Outside Appointments

Keir Starmer​ has made several eye-catching appointments to his new government from outside Parliament, continuing the practice of his predecessor, Rishi Sunak, who appointed David Cameron as foreign secretary last November, making him a peer in order to do so. Many find the practice of making outside appointments constitutionally suspect. However, the constitutional issue that requires rectification isn’t so much the way in which prime ministers appoint ministers but the way in which prime ministers themselves are appointed.

Starmer has given jobs to several well-known individuals from outside Parliament. Patrick Vallance, the new minister for science, appeared regularly on the televised coronavirus updates. Jacqui Smith, the new minister for higher education, became the first female home secretary in 2007, but has not been a member of Parliament since 2010. James Timpson, the new minister for prisons, ran the high street cobblers of the same name, which is known for employing ex-offenders. Less well known are David Hanson, minister of state in the Home Office, who was MP for Delyn in North Wales for 27 years and served in a number of ministerial roles before losing his seat in 2019; and the attorney general, Richard Hermer KC, a barrister appointed from full-time practice at Matrix Chambers.

The published list of ministerial appointments included an asterisk against the outsiders’ names with a footnote recording that the king intended to confer on each a peerage for life. The footnote papered over the constitutional cracks that arise when individuals are appointed to government from outside Parliament, since it is one of the clearest and best-established constitutional conventions that ministers must be members of either the House of Commons or the House of Lords.

This convention distinguishes the UK system from presidential systems, in which government officials draw their democratic authority from the direct election of a president and are characteristically neither members of the legislature nor accountable to it (except by way of impeachment). In a parliamentary system, the government is directly accountable to Parliament. This convention is complicated by the anomalous status of the House of Lords, which almost alone among second chambers is unelected and formed predominantly of political appointees. The convention concerning ministerial appointments ensures only that ministers who aren’t already members of either house join the other political appointees in a chamber that has no democratic authority. They are not accountable to an elected chamber. Standard definitions of ‘parliamentary democracy’, such as the one provided by Lord Norton of Louth in the Oxford Companion to Comparative Politics, refer to a government ‘drawn from and regularly answerable to the elected national assembly’. The rules for ministerial appointments do not correspond to our constitutional theory.

This dissonance is increased by the fact that there is no limit to the number of people who can be plucked from outside Parliament and awarded ministerial positions, or to the seniority of the offices they can occupy. Before Cameron’s appointment as foreign secretary the last member of the House of Lords to hold one of the great offices of state was Lord Carrington, who was foreign secretary in Margaret Thatcher’s first government and had held a number of government offices before that.

Thatcher also appointed the former businessman turned government adviser David Young as minister without portfolio in 1984, but the Labour administrations of Tony Blair and Gordon Brown made much more use of the practice of outside appointments, with Brown appointing Peter Mandelson in 2008 as secretary of state for business and then in 2009 as ‘first secretary of state’, a title that was chosen instead of deputy prime minister because he sat in the House of Lords not the Commons.

In a report published in 2010, the House of Commons Public Administration Committee warned that the prime minister’s ability to appoint individuals to the House of Lords in order to allow them to become ministers ‘gives prime ministers potentially presidential powers’ but ‘without the checks and balances that would apply in a presidential system’, and suggested the practice should be ‘exceptional’. However, there is little difference between appointing ministers from outside Parliament and immediately elevating them to the Lords and selecting ministers from the political appointees already in the upper house. The only real difference – apart from the pressure placed on the vetting system operated by the House of Lords Appointments Commission – is that during the short period before a minister is appointed to the peerage they are accountable only to the prime minister, showing that it’s not quite true that the UK government is drawn from, and inseparably connected to, Parliament.

Constitutional convention also places surprisingly weak constraints on the balance of ministers sitting in the Commons and the Lords. The percentage of peers serving as ministers has remained almost exactly the same since at least 1979, with between 20 and 23 per cent of ministers drawn from the Lords. The new government looks similar. The Cabinet Manual records that ministers must be a member of one or other House, ‘with most being Members of the House of Commons’, but this is a description of a fact rather than a record of a constitutional norm. Sunak’s government, in response to a Commons Procedure Committee report on Commons scrutiny of Cameron, stated that ‘the majority of cabinet-level positions are normally held by MPs’ and that this ‘fully respects the primacy of the elected chamber and its scrutiny role’. Since less than a quarter of ministers generally sit in cabinet, the notion that a majority of these ministers being MPs would be sufficient to respect the primacy of the Commons is remarkable. While it would be politically impossible today for a prime minister to appoint a large number of peers to ministerial positions, constitutional convention does not dictate that any particular proportion must be observed.

