More than 150 years ago, the constitutional writer Walter Bagehot suggested that “the cure for admiring the House of Lords was to go and look at it”. Hand-wringing over the Lords has been a national pastime, long pre dating any recent controversies. For more than a century, complained the Liberal politician Joseph Chamberlain in 1884, the peers had “protected every abuse and sheltered every privilege”, while David Lloyd George enquired in 1909 why “500 men… chosen accidentally from among the unemployed” should “over-ride… the deliberate judgement of millions of people”. The historian AF Pollard thought it “a patchwork of legal fictions, inconsistent rights, illogical decisions and palpable uncertainties”. Logic, he noted, was rarely “an important ingredient in political institutions”, but the Lords was a particular triumph of irrationality.
The House of Lords as it exists today is not a timeless relic of antiquity, but a Frankenstein’s monster of shreds and body parts, assembled piecemeal over a century of constitutional tinkering. Liberal, Labour and Conservative governments have all sailed into the Bermuda Triangle of Lords reform, though few have completed the voyage. If we are to return to those waters today, we will need a clearer sense of our intended destination, and of the compass by which that journey should be guided.
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At the start of the 19th century, the Lords represented two great estates of the realm: the bishops of the Church of England (the “Lords Spiritual”) and the hereditary peerage (the “Lords Temporal”). In a pre-democratic age, when parliament represented interests rather than numbers, the Lords embodied the great families and estates of the realm, as well as its most powerful economic interest. Land brought not just wealth but a commanding social and economic position: local landowners appointed clergy, administered justice, commanded the armed forces and dominated provincial government. Their titles and incomes were drawn from across the United Kingdom – and, in some cases, from its colonial possessions. The result, thought Benjamin Disraeli, was the pre-eminent example of “representation without election”, embodying the three great interests of Church, land and empire.
As a class that inherited its estates from one generation and passed them on to the next, the Lords could claim to take a long view of public affairs, immune to the gusts of temporary opinion. Their wealth made them more independent of the Crown than the Commons, and better placed to resist its power. The Whig aristocracy, in particular, saw itself as the heirs of the barons at Runnymede, who had forced the Magna Carta on King John, and of the architects of the “Glorious Revolution” of 1688 that had overthrown James II.
The peers guarded that independence jealously. When Queen Victoria created a life peerage in 1856 – exercising a power that had lain dormant for centuries – the Lords refused to admit him. If the Crown could create peers for life, they feared, it would be able to pack the Lords with its supporters. Aside from a small number of judicial appointments, life peerages would have to wait for another century, when fears of royal influence had waned.
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Yet the privileges of the Lords drew growing criticism. As the electorate expanded, as local government took over the peers’ social functions, and as new classes and interests challenged their economic pre-eminence, a hereditary chamber became harder to justify. The House was also becoming more partisan, as the peerage moved en masse into the ranks of the Conservative Party. By 1900, more than 400 Conservative peers confronted 88 Liberals, a position they used to eviscerate Liberal legislation. As Arthur Balfour, the Conservative leader, foolishly boasted in 1906, the party’s majority in the Lords allowed it to “control the destinies of this great empire”, whatever the result of a general election. In an increasingly democratic age, it was a boast that could only end in ruin.
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The 1906 election produced a landslide for the Liberal Party; yet for the next four years, its programme was devastated by the upper house. In 1909 the peers finally over-reached themselves, breaching a long-standing convention by vetoing Lloyd George’s so-called People’s Budget. After a two-year political struggle – on the principle of “the peers against the people” – the 1911 Parliament Act formally established the supremacy of the Commons. The Lords lost all power over finance bills, and its ability to veto other legislation was reduced to a two-year delaying power. “Mr Balfour’s poodle”, as Lloyd George called the Lords, had at last been brought to heel.
In the run-up to the Parliament Act, Lloyd George had challenged the very existence of the hereditary principle. (A “fully equipped duke,” he grumbled, “costs as much to keep up as two Dreadnoughts, and they are just as great a terror”). Yet the Parliament Act left the hereditary character of the Lords unchanged. A preamble suggested that a future chamber would be created, “on a popular instead of hereditary basis”, but no serious attempt was made to achieve this.
That left the House securely in the hands of the Conservatives, a situation that became even more problematic with the rise of Labour. As a party founded to represent the working classes, Labour was not thickly populated with supporters in the hereditary peerage. As late as 1945, when the party won a landslide majority in the Commons, there were just 16 Labour peers out of a total of more than 800 voting peers. Yet the Attlee government, like the Liberals before it, left the hereditary character of the Lords unchanged. Following the precedent set in 1911, the 1949 Parliament Act simply reduced the Lords’ delaying power from two sessions to one.
Winston Churchill denounced the 1949 Act as “socialist aggression”. Yet what was most striking about it was its timidity. Unless the peers would vote for their own abolition, change would require a political struggle lasting at least two years, during which time the Lords would be able to wreck the entire agenda of the government. Labour had little appetite for such a contest, especially as there was no consensus over what might replace the Lords. Most governments did not want a more powerful House, armed with its own electoral mandate, and the peers’ lack of democratic legitimacy was useful in limiting its ambitions. Under the “Salisbury Convention”, the Lords agreed not to obstruct manifesto pledges, ensuring that most of the government’s programme would sail through unimpeded.
Yet the effect was to leave one of the two governing parties hopelessly outgunned in the Lords. By the mid-1950s, Labour could barely maintain a functioning front bench in the upper house. Even the Tories struggled to find enough peers with the talent and experience to conduct government business. As wiser Conservatives recognised, this posed a menace to the House itself. The result, in 1958, was a Conservative reform bill, intended not to make the Lords more democratic, but to prevent it from collapse and abolition.
