Parliament Matters – Is Parliament a decaying organism? Lord Lisvane on our crumbling constitution (Episode 10)

15 Dec 2023
Lord Lisvane in the House of Lords. ©House of Lords
Lord Lisvane in the House of Lords. ©House of Lords

The crumbling state of the Palace of Westminster is a living metaphor for the wider constitutional decay that has taken hold in the UK, as the quality of our governance has nosedived in recent years.

In this special interview, Lord Lisvane – crossbench Peer and former Clerk of the House of Commons – discusses his worries about the state of the constitution and explains why he thinks the House of Commons has virtually resigned from the legislative process.

He sets out what changes are needed, why a written constitution is not the answer, and why a lot of brownie points could be won by a Prime Minister keen to fix his reputation for future years. And with an eye on the Rwanda Bill Lord Lisvane explains what the term “parliamentary sovereignty” means.

Parliament Matters is produced by the Hansard Society with the support of the Joseph Rowntree Charitable Trust, a Quaker trust which engages in philanthropy and supports work on democratic accountability.

Parliament Matters Episode 10

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00:00:00:00 - 00:00:30:17

You are listening to Parliament Matters, a Hansard Society production supported by the Joseph Rowntree Charitable Trust. Learn more at Hello and welcome to a special edition of Parliament Matters. I'm Mark D'Arcy, and I'm Ruth Fox. And this time for your seasonal delectation we have an extended interview with Lord Lisvane, formerly Robert Rogers, formerly Clerk of the House of Commons.

00:00:30:22 - 00:00:58:09

We talk to him about his experience is transitioning from an official of one House to a full member of the other, about how John Bercow transformed the proceedings of Parliament on his advice, and about constitutional decay and what it might mean for the future of Parliament.

00:00:58:11 - 00:01:19:06

So Ruth and I have come into the precincts of Parliament to talk to someone I used to playfully refer to as the High Priest of Parliament, Robert Rogers, now Lord Lisvane, former clerk of the House of Commons, now a crossbench peer. We decided to come and talk to him about the state of the Constitution, about the state of the very institution of Parliament itself.

00:01:19:08 - 00:01:44:02

Robert, I wanted to begin by asking you personally - as as a sort of longstanding servant of the House of Commons and now a member of the House of Lords - how do you feel about Parliament? Do you regard it as a almost a relative in serious decline now as you think about it?

00:01:44:04 - 00:02:24:13

Well, it's certainly a much loved relative, if that is the if that is the case. I've been in this building now almost 52 years and I do have a great love and respect for the institution. One needs to expect that it will be buffeted by circumstances, that it will pick itself up and carry on. There's a great tendency I think, which is wrong, to see Parliament as an organisation. Parliaments are not organisations they are organisms, and any biologist will tell you that an organism is unpredictable, reactive, cussed. And parliament is all of those three things.

00:02:24:13 - 00:02:55:17

That's one of the things that makes it almost addictive. And one of the things which I think characterises the way it operates, and always has and always will operate. So I do love it. I am not blind to its imperfections, but one of the most useful things I think one can do is to make it more effective. I always used to say reform is always the wrong word, because what it means is change of which the person speaking approves.

00:02:55:19 - 00:03:19:08

What you need to concentrate on is effectiveness. What should Parliament be doing? How well does it do it and can it do it better?

And what of your own position within Parliament? Because for many years you were a servant of the House of Commons and now you're a member of the House of Lords. It slightly put me in mind in a plotline in one of the early episodes of Downton Abbey where the chauffeur marries into the family.

00:03:19:09 - 00:03:42:00

I do feel in that kind of position. Well, I'm not required these days to use my technical expertise very much, although I do get involved in constitutional and legislative questions. So I find the time it has a lot of shelf life in terms of what goes on under the bonnet. But yes, it is a remarkable change of perspective.

00:03:42:02 - 00:04:09:20

I've been very, very lucky because in the Commons I've done really all the jobs that I wanted to do. It gave me an opportunity in different circumstances developing of the select committee system, the improvement bit of a way to go still, but the improvement of the legislative system. The six years I spent as Clerk of the Defense Committee at a time of Cold War and all sorts of other things happening.

