MEMORANDUMAugust 2014

The Clerk of the House of Commons

Appointment

1. The Clerk of the House, formally styled “The Under Clerk of the Parliaments, to wait upon the Commons” is appointed by the Crown on the advice of the Prime Minister. He (it has always been a “he” so far) is appointed by Letters Patent, like a senior judge, which buttress his indepen-dence: alone among the staff of the House, he is not an employee of the House of Commons Commission, and can be removed only on an Address of the House to dismiss him. This means that he is able to advise the House and its Members regardless of the possible unpopularity of that advice. The Clerk’s salary is on Judicial Scale 3 (Lord Justice of Appeal) which means there is no ad hoc determination of salary, an additional protection of his independence.

Role

2. The Clerk is the principal constitutional adviser to the House, and adviser on all its procedure and business, and on privilege and the law of Parliament. He is a frequent wit-ness before Select and Joint Committees (during his Clerk-ship, for example, Sir Robert Rogers gave evidence on House of Lords Reform, Superinjunctions, Parliamentary Privilege, Recall of Members, Petitions and e-petitions, the Parliamentary Calendar, Queen’s and Prince of Wales’s Consent, select committee powers, and a range of other subjects).

3. The Clerk is the Chief Executive of the House of Commons Service, and is the House’s Corporate Officer under the

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Parliamentary Corporate Bodies Act 1992. As the House has no legal personality, the Clerk acts on its behalf, hold-ing property (he is the legal owner of the Commons Es-tate), entering into contracts, leases etc. As Corporate Offi-cer, he is the responsible person under Freedom of Infor-mation and Data Protection legislation (he is the Data Con-troller for the House), and carries legal responsibilities for fire safety and safety within the Parliamentary precincts. He is Accounting Officer for the two House Estimates to-talling some £245M, and thus personally responsible for the regularity and propriety of expenditure, and for value for money.

4. The Clerk is Corporate Officer by statute; his role as Chief Executive and as Accounting Officer are in the hands of the House of Commons Commission, which has historically taken the view that it would be unwise to have a Corporate Officer who is not also Chief Executive and Accounting Offi-cer.

5. The Clerk chairs the Management Board, which under an Instrument of Delegation from the Commission is responsi-ble for the staff of the House Service (whose legal em-ployer is the Commission) and for the delivery of services.

The present competition

6. Sir Robert Rogers announced his retirement on 30th April 2014. On the same day the House of Commons Commis-sion (consisting of the Leader of the House, the Shadow Leader, Frank Doran, John Thurso and Sir Paul Beresford, and chaired by the Speaker) met to consider the appoint-ment. At that meeting the Commission agreed that there should be a “like for like” replacement (in other words, an

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individual who could do both parts of the job described above); that there should be open advertisement; and that head-hunters should not be used.

7. Thereafter there were extensive and lengthy exchanges of emails, over a number of days, in which the Speaker per-suaded a majority of the other members of the Commis-sion that head-hunters should be used, and that the job de-scription used for the previous selection should be “light-ened” in terms of constitutional and procedural knowledge.

8. At that first meeting the Commission also agreed that there would be a review of House governance, which would include the question of whether to split the jobs of Clerk and Chief Executive.

• NOTE: The present recommendation seems entirely to pre-empt that aspect of such a review.

9. The job advertisement was placed in The Sunday Times on 1st June 2014 (the arguments over job description, etc., had delayed this considerably). The advertisement said…

This challenging dual role is an opportunity to make use of your knowledge of both constitutional matters and business adminis-tration. The Clerk of the House of Commons is chief adviser to the Speaker, the Leader of the House and other members of the front benches on matters of procedure and privilege. Meanwhile, as Chief Executive he or she oversees the permanent administration.

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10. There were further arguments about the membership of the selection panel. In 2011, the members of the panel had been: the Speaker, the Leader of the House (Sir George Young), the Shadow Leader (Hilary Benn) Sir Alan Beith (Chair of the Liaison Committee), John Thurso (Chair of the Finance and Services Committee), Lindsay Hoyle (Chair-man of Ways and Means) and Sheila Drew Smith, an Office of the Commissioner for Public Appointments-accredited external member.

11. The membership of the 2014 panel finally agreed was: the Speaker, the Leader, the Shadow Leader, and John Thurso; the final two places (about which there had been dissension) were filled by Margaret Hodge (Chair of PAC) and Dame Julie Mellor, the Ombudsman, as external mem-ber.

• NOTE: Although four members of the House of Com-mons Commission were on the panel, the panel was not the Commission and had no special Parliamentary status.

12. Interviews took place in July. It is understood that two Clerk candidates, one (a man) at SCS3, and another (a woman) at SCS 2, applied but did not get an interview. Three internal candidates were interviewed.

