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Home arrow Articles arrow Issue 1 - The British Constitution arrow 05: Radek Motzke - The House of Lords: Life after Death?
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The House of Lords - Life after Death?

 How Britain's Hereditary Peers Survived into the 21st Century

 

 

Radek Motzke

 

 

The UK is a safe place for anachronisms of all kinds. Its constitutional system offers many excellent examples, just take the House of Lords. It is the only legislature in the world (if we omit the Parliament of Lesotho) whose membership is still based on heredity.

 

Who Rules Britain? The Lords or the People?

 

Britain's Upper House is some centuries older than the House of Commons and it was long the pre-eminent House of Parliament. However, the Commons strengthened their position enormously due to the rise of the democratic franchise in the 19th Century and the need to obtain the consent of the people through their elected representatives in the Commons to the taxation needs of the modern state. No government could now govern without the consent of the democratically elected House of Commons.

 

Although the Lords (whose members are also called peers) accepted this shift in the balance of power and generally respected the right of a government with a majority in the House of Commons to govern, yet their legal and legislative powers remained as strong as before and the Lords made clear that when it was in "the interests of the country" they intended to use them. So from time to time, when the Lords saw fit, they would vote down government bills even if these had been approved by the House of Commons. The most famous examples of this occurred in the 1880s, when the Lords voted down successive bills, approved by majorities in the House of Commons, by the Liberal Government to establish a devolved Parliament in Ireland, since they did not believe it would be in "the interests of the country". Thus it seemed the Lords had become the safeguard of the Constitution, prepared to use their powers only when it was absolutely necessary in order to prevent the House of Commons going too far.

 

Cynics quickly observed, however, that their Lordships did not treat all bills equally. Especially noticeable was that when there was a Conservative Government in power the Lords slept, and few of their bills experienced difficulties during their passage through the Upper House. However, whenever there was a Liberal (or in modern times a Labour) government the Lords would suddenly waken from their deep sleep, ready to protect "the interests of the country", and subject all government bills to careful scrutiny. They would introduce numerous amendments to the bills and frequently even veto them. By remarkable coincidence the Lords themselves had a permanent Conservative majority. This was hardly surprising since most of its members were hereditary, i.e. were there because their father had also been a lord and they were therefore entitled to membership of the House of Lords, and it was no secret that nearly all hereditary members were Conservatives (otherwise called Tories). Thus it seemed to many that, no matter who won the election, the Conservatives with their inbuilt hereditary majority in the House would always be in power, since it was always the Lords who had “the last word”.

 

Matters came to a head in 1909 when the Lords voted down the Liberal Government's "budget" (or financial bill), thereby throwing the country into instant constitutional crisis. In 1910 the Liberals called and won a general election fought on the slogan "Who rules the country? The People or the Lords?" A reluctant House of Lords was forced subsequently to vote through an amendment to the constitution, the Parliament Act 1911, which stripped them of many of their powers and permanently ended the possibility of their vetoing any bill approved by the House of Commons. Instead the Lords were left with a limited power to delay Commons' Bills for a maximum of two years, which was subsequently reduced by the passing of the Parliament Act 1949 to one year. If it was a financial bill they could delay it for only a month. After this period had elapsed the bill could be presented for royal assent and would become law, even though it continued to be opposed by the Lords. Note that the Commons could use the Parliament Acts procedure to change the Parliament acts themselves, if necessary, and thus deprive the House of Lords of the rest of its power.

 

Although the 1911 Act only dealt with limiting the powers of the House of Lords and not with the question of its membership the text of the Act made it clear that the reform of the Lords was meant to be "provisional" in character. The Government intended to return later with further legislation which would establish a new democratically elected chamber and remove the hereditary peers (who were, according to their deadly enemy, the Liberal politician David Lloyd George, nothing but "a body of some 500 men chosen at random from amongst the ranks of the unemployed") for ever. The only question was when it would be done and exactly what they should be replaced by. Following their castration in 1911 the hereditary Lords had been sentenced to an early death and had no role to play in the new British democracy of the 20th Century. They were doomed.

 

"Life after Death" - the Arrival of the Life Peers

 

As things turned out, however, after the Lords lost most of their power in 1911 the question of reforming them became far less pressing. The public lost interest and so did the politicians. There were simply far more important problems facing the country. So the future of the House of Lords and the question of its membership were left unresolved.

