Select Committee on Speakership of the House First Report

REPORT

18 NOVEMBER 2003

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By the Select Committee appointed to consider the future arrangements for the Speakership of the House in the light of the Government's announcement that it is intended to reform the office of Lord Chancellor, and to make recommendations.

ORDERED TO REPORT

THE SPEAKERSHIP OF THE HOUSE OF LORDS

Introduction

1. We were appointed by the House on 9 July 2003 and asked to report by the end of the session. Our terms of reference required us "to consider the future arrangements for the Speakership of the House in the light of the Government's announcement that it is intended to reform the office of Lord Chancellor".

2. Our appointment arose from the Prime Minister's announcement, in a press release on 12 June 2003, that "the post of Lord Chancellor" would be abolished. This was followed by two statements by the then Leader of the House, the late Lord Williams of Mostyn, on 16 and 25 June. In the second statement he announced his proposal to set up this Committee.

3. On 18 September the Lord Chancellor, Lord Falconer of Thoroton, made a further statement accompanying the publication of two consultation papers. One of these related to the office of Lord Chancellor.[1]

4. Our terms of reference refer to the Government's intention to "reform the Office of Lord Chancellor". But the press announcement on 12 June 2003 and the first sentence of the Lord Chancellor's foreword to the consultation paper refer to the "abolition" of the Office of Lord Chancellor, and this was the line which he took in oral evidence (Q 4). In view of this ambiguity there are those who argue that the whole exercise is premature, and that we should wait until the legislation is on the statute book, or at least until the Government's intentions have been clarified (for example Lord Strathclyde (QQ 119 and 135) and Lord Craig of Radley (QQ 153 and 160)). But this is not our reading of the debate which took place on the motion to set up the Select Committee on 3 July 2003.

5. Obviously we cannot predict the outcome of the proposed legislation, and even if we could, it would fall outside our terms of reference. Still less should we express any view on the merits. Since we have been instructed to report by the end of the session, we can make progress only by making an assumption. The assumption we have made is that the office of Lord Chancellor will indeed be abolished. If that assumption proves to be incorrect, then the House will have to think again. In the meantime the Lord Chancellor has indicated that until the office of Lord Chancellor has been abolished he will continue to fulfil the role of Speaker, under Standing Order 18, so long as the House so wishes (Q 4):

"If the House of Lords wishes me to remain until then - and I believe it is a matter for the Lords rather than for the legislation as to how long I remain Speaker - I will, as best I can, perform that function. I should say - and I think this has been made clear by me as well - I hope that the Lords would feel able to make different arrangements to allow me to cease to be Speaker, but that is a matter for the Lords, not a matter for me. I make it clear I will go on doing the job of Speaker of the House of Lords for as long as the House of Lords want me to do it. Again, I make it clear my own personal view is that, subject to proper alternative arrangements being made, it would facilitate other things that I do if I cease to be Speaker but, as I say, that is a matter for the Lords."

Evidence

6. We invited views in writing from Members of the House. We had some 60 replies. We also held four meetings at which we heard oral evidence. The names of those giving written and oral evidence are set out in Appendix 1.

7. The overriding theme which has emerged consistently from all the evidence is that the House wants to continue with self-regulation. It has served the House well in the past, and will, Members believe, continue to serve us well in the future despite any foreseeable changes in the make-up of the House. Thus it is clear that the House does not want a Commons-type Speaker. The responsibility for maintaining order must continue to rest with the House as a whole. But as there are other aspects of self-regulation, we start with a consideration of what self-regulation means in practice.

Self-Regulation

8. The Companion to the Standing Orders describes self-regulation as follows:

"The House is self-regulating: the Lord Speaker has no power to rule on matters of order. In practice this means that the preservation of order and the maintenance of the rules of debate are the responsibility of the House itself, that is, of all the Members who are present, and any Member may draw attention to breaches of order or failures to observe customs."[2]

On three occasions since 1971, Working Groups have examined the concept of self-regulation.

9. In 1971 a Group on the Working of the House, under the chairmanship of Lord Aberdare,[3] commented as follows:

"Self-Government

During our deliberations we have repeatedly been reminded of the fact that the House of Lords is a unique institution in that all its members are equal and that there exist no powers of control by the Speaker.…

While the Leader of the House has a responsibility for reminding the House of the rules, the exercise of his office demands great tact lest he should over-step the mark and act as something more than the first among equals. The fact that the Leader is a Cabinet Minister and a member of the governing Party means that his role is obviously a delicate one, especially when matters of party-political controversy are under discussion. We would therefore stress that it is for all members of the House to see that its procedures are followed….