The introduction of life peerages in 1958 was perhaps the most radical reform of the Lords in its history. Members could now be recruited from a much wider spectrum of society, without worrying whether their descendants could sustain the honour in future. There was no indication of how the new peers would be chosen, no cap on their numbers and no rules on how they would be distributed between parties. Such questions, ministers suggested, could be “left to the good sense of the prime minister” – a slender thread on which to hang a legislative assembly.
The Life Peerages Act was explicitly a rescue operation, intended to stave off more radical changes in future. Labour opposed it for exactly that reason. As Hugh Gaitskell pointed out, the Lords would remain a largely hereditary assembly, with an overwhelming Conservative majority. Labour had no wish to throw “a cloak of respectability” over “a Tory machine”.
In its own terms, however, the act was a great success. Over the next half-century, the Lords recruited heavily from MPs and former ministers, driving up the quality of the front benches and improving the scrutiny of legislation. The admission of trade union leaders, businesspeople, academics and civil servants made the Lords, for the first time, a House of expertise, able to speak authoritatively on complex policy questions.
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It also opened the House to women. Until 1958 the Lords was an all-male assembly, and the prospect of “a House of Lords and Ladies” drew howls of dismay. Ironically, one of the first women to be admitted was Irene Curzon, whose father had led the opposition to women’s suffrage before 1914. Yet change remained painfully slow: of around 1,500 peerages created since 1958, barely a fifth (21 per cent) have gone to women. Female hereditaries had to wait until 1963; only then could Britain sign the UN Convention on the Political Rights of Women.
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Over the following decades, Labour flirted repeatedly with abolition of the second chamber. The experience of the Thatcher years began to change that, making the party more receptive to constraints upon a government with a majority in the Commons. Policy slowly shifted from abolition to the expulsion of the hereditary peerage, which was finally achieved in 1999, when the House of Lords Act removed all but 92 hereditary legislators.
The survivors were a sop to Lord Cranborne, the Conservative leader in the Lords, who had threatened to inflict “Somme and Passchendaele” on the government’s programme if the concession was not made. The anomaly of a continuing hereditary element was intended, in part, as “sand in the government’s shoe”, encouraging it to further reform in the future. Like the preamble of the 1911 act, that hope was to be sadly disappointed.
Despite the 92 survivors, the House of Lords Act was a landmark in constitutional history. The House that assembled in November 1999 was the first since the Tudor period that was not dominated by hereditary legislators. It was also the first for more than a century without a Conservative majority. The Tories remained the largest single party, except for a brief period from 2006-15, but they could no longer pass their own legislation unimpeded while wreaking havoc on their opponents. With a fairer balance of parties, the quality of scrutiny and debate improved, and the House proved a particular champion of civil liberties. As the academics Meg Russell and Maria Sciara have calculated, the Blair government accepted roughly a third of all defeats in its first two terms, suggesting that the invitation to “think again” was a useful legislative safeguard.
Over time, however, the problems of a chamber stocked by prime ministerial patronage have become harder to ignore. The “good sense of the prime minister” has proven a fragile defence against leaders willing to appoint their siblings, drinking buddies and financial donors as legislators for life. Having re-established themselves as the largest party in 2015, the Conservatives have ballooned their lead over Labour to 82 (compared to a Labour lead of 22 at the end of its time in government in 2010). The number of peers has increased from roughly 700 a decade ago to more than 800 today, making it the largest political assembly outside of China. The effect is to weaken parliamentary scrutiny, diminish the legitimacy of the House in public opinion, and reduce the representation of smaller parties – which are already under-represented in the Commons.
Yet those who want to abolish the Lords should be careful what they wish for. In a country without a written constitution or a proportional electoral system, the Lords is one of the only checks on a government with a majority in the Commons. It is the only branch of government that cannot be controlled by a single party, elected on as little as 35 per cent of the vote. It is the only place where interests from outside the party system find representation; and it is almost the last refuge of experience in British politics. Outside the cabinet, there are now only four MPs in the Commons who have held one of the great offices of state. Only one, Theresa May, held that post for more than 15 months.
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Writing in 1865, Walter Bagehot was pessimistic about the prospects for the upper house. If the danger for the Commons was “that it will be reformed too rashly”, the danger for the Lords was “that it may never be reformed”. His concerns were misplaced. The Lords has been reformed repeatedly, but usually for the convenience of the government. Prime ministers have generally preferred a House with limited democratic legitimacy, which could not challenge the supremacy of a majority in the Commons. The Blair government’s 1999 act broke new ground by taking the Lords out of party control, but it left the House vulnerable to cronyism and “packing” by the executive.
Any future reform should begin by asking what the House is for. If we want an active and assertive chamber, able to block legislation and defy the will of the Commons, it must be democratically elected – and on a different system to the Commons. But if we want it to act simply as a revising chamber, it may be wiser to reform the existing model.
That means bringing its size under control, relating expenses more closely to participation, and – above all – ensuring that no single party can dominate. Cross-bench appointments should be taken out of political control, while party nominations should be capped according to an agreed formula. If prime ministers want to nominate their friends and donors, they should do so from their own, strictly limited, party allocation.
For more than 100 years, Lords reform has focused on the convenience of the executive, rather than the quality of government. Greater clarity of purpose will be needed, if the next century of reform is to be more successful than the last.
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This article appears in the 12 Aug 2020 issue of the New Statesman, This house must fall