00:04:09:22 - 00:04:37:18

I've always had the jobs that I wanted to do and always had an opportunity of, you know, to follow your metaphor, tweaking the carburetor or whatever it might be, or indeed putting a new engine in from time to time.

You've been talking a lot recently about what you refer to as constitutional decay. The state of the constitution being sort of crumbling a bit like with the buildings of parliament itself, maybe a sort of living metaphor there. What do you mean by constitutional decay?

00:04:37:20 - 00:05:06:15

Well, I don't think I'm the only person who's been talking about that. And it probably reflects a widening concern about our constitutional arrangements. And of course, I call them constitutional arrangements. We don't have a constitution. We have a lot of statute, standing orders precedent, expectations, and of course, that wonderfully British expectation of fair play.

00:05:06:17 - 00:05:32:24

And that has been under a lot of pressure. A lot of the wounds, of course, are self-inflicted. We don't really notice our constitutional arrangements until things start to go wrong and over the last three or four or five years, they've gone very wrong indeed. We've had a prime minister recommending to his sovereign a shabby tactical prorogation found by the Supreme Court to be unlawful.

00:05:33:01 - 00:06:04:23

We've had legislation empowering ministers to ignore international obligations, and we all remember the concept of breaking the law only in a specific and limited way, which of course I shall try on Thames Valley Police if they stop me on the way home from a meeting today. We've had Prime Ministers chosen by 0.08% of the population. We've had a flood of legislation much, much too much for any sensible scrutiny, beautifully drafted by the experts in parliamentary counsel.

00:06:04:23 - 00:06:27:04

But of course you can't make a silk purse out of a sow's ear. We see the House of Commons virtually resigning from the process of legislative scrutiny and the focus moving to the House of Lords, which is perhaps a reminder of one of the things that the House of Lords does very well. You look over the road at the civil service, it's hollowed out.

00:06:27:06 - 00:06:56:20

It's badly led. Some people don't think it's really being led at all. We have ministers move at a dizzying pace. Their relations with their officials are not terribly good. We have government by announcement. There is a five point plan for everything rather than actually dealing with the particular problem. And sometimes I yearn for the Clement Attlee executive approach where things were allotted to a minister.

00:06:56:20 - 00:07:33:06

The minister had to deal with them and get them right. And if the minister didn't do that, he - it was mainly he in those days - was out. And my worry about all these things happening is threefold. The first thing is that the quality of our governance has nosedived. And the second is that the average citizen looking at the constitution as interpreted by Fred Carnot, which seems to be the current theme, is inclined to say a plague on both or indeed all your houses and to disengage with the political and electoral process. And I think that is very dangerous indeed.

00:07:33:06 - 00:07:54:02

Well, coming from someone who, as it were, operated the system, that's a pretty devastating bill of indictment. But the thing that really jumped out at me was your remark that the House of Commons has virtually resigned from the legislative process. Tell us a bit more about that.

00:07:54:03 - 00:08:26:20

It's difficult to put one's finger on it. I think that the expectations that Members of Parliament have of what they should be doing have changed. I mean, they've of course, they've been changing over the last 20, 30, 40 years. But the succession of events. First of all, there was the 2019 election and the extremely light headed approach to politics with the return of Boris Johnson as Prime Minister and a lot of new Members came in, of course, with no experience of Parliament.

00:08:26:22 - 00:08:46:06

There was not the process which you and I will remember from way back, whereby mentors, trustees would talk to new members. They would take them under their wing, they would tell them, 'this is how you do things'. Exacerbated a bit, I suppose, by the fact that COVID struck pretty rapidly at the start of that Parliament and they will have to go back to their constituents.

00:08:46:06 - 00:09:27:04

Well, that was a double double whammy because they started off almost semi-detached. COVID made them almost completely detached online. They came back and trying to reinvent a culture of exacting legislative scrutiny, of calling the government to account was extremely difficult and it was made more difficult by the fact that with the hollowing out of local government and the unavailability of a lot of the local government services, it seems that members of Parliament have on their desks many things which they just should not be dealing with, but where there is a substantial political imperative that they should deal with them.

