbitrate between these views; we merely note that this was a high-profile and significant departure from the convention of collective responsibility. No minister resigned over the matter; nor, as we understand it, did the Prime Minister ask any minister to resign.

72. There have been other occasions where ministers from the two coalition parties have expressed different views. For example, on the day that the Leveson report was published in 2012, the Prime Minister and the Deputy Prime Minister made separate statements in the House of Commons in response to it. In that case, there was no collective government position on how to respond to the report, so it may be thought that the convention of collective responsibility did not apply.[76]

73. In the debate on the Queen's Speech in 2013, Conservative MPs tabled an amendment regretting "that an EU referendum Bill was not included in the Gracious Speech".[77] This was the first time since 1946 that MPs from a government party had tabled an amendment to the Address in reply to the Queen's Speech, expressing their disagreement with the Government's position.[78] When the amendment was put to a division, the Prime Minister gave Conservative MPs a free vote on it, effectively allowing members of the Government to vote against the collective position set out in the Speech. In the event, 116 Conservative MPs voted for the amendment and only one voted against it; the amendment was defeated by 277 votes to 130; no Conservative ministers voted in the division, but several parliamentary private secretaries voted for the amendment.[79] Dr Stephen Barber, Reader in Public Policy at London South Bank University, said that, "the acquiescence by the Prime Minister to allow ministers to vote 'against' provisions in the Queen's Speech ... is constitutionally more serious" than the division between coalition partners over the boundary review amendment to the Electoral Registration and Administration Bill.[80] This is because of the role of the Queen's Speech as a vote of confidence in the Government (albeit the Fixed-term Parliaments Act 2011 means it could not now itself prompt an early election); previously any minister who declined to support the government on the Queen's Speech would have been expected to resign.

74. In other instances, senior ministers in both parties have expressed differing views over matters such as immigration from the European Union, the European Court of Human Rights, future welfare reform and proposals for a "mansion tax". In some of those cases ministers were setting out policies of their parties (as distinct from the Government), with the objective of indicating the likely programme of that party in future parliaments.

75. Our witnesses were united in believing that collective responsibility should apply in coalition governments.[81] There was a consensus that departures from collective responsibility should be rare and should only take place after a process had been followed. However, almost all witnesses recognised that the two parties would from time to time seek to distinguish themselves to the electorate.

76. Lord Falconer of Thoroton thought that departures from collective responsibility weaken "the authority of the Prime Minister and the Government. It makes members of the Government think not 'What is best for the Government?', but 'What is best for my faction or me in the Government.' That is hugely damaging."[82] Dr Felicity Matthews, Lecturer in Governance and Public Policy at the University of Sheffield, thought that the specific issues for which collective responsibility would be set aside should be clearly specified and agreed in advance. She said the "ad hoc suspension of collective responsibility erodes stability".[83] Dr Andrew Blick said that the setting aside of collective responsibility "should not be treated as though [it is] a permanently available option ... There is a real danger that suspensions of collective responsibility could come to be regarded as the easier alternative to difficult policy discussions."[84] Instead, he argued they should be used only when every other possible means of reaching collective agreement had been exhausted; at that point the Cabinet as a whole should agree to differ, with the setting aside of collective responsibility time-limited and ministers bound by clear rules as to how they expressed their views.[85]

77. Collective responsibility has served our constitution well. It promotes collective decision-making and ensures Parliament is able to hold the Government effectively to account for its actions, policies and decisions. It should continue to apply when there is a coalition government.

78. We recognise that the parties in a coalition government will not automatically agree on everything; from time to time they will differ. However, it is incumbent on ministers to seek to reach a collective view on issues wherever possible. Having reached a collective view, it is essential that they can be held to account for it. Given its constitutional importance, the setting aside of the convention of collective responsibility should be rare, and only ever a last resort.

79. Where it is clear that no collective position can be reached on an issue, a proper process should be in place to govern any setting aside of collective responsibility. Such setting aside should be agreed by the Cabinet as a whole and be in respect of a specific issue. Ordinarily it would be for a specified period of time; rules should be set out by the Prime Minister governing how ministers may express their differing views. This process should be drawn up by the Prime Minister and Deputy Prime Minister for the remainder of this Parliament, and should be set out in future coalition agreements.

Cabinet committees and the Quad

80. When the coalition Government came into office, arrangements were put into place to ensure that there were formal processes for collectively agreeing policy between the parties. As regards the establishment of cabinet committees, their membership and terms of reference were agreed jointly by the Prime Minister and the Deputy Prime Minister. The chairs and deputy chairs of cabinet committees would always be from separate parties. The Prime Minister and the Deputy Prime Minister would both have a full and contemporaneous overview of the business of government, with each having the power to commission papers from the Cabinet Secretariat.

