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MEMORANDUM
August 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 independence: 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 Clerks 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 witness before Select and
Joint Committees (during his Clerkship, 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, Queens
and Prince of Waless Consent, select committee powers, and a
range of other subjects).


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3. The Clerk is the Chief Executive of the House of Commons
Service, and is the Houses Corporate Officer under the
Parliamentary Corporate Bodies Act 1992. As the House has no
legal personality, the Clerk acts on its behalf, holding property
(he is the legal owner of the Commons Estate), entering into
contracts, leases etc. As Corporate Officer, he is the responsible
person under Freedom of Information and Data Protection
legislation (he is the Data Controller 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 totalling 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 Officer.

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

The present competition
6. Sir Robert Rogers announced his retirement on 30
th
April 2014. On
the same day the House of Commons Commission (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 appointment. At that meeting the Commission
agreed that there should be a like for like replacement (in other

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words, an 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 persuaded a
majority of the other members of the Commission that head-
hunters should be used, and that the job description used for the
previous selection should be lightened 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 1
st
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
administration. 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 (Chairman 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 member.

NOTE: Although four members of the House of Commons
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 with the Speaker as Chair of the
Board; the Clerk candidates were not. Some of the
questioning appears not to have accorded with best

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practice. It is also reported 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 30
th
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
connection with the day-to-day business of a Parliament.

14. The Director General of Human Resources, who should have
been the panels 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 panels decision is that they have
recommended appointment to a job that was not advertised:
Chief Executive. Few if any people have suggested that the
present candidate has the relevant constitutional and procedural
expertise to be Clerk of the House.


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NOTE: If the job of Chief Executive had been advertised, it
is clear that others, including senior members of the House
Service and perhaps many highly experienced 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 adviser.

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 Im afraid we couldnt get hold of one. So we
have got you a JCB driver instead. But dont worry hes a
very good JCB driver.

The governance review
16. The House of Commons Commission agreed to a governance
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 governance review. In
effect, the proper order of decisionsfirst governance, then
appointmenthas been reversed, without 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 Clerk of the House
would have to be responsible for the specifically Parliamentary
services: Chamber, committees and research for Members. The

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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 Parliamentary
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 support, would the
Clerkappointed by Letters Patenthave 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 responsible to the House,
not the Chief Executive appointed by the Commission and the
Speaker.

20. Fourth, the Clerk of the Houses 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 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.

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22. It has been suggested that the answer is not a Chief Executive,
but a Chief Operating Officer, reporting to the Clerk. This would
provide a focus of day-to-day executive responsibility, 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 splitting the
role, largely on the basis of the arguments above. In 2007 Sir
Kevin Tebbits review of House management and services was
published. He made sweeping recommendations, including a
restructuring of the administration. He considered the dual role
of the Clerk/Chief Executive at some length, but concluded firmly
that it would be a mistake to split it. He did, however,
recommend the appointment 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 people
(including those with the label Clerks) manage staff and
resources. They receive extensive management training; their
ability to manage is one of the things tested and reported on in
their Annual Staff Appraisals.

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


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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
minimum 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 Committee,
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 competent
professionalism.

26. It may be noted that David Natzler, the Clerk Assistant, has
reportedly led the Department of Chamber and Committee
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 produces a lengthy
Commonwealth Newsletter twice a year on procedural and
constitutional developments, and this goes to every Parliament in
the Commonwealth. The Clerk of the House is also frequently
consulted by Commonwealth Parliaments on issues of difficulty
(some Parliaments have written into their constitutions and
standing orders that the procedure of the House of Commons shall

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operate if there is no specific provision on a matter). Sometimes
the consultation 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 arrangements, 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
immediately 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
burdens on people but these are robust arrangements and could
be in place for as long as required up to the General Election if
necessary.
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.

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

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The legal challenge
31. It is reported that a legal challenge may be made to the
recommendation of the panel. At the moment the procedure
seems to be in the ACAS Questionnaire period, requiring 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 indications
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 unfair 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 constitute 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.

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 Speakers permission is not required. A committee which

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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
appointment 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 Clerks competence, knowledge and authority 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 practical problems
in proceedings of the House;

The EU referendum bill is likely to be something of a challenge;

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 encourages 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 General
Election will be a government with no overall majority. If a

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majority cannot be forged in a Coalition, then confidence 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.