The Case Against an Effective Speakership

A few Peers, mainly ex-MPs, have suggested that the time has come for there to be an effective Speaker of the House of Lords. We consider that there are the most powerful reasons against this. The large majority of those who offered evidence are not in favour of such a change at present….

The "sense of the House" is the decisive factor in the conduct of our business, and in the main this works well."

10. Seventeen years later, in 1987, another Group on the Working of the House, again chaired by Lord Aberdare,[4] commented:

"The House has the power to make a fundamental change in its customary way of proceeding, by replacing the present system of self-regulation with a Speaker possessing effective powers: this would, at once, enable a number of restrictive measures to be taken to expedite business, as in the Commons.

The case for a Speaker with controlling powers received virtually no support and was argued by only one Peer, who believed it less surprising that the system was flawed than that it worked at all …

The overwhelming majority of the House opposed the introduction of a Speaker with controlling powers….

For most, the reasons against such a change are positive; Peers have pride in our system of self-regulation and the "liberal spirit" it embodies. The introduction of a Speakership with powers would encourage time-wasting points of order, worsen conduct, and curtail the ancient liberties of the House."

11. Finally in 1999 the operation of self-regulation was considered by a Group chaired by Baroness Hilton of Eggardon.[5] We quote two paragraphs from their valuable report:

"7. Procedure in the Chamber has traditionally been marked by a degree of courtesy, good manners and good will across the various political divides, which is rare in parliamentary proceedings. This may be due partly to the role and composition of the House, which enable us to stand back a little from the rough-and-tumble of party politics; if these were to change, the style of the House might well change too. In the meantime, however, we have been asked to consider whether the traditional courtesies can be better maintained. We believe that they can; we believe that the House should be proud of its capacity to conduct good politics with good manners, and should do its best to continue to set an example in this way. We make recommendations accordingly …

8. Courtesy should not be seen as an optional extra. Without a high degree of courtesy and self-restraint, self-regulation will become unworkable, and the freedoms which enable the House to do its job will be forfeit."

12. There are many aspects of self-regulation which distinguish the procedure in the House of Lords from the procedure in the House of Commons. The most important of these are as follows:

(a)  Lords address the House, not the Woolsack.

(b)  The Lord Speaker (we return later to the question of the title) has no power to rule on points of order.

(c)  The Lord Speaker has no power to call on Lords to speak in debates. In theory the House decides whom it wishes to hear. In practice a list of speakers is usually determined through the "usual channels".

(d)  There is no selection of amendments; all are debated unless not moved.

(e)  The Lord Speaker has no power to adjudicate at question time when two or more Members rise together, and neither gives way. This is a matter for the House, advised when necessary by the Leader of the House, or in her absence by the Deputy Leader or Chief Whip.

(f)  The Lord Speaker has no power to intervene if a Member speaks too long in a time-limited debate, or comments at undue length on a Ministerial Statement, or strays from the point or is repetitious. These are matters for the House as a whole, again advised as necessary by the Leader, the Deputy Leader or a Government Whip.

(g)  The Lord Speaker has no power to rule on Private Notice Questions. The initial decision is taken by the Leader of the House, but subject to the wishes of the House as a whole.

13. Thus it is true to say that virtually the only power of the Lord Speaker is to bring time-limited debates to an end at the appropriate time.[6]

14. The question which now arises on the evidence is whether any of the very limited functions currently performed by the Leader, the Deputy Leader or a Government Whip on behalf of the House (see paragraph 12(e), (f) and (g) above) could usefully be transferred to the new Speaker. Before coming to the details, we should make certain more general observations as to how we see the office of Speaker.

The Office of Speaker

15. In the course of his oral evidence, the late Lord Williams of Mostyn said (Q 29):

"I would see that the new Speaker or Deputy Speakers would have fundamentally two responsibilities. One, to be the guardian of the ethos of this place and, two, to be the guardian - if it does not sound too pompous - of The Companion. Now at the moment at question time it is for me, subject of course to the House's wishes, to select the speakers on supplementary questions. I literally keep a list, as you know, and write down the parties but, of course, sometimes one has a very senior member of the Conservative Party and a relatively new member of another party, and it is sometimes rather invidious. I do not think I should be doing that - although I enjoy doing it I have to say - I think the Speaker should be doing that….

I think to be the guardian of The Companion it seems to me is perfectly proper. Now I have had complaints recently, and they may well be justified, that the Whips on either side do not discharge their duty vigorously enough at the moment, but sometimes that is just a matter of courtesy. A very junior Whip on either front bench is very reluctant to say something to someone who has been here 30 or 40 years. Those types of things, I think, are in the overall context of self-regulation, and the person chosen to do this work would be chosen because he or she was capable of working in the spirit developing from but consistent with the way we choose to work."

