Should Ministers Be Appointed From Outside Parliament?

The Chancellor of the Duchy of Lancaster, Michael Gove, has made headlines by suggesting that ministers need not always be MPs or peers, something the Commission for Smart Government also mooted in a recent discussion paper. While outsiders can make a valuable contribution to politics, non-parliamentary ministers would represent a major constitutional innovation and they would need to be implemented with great care.

The concept of responsible government is at the heart of the British constitution. At the highest level, this means that a government can only hold office if it commands the confidence of the House of Commons. But it also means that individual ministers are accountable to Parliament for their actions. Prime Minister’s Questions is probably the best-known example of this, but other ministers answer questions from MPs and peers as well. On a more informal level, having ministers in Parliament also means that they’re accessible to backbenchers. Since ministers have to go through the Division Lobbies like everyone else, it provides an opportunity for parliamentarians to have a quick chat with them. And, in extreme situations, voters can punish ministers who are MPs by refusing to re-elect them.[1]

The Scottish Law Officers (i.e., the Lord Advocate and the Solicitor General for Scotland) are an exception to the usual convention. Despite being members of the Scottish Government (albeit ones outside the Cabinet), they are not MSPs. Section 27 of the Scotland Act 1998 allows them to participate in parliamentary debates ex officio, but they can’t vote. However, they are not typical ministers. Indeed, there has been a concerted effort to de-politicize their roles, which is why they no longer attend the Scottish Cabinet.

It’s theoretically possible to devise mechanisms of accountability for non-parliamentary ministers at Westminster. Right now, ministers have representatives in the other chamber who can answer questions on their behalf. For example, a minister who sits in the Commons will be represented in the Lords by either a junior minister or a whip.[2] The Commission for Smart Government also notes that existing Commons Standing Orders allow ministers to make statements before the Scottish, Welsh, and Northern Ireland Grand Committees even if they aren’t MPs.[3]

However, it’s debatable whether either of these options would be an adequate replacement for the status quo. Having a minister represented by junior counterparts in both chambers is less than ideal since they won’t have the same level of authority. One also wonders if ministerial questions would receive the same level of attention from MPs or the public if they were relegated to committees. These alternatives also fail to replicate the informal aspects of responsible government.

It’s also worth remembering that there’s already a mechanism to bring outside talent into the government, namely giving someone a peerage. While having a minister in the Upper House does have its disadvantages, it’s still preferable to having them outside Parliament entirely.

Bringing fresh perspectives into government is a worthy goal, but it shouldn’t undermine one of the core tenets of the British constitution.


[1] While somewhat rare, it does happen. In May 1997, no fewer than seven sitting ministers lost their bid for re-election.

[2] Similar arrangements apply to ministers who sit in the Lords, though they will always be represented by junior ministers rather than whips.

[3] Commission for Smart Government, “Ministers: Effective Political Leadership in Government,” (July 2021), 25-26. The relevant Standing Orders are SOs 93(3), 102(4), and 109(4).

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7 Responses to Should Ministers Be Appointed From Outside Parliament?

  1. Froghole says:

    Many thanks for this and all your superb blogs. Might be worth adding, as I am sure you know, that between 1707 and 1926 newly appointed ministers who were not peers had to seek re-election in the commons. So there might be a period of time when a ministerial office was held by someone who was not a member of either chamber. It was this legislation, intended to reduce the dominance of the crown, which did for C. F. G. Masterman as chancellor of the duchy.

    The rule that ministers be members of either chamber was also occasionally overlooked in the case of lord keepers, who might not be peers even if they were presiding over the lords. Orlando Bridgeman was an instance of this, if I recall.

    In addition to the 1997 examples cited there is the famous defenestration of Patrick Gordon Walker from the Foreign Office in 1965 when he was beaten in the infamous Smethwick poll.

    • jasonloch says:

      Thank you for your kind words!

      The interesting thing about the House if Lords is that the reason a Lord Keeper or Lord Chancellor could preside over the House even if they weren’t a peer is because the Woolsack isn’t technically part of the House. Of course, they would be prevented from speaking or voting and could only do things like put the question!

      I believe Sir Michael Havers was the last non-peer to preside over the House. As Lord Chancellor, he took the Woolsack from June 17-18, 1987 in order to preside over the formalities associated with the start of a new Parliament. He received his peerage on June 22, and he was introduced into the House the same day.

      • Froghole says:

        Many thanks again! Yes, my understanding is that if the lord/lady speaker (formerly lord chancellor) gets up to speak (moves about one pace forward) he/she is then within the bar of the house. Therefore if the lord chancellor or keeper was without a peerage he would presumably have had to preside whilst remaining seated.

        I believe that the last lord chancellor/keeper not to receive any peerage before the 2005 Act was Charles Yorke (son of Hardwicke), who refused to seal his own patent of peerage, and committed suicide (and so was a felo de se) several days after receiving the great seal in 1770, on the grounds that he had broken his pledge to the Rockingham whigs. There first three generations of Yorkes were dazzlingly talented, and then it all ended in tears with ‘Champagne Charlie’, the sale of Wimpole and everything else that Hardwicke had built up.

        What I have never understood is why lord keepers were ever appointed in lieu of being lord chancellor, or why the great seal was ever put into commission (the last instance being in 1850). I appreciate that there were specific reasons at any given time (and I would need to look it up in Campbell, whom I appreciate needs to be used with caution), but the office of lord keeper strikes me as being rather pointless if it had all of the functions of the lord chancellor.

      • jasonloch says:

        I thought of Yorke’s brief and unhappy tenure as Lord Chancellor when it looked like Paul Givan might have to make a quick exit as First Minister of Northern Ireland.