00:09:27:06 - 00:09:49:18

And so Members of Parliament, of course, chased from pillar to post by all sorts of competing obligations and requirements. But this one, I think, is starting to get in the way of what should be the constitutional role of a Member of Parliament.

00:09:49:20 - 00:10:20:19

What do you think then, Robert, with an election pending, what do you think would turn it around? We have a new cohort of MPs coming in. What changes might improve things?

I was going to add and I said there were three implications of this constitutional decay. I was going to add a third one, which is that there might be a feeling that we should have a written constitution. And I'll tell you a bit silly story about that because I was due to debate in Oxford with a very senior member of the judiciary, just retired.

00:10:20:21 - 00:10:45:23

I offered to give him a lift to Oxford and as we got on to the M40, he said, Can you remember which of us is supposed to be supporting the idea of a written constitution and which of us is supposed to be criticizing it? I said, I'm terribly sorry. I just can't remember. So I'm afraid I'll. Thespian qualities as we were in violent agreement that the one thing we did not need was a written constitution.

00:10:46:00 - 00:11:15:19

Our thespian abilities were stretched in order to manufacture the disagreement necessary for the debate. But I don't think that a written constitution is the right result. There might be elements of codification which might help. But the odd thing about all this is that a hell of a lot of things can be done by the government of the day without legislation, without some sort of constitutional convention or anything of that sort.

00:11:15:21 - 00:11:43:01

Well, indeed, I've got a bit of a shopping list here. I would say don't move ministers unless there's a really good reason. Give them three or four years in the job so they can actually master it and know enough in order to have a mutually respectful relationship with the civil servants. Abandon the mad, the insane civil service rule that in order to be promoted, you've got to move to a different area.

00:11:43:03 - 00:12:13:18

That is a recipe for losing institutional knowledge, which actually serves the executive well and serves Parliament well. Make sure civil servants in Prime Minister's private offices in post for longer. Make sure they really understand Parliament because that will make a difference. Use draft bills - very difficult in the first session of a Parliament because parliamentary counsel are occupied with the first flush of legislation.

00:12:13:20 - 00:12:33:10

But it ought to be the rule, not the exception, that you have a joint committee of both houses which commends itself to the business managers because you only have one bite at it instead of, let's say, two committees doing the things in different houses and they hear evidence from people who are going to be affected by the legislation, who really know about it.

00:12:33:12 - 00:13:22:00

And that injection of the outside discipline into the legislative process I think will be hugely important. Delegated legislation. And Ruth, you have spent a great deal of time on this and I think your ideas and mine are absolutely in lockstep. Don't put big chunks of policy in principle into delegated legislation and there is a hidden danger there, because if that's where the policy and principle resides, then you are starting to say to the House of Lords, 'if you don't like this, instead of agreeing an amendment to the primary legislation to the bill, get at it later on by voting down', yes, I contains this policy in principle.

00:13:22:02 - 00:13:48:13

And of course Henry VIII clauses, and it's very important to make a distinction between Henry VIII clauses which allow ministers to amend any bill on the statute book usually, and horrifyingly a bill actually going through Parliament. Can you ask why this exacting process can be overturned by a minister making it S.I. with relatively light scrutiny later on?

00:13:48:15 - 00:14:20:20

So there's a distinction between that and the hugely wide delegated powers, because that offends against the government's good law principles in terms of the MP themselves.

What changes do you think would help them to be better scrutineers?

I think that draft bills would make a big difference. I think a loosening of the legislative programing constraints. Would I? If you allow me to get a hobbyhorse out of the stable for a moment.

00:14:20:22 - 00:15:00:12

I am very keen on purpose clauses so that when you've got what may be an an insanely complicated bill, and particularly if it's a technical one on some financial arrangements or, you know, planning or something like that, you actually get a statement which is in plain English, which very clear, plain English at the beginning of each part of the bill. Each chapter or part of the bill is subdivided that says this is designed to achieve X so that you can actually, as a non-expert and members of Parliament, with very few exceptions, are not experts.

00:15:00:12 - 00:15:41:17

And that's good. That's very good that bringing an informed opinion to the job they're doing. You can actually debate the worth of achieving that end rather than rather artificially getting tied up in the clockwork of the detailed drafting. And I think it would actually be very helpful to the courts because this elusive idea, elusive concept of the will of Parliament, which tends to mean these days the will of the government, can actually be deduced. Because you know what Parliament thinks about legislating in this particular way to achieve a particular end.