16. We agree with Lord Williams of Mostyn that the Speaker should be seen as the guardian of the Companion. We regard this as a helpful approach, provided always that he exercises such functions as he may be given with a lightness of touch, and subject always to the wishes of the House, to which he must be sensitive. In the report of the Aberdare Group in 1987 the procedural role of the Leader was described as being "compatible with and not injurious to self-regulation". We would say the same about the Speaker, who should be seen not as an alternative to self-regulation but as an essential part of it. Thus the question is not a choice between regulation and self-regulation. Nobody from whom we have heard supports regulation. The question is how we make self-regulation effective.

17. We will come back later to other functions which the Speaker might perform, such as representing the House abroad, receiving and entertaining overseas dignitaries, and, most important, looking after new Members and helping them to learn the customs and traditions of the House. The Lord Chancellor has not always been able to perform these functions, because of the multitude of his other duties. We see great scope here for expanding the role of Speaker, in order to help the smooth running of the House at home, and to be a worthy representative of the House abroad. For all these purposes the Speaker will need to be a person of considerable stature. The point was well put by Lord Lucas, that the Speaker should be seen as a person of "great influence but few real powers". We would only question whether "powers" is the right word. We see the role as one of performing functions rather than exercising powers.

18. Baroness Boothroyd and Lord Weatherill were both of the view that, once elected, the Speaker should give up party politics for life (QQ 57 and 105). We agree.

Functions within the Chamber

Private Notice Questions

19. There seems to be widespread agreement that the decision to allow Private Notice Questions should not be taken by the Leader since they are often politically sensitive, especially at times when the House of Commons is not sitting. That was the strongly held view of Lord Williams of Mostyn (Q 29).[7] We agree. Nor are Private Notice Questions suitable for the usual channels. The role of the Leader should therefore be given to the new Speaker. If the decision is challenged then it would be for the House to decide, as now (see paragraph 4.99 of the Companion).

Question Time

20. Supplementary questions during Question Time, when two (or more) Members rise together, and neither gives way, raise a different problem. As already mentioned, Lord Williams of Mostyn was in favour of transferring his limited functions at Question Time to the Speaker. He found it at times rather invidious to choose between "a very senior member of the Conservative Party and a relatively new member of another party," (Q 29). This view was supported by about fifteen of those who replied to our letter, and by Baroness Boothroyd (Q 78) and Baroness Williams of Crosby (QQ 144 and 152) among those who gave oral evidence.

21. The contrary view was expressed by Lord Strathclyde in oral evidence (QQ 122 and 130) and by Lords Chalfont and Chadlington in written evidence with which 16 other Members expressly agreed. Many others expressed the same view in individual replies.

22. The arguments in favour of some of the functions performed by the Leader, the Deputy Leader or the Whips being transferred to the new Speaker are as follows:

(a)  Choosing among those seeking to ask a supplementary question can be difficult in the Leader's position on the front bench, especially when two or more Members rise behind her. The Speaker has the best view of the House as a whole.

(b)  When the House is in a fractious mood, choosing the next question can be "invidious", to use Lord Williams of Mostyn's word. It is therefore better that the choice should be made by an experienced Speaker from the Woolsack.

(c)  When, later in the day, difficulties arise in debates or proceedings on bills, it may fall to an inexperienced Government Whip to advise the House. Again, it is best that the task should fall to an experienced Speaker or deputy.

(d)  If we are to get a person of stature to serve as Speaker, and if he is to earn the respect of the House, he must be seen to perform at least some functions in the Chamber.

23. Arguments put to us against the Speaker being given any of the Leader's functions, other than in relation to Private Notice Questions, are as follows:

(a)  The existing system works well. There is no need to change it at a time when so much else is being changed.

(b)  The Leader is well placed to receive advice from the Table, unlike a Speaker on the Woolsack.

(c)  If the Speaker is given any functions at all, Members will be quick to push their luck, instead of exercising self-restraint. This was one of the points made strongly by Lords Chalfont and Chadlington.

(d)  If the Speaker is given any functions at all, they are likely to increase over time, thus diminishing self-regulation.

24. Our own view is that the transfer of the Leader's limited functions at Question Time would be in the best interests of the House in securing a suitable candidate to fulfil the role of Speaker, and would be fully consistent with self-regulation. We were much influenced by the evidence of Lord Williams of Mostyn in this respect. We do not share the view that so limited a change would prove to be the thin end of the wedge, provided always the House remains alert to any further changes in the future. Nor are we so pessimistic as to believe that the House will forget the traditional courtesies that have, by and large, prevailed until now. But this again depends on the Whips and other senior Members of the House playing their part in upholding those traditions (see Lord Brabazon of Tara at Q 195).