        I’m not 100% certain, but I don’t think a non-peer Lord Keeper or Lord Chancellor would’ve had to preside while remaining seated. The precise boundaries of the Woolsack’s extraterritoriality were a bit fuzzy: in the case of peers, the LK or LC could simply stand up to put the question, but if they wanted to speak in debate, they were expected to move *aside* from the Woolsack (if I remember correctly, it wasn’t until Lord Irvine of Lairg that Lord Chancellors were formally permitted to speak from the Dispatch Box like other ministers). This suggests to me that a non-peer could still stand to put the question, provided they remained in front of the Woolsack.

        The office of Lord Keeper was indeed redundant. As I understand it, the distinction between the two was primarily one of honor (e.g., making someone Lord Chancellor instead of Lord Keeper was a mark of special royal favor). It was also not uncommon for someone to start as Lord Keeper and then be promoted to Lord Chancellor if they acted satisfactorily.

        The Great Seal is still technically put into Commission today, though it’s done differently. In 1989, the Queen issued Letters Patent declaring that a number of officeholders (mostly judges, but also the Lord President and the Lord Privy Seal) could act for the Lord Chancellor if he were absent or incapacitated. Two Commissioners can order documents to pass under the Great Seal, but it takes three to perform the other “powers, duties, and functions” of the Lord Chancellor (though when it comes to countersigning Royal Warrants, the Lord Chief Justice or the Master of the Rolls can act on their own!). In essence, it replaced the ad hoc arrangements that had prevailed before with a more durable arrangement. You can find the relevant Letters Patent here: https://www.thegazette.co.uk/London/issue/51636/page/1509.

  2. Froghole says:

    Many thanks indeed for that. I did not know about the 1989 letters patent, but unlike previous commissions, the sort of permanent floating commission established in 1989 has an awful lot of commissioners, including the whole of the Court of Appeal and the High Court – not far off 200 commissioners in total (prior to 1850 the Great Seal seldom had more than three, not unlike the lords justices of Ireland when the viceroy was out of the country; the admiralty had seven – the first and civil lords, and the five sea lords, whilst the treasury did not have more then seven or eight – the first lord, the chancellor and between four and six lords commissioners).

    Yes, unlike the north end of the chamber there is no clear bar at the south, or throne end. As you probably know the lords started to be televised from 1985, and I do have a dim recollection (when I used to watch those broadcasts) seeing Mackay of Clashfern speak from the dispatch box when introducing legislation, the lord chairman of committees (or a proxy) sitting upon the woolsack. Like Irvine, Mackay wore his court dress, but without wig or robes, when speaking from the government front bench. This might be a false memory, of course. Henry Brougham (Brougham & Vaux) introduced his prolific legislation from the woolsack, for example, and I recall from my reading there being one famous incident when – having refreshed and fortified himself throughout a very long speech with frequent recourse to port and oranges – he collapsed insensibly into the woolsack.

    • jasonloch says:

      I must confess I don’t understand why there are so many Commissioners of the Great Seal under the 1989 Letters Patent, or why 2 Commissioners can do some things but 3 are required for others. It all seems very…complicated! As a side note, when Parliament was prorogued in April, the Commission was sealed by Commissioners rather than the Lord Chancellor even though Buckland was still named in the Commission itself (https://hansard.parliament.uk/lords/2021-04-29/debates/D0707D45-8121-4D64-9AC1-E4E5281FB3B8/RoyalCommission).

      I hadn’t realized Lord Mackay sometimes spoke from the Dispatch Box (being an American, I couldn’t really watch the House of Lords until Parliamentlive.tv came into being). On November 18, 1998, the House agreed to amend the Standing Orders to allow the Lord Chancellor to sit elsewhere when he was acting in his ministerial capacity (https://publications.parliament.uk/pa/ld199798/ldhansrd/vo981118/text/81118-03.htm#81118-03_head3). Perhaps those amendments simply regularized what had only been an informal practice before? I suppose it also gave the Lord Chancellor the freedom to sit on the government bench even if he wasn’t actively making a statement,

      The positioning of the Lord Chancellor was sometimes a matter of contention. On June 4, 1834, the Earl of Wicklow complained that the Lord Chancellor recently moved the adjournment from the Woolsack. The Lord Chancellor’s reply was rather snarky: “[the Lord Chancellor] ought to be proud to think, that this was the only charge of irregularity that could be brought against him. If he had but thought of taking one step to the left, and then one step to the right, backwards, and had then again returned to the Woolsack, he would have performed all the evolutions of office, and done all that the duties of regularity and etiquette which he owed to their Lordships required of him. Had he but made these simple movements, he would have been the most regular of all mortal Speakers of their Lordships’ House.” The full reply can be found here: https://hansard.parliament.uk/lords/1834-06-04/debates/f969c067-e640-4f8b-9401-78452d6cf58a/LordsChamber#contribution-3b992b24-6cb8-44f7-94b4-6cba8fc5c72b.

  3. Laurence Cox says:

    The one advantage of having an uncodified constitution, is that it is easy to change. For example, were a future government to decide to enable ministers to serve without being either MPs or Peers, they could require them to come to the bar of the House of Commons to answer questions from MPs, A Commons’ motion of no-confidence in an unelected minister would have the same force as one in an elected minister and since such motions are usually expressed in terms of reducing .a minister’s salary by a nominal sum, they must already apply to those unelected ministers who are Peers.

    As far as I know, the last ‘stranger’ or non-MP called to the bar of the House of Commons to answer a charge of contempt of Parliament was the journalist John Junor on 24th January 1957, so the bar is more or less redundant in its original role of requiring non-members to come to it to answer a charge of contempt of parliament and is ripe for repurposing.

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