The discretion allowed to prime ministers in selecting ministers is justified by and connected to the principle of representative democracy by the confidence reposed in the prime minister by the Commons and the need for that confidence to be retained. The fact that Lords ministers are not elected or directly accountable to an elected chamber is also mitigated by the attendance of Lords ministers before select committees, though their attendance cannot be compelled and is not equivalent to accountability to the Commons. In the last parliament, the Procedure Committee considered various ways in which the Commons could question Cameron, recommending that he regularly take questions at the bar of the House (a white line on the floor beyond which visitors may not pass while the House is in session). The most recent precedent for a member of the Lords appearing at the bar is not a close one. The Duke of Wellington appeared there in 1814 to give MPs an account of his campaign in the Peninsular War. Wellington was not in government, the occasion did not recur, and in any case, as Lord Aberdeen said, Wellington was an exception to all rules. The government rejected the Procedure Committee’s proposal on the grounds that regular questioning of the foreign secretary in the Commons wouldn’t preserve the independence of and comity between the two Houses of Parliament.

The appointment of prime ministers raises different issues. There is no doubt that, as a matter of constitutional convention, a prime minister must be appointed from the House of Commons. But there is a significant problem in the operation of this principle when a prime minister is replaced during a parliament. All of the major political parties now give their members a vote in electing a party leader, whether the party is in office or not. Historically, this was not the case. Before 1998, for instance, Conservative MPs chose the party leader. Modern practice is thought to be more ‘democratic’ within the party organisations. But since the objective of political parties is to exercise public power through elected office their rules intersect with the constitution and must be consistent with it. The inconsistency between the rules for electing a new leader of the Conservative Party and constitutional principles were exposed following the mid-term resignation of Boris Johnson on 7 July 2022. In his resignation speech, Johnson said it was the ‘will of the parliamentary Conservative Party that there should be a new leader of that party and therefore a new prime minister’. This triggered an election campaign which, on 5 September 2022, resulted in the election of Liz Truss. She was appointed by the queen as prime minister the following day.

The conspicuous failure of the Truss ministry has distracted attention from the failure of the process that led to it. In the first place the voting period, in which an initial eleven candidates were whittled down to two, whose candidacies were then put to the party membership, was far too lengthy. For two months, government was effectively suspended, in much the same way that it is during a general election campaign. It was good fortune that the election coincided with the summer recess and a brief hiatus in international crises, or the consequences of this extended election process could have been seriously damaging to the public interest.

As it was, we were subjected to a summer-long spectacle of political infighting, as the candidates attacked their own party’s record in office in an effort to gain control of its substantial Commons majority. The media coverage was unremitting and there were four televised debates. But only 172,000 people were entitled to vote in the mini general election. A tiny fraction of the electorate had a vastly disproportionate influence over the country’s future.

The more significant problem is, however, the manner in which the rules undermined constitutional convention. As the Cabinet Manual states, the monarch shall appoint as prime minister ‘the person who appears most likely to be able to command the confidence of the House’. In this case, that person was Rishi Sunak, who won each round of votes by MPs. He was, as events subsequently showed, the person whom MPs, left to themselves, would have selected. Yet in the final head-to-head between Sunak and Truss, in which party members voted, Truss was elected. MPs were in essence bound by contract with party members to act as though their confidence was reposed in Truss, when in fact she was not the person most likely to command the confidence of the Commons.

The leadership candidates took increasingly radical policy positions to satisfy party members who were suddenly in a position to dictate national policy. In Truss’s case these were an unstable concoction of uncosted tax cuts and large-scale borrowing, policies which, she claimed, constituted a mandate when she was appointed. Her chancellor, Kwasi Kwarteng, announced a mini budget on 23 September; a week later 40 per cent of mortgage products had been withdrawn from the UK market and the value of the pound was as low against the dollar as it has ever been. Truss resigned under pressure from Tory MPs, stating that she could not deliver the ‘mandate on which she was elected’. But the only constitutionally relevant mandate was the one won in the 2019 general election by Johnson. The idea that she had a mandate for her policies was an illusion, a product of the presidential-style mock general election process in which the Conservative Party elected its leader.

The breadth of prime ministerial power to choose ministers is justified on the principle that the prime minister is the person who commands the confidence of the Commons. However, if party members rather than MPs have chosen a parliamentary party leader and this has occurred mid-term, that prerogative has no firm democratic basis. Imagine if Truss’s mini manifesto had included packing her government with ministers selected from party members, Tory donors and supportive ‘experts’. Truss would have claimed a mandate, but the democratic basis for such a government would have been very slender. After her resignation, Conservative Party MPs sensibly agreed not to challenge Sunak’s candidacy, thus avoiding the requirement for another popular vote. In all but form, they reverted to the practice of choosing a leader among themselves. We have learned how not to appoint a prime minister.