25. We are not in favour of the Speaker calling members by name. Rather, he should ensure that questions come from each of the parties in turn, including the Crossbenches and Bishops, by saying "I think it is the turn of [say] the Liberal Democrats", or words to that effect. Where two Members of the same party rise at the same time the choice should not be made by the Speaker, but by the House or the front bench of the party in question.

Other functions as guardian of the Companion

26. Should the Speaker be allowed to intervene on other occasions, for example if a Member is speaking on the wrong amendment, or overruns his time in a time-limited debate, or strays too far from the point? This is largely a question of degree and "feel". When, as occasionally happens, the House gets into a muddle as to which amendment is being debated, we see nothing wrong with gentle guidance from the Speaker. The same applies if a Member grossly overruns his time, or if a Government reply is much too long, since this all tends to reduce the time available to other Members (see Lord Brabazon of Tara at Q 176). A tactful reminder should be sufficient, provided it is backed up by the Whips. There may be occasions when an unguarded intervention is not in accordance with the wishes of the House, in which case, of course, the wishes of the House will prevail.

27. This is as far as we would go. It may be said that it is illogical to allow the Speaker to intervene on some occasions but not others, and that it is difficult to draw the line. But this is a familiar problem in other fields. We see no reason why, with experience and goodwill, a sensible line should not emerge. We emphasise again that we see the transfer of these functions from the Leader to the Speaker not as an encroachment on self-regulation but as an inherent part of it.

28. For completeness, we would also suggest that another function currently exercised by the Leader should be transferred to the Speaker, namely the rarely exercised role of determining whether the sub judice rule may be overridden "where a ministerial decision is in question, or a case concerns issues of national importance such as the economy, public order or the essential services".[8]

29. We propose no transfer of the role of the Leader in leading tributes, nor of her formal role in relation to the production of groupings and lists of speakers.

30. The Lord Chancellor at present has the role of authorising the recall the House during a recess (under Standing Order 17), and we propose that this very limited function should be transferred to the new Speaker.

Committees of the whole House

31. In one respect we recommend an addition to the range of duties performed by the Lord Chancellor in the Chamber. The new Speaker will be expected to preside for a substantial period every day when the House is sitting. But at some times of year the main business on two or three days in a week may be committee stages. So we accept the suggestion made to us by the Chairman of Committees (QQ 190-2) that the Speaker should be empowered to take the chair in Committee of the whole House as well as to sit on the Woolsack.

Communication within the Chamber

32. In paragraph 23(b) above we mentioned that the Leader is better placed to receive advice from the Table than the Speaker on the Woolsack. To overcome this difficulty, we recommend that an electronic system should be installed so as to enable messages to be passed discreetly between the Speaker, whether in the Chair or on the Woolsack, and the Clerk at the Table.

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1   The other related to reform of the House of Lords. Back

2   Companion to the Standing Orders, 2003 edition, paragraph 4.01. Back

3   The other members were Lord Byers, the Earl of Perth and Lord Shepherd. The Report was made to the Leader of the House (Earl Jellicoe) in May 1971 and published in August 1971 with the 10th Report from the Procedure Committee 1970-71 (HL 227). Back

4   The Earl of Perth was again a member, and the other members were Lord Aylestone, Lord Belstead, Baroness Llewelyn-Davies of Hastoe and Lord Wigoder. The Report was made to the Leader of the House (Viscount Whitelaw) in April 1987 and published in July 1987 as HL Paper 9 of Session 1987-88. Back

5   The other members were Lord Brightman, Baroness Carnegy of Lour, Baroness David, Earl Ferrers and Baroness Hamwee. The Report was made to the Leader of the House (Baroness Jay of Paddington) in February 1999 and published in March 1999 as HL Paper 34 of Session 1998-99. Back

6   This is provided for in Standing Order 38(1): "If a balloted debate or a time-limited debate is continuing at the end of the time allotted to it, the Clerk at the Table shall rise and thereupon the Lord Speaker shall ask the mover whether or not he wishes to withdraw his Motion. If the mover does not ask leave to withdraw, or if leave to withdraw is refused, the Lord Speaker shall, notwithstanding the provisions of Standing Order No. 19, put the Question forthwith."

Standing Order 22 contains a further power, but it is little used: "If any Lord has occasion to speak with another Lord while the House is sitting, they are to retire to the Prince's Chamber, and not converse in the space behind the Woolsack; or else the Lord Speaker is to call them to order, and, if necessary, to stop the business in agitation." Back

7   "I have always found it objectionable in principle that private notice questions should be at my gift…. I do not think it is right for a member of the Executive to dictate or attempt to determine what pressing issues of the day should be discussed even for those short periods by a sovereign House of Parliament, and I find that objectionable." Back

8   Companion paragraphs 4.58 and 4.59. Back