For anyone who hoped that 2021 would mark the end point of Brexit, the continued uncertainty and challenges since we left the EU will have been dispiriting. Whether there is a finishing line in sight, or simply an endless, recurring, negotiation with our nearest neighbours is still up for debate.
However, one thing that has become clear is that David Frost is the most significant ministerial appointment in the House of Lords since Peter Mandelson was made first secretary of state in 2009. And with his continued prominence come important questions about democratic scrutiny.
Despite his title as minister of state in the Cabinet Office, Frost is a full member of the Cabinet (rather than simply being entitled to attend) and has the primary responsibility in government for the UK’s future relationship with the EU—cutting across the role of the foreign secretary and taking over some of the responsibilities of the chancellor of the Duchy of Lancaster Michael Gove.
His background, as a former diplomat and director for the European Union in the Foreign Office, should have equipped him to form a constructive relationship with his European interlocutors. Yet his speeches and statements on Brexit, trade with the EU and the vexed question of the Northern Ireland Protocol are often combative, and are pored over by journalists and commentators looking for an augury of future difficulties.
Frost’s appointment, which took effect in March 2021, was immediately criticised by the Opposition. Emily Thornberry argued that “we’ve finally got one minister taking a grip of the problems with our post-Brexit trading relationships with Europe—someone who has never been elected by anyone in this country, and won’t be accountable in the House of Commons to any of us who have.”
The Institute for Government, however, said that Frost’s appointment “made sense” and drew different strands of the UK-EU relationship into one place in the government, although it warned that it potentially signified a more “hostile strategy” towards the EU.
But does it matter if a senior minister sits in the Lords? And what potential challenges flow from such an arrangement?
In theory, there is no constitutional objection to senior ministers being members of the Upper House. Ministers who sit in the Lords are still subject to questions (albeit from other members of the unelected House), make written and oral statements to their fellow peers, and can attend select committees in both Houses. For some roles, such as lord chancellor and the attorney general (who is not technically a member of the Cabinet, but merely entitled to attend), the ability to appoint well-qualified outsiders who do not aspire to other political offices is arguably an advantage. Nonetheless, since Peter Carrington’s resignation in 1982, there have been only a handful of Cabinet-level appointments, excluding lord chancellors and leaders of the House.
The House of Commons Library notes that the decline in Lords ministers sitting in Cabinet began in the middle of the 20th century. Once the trend of appointing departmental secretaries of state in the Commons commenced, it quickly became accepted practice. During John Major’s period in office there were no departmental secretaries of state in the Lords, and throughout the Blair years, Charlie Falconer and Valerie Amos were the only examples of such appointments.
Gordon Brown was more open to the idea of having senior ministers on the red benches. As well as appointing Peter Mandelson, he asked Andrew Adonis to be his transport secretary. This resulted in the establishment of a new system of regular oral questions—a practice that has recently been extended to Frost, even though he is not a secretary of state.
Brown also appointed a proliferation of “outsiders” to ministerial office in the House of Lords, to build a government of “all the talents.” A 2011 UCL report on this approach concluded that while some “outsider” ministers were regarded as successful, there remained an issue of democratic accountability to parliament. Although there are methods by which a minister appointed in the Lords can be held to account by the Commons, MPs had particular demands for accountability directed at secretaries of state in the Lords.
Returning to the question of Frost’s appointment, real challenges are presented by a cross-cutting issue like Brexit, which has engaged multiple departments of state and has a significant impact across the UK. The question of accountability is particularly important since negotiations with the EU have frequently been conducted in a less-than-transparent fashion, and contentious (sometimes potentially unconstitutional) policies have been pursued by the UK government. Frost’s appointment as co-chair of the UK-EU Joint Committee and of the Partnership Council, also means that the Commons has lost direct access to the minister representing the UK in these key bodies tasked with managing the relationship?—save when he can be convinced to appear before a relevant select committee.
When a department has a minister in the Lords, normal practice is that its other ministers who sit in the Commons handle that person’s departmental business there. Given the myriad responsibilities of the Cabinet Office, this may not prove sensible for Frost. It would arguably be better, when statements are made or questions answered, that a suitably senior and well-briefed Cabinet-level minister stands in for him—be that the foreign secretary, chancellor of the Duchy of Lancaster or Northern Ireland secretary. If the situation persists, it may also be appropriate for the House of Commons to heed the advice of the Hansard Society that it “should again consider how Cabinet ministers in the House of Lords could appear before it, so that it retains direct scrutiny of the minister representing the UK at the highest level of routine formal UK-EU engagement.”
It is still too early to assess whether Frost will be recognised as a successful minister, particularly since the current government’s endgame in the ongoing EU negotiations is unpredictable. His methods are divisive, and it is not clear what they are designed to achieve (outside of energising a certain section of the domestic audience). Yet, he appears popular with grassroots Conservative voters: a recent poll of party members by Conservative Home suggested that he is currently the third most popular member of the Cabinet.
Conceivably, his approach might be designed to kick controversial issues down the road, so that current extensions of post-Brexit grace periods in Northern Ireland become established practice. But the government may also truly wish to make substantial changes to the Brexit deal, and might be seeking to ramp up pressure on the EU in advance of the 2022 elections in Northern Ireland—with the outside risk that Unionist parties come to reject the trade provisions contained in the Northern Ireland Protocol when the Assembly votes on them in 2024. That is a troubling prospect—and where that would leave the UK and EU’s future relationship is far from clear.