81. A Coalition Committee was also established. This is a cabinet committee composed of six Conservative ministers and six Liberal Democrat ministers. Its terms of reference are to manage the business and priorities of the Government, and to oversee implementation of the coalition agreement. The chair or deputy chair of any cabinet committee has a right to refer an issue to the Coalition Committee. Thus it was envisaged that the Coalition Committee would be the main forum for resolving disputes between the parties. To that end Oliver Letwin MP assumed that it would meet frequently.[86]

82. In fact the Coalition Committee has reportedly met only twice.[87] That is largely because its role has been displaced by the Quad—the informal name for meetings between the Prime Minister, Deputy Prime Minister, Chancellor of the Exchequer and Chief Secretary to the Treasury. David Laws described the Quad "almost as an inner Cabinet ... [sorting] out many of the thorniest issues."[88] The Quad is, where appropriate, supplemented by other ministers; and it sits alongside more routine bilateral meetings between the centre of government and departments. It has, though, been criticised as the coalition version of "sofa government".[89]

Ministerial appointments

83. Ministers are appointed by the Queen, acting on the royal prerogative following the advice of the Prime Minister. Under single-party government the Prime Minister has complete discretion over which parliamentarians he or she makes ministers, and when they are dismissed; the constraints are political considerations within the governing party. Under a coalition, the Prime Minister's powers in this area are openly constrained by the "dual" leadership of the Government.[90] This "dual" leadership is unusual, as deputy prime ministers (when the position has been filled at all) have tended also to hold other Cabinet-level portfolios rather than having a cross-government remit and chairing cabinet committees.[91] By contrast the Coalition agreement on stability and reform sets out that "the Prime Minister and Deputy Prime Minister should have a full and contemporaneous overview of the business of Government."[92] The current Deputy Prime Minister therefore has a formal role far beyond that held by his predecessors in single-party governments. It remains to be seen whether this precedent will influence the position of future deputy prime ministers in other governments.

84. The initial allocation of ministerial portfolios in 2010 was agreed between the Prime Minister and the Deputy Prime Minister. This took place after the coalition had been formed and the initial coalition agreement drawn up. David Laws MP told us that a lesson of coalition-forming from Scotland and elsewhere was that policy should be agreed before the apportionment of jobs, as otherwise negotiators "might be tainted by which party was offering them the plummiest job."[93] Ministerial positions were allocated in approximate proportion to the sizes of the two parliamentary parties in the House of Commons.

85. The Coalition agreement for stability and reform provided that future allocations of ministerial posts would be based on that proportion, and that the Prime Minister would nominate Conservative ministers and the Deputy Prime Minister Liberal Democrat ministers. Any changes to the allocation of portfolios between the parties must be agreed between the Prime Minister and the Deputy Prime Minister, and no Liberal Democrat minister could be removed without "full consultation" with the Deputy Prime Minister.[94]

86. In most departments there is a mix of Liberal Democrat and Conservative ministers. When the coalition was first formed there were five departments with no Liberal Democrat ministers; now there are three. David Laws MP told us that the Liberal Democrats had made an active decision to pursue breadth of ministerial representation across departments rather than depth: he said that to have focused ministers in a handful of departments would be "to colonise bits of a government and ... be very detached from other areas. If we had been detached from major departments such as the Treasury, there would have been much more risk of the coalition parties parting company".[95]

87. There have been anecdotal examples of a secretary of state being unhappy with the appointment of a junior minister from another party in his or her department.[96] However, we were told that this has happened in single-party governments, and usually takes place for political reasons.[97] Although it may seem courteous and conducive to harmonious working to consult a secretary of state before moving a junior minister into his or her department, the constitutional position is that it is for the Prime Minister to decide which ministers are appointed in which departments.

88. It is clear that the powers of a Prime Minister to make and dismiss ministers under a coalition are significantly constrained. The Coalition agreement for stability and reform provides that the ultimate advice to the Queen on who to appoint or dismiss still comes from the Prime Minister. That is in keeping with constitutional practice. Other arrangements for appointing ministers are more a matter of politics than of constitutional principle.

The House of Lords

89. The existence of a coalition government affects the way that the House of Lords functions. In recent years no political party has had a majority of members of the House as a whole, or of the party-political members. Currently, Conservative and Liberal Democrat peers combined have a majority of party-political peers[98] but not an overall majority in the House when the non-affiliated members and the Crossbench peers are included.[99] This is particularly significant due to the influence of Crossbenchers. Baroness Royall of Blaisdon, the Leader of the Opposition in the House of Lords, told us of her concern that the existence of a political majority for the Government in the House of Lords meant that it potentially "is now a House that simply rubber stamps the programme of the Government", rather than revising and scrutinising legislation.[100] This has not always been borne out by recent by recent experience.[101]

90. Lord Strathclyde anticipated before the 2010 election that he might be the Leader of the House in a government with a small majority in the Commons, and that his life "would be extremely difficult." In the event, he thought that having a coalition made the job in the Lords "marginally easier, although the House of Lords adjusted in order to take coalition into account and remained as effective as it always has been."[102] Professor Hazell observed that the House of Lords was a chamber in which governments of any party did not have a majority, "so it is used to the fact that the government has to construct a coalition of support for each bill."[103]

