The Lords are back in business

The return of Peter Mandelson to the Cabinet has attracted extensive media coverage because of its political implications. It is, as Mandelson has said, ‘third time lucky’ in terms of Cabinet service. However, what much of the coverage has overlooked is that, while it may be Mandelson’s third time in the Cabinet, it is the first time as a peer. His elevation to the peerage, along with that of Stephen Carter and Paul Myners (both appointed as junior ministers), does have interesting constitutional implications.

First, and most significantly, the appointment of Mandelson as Secretary of State for Business, Enterprise and Regulatory Reform means that the Lords acquires a major departmental minister, something it has not had for many years. It used to be the case that the Lords had two ministers in Cabinet — the Leader of the House of Lords and the Lord Chancellor. (The Lord Chancellor remains in the Cabinet, but no longer has to be a peer.) It was rare for a senior departmental minister to sit in the Lords.

Under Labour, Baroness Amos served briefly as International Development Secretary in 2003. However, the Mandelson appointment is the first under Labour where a major political figure holding a senior departmental post is answerable in the Lords rather than in the Commons. For an analogous appointment, one has to go back to the days of Conservative rule under Margaret Thatcher.

Under her premiership, Lord Carrington served as Foreign Secretary (1979-82), Lord Cockfield as Trade Secretary (1982-83) and Chancellor of the Duchy of Lancaster (1983-84), and Lord Young of Graffham as Cabinet Minister without Portfolio (1983-85), Employment Secretary (1985-87) and Trade and Industry Secretary (1987-89). Mandelson’s appointment is the most significant in the reformed post-1999 House.

As Lord Mandelson, the new minister will have to adapt to a different environment to that of the Commons. He will face debates and questions, the same as in the Commons, but from a different audience, many with extensive experience in the fields covered by his portfolio, and in an environment where aggressive partisanship is frowned upon. His principal answerability will be through the House, though, as with all ministers, he can appear before select committees of either House.

Second, his appointment — as well as that of Carter and Myners — demonstrates that a person can be appointed to ministerial office without necessarily sitting in either House. All three were offered and accepted ministerial office. At the same time, the Queen signified that she would confer peerages on each of them, but none had taken his seat by the time the ministerial appointments were announced and took effect.

They thus appeared in the list of Her Majesty’s Government as the Rt Hon. Peter Mandelson, Stephen Carter CBE (Parliamentary Under Secretary of State in Peter Mandelson’s Department as well as in the Department of Culture, Media and Sport) and Paul Myners CBE (Financial Services Secretary, Treasury). Legally, all three could continue to be ministers without being elevated to the peerage, but their elevation complies with the convention that ministers should normally sit in either House of Parliament.

There is also a political consequence. The appointments reinforce Labour as the largest single party in the Upper House. The recent appointment of two new cross-benchers (Susan Campbell and David Pannick QC) also reinforces the ranks of the cross-bench peers. When I ask student audiences which party they think has a majority of members in the Lords, they normally reply ‘Conservative’. I point out that the Conservative party now ranks behind Labour and the cross-benchers in the House.

One might add a fourth feature. The new Department of Business, Enterprise and Regulatory Reform is unusual in that three of its six ministers are peers. (The other peer in the department is Baroness Vadera.) Excluding the Law Officers’ Department, no other department is so well represented in the Upper House.

There is also one other noteworthy feature. Paul Myners is one of 13 junior ministers who is unpaid. The prime minister can appoint as many ministers as he wishes, but there is a statutory limit on the number who can be in receipt of ministerial salaries (and, within that figure, the number who can sit in the Commons).

That number has been exceeded. There are seven ministers in the Commons, and six in the Lords, mostly whips, who serve on an unpaid basis. The difference between unpaid ministers in the two Houses is that those in the Commons remain in receipt of their parliamentary salaries. For those in the Lords, there is no parliamentary salary. It depends on one’s point of view as to whether this represents political ambition or selfless public service.