As a bemused public watches the Brexit drama play out at Westminster, few will realise that nearly all those arcane amendments – the Brady, the Malthouse, the Cooper-Boles, et cetera, et cetera – bear the handiwork of the House of Commons clerks.
These unsung officials hit the headlines last month with suggestions in the Sunday Times that one of them had somehow behaved improperly by “secretly” plotting with Tory MP Dominic Grieve “to overturn centuries of Commons procedure”. Steve Baker, deputy chair of the pro-Brexit European Reform Group was quoted as saying that he was “appalled”.
Hmm. The ultra-Brexiteers are rather given to bad language. They allow words like “appalled” and “treachery” to trip off their tongues without a second thought. Is their indignation synthetic? Or do they really think that officials in Westminster are plotting against them? The issue will be brought into focus by the appointment this month of John Benger as the new clerk of the House of Commons, the top job. Benger, who has worked in the House since 1986, can be expected to defend fiercely the impartiality of Westminster officials.
The attacks by some of the most ardent Brexiteers on the Commons clerks mirror the attempts to impugn Olly Robbins, the senior civil servant who is Theresa May’s chief Brexit negotiator. There have been allegations that Robbins was the PM’s Rasputin, that he was a Europhile zealot, seen by Brexiteers like David Davis and Boris Johnson as the “great betrayer”. The claims were so outrageous that they were publicly condemned by Sir Mark Sedwill, the cabinet secretary, who wrote to The Times saying that the anonymous snipers attacking Robbins “should be ashamed of themselves”. Unabashed, the Brexiteers turned their sights on the Commons clerks.
Responding to these attacks, the Westminster authorities issued a terse statement saying it was “common practice” for the clerks to advise MPs on the drafting of bills, motions and amendments – always on a “rigorously impartial” basis. What it didn’t say is that the Brexiteers themselves have relied on advice from the clerks.
“It’s sheer hypocrisy for the Brexiteers to complain given the amount of help they have had from the clerks ,not least when they were trying to frustrate the legislation to implement the Maastricht Treaty,” said one clerkly insider. “It’s the job of the clerks to give advice to any MP who asks – regardless of whether or not it fouls up the government’s business.” Yet he was quick to add: “The clerks are just as diligent in advising ministers how to make their proposals watertight.”
Working for both sides at once is what makes the task of the clerks different to that of Whitehall civil servants, who only have to look after their minister and not the opposition. Yet individual clerks often find themselves giving procedural advice – in strict confidence of course – to MPs who have diametrically different aims. Advising both sides simultaneously can be a delicate matter. Any doubts about what advice should be offered, are referred to the clerk of the House, the most senior of them all. And it’s this august position, which carries a salary of between £195,000 and £200,000, which is about to have a new incumbent.
Benger has been number two to the present clerk, Sir David Natzler, who is retiring. There had been a chance that for the first time in over 650 years the job could have gone to a woman. Philippa Helme, clerk of the Table Office, who was on a shortlist of three along with Benger and Liam Lawrence Smyth, clerk of legislation. The most senior clerks are the ones who sit in front of the Speaker when the Commons is sitting. Until two years ago they had to wear eighteenth century wigs and white ties but under John Bercow, the current speaker and a reformer, most of the flummery has gone.
It is the senior clerks who advise the speaker, going to his study before a Commons sitting to discuss the business of the day. Their advice, usually oral and not committed to paper, tends to set out the pros and cons of various options rather than giving a hard-and-fast recommendation. The speaker can, of course, overrule the clerks’ advice – as Bercow reportedly did in January when he ditched long-standing precedent and allowed MPs to vote on an amendment forcing ministers to come up with revised plans for Brexit within three days. If parliament were always bound by precedent, he said, nothing would ever change.
The short list for the new clerk was drawn up by a panel chaired by the deputy speaker, Sir Lindsay Hoyle. The final decision was taken by members of the House of Commons Commission with Bercow in the chair. This is only the second time the top job has been advertised. In the old days, the outgoing clerk produced a couple of names of those he thought should succeed him, and the speaker then chose one of them to go to the PM and then to the Queen, who makes the final appointment. The old system was clearly in need of modernisation, but last time around the new approach did not go entirely smoothly.
Bercow was keen to appoint an outsider – a woman, Carol Mills, from the Australian parliament – instead of promoting Sir David. The plan provoked a major row, with some at Westminster dubbing the Australian candidate “Waltzing Matilda”. It is understood that this time there was also an international candidate – a clerk from another parliament – who failed to make the shortlist. There may be a little disappointment in some quarters that the new clerk is not female, but the choice of the hugely experienced Benger will be widely welcomed. He will be the 51st clerk since Robert de Melton first took up the post in 1363. Perhaps the greatest of Benger’s predecessors was the nineteenth century Sir Thomas Erskine May, whose manual on procedure, now in its 24th edition, is the clerks’ bible.
In the current febrile political atmosphere, the job of the clerk will be more demanding and more closely scrutinised than ever before, with the Commons facing unprecedented constitutional turmoil. Helping MPs to navigate the procedural pitfalls of Brexit will be a huge task in itself, given how divided MPs are.
Also on the agenda will be how to tackle accusations about MPs bullying and sexually harassing Commons staff. The claims were investigated by former judge Dame Laura Cox, whose report late last year called for a new independent system for dealing with such allegations. Some may ask if MPs impugning the Commons clerks should count as bullying or harassment. Certainly the new clerk of the House’s to-do list is likely to include a strategy for dealing with any further attacks on officials’ impartiality. The propensity of some politicians to play the man – or in this case the clerk – rather than the ball is unlikely to go away, but one comfort for the new clerk is that he can only be sacked following an address by both Houses.