Inventing convention

‘If a new peer is a special adviser, they will be able to participate in the division lobbies but not contribute to debates,’ said Baroness Stowell in her statement to the Lords Evidence. Many assume that three new special adviser peers – Kate Fall, the Prime Minister’s deputy chief of staff; Philippa Stroud, special adviser at the Department for Work and Pensions; and Simone Finn, special adviser to Lord Maude, Minister for Trade and Investment – might actually continue in their roles as well as being members of the House of Lords. Stowell prefaced her statement by saying that ‘there is a convention’ for this combination of roles. This left constitutional minds racking their brains to recall the precedent on which it was based. In fact, there are several previous examples. For example, in 2001, Baroness Morgan continued to serve Tony Blair as a special adviser after she was made a peer. Lord Hart of Chilton was appointed a peer in 2004 but did not speak in the House of Lords until 2007 – after he had ceased to be a special adviser to the Lord Chancellor. Lord Hart says that he was told that it might be inappropriate for him to speak by the Clerk of the Parliaments. Some might wonder why this is a problem: special advisers are seen as political appointees, and Lords appointments to a party are political. There have been some other cases in which ‘tsars’, heads of commissions or non-executive members of departmental boards are not ministers, but have been members of the Lords. One could argue that the lines are easily blurred and that this is therefore a logical move. But these are fundamentally different roles and there are some rather important constitutional questions in combining the two. Appointment as a Conservative peer currently means that you are part of the governing party in the House of Lords. They would not be ministers, but they would take the whip. Special advisers, under the UK system, are actually temporary civil servants, governed by a similar code of conduct and contract. They differ from other civil servants in that, as the special advisers’ code of conduct says, they ‘are exempt from the general requirement that civil servants should be appointed on merit and behave with political impartiality and objectivity’. They are temporary in that they fall with the government – often with their minister. However, they are still designated and employed as civil servants and, importantly, they are paid for out of public funds. Unlike with the House of Commons, there is nothing in the spad contract or code which says explicitly that they should not be a Member of the Lords, but there is quite a bit which speaks to it. Special advisers’ contracts curtail their ‘use of official information acquired in the course of official duties…without the specific authorisation’ of their minister. So they cannot speak for government or, it seems, for themselves. This surely undermines the point of making them a peer – those defending the Lords’ existence stress peers’ expertise as part of its value as a revising chamber. How will they contribute? This is before one gets into the question of propriety: will these advisers claim for time spent in the Lords in addition to receiving their salary as spads? Though the spad code of conduct allows them to act politically in their role in government, they are restricted in their political role beyond it. Section 6 says that they ‘should not use official resources for party political activity’ and that ‘they should avoid anything which might reasonably lead to the criticism that people paid from public funds are being used for party political purposes.’ It is difficult to see how voting with their party as part of the legislature is not party political. It could even be seen as a way to increase, by other means, the 'payroll vote' – but these are not ministers and cannot be held to account in Parliament for their role as spads. The role of spads is not the question – a great deal of research shows the value of special advisers and they are seen as a crucial part of government by politicians and the civil service alike. The key issue is that we either have special advisers as temporary civil servants, in which case they should not also represent the Government in the Lords, or one has to find a different solution for getting political appointees into government. It may not be possible to put the genie back in the bottle, but some discussion should be had about this ‘convention’. The Government has the right to appoint former spads as peers, or to have them continue as special advisers, but is it really in their own interests to have something that is neither one nor the other?