00:15:41:19 - 00:16:08:22

So I think these are some of the things that might make their jobs easier. Lightning the burden of of constituency casework, especially where it isn't really the Member of Parliament's business deal many years ago told me a story about his making an intervention of a very young member in his local patch, and he got a rather stroppy letter from one of his local councilors.

00:16:08:22 - 00:16:34:24

Later and it said, Dear Tam, very short, deadpan, warm peace. Your business dog. Shit. My business boy, you seem to be working round to. Here is the suggestion that the problem is not so much with the letter of constitutional practice and the structure of the system, but more the behavior of the people who operate it, particularly ministers and the way government handles legislation through Parliament.

00:16:34:24 - 00:17:01:04

So the fault is not so much in parliamentarian styles but in themselves. I think that's right and it is very frustrating that you don't need some great complex construct of a new constitution, a written constitution, or great codification or whatever it happens to be. You need the government of the day to realize where these failings are. And it could be done tomorrow morning.

00:17:01:06 - 00:17:21:12

The Prime Minister could wake up tomorrow morning. I mean, he's got enough things to occupy himself with at the moment but let us say that this opportunity didn't. He has breakfast cornflakes and he could say we're not going to do it that way anymore. We're going to do it this way. I'm not going to move ministers. Rudd said that you have a new minister or a new Secretary of State every year.

00:17:21:18 - 00:17:50:02

Some years you have three, you know, this sort of thing. How can you possibly It is no way to run a government, but it is something which can be dealt with virtually instantly. And I think if you start with changing the culture in that way, a lot of other things will follow. You will have to do quite a good balancing act between perhaps losing or modifying some of the powers and freedom of action you have at the moment.

00:17:50:04 - 00:18:17:13

But of course that is the whole idea of the relationship between the executive and the legislature. The legislature is there to call government to account, and government must allow the legislature to do that job. And it does take notice of what the legislature says when it does.

What bits of Parliament do you think are actually working?

Well, people often point to the select committee system in the House of Commons as something where the performance has gone up.

00:18:17:17 - 00:18:49:21

Is. Is that your view?

Yes, absolutely. When I first came to the House of Commons as a callow young assistant clerk, we ought to give us a date. 1972. But it was rather a creaking select committee system, which of course was streamlined and made really fit for purpose by the citizens. Stevens engineered reforms of 1979, which of course came from an inquiry by the Commons Procedure Committee.

00:18:49:23 - 00:19:35:19

And that was a huge advance. And select committees have got this great quality that successful ones and most of them are pretty successful. They get their members to leave the political baggage at the door of the room. They rely on the evidence that they take. They provide an alternative view which might well not come through, as it were, party structures, because it might be something which could be seen by the faint hearted as politically damaging, so that if, for example, they were to change the classification of drugs, that's something a select committee could recommend and the Home Affairs Committee did many years ago, but which neither government nor opposition could actually bring forward because it

00:19:35:19 - 00:20:03:10

would be seen as toxic. So they can do a fantastic job. And almost most important is that they give public access to the parliamentary process. Lots of things we do in this place, in the Commons and in the Lords, they're done in a Westminster bubble. But getting people who really know about the subject to inform a select committee inquiry from outside to my mind is beyond price.

00:20:03:12 - 00:20:23:13

When you were Clerk of the House of Commons, you were the architect really, behind the scenes, of many of the ideas that emerged and were brought forward by the Speaker John Bercow. Particularly the urgent question, the restoration of the urgent question, making the House of Commons a more topical chamber and more vibrant in terms of addressing the day to day issues on the news agenda.

00:20:23:15 - 00:21:04:02

How do you think the impact of those reforms and what would you not do now? What would you, if you were advising and speaker, what would be your recommendations?

I put together something that became known as the 30 point plan. I think it was 30 points. I can't remember how many, but I circulated it quite widely. I was clerk assistant at the time when John Bercow was one of the, if memory serves, ten candidates vying to be speaker in 2009. And the use of the urgent question was something that I put forward now, and it was hardly ever done under Speaker Martin Speaker back who grabbed it with enthusiasm.

