Britain is a parliamentary democracy. This means that the executive branch is formed from the legislature. In addition, the executive branch must, through the mechanism of confidence motions, be able to show that it has the confidence of the legislative branch. In Britain, there are two chambers which make the up the legislative branch – the Commons and the Lords.
Britain is also a representative democracy. The legitimacy of the government is derived from the fact that that it holds the confidence of the House of Commons. However, by extension, this also means that it has the confidence of the electorate. This is why under the Fixed-Term Parliament Act (2011) if a government cannot keep the confidence of the House of Commons, a new General Election must be called.
Arguably, however, the legitimacy of government is weakened when members of the House of Lords are appointed to positions in government and particularly to those senior positions within the Cabinet.
Firstly, one constitutional concern is that members of the House of Lords are not directly accountable to the electorate. Peers hold their position virtue of appointment and, until recently, held that position until they died. Historically, this has led to the continuance of members in the House of Lords with questionable credentials. These include Lord Archer who in 2001 was sentenced to four years imprisonment for perjury and perverting the course of justice after being found guilty of lying in a libel trial in 1987. Jeffrey Archer, however, remains a member of the House of Lords.
Recent legislative changes have altered this slightly. The House of Lords Reform Act (2014) allowed members of the House of Lords to resign. In addition, the House of Lords (Expulsion and Suspension) Act in 2015 allowed for the House to expel or suspend members (but not retrospectively). As of February 2021, 130 peers have resigned or retired from the chamber and it seems to have been a popular option with members.
Secondly, Members of the House of Lords are arguably not able to be effectively scrutinized. Importantly, despite mechanisms of scrutiny being similar as in the Commons (question time, committees and written questions), members of the Lords cannot be directly scrutinised by elected members (apart from in rare Joint Committees).
These issues have led to the development of certain conventions regarding the House of Lords. Firstly, no Prime Minister has governed from the House of Lords since Lord Salisbury in 1902. The only minor exception to this was Alec Douglas-Home who became Prime Minister whilst a member of the House of Lords. When he became Prime Minister in 1963, he was a member of the House of Lords. However, on becoming PM he renounced the title and won a by-election to a safe seat in November 1963 (incidentally, also the only time a sitting PM has ever been involved in a by-election). Secondly, it has also become a convention that holders of the Great Offices of State (Prime Minister, Foreign Secretary, Home Secretary and Chancellor of the Exchequer) do not sit in the House of Lords. The last holder of a Great Office to hold it from the House of Lords was Lord Carrington in 1982.
However, this does not mean that Cabinet Members, sometimes significant Cabinet members (or Cabinet attendees), come from the House of Lords. The first ministries of the following governments had the following Ministers from the House of Lords:
John Major 1990
Cabinet Members: Lord Mackay (Lord Chancellor) and Lord Wadington (Leader of the House of Lords).
Tony Blair 1997
Cabinet Members: Lord Irvine (Lord Chancellor) and Lord Richard (Leader of the House of Lords).
Also attending Cabinet: Lord Williams (Attorney-General).
Gordon Brown (2007)
Cabinet Members: Baroness Ashton (Leader of the House of Lords).
Also attending Cabinet: Lord Grocott (Government Chief Whip in the Lords), Baroness Scotland (Attorney-General) and Lord Malloch-Brown (Minister for the United Nations).
David Cameron (2010)
Cabinet Members: Lord Stratchlyde (Leader of the House of Lords) and Baroness Warsi (Minister without Portolio).
Theresa May (2016)
Cabinet Members: Baroness Evans (Leader of the House of Lords).
Boris Johnson (2019)
Cabinet Members: Baroness Evans (Leader of the House of Lords) and Baroness Morgan (Secretary of State for Digital, Media and Sport).
Also attending Cabinet: Lord Goldsmith (Minister for Environment, Food and Rural Affairs).
(Note, the office of Lord Chancellor had to be held from the House of Lords and until the Constitutional Reform Act (2005) was very significant. Following this, the Justice Secretary took the majority of political roles, and the Lord Chancellor became a more symbolic position).
As the above shows, the numbers of Cabinet Members of the Lords is generally low and most have been members that have to come from the Lords because of the nature of the role (Lord Chancellor, Lords Leader and Lords Speaker).
However, recent events have put this issue into sharp focus. In July 2016 the government of Theresa May established the Department for Exiting the European Union to oversee Britain’s departure from the EU. This was be led by a Secretary of State (informally called the ‘Brexit Secretary’) who became a Cabinet Member. However, on 31st January 2020, the department and office was a abolished (this was meant as a clear political sign that Britain had left the European Union).
However, the transition period and the ongoing trade negotiations make it very clear that, whilst Britain has left the European Union, creating its ongoing relationship with the EU is still very much a work in progress. With this in mind, Boris Johnson recently appointed Lord Frost (Britain’s Chief Brexit Negotiator) to the Cabinet. Frost will replace Michael Gove as the leading Cabinet authority on Brexit.
As such, he is undoubtedly the most prominent Peer to sit in the Cabinet since Lord Mandelson became Secretary of State for Business in Gordon Brown’s 2008 reshuffle. Despite Frost’s undoubted experience, there are fears that such an important role should not be held by someone who cannot be directly scrutinised by elected representatives. Labour’s Emily Thornberry said:
” [he is] someone who has never been elected by anyone in this country, and won’t be accountable in the House of Commons to any of us who have”
However, conversely, Frost was Britain’s Chief Brexit Negotiator before his appointment to the Cabinet. It is arguable that his appointment to the Lords at least provides some scrutiny, if not the direct scrutiny from the House of Commons that would be ideal.
Perhaps more worryingly for the government, Frost’s appointment has not been an isolated example. Boris Johnson has appointed a number of members of the House of Lords to lead significant government departments. Controversially, he appointed Baroness Morgan to be Secretary of State for Digital, Media and Sport. This was controversial because she had chosen to stand down as an MP, but was kept in post irregardless. In addition, he was criticised for the amount of power granted to unelected SPADs like Dominc Cummings.
In the UK, as opposed to the US for example, the appointment of Cabinet Members is entirely down to the Prime Minister’s Royal Prerogative powers. Parliament is not to asked to ratify a Cabinet appointment and nor can it stop one being taken up. It is arguably a worrying trend that the last few years have seen a growth in senior Cabinet members coming from the House of Lords.
However, importantly, these members are scrutinised in their government roles. They face Question Time from other Lords, they face written questions and appear in front of Select Committees. In fact, in many ways, scrutiny might even be better in the Lords! For example, currently in the House of Lords there are 8 current ex-EU commissioners in the House of Lords. In addition, there are 4 ex Foreign Secretaries in the Lords. In addition, the House of Lords has a permanent European Union Committee with four sub-committees. Frost may feel he is under too much scrutiny in the Lords! Yet, Frost will not face questioning from from elected MPs and fundamentally this might be seen to undermine democratic legitimacy.
Interestingly, in 2009 the Business and Enterprise Committee suggested that the easiest way to fix this would be to allow Lords to appear from the Despatch Box in the House of Commons. This was discussed by the then Speaker Jon Bercow, but nothing more came of the suggestion – again a seeming parliamentary example of tradition overruling good governance.