91. There are currently 26 ministers and whips in the Lords. Of these, seven are Liberal Democrats. There is only one member of the Lords in the Cabinet (the Leader of the House), though another member of the Lords attends Cabinet.[104] There has been a gradual increase in the number of peers in government posts over the last 35 years, though this is concomitant with an increase in the overall number of ministers.[105] There is a statutory limit on the number of ministerial salaries[106] and nearly a third of ministers who are peers (eight out of 26) are unpaid. There are only three ministers of state in the Lords—fewer than at any time in the last 35 years. Lord Strathclyde said he had hoped that there would be an adjustment to the lack of senior ministers in the Lords over the course of the Parliament—in fact there has been a decline.[107]

92. The relative lack of senior ministers in the House of Lords has two main consequences. First, it means that ministers taking business through the Lords often lack autonomy to take decisions in response to concerns expressed by the House. Instead they have to go up the ministerial hierarchy before securing a change of policy. Secondly, it means that the voice of the House of Lords within departments, the Cabinet and the government as a whole is lessened. We regret the decline in the number of senior ministers in the House of Lords under the coalition Government.

THE HOUSE OF LORDS AND THE COALITION PROGRAMME

93. The Salisbury-Addison convention is the name given to an understanding reached in 1945 between the then Leader of the House, Viscount Addison, and the then Leader of the Opposition, Viscount Cranborne (later the fifth Marquess of Salisbury). It provided that the House of Lords would not block government bills which implemented a commitment made in the Labour party's manifesto at the 1945 election. Labour won that election with a majority of 156; Conservative peers had a significant majority amongst those members of the Lords who took a party whip.

94. In 2006 the Joint Committee on Conventions noted that the Salisbury-Addison convention had been largely observed since 1945 and concluded that it had evolved in such a way that in the House of Lords a manifesto bill is accorded a second reading, is not subject to "wrecking amendments" and is passed and sent (or returned) to the House of Commons in reasonable time.[108]

95. Between 1945, when the convention was formulated, and 2010 there was no coalition government. Now that there is, questions arise as to whether the convention applies; and if so in what form. It cannot be said that any one party's manifesto has been given a mandate through that party getting a majority. Nor is it axiomatic that the coalition agreement can be considered a substitute for a manifesto in considering whether the convention should apply to any particular measure: in the words of Viscount Cranborne in 1945, the understanding applied to those measures which have been "definitely put before the electorate".

96. Shortly after the general election, Baroness Royall of Blaisdon expressed her view that the convention did not apply to the coalition agreement. The then Leader of the House argued that it did, because the agreement had the support of a majority in the House of Commons, and most of the measures in it were in the respective manifestos.[109] In evidence to us Lady Royall stated that the convention did not apply to a measure such as the Health and Social Care Bill, because it was neither in the coalition agreement nor the parties' manifestos. However, she did not question the existence of the convention generally, and said that it would be important in future in enabling governments with a mandate to get their legislation through.[110]

97. Several witnesses drew attention to the practice noted by the Joint Committee on Conventions whereby the House of Lords will usually give a second reading to any government bill.[111] Professor Hazell said that "the convention has come to apply to all bills, and not just to bills mentioned in manifestos ... in allowing government bills a second reading, the Lords are acknowledging the democratic legitimacy of the elected chamber."[112] Lord Norton of Louth also acknowledged the development of the convention in that way,[113] as did Lord Falconer of Thoroton.[114] It follows that this practice applies to governments of whatever form.

98. We conclude that the Salisbury-Addison convention—whereby bills foreshadowed in a government's manifesto are given a second reading in the Lords, are not subject to wrecking amendments and are passed in reasonable time—does not, strictly speaking, apply to measures in a coalition agreement. This is because a coalition agreement cannot be said to have a mandate from the electorate in the way that a manifesto can.

99. However, if all parties in a coalition made the same or a substantially similar commitment in their manifestos, then they should be entitled to the benefit of the Salisbury-Addison convention in respect of that commitment.

100. We recognise that a practice has evolved that the House of Lords does not normally block government bills, whether they are in a manifesto or not. There is no reason why this practice should not apply when there is a coalition government.

64 Q23. Back

65 The Ministerial Code provides that collective responsibility also extends to parliamentary private secretaries (PPSs) to the extent that they are expected to support the government in all important divisions in Parliament, and that any PPS who votes against the government cannot retain his or her position (para 3.9). Back

66 May 2010, paras 1.2.a and 2.3-2.4. Back

67 1st edition (October 2011), paras 4.1-4.4. Back

68 Q107. Back

69 The Scottish Executive: a guide to collective decision-making, June 2002, para 1.2. Back

70 Q121. Back

71 Q23. Back

72 QQ47-48. Back

73 Q83. Back

74 Q83. Back

75 Q127. Back