00:21:04:04 - 00:21:36:12

There's always a danger, of course, that you dilute the advantages because the advantages are topicality. Bringing the government to the Chamber to answer on something which they probably don't want to answer on, but they can be overdone and then they become one more, as it were, piece of routine. I won't go through all the points and I don't think we've got time for that, but I think a lot of the things that would make a difference are the things we've touched on before.

00:21:36:14 - 00:22:04:23

Doing government properly and doing government properly will fit very quickly into doing Parliament properly. If you ask me about House of Lords, as you just have, I think the House of Lords does a great job. I think in two senses. It does it in legislative scrutiny. I'm extremely skeptical about the idea of line by line scrutiny, which is the phrase always trotted out.

00:22:05:00 - 00:22:32:02

I don't know quite how effective that is, but the House of Lords has done some really, really useful things in taking out what might have been baneful provisions in bills. And fortunately on those occasions the Commons put them back in, or rather the government back in. And the other of course is calling government to account because the two houses and I think it's very important to try and get this message over to people.

00:22:32:04 - 00:23:00:15

They don't compete, they should not be competing. And that puts forward an entirely false prospectus for what Parliament is doing. They're complementary. They do things which are identifiably similar, but they do them in different ways and take select committees as an example in the Commons there is the vertical arrangement where a select committee scrutinizing a government department drills down into the associated public bodies.

00:23:00:15 - 00:23:40:19

The regulators, people on the fringes, all the rest in the Lords. It's absolutely across the scene so that, for example, the International Agreements Committee doesn't look just just an international range of possible effect. You've got economic affairs, you've got foreign affairs and defense, international affairs and defense. And that, I think is a great strength. But just to go back to what you could do tomorrow, these aren't quite things you could do tomorrow, but you could certainly say, let's do tomorrow from Number 10 Downing Street to make the House of Lords Appointments Commission statutory so that Prime Ministers could not overrule its decisions.

00:23:40:21 - 00:24:00:01

And we might get back to the idea of two out, one in, which the Burns Committee suggested as a way forward for reducing the House to no larger than the House of Commons.

So every time a Peer was appointed, it could only be done if two other Peers were going.

00:24:00:03 - 00:24:47:00

Well, I think you'd smooth it out. You wouldn't. It wouldn't, as it were, be a balloon debate. But you would need a mechanism to recognise political majorities or political outcomes of the previous general election. But if you had a tight control on who was coming into the House and you were really pretty demanding about what time and energy they would give to their membership of the House, and if you managed to stamp out what people see as a corrupt, potentially corrupt system of appointments, then I think that would be great for the House of Lords in each it would make the House more effective over time and it would be something that you could say on day one.

00:24:47:02 - 00:25:12:23

Peter Hennessy has famously described Lords reform as the Bermuda Triangle of politics, and there's no doubt that it is a political graveyard. So I think if I were Keir Starmer, and if I were looking at power after the next election, I would say, well, we do need to think about whether we go full Gordon Brown and have a sort of assembly of the nations and regions, or do we do incremental reform.

00:25:13:00 - 00:25:33:06

But I think people want to see that it is recognised that some sort of reform needs to be made.

And the problem with an awful lot of political reforms is that they involve the government of the day giving away power over, say, Lords appointments as you've just been discussing. And that's very easy to discuss in abstract at some sort of conference of constitutional scholars.

00:25:33:06 - 00:25:56:17

But when you're an incoming Prime Minister - and we may well have an incoming Prime Minister in the next 12 months - and you suddenly got all this lovely power to play with, it's a very different prospect. Surrendering a lot of it isn't the problem here. Not so much what should we do, but how do you actually get it done when the people who would have to do it have to surrender quite a lot of power and influence?

00:25:56:19 - 00:26:26:14

It recalls, to my mind, the practice in a Roman triumph where the general in his chariot, being cheered by the crowds, always had a slave behind him, muttering, 'Remember, thou art mortal'. The same thing might be said of an incoming Prime Minister. There are a lot of things, some of the things I was suggesting earlier which can be done, where you get a lot of brownie points for doing them and it doesn't make a huge difference to what happens.