 

In fact, it was not until the passing of the Life Peerage Act 1958 that any government considered it necessary to change the House of Lords' membership, and the reforms in fact did nothing to limit the powers of hereditary peers. Instead, the Queen was given the power, acting of course on the advice of the Prime Minister, to appoint a new category of life peers (hitherto the only life peers were the bishops and the Law Lords - a group of specially created senior judges, appointed under the Appellate Jurisdiction Act 1876 to fill the Appellate Committee of the House of Lords - England's highest court). The Conservative Government responsible for the Act hoped that this reform would make the House stronger and more politically acceptable. They certainly had no intention of removing the hereditary peers, their most consistent supporters. The truth was that no government considered the House of Lords, so weakened by the Parliament Acts of 1911 and 1949, important enough to be worth reforming more substantially. There were far more serious issues in politics which needed their attention.

 

The 1958 Life Peerage Act did, however, bring about one important change. The quality of the Lords' work increased tremendously since the new peers were often outstanding personalities from public life – former government ministers, including several prime ministers, ambassadors, scientists etc. Since many of these life peers were former politicians whose careers had been ended by political failure, election defeat, etc., it was not long before critics unkindly started renaming the House of Lords "life after death". Nevertheless, their arrival greatly raised the prestige of the Lords and the quality of its debates. During the 1960s the House of Lords even began to gain a reputation as a liberal political force on social matters. It also initiated legislation on homosexual relations, divorce and abortion. This was caused not only by the arrival of life peers but also by a change in the attitude of hereditary peers. For instance, in 1956 the Lords rejected abolishing the death penalty by 238 votes to 95; ten years later, they passed a Bill to abolish the death penalty, this time by a majority almost as large as that against the Bill of ten years earlier (204 to 104).

 

Recovery of the Hereditary Peers and Their Decline Again

 

Surprisingly, the 1958 Act even succeeded in increasing the legitimacy of the hereditary peers. This was because one major problem of life peers of course was that they were personally nominated by the Prime Minister, although formally created by the Queen, and often comprised his closest political supporters. Since many people were becoming alarmed to the extent that the House of Commons was becoming the "obedient servant" of the Prime Minister's party, whichever one it was, the fear grew that perhaps the upper house might also come under his control. By contrast, the hereditary peers boasted that they were truly independent, created by God, not the Prime Minister. For the first time in their history the hereditary peers started to be seen as being useful, and as a strength in the British Constitution.

 

Increasingly, therefore, the Lords came to be valued as an important check on the Government's and the Commons' activities. Good evidence for this have been the high numbers of legislative defeats which governments of both parties suffered in the House of Lords (e.g. more than one hundred even for Mrs Thatcher's Conservative Government). Nevertheless, voting figures could not conceal the fact that although far less closely attached to the Conservatives than in the past their Lordships retained a clear bias in favour of Conservative Governments. There also existed many critics who could never quite believe – no matter how well its members might behave – that at the end of the 20th Century Britain should be the only country in the world with the exception of Lesotho, to have a hereditary legislature.

 

The reputation of the Lords for independence received a devastating blow with the passage into law of the deeply controversial Local Government Finance Act in 1988. This Act, the most controversial of all Mrs Thatcher's initiatives, introduced the so-called Community Charge or "poll-tax", as its enemies christened it, into Britain which levied a flat rate of tax on each person within a local government area, i.e., there was to be no difference in the amount of local tax paid by a millionaire and someone on a low income. Opposition to the bill as it was progressing through Parliament was fierce and the country split into two warring camps. Opponents widely hoped that the House of Lords, where most of the life peers were opposed to it, would send the Bill back to the Commons and force the Government to think again. Instead the Government brought out hundreds of its normally dormant supporters amongst the hereditary peers to ensure that the Bill was passed, as it in fact was. The poll tax, the most controversial and divisive measure in the history of modern Britain, had become law, voted through by the hereditary peers. Time would quickly show, however, that although Mrs Thatcher's Bill had been saved the legitimacy of the hereditary peers was gone for ever.

 

1997 - the Lords versus the People Again?

 

In 1997 the Labour Party won the election and decided it was time for some constitutional change. At long last the Lords were to be reformed. Execution time for the hereditary peers? Not for all of them, it turned out, for there was to be a partial reprieve. True enough, under the House of Lords Act 1999 the automatic right of the hereditary peers to sit in the House of Lords was abolished. Yet, because all sides agreed that many of the hereditary peers were useful and hard-working the Government surprisingly agreed to allow a representative group of 90 hereditary peers – elected for life by the remaining 800 – to remain in the House of Lords. This means that Britain has entered into the third millennium as the only country, together with Lesotho, of course, which has a hereditary legislature. The question now arose, how was the rest of the House of Lords to be filled?

 

The Problem of Reform...