• NOTE: The internal candidates were given less notice of the presentation required and of its subject than the external candidates (the former on the Monday before interview, the latter the previous Friday). The external candidates were offered a briefing meeting

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with the Speaker as Chair of the Board; the Clerk can-didates were not. Some of the questioning appears not to have accorded with best practice. It is also re-ported that the Speaker gave the panel the benefit of his personal views of the Clerk candidates. All this may be explored in Tribunal proceedings.

13. A further round of interviews took place on 30th July, as a result of which the Speaker wrote to the Prime Minister asking him to put the name of Carol Mills, Secretary of the Department of Parliamentary Services in Canberra, before The Queen for appointment as Clerk of the House. Ms. Mills had been in that job for just over two years, and had come from a career in the state public service.

NOTE: Dr Rosemary Laing, the Clerk of the Australian Senate, has said: The Secretary role has no procedural or constitutional dimension that you or I would recognise as the core function of a Clerk. It has no connec-tion with the day-to-day business of a Parliament.

14. The Director General of Human Resources, who should have been the panel’s principal adviser, was involved only at the very start of the process. He did not draft, or even see, the offer letter that went to Ms Mills.

Issues and questions

The wrong job

15. The result of the panel’s decision is that they have recom-mended appointment to a job that was not advertised: Chief Executive. Few if any people have suggested that the

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present candidate has the relevant constitutional and pro-cedural expertise to be Clerk of the House.

• NOTE: If the job of Chief Executive had been adver-tised, it is clear that others, including senior members of the House Service and perhaps many highly experi-enced corporate and other executives, would have applied. As it was, however, they would have thought that the job was not open to them because they could not fill the role of constitutional and procedural ad-viser.

• The present situation has been described as a patient about to undergo surgery being told “We did look very hard to find a surgeon, but I’m afraid we couldn’t get hold of one. So we have got you a JCB driver instead. But don’t worry – he’s a very good JCB driver.”

The governance review

16. The House of Commons Commission agreed to a gover-nance review before the recruitment process started. But if as it appears what the panel wanted is a Chief Executive, then the effect of that decision is to pre-empt the gover-nance review. In effect, the proper order of decisions—first governance, then appointment—has been reversed, with-out appropriate Parliamentary review and scrutiny.

Should the roles of Clerk and Chief Executive be split?

17. This has been presented as if it were mere common sense. But in fact there are powerful arguments against such a split. First, even if there were a Chief Executive, the

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Clerk of the House would have to be responsible for the specifically Parliamentary services: Chamber, committees and research for Members. The total of staff involved in these areas is about 800. The total number in the House Service is about 1750. So the Clerk would be responsible for nearly half the House Service. The Chief Executive would be responsible for buildings, catering, finance and HR (not security as this is bicameral under the Parliamen-tary Security Director), and that would be all.

18. Second, what would be the relationship between them? If the Chief Executive had the purse-strings, and the Clerk wanted a major expansion of, say, select committee sup-port, would the Clerk—appointed by Letters Patent—have to go cap in hand to a Chief Executive with no role in the business of the House?

19. Third, where does responsibility lie? The prospect of two equal officials playing Members off against each other is not attractive. It has been said that the buck has to stop somewhere, and it needs to stop with the official who is re-sponsible to the House, not the Chief Executive appointed by the Commission and the Speaker.

20. Fourth, the Clerk of the House’s role as Corporate Officer is set in statute (as are many of his other roles). Primary legislation would be needed to change them.

21. Fifth, relations with the House of Lords at official level. The Clerk of the House works closely with the Clerk of the Parliaments, but must be robust in protecting the interests of the Commons. If there were a Commons Chief Executive

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who did not report to the Clerk of the House, it is unlikely that the Clerk could be as effective in relations with the Lords, nor defend the Commons properly.

22. It has been suggested that the answer is not a Chief Exec-utive, but a Chief Operating Officer, reporting to the Clerk. This would provide a focus of day-to-day executive respon-sibility, and relieve the Clerk of some of the direct burdens of management.

Previous governance reviews

23. The Braithwaite Review of 1999, carried out by Michael Braithwaite of Deloittes, came down heavily against split-ting the role, largely on the basis of the arguments above. In 2007 Sir Kevin Tebbit’s review of House management and services was published. He made sweeping recom-mendations, including a restructuring of the administra-tion. He considered the dual role of the Clerk/Chief Execu-tive at some length, but concluded firmly that it would be a mistake to split it. He did, however, recommend the ap-pointment of a “Deputy Clerk/Chief Operating Officer”. This was not done at the time, but provides a possible blueprint for future change.

The claim that Clerks are no good at management

24. This argument fails. At all levels in the House Service peo-ple (including those with the label “Clerks”) manage staff and resources. They receive extensive management train-ing; their ability to manage is one of the things tested and reported on in their Annual Staff Appraisals.