00:26:26:19 - 00:27:13:16

For example, just to pick out Ruth's special interest interest in delegated legislation, you don't have to have huge issues of principle and policy in delegated legislation. Put them in primary legislation, have them properly looked at. No, that is not taking power away. It is probably annoying the civil service because of course it is very convenient to the, as it were, the 'apparat' of an executive to be able to do that, because it sidesteps Parliament. But is a fundamentally wrong thing to do, to sidestep Parliament and to deny Parliament its role as the representative and the protector of the citizen.

00:27:13:18 - 00:27:47:03

So I think there are quite a few things that it's not going to be the end of the world if an incoming Prime Minister does some of this stuff. You know, we're not suggesting that there should be a confirmation vote on members of the Cabinet, for example. I mean, this is this is quite limited stuff. It is. I suppose it could be criticised as being niche, but if it is niche, it is something which applies very, very widely across the polity and across the business of the executive and of the legislature.

00:27:47:05 - 00:28:18:10

Perhaps the slave might have to speak a little more loudly, but it's something which a Prime Minister who wanted to fix his reputation for future years might well be attracted by.

But what we're talking about as well is a return to a more effective policy development process. I mean, the days of green papers, white papers, proper consultation processes before legislating, which obviously bills the question of time.

00:28:18:12 - 00:28:43:11

Can I ask about another niche constitutional question that's perhaps not something discussed in sort of wider society down at the the dog and duck, but has been high in the debates this week over the Rwanda bill. This question of parliamentary sovereignty. It sort of gets bandied about by Members of Parliament. You've been in and around Westminster, as you say, for 50 years. You've seen perspective from both houses. What does parliamentary sovereignty mean? Can you explain it to our listeners?

In a word, no. I think if you're going to tackle the subject, what you need to do is you need to start with the words. When Parliament has legislative sovereignty And if you go back to Brigitte, his remark that the Queen signed her own death warrant, if both houses bring it up to her duly approved, there is no doubt that Parliament can legislate as it sees fit.

00:29:19:03 - 00:29:53:08

There are constraints. There are constraints as we have very much, you know, everybody has in their minds over the Rwanda debate whether these are represents the possibility of Strasbourg intervention is something which can constrain parliament. And the answer is that strictly speaking, it can't. The courts can take a view on whether something does break an international agreement, but Parliament can legislate to whatever effect Parliament sees fit.

00:29:53:10 - 00:30:22:03

Now, the whole business of parliamentary sovereignty I think is a is it's a phrase which is thrown around and the the thrower, the target depends very much on on the subject. I've no doubt that Mr. Frost, for example, has a very keen idea of what parliamentary sovereignty is, and it means that Parliament can do what he and his colleagues would like to see done.

00:30:22:05 - 00:30:58:01

Well, that is actually true, but the idea of parliamentary sovereignty is being some sort of panacea. I think is is overdone. Or perhaps a better way of describing it is that it is not thought about sufficiently exacting that it becomes simply a phrase So, well, parliamentary sovereignty. I think it is important to have legislative sovereignty in mind and how that works out in the what may be a very complex interplay between executive, Parliament and the courts.

00:30:58:03 - 00:31:27:19

So legislative sovereignty means Parliament says what the law is exactly. That is something that Parliament does. That's something that we are all here to do. And the better we do, it, then the better that relationship will be. And it does not become an abrasive relationship between Parliament and the courts. And that's one of the things that seems to be happening a little bit more at the moment is that Parliament and the court seem to be treading on one another's toes a little bit more than is quite comfortable.

00:31:27:21 - 00:31:57:10

Comfortable for whom? Both. Yes, I think so. As long as you have a Supreme Court and I was very doubtful about the Supreme Court to begin with, its first president, I remember, told me that he was keen to see it as a constitutional court. And I found that very worrying because it invites the question of what is something which is constitutional, upon which it can rule.

00:31:57:12 - 00:32:35:18

Now, it is very interesting that in Miller one and Miller two, both David Neuberger and Brenda Hale..

.. this incidentally was - the Miller one and Miller two - the cases against the prorogation of Parliament.