 

Obviously, the House of Lords in its medieval form is no longer justifiable. The main arguments are that it is anomalous, unrepresentative and on an average day Conservative-led. Also unacceptable is the way that people become members of the Lords: either by heredity or by appointment by the Prime Minister, who can appoint as many people of his own choice as he wishes. Even the 25 bishops (only from the Church of England - no other religion is represented) who sit there are appointed on the advice of the Prime Minister. However, the original idea of the Parliament Act 1911 to have a fully elected second chamber also runs into several problems. An elected House of Lords would have the same degree of democratic legitimacy as the House of Commons and might thus become its rival. This would mean it would be more likely to oppose government bills, thus creating the risk of "gridlock" between the two houses. It would also almost certainly lose the ranks of the "great and the good", the hard-working life peers chosen by the Prime Minister as well as the solid core of the better hereditary peers, chosen by God alone, incorruptible, with independent minds and immune to party political pressures, since they don't have to be afraid all the time of losing their seats in the next general election if they defy their party. If the status quo was unacceptable it seemed all proposals for reform were unacceptable as well. What could the new Government do to square this impossible circle?

 

....and the Solution of the Wakeham Commission

 

To solve this insolvable problem, the Government therefore called on twelve experts and representatives of public life, including academics, trade unionists, and former politicians, several of them life peers, to join the so called Wakeham Commission to examine the options for modernising the House of Lords. Their work brought the following recommendations:

 

-           the balance of power between the Houses of Parliament should not be changed. The second chamber (i.e. the Lords) should retain their delaying power in its present form. The Commons as the only elected, i.e., fully representative, chamber must have the final say in the making of all primary legislation;

-           the second chamber must be composed on a new basis, but it should not be elected. Elections would make the second chamber into another body of professional politicians with almost no independent personalities. The House of Commons should remain the pre-dominant chamber and therefore it should reserve the highest source of authority for itself. The Wakeham Commission suggested that new members of the second chamber should be appointed by an independent Appointments Commission. There will be eight members of the Appointments Commission (three from the main political parties, one nominated by the Convenor of the Cross Benchers and four should be independents). The nominees will be appointed by the Prime Minister on condition they receive cross-party support in both Houses of Parliament. They will hold their office for the maximum of ten years.

 

The Appointments Commission will be free to appoint new members of the second chamber within following limits:

1.         a significant minority (probably 87) should be "regional members". This is the first time that a regional electorate – Scotland, Wales, Northern Ireland and         the English regions – will be given a formally constituted voice in the Houses of Parliament;

2.         at least 20% should not be affiliated to any of the major parties;

3.         a minimum of 30% should be women and a minimum of 30% should be men with the aim in order to create a gender balance in the second chamber;

4.         minority ethnic groups should be represented in numerical proportion to their presence in the British population;

5.         other Christian and non-Christian faiths must have appropriate representation, i.e., not just the Church of England.

 

There are no limits for the Appointments Commission as to the size of the second chamber. However, the Appointments Commission will have to ensure that political parties will be represented in proportion to the share of the votes they obtained at the previous general election.

 

The New House of Lords - a Model for the World?

 

To sum up, Britain will have a unique second chamber if the Wakeham Commission's proposals are adopted. It would be difficult to find a comparable constitutional model anywhere else in the world. Again the new second chamber will not be elected which will remain its most striking anomaly and its greatest achievement at the same time. As a result, the new members will be independent. They will not need money to finance expensive election campaigns, money which is nearly always obtained from corrupting political lobbies. The length of tenure (up to 15 years) will protect the new members from pressure from the political parties and will also enable them to take a long-term view on their policies. The lack of accountability of the second chamber cannot become a serious danger for democracy as the House of Commons can overrule any of its decisions.

 

The reformed British second chamber as a whole will be a very modern, almost avant-garde institution. I believe that it may show us the way to balance democracy and efficient government. Moreover, it can still be justly nicknamed "life after death", but this time for a different reason than before. It is the hereditary peers whose lives have been saved. Ninety years after the passing of the "provisional" Parliament Act in 1911, the hereditary principle remains very much alive in the British Constitution.

 

Bibliography:

Barnett, H., Constitutional and Administrative Law, 2nd ed., 1998

Dangerfield, G., The Strange Death of Liberal England, 1930

Royal Commission on the House of Lords, Wakeham Report, 2000

Thompson, B., Textbook on Constitutional and Administrative Law, 1997

 

Radek Motzke

Radek Motzke graduated from Charles University Law Faculty in Prague in 2001. At present, he works as a staff lawyer for AQUATEST, a.s.

 
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