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25. In the tributes to the retiring Clerk of the House in July 2014, the Leader of the House said:

He is both our Clerk and the Chief Executive of the House, and he has fulfilled each of those responsibilities with great assurance and imagination, for which we salute him. The two roles involve ensuring the highest quality of service to Members at the mini-mum cost to the taxpayer, and perhaps the greatest testament to his success is his stewardship of a challenging savings programme without detriment to the front-line services provided to Members

John Thurso, the Chair of the Finance and Services Com-mittee, said the retiring Clerk had led a transformation in the management of the House Service, which has moved from what could be described as an era of gifted amateurism to one of thoroughly compe-tent professionalism.

26. It may be noted that David Natzler, the Clerk Assistant, has reportedly led the Department of Chamber and Com-mittee Services (550 staff and £40M budget) outstandingly well for the last three years.

The Commonwealth dimension

27. The Clerk of the House of Commons occupies a special place among the officers of Commonwealth Parliaments, as does Westminster itself, through the work of CPA UK and its Members and the annual Westminster Seminar, and the number of visiting Speakers, Members and Officers from Commonwealth Parliaments. The Clerk of the House pro-duces a lengthy Commonwealth Newsletter twice a year on pro-cedural and constitutional developments, and this goes to every Parliament in the Commonwealth. The Clerk of the House is also frequently consulted by Commonwealth Par-

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liaments on issues of difficulty (some Parliaments have written into their constitutions and standing orders that the procedure of the House of Commons shall operate if there is no specific provision on a matter). Sometimes the con-sultation is urgent: it is not uncommon for the sitting of a Commonwealth Chamber to be suspended while the Speaker or the Clerk of that House seeks advice.

28. The change in status of the Clerk of the House with the appointment of an individual without a deep reservoir of relevant experience would have a significant effect on the standing of the House of Commons in the Commonwealth, and might lead to concern in very high places.

Interim arrangements

29. There is no specific hurry to make an appointment. The retiring Clerk of the House has put in place interim ar-rangements, and has been quoted as saying:

I thought at the beginning of July that there was a good chance that my successor would not be in a position to take over immedi-ately on my retirement. So I made detailed arrangements for my duties to be shared among members of the Management Board and other senior colleagues. This will obviously place extra bur-dens on people but these are robust arrangements and could be in place for as long as required – up to the General Election if neces-sary.

These arrangements include the senior non-executive member, Dame Janet Gaymer, chairing the Board. Under statute the Clerk Assistant acts as Clerk if there is no Clerk in post.

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30. The latest indication from Canberra is that the Senate Privileges Committee may report on the allegations against Ms Mills in March 2015.

The legal challenge

31. It is reported that a legal challenge may be made to the recommendation of the panel. At the moment the proce-dure seems to be in the “ACAS Questionnaire” period, re-quiring the disclosure of documents, allowing a decision then to be made as to whether to go to a full Employment Tribunal hearing.

32. The disclosure of documents may well give further indica-tions about how the process was conducted. Moreover, it is hard to see how the Prime Minister could forward a name to The Queen if there were any possibility that an ET could find that the panel acted improperly, or that there was un-fair discrimination.

Value for money

33. The Clerk of the House is paid the rate for Judicial Group 3 (Lord Justice of Appeal: £198,000 a year. Ms Mills cannot be said to have the relevant qualifications as constitutional and procedural adviser required of a Clerk of the House, while a new Chief Executive could be acquired for about half the designated salary. It is not clear how it can consti-tute value for money to pay someone nearly £200,000 for only half the job, in addition to giving them the use of an official residence, at a time of public sector austerity.

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A pre-appointment hearing

34. It is for the House and its Members to decide whether there should be a pre-appointment hearing, and how it should report. The Speaker’s permission is not required. A committee which carried out a pre-appointment hearing could report to the House, or forward its view to the Prime Minister, or both.

The challenges of 2015 and beyond

35. It should be borne in mind that the present proposed ap-pointment as Clerk of the House of an individual with little or no constitutional or core Parliamentary experience comes at a time when the likely challenges for the Clerk of the House, and the Clerk’s competence, knowledge and au-thority are likely to be tested as severely as they have ever been:

❖ Whatever the outcome of the Scottish referendum, it seems highly likely that there will be constitutional change. A “yes” vote would make that change seismic;

❖ It is likely that there will be some form of disengagement of the Coalition before the election, probably posing practi-cal problems in proceedings of the House;

❖ The EU referendum bill is likely to be something of a chal-lenge;

❖ There is a major restoration of the Palace of Westminster in prospect. If there is to be a new Chief Executive, the post must be selected anew with a job description that en-

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courages the very best managerial talent across business, the professions and public administration to apply;

❖ It is more than possible that the outcome of the next Gen-eral Election will be a government with no overall majority. If a majority cannot be forged in a Coalition, then “confi-dence and supply” with shifting support issue by issue would be a probability.

Whoever guides the House through these potentially very difficult waters must have the nationally and internationally recognised status of the Clerk of the House, and the protection of Letters Patent against summary dismissal by any Speaker who finds advice unpalatable.

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