Yeah, indeed. And Miller one was the necessity to have a parliamentary authority, a statutory authority for invoking leaving the European Union. And they began their reading out of the judgment in each of those two cases by making it clear that what they were talking about was the law, the black letter law and the interpretation of that.

00:32:35:20 - 00:33:16:20

And I think as long as the Supreme Court operates in that way, it's very difficult for Parliament or anybody else to object to what they're doing. So I don't think that there is too much treading on toes because the Supreme Court and the divisional court in those two cases has been very careful indeed not to do that.

There are plenty of people, Dr. Hannah White at the Institute for Government, for example, who said that actually the state of the buildings of Parliament and the lack of repair, and the general sense that you have to run fire patrols to prevent the whole place burning down and spent vast amounts of money on that is actually quite a quite a good sort of metaphor for the state of the British constitution. Do you buy into that metaphor?

00:33:16:20 - 00:33:46:17

I absolutely do. I think Hannah's interpretation is correct. You don't have to tell me about the horrors of trying to deal with a decaying building. I spent some time as a corporate officer looking over my shoulder at the Corporate Manslaughter and Corporate Homicide Act 2007, which, if anything serious goes wrong, puts the corporate officer in the dock without argument.

00:33:46:19 - 00:34:12:03

So if a parliamentary gargoyle falls on someone, you're the person who's facing the judge.

Indeed, that is absolutely the case. And, you know, you didn't get an opportunity to suggest who might be an appropriate target for the parliamentary gargoyle falling down. But the place is, is really, I'm looking out of the window now at decayed stonework, which is going to need huge repair.

00:34:12:05 - 00:34:37:06

It's not operating properly as a building, even though you might be tempted to think so if all you saw was the ground floor, the principal floor. I commissioned the first condition survey of with my Lords opposite number of the Palace when I became Clerk in 2011. It reported four months later with the judgment that doing nothing was not an option and we have done nothing.

00:34:37:08 - 00:35:01:20

And just how many years ago?

Well, that was that was just coming up to 12 years ago. There have been huge amounts of surveys and all the rest of it, you know, some very detailed stuff. But things have not started. And I think this business of a decaying constitution and a decaying building has a very worrying mutual resonance.

00:35:01:22 - 00:35:32:13

There has been a suggestion that some of your successors as clerks of the Commons and the Lords might reach the point where they baulk at insisting that staff continue to go into the building, especially if work is being attempted around them.

Yes, that's absolutely correct. It didn't really occur in my day, but obviously things are getting worse and if there were to be a catastrophic failure of services or a fire or a collapse of some part of the building, it would be much worse for us than it was for the French with Notre Dome.

00:35:32:13 - 00:36:03:11

And I think a lot of people would say, well, there you are. That's politics, that's the constitution, and it's falling to bits. And that I think, in terms of trying to do something sensible about our constitutional arrangements, is a ghastly warning.

And on the subject of ghastly warnings, if you'll forgive the very clumsy segway, you've been presiding over a House of Lords Select Committee on a very specific issue, which is the emergence of what are called autonomous weapons systems. I think of it as kind of the Terminator inquiry, the idea that robot weapons could soon be used to fight wars, and also the prospect that the robot weapons might prove to be outwith human control from time to time.

00:36:29:02 - 00:36:57:19

Yes, we've been doing that inquiry. It's one of the Lords special inquiries committees for 2023. I think it's a really good example actually of the Lords being rather nimble. A system of special inquiries, committee of inquiry committees. Therefore each year they have to complete their work within a year and it's a very good way of turning the spotlight onto something which is moving fast up the agenda of political and public concern. And I was fortunate enough to chair the Committee on Artificial Intelligence and Weapons Systems. This is something and you've already used the word mock of Terminator.

00:36:57:21 - 00:37:15:08

This is something which gets blown up in the public consciousness. Blowing up may not be the right phrase, but it's something which appears in the public consciousness as a sort of horror story waiting to happen. And on the other end of the spectrum, there are people saying, no, no, no, don't worry, it's all going to be absolutely fine.

00:37:15:10 - 00:37:42:01

So one of the things we did is what select committees ought to do, which is to provide a hugely evidence based platform for informed public debate. And I think that that is what we have done. We've entitled the report, 'Proceed with Caution'. And the Ministry of Defense says that its policy on this subject is to be ambitious, safe and responsible.

00:37:42:03 - 00:38:04:22

But we do not think that the places are there on the board to allow them to achieve that.

Can they be all three at the same time? Well, yes, I think they can. But for example, we were rather surprised that the Ministry of Defense has no definition of what an autonomous weapon system is. I mean, it may be like a camel - you know what it is when you see it - but if you're going to seek international regulation and agreement, which was a key part of our recommendations, then you do need to have a robust definition of what an autonomous weapons system is, which we gave them. a set piece adopt this because otherwise you may find that the bar is so high that lots of things which most people would recognize as US systems are not caught is the definition of an autonomous weapons system, essentially one that can decide to shoot without a human ever being involved in the decision.

00:38:41:24 - 00:39:09:00

If it is fully autonomous, then inevitably that's what it is. But a central part of our inquiry was to establish what in the jargon meaningful human control means, because if you're going to be compliant with international humanitarian law, then you cannot have a compliance system which is fully autonomous. There must be human intervention, whether it's a kill switch or whatever it is.

00:39:09:05 - 00:39:37:21

But we said throughout the development, manufacture, deployment and use, there must be a moral agency of the people who are using that system. And if you don't have that, then you've gone off the scale in terms of compliance with international humanitarian law because you don't have meaningful human control. But some of these systems have to react so fast that a human being can't really be in the decision loop.

00:39:37:22 - 00:40:03:22

If feels a system that's trying to stop a missile, what's coming at you is supersonic speed or hypersonic speed. There isn't time for human beings to sort of sit down and ponder the implications of shooting back. It's just going to happen and the machine just does it to an extent. But of course there is such a system at the moment, Phalanx, which is used, it's mainly a naval application and it is used to shoot down incoming missiles and it's very effective.

00:40:03:24 - 00:40:32:02

But there is meaningful human control there because there is a decision as to when you switch it on, what sort of parameters you allow it. And all of that is subject to what in British armed forces is extremely exacting, targeting a process of authorization. So that yeah, there's got to be you're not you're not waiting till something's in the sights and then pulling the trigger.

00:40:32:04 - 00:41:03:20

But you are saying to the system, if this happens and this happens, then you can fire and that does circumstances alter cases, but that does introduce the necessary element of meaningful human control.

Your inquiry dealing with artificial intelligence and so on, it's sort of the frontiers of technological and scientific development at the moment? What kind of resources does your committee have to undertake that kind of inquiry? Give our listeners some idea of the kind of support that you have to do that kind of scrutiny?

00:41:03:22 - 00:41:36:10

A very good staff team, supplemented by two highly respected technical advisers. But and here I go back to the method of operation of select committees, a huge number of witnesses appearing in person, putting in papers which gave and if you look at the report, the way we take each of the challenges, as it were, and go through the merits and demerits of the evidence which was given to us, you get you know, we weren't asked to design a system.

00:41:36:12 - 00:42:04:24

So the technical element, you don't need that if what you're doing is policy audit, which was effectively what we were doing, then you can draw your conclusions out of what for us was an extraordinarily wide spectrum of expert evidence. And incidentally extremely useful to be able to do a lot of this online because you can talk to somebody at a research facility on the West Coast, United States.

00:42:05:00 - 00:42:41:22

They rather than dragging them over to this decaying building. And there I fear we must leave it to Robert Rochester Design. Thanks very much for joining us on the pod.

It's been a real pleasure. Thank you very much, Mark. And thank you, Ruth.

Well, that's all from us for this week's episode of Parliament Matters. Please hit the follow or subscribe button in your podcast app to get the next episode as soon as it lands and help us to make the podcast better by leaving a rating or review on Apple or Spotify and sharing your feedback. Or producer tells us it's important for the algorithm to give the show a boost.

Go on Mark, tell us more about the algorithm.

What do I know about algorithms. You know, I write my scripts with a quill pen on vellum and then send it in by carrier pigeon.

Well, before we go, a quick reminder also that you can send us your questions on all things Parliament by visiting We'll be discussing them in future episodes, including our special Urgent Questions editions dedicated to what you want to know about Parliament.

00:43:05:04 - 00:43:37:03

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