“A severe though not unfriendly critic of our institutions said that the cure for admiring the House of Lords was to go and look at it”. This was noted by Walter Bagehot, the great 19th century writer on the British Constitution, who is still viewed as a great authority.
Roy Jenkins (later Lord Jenkins of Hill Head) was even more dismissive, calling the early 20th century House “Mr Balfour's poodle”, because he saw it as the lapdog of the then leader of the Tory party, in opposition to the radical Liberals.
Even Disraeli, who as an older man expressed a rather different sentiment, wrote of the House of Lords in Sibyl, published in 1845, that Pitt the Younger's creation of a hundred and forty peers had “created a plebeian aristocracy and blended it with the patrician oligarchy. He made peers of second-rate squires and fat graziers”.
This is part of a long tradition of criticisms of appointments to the House of Lords, which have often been a bone of contention.
Thomas Lorby, in the reign of James I (1603-25), noted that “Buckingham, knowing Roberts to be rich, forced him to take the title of honour; and that in consideration thereof he paid £10,000”. Likewise, Cavendish was said to have paid £10,000 to become an earl.
About a hundred years later there was a great row over Queen Anne's appointment of a dozen peers to pass the Treaty of Utrecht. Thus, in 1719, early in the reign of George I, this led to the introduction of the Peerages Bill in the House of Lords, with the aim of limiting the number of peers that could be created. It failed to pass in the Commons; hence the continued arguments about creations in the 18th century, culminating in Pitt's recommendations mentioned above, which so upset Disraeli.
A further hundred years or so later the scandal was Lloyd George's sale of honours, which was more financial than political, but remarkably similar to James I's effort.
Concerns and allegations over sales of peerage then re-emerged during the prime ministership of Tony Blair, although in the end no charges were brought.
Despite its ancient roots (along with the Privy Council, it is the descendant of the Anglo-Saxon Witan and the early Norman Curia Regis), the above examples show how the upper house has long been mocked. Nonetheless, its ability to have continued across centuries of vicissitudes, and even abolition under Cromwell, shows it must serve some purpose.
A second chamber is useful if it carries out its proper job, that of a revising chamber. The House of Commons needs to respond to immediate and popular political issues, but may not have time for reflexion. The Lords ought to be able to take a longer and more detailed view, hence providing better legislation when both Houses are involved.
The Commons often fails to look beyond the general principle of a bill, whereas the Lords tends to provide line-by-line scrutiny. It often rejects increases in Ministerial power via secondary legislation, which improves accountability.
My experience of lawmaking as a Member of Parliament for 14 years, and as a Minister, is that most bills are carefully examined before presentation to Parliament. Civil servants and Ministers discuss the policy, and the views of interested parties involve it being a fairly long-winded process across the whole of government.
The Bill is then presented to the Commons (if it is controversial, some more administrative Bills start in the House of Lords), which is whipped to pass the Bill in its entirety. Successful Commons amendments only tend to come from the government, and these are generally either changes where the need became obvious late on, or because the Bill was brought in before it was completely ready, to fill a gap in Commons business. The skill and speed of parliamentary draftsmen in turning round changes to legislation was and is one of the strengths of the system.
Independent change and scrutiny, therefore, only really come from the House of Lords. This is both in the Chamber itself, where more time is spent on the details and less time on general debates, and also in specialised committees. This system provides a check on the government, and also makes better law.
Nonetheless, the Lords is not without its flaws. Its role as a revising chamber only works well when it is either politically neutral towards a piece of legislation, or mainly on the side of the government of the day. If the Lords is fundamentally opposed to a new Bill, this can lead to changes being proposed and implemented that weaken it and the eventual Act that is passed becomes ineffectual.
Unfortunately for those on the right, the current House of Lords has a distinctly establishment view of the world. It is the Blob made flesh. This means, for example, that under previous governments ministerial powers to control migration were much more heavily contested than those to impose environmental targets.
In addition, the Lords is mainly made up of politicians who were at their peak twenty years previously. Hence it has a strong affinity for outmoded nostrums. It still loves the European Union and worships at the shrine of green orthodoxy. It has changed fundamentally in character since the Tony Blair reforms.
Essentially, from the 1790s, the peak of Pitt, to 1999, there was always a Tory majority in the upper house. This was especially true after Gladstone's failed attempt to give Ireland home rule, when many Whig peers joined the Tories.
Yet after 1911 and the great clash with the Commons, which it lost, the Lords recognised the need to accommodate a Liberal or later Labour government. The Salisbury-Addison Convention formalised this after the Labour victory in 1945, although it was more acceptance of reality than a significant change.
Post 1999, the Lords has had a left-wing majority. The Liberals and Labour, together with the soggy crossbench quangocrats, heavily outnumber the Tories. The life peers have an arrogance, a sense of entitlement by virtue of appointment, that the hereditaries lost decades ago because they doubted their own legitimacy, and recognised they were there on sufferance, not by divine right.
This new majority proved especially difficult for the Conservatives once the coalition with the Liberals ended in 2015, and this led to an increasing number of defeats and delays to government business.
In this context it is worth mentioning that although there are members with great knowledge in the House of Lords, it is not a House of Experts. For every former Chief of the Defence Staff there are dozens of political appointments of former MPs or councillors who are needed to bolster the number of active peers.
As division lists get larger, because more peers are whipped to vote, the distinguished luminary who spoke once a year on a specialist subject becomes rarer, with a vast number of three-minute speeches given by ‘grandees’ who would not be out of place in the Commons.
The hereditary peers, not drawn in by the daily stipend, were more likely to be occasional attenders who spoke on their particular area, whereas the new creations pop up the whole time.
Thus as the final hereditaries face removal, further weakening the Conservatives' numbers and easing the passing of socialist legislation, is there any justification for the current House?
The answer, the obvious political one, is both no and yes.
‘No’ is the easy response. The House of Lords is too big and it has no democratic legitimacy, with Members who have been appointed by recent Prime Ministers for a mix of motives, not all of them benign. Therefore, surely it must be reformed or abolished.
However, abolishing it entirely would constitutionally be very difficult and, as mentioned above, an effective revising chamber brings many benefits. Hence the answer is also ‘Yes’.
But what sort of reform should take place? That is the harder question.
The problem faced in 1719 of limiting the number of appointments is the same today. It potentially strengthens the Lords as a block against both the executive and the Commons. Ultimately, the second chamber must give way, but how can it be forced to do so, without the possibility of creating enough new peers to force its hand?
Some have proposed that it should be democratic, but not challenge the Commons. Democracy is promised in the preamble to the 1911 Parliament Act, and was also promised by Nick Clegg's reforms, which failed in 2011. Yet the legitimacy a second chamber would receive from being elected means that it would inevitably think itself of equal standing with the Commons.
Most of the way business between the Houses is done is by convention not by law. These conventions would inevitably change if the Lords had a democratic mandate. This would become especially problematic if the elections were on a different timescale or franchise. The Lords could then, under certain circumstances, claim to be a more democratic chamber than the Commons and could be under control of a different party blocking all government business.
It is only, after all, a convention, established by George V, that the Prime Minister has to be in the Commons. Hence if the Lords was Tory but the Commons Labour, both under a democratic mandate, who should be the Prime Minister? Such an arrangement would lead to gridlock, which works in a fashion under the United States Constitution but would not suit the United Kingdom.
Reforming the Lords always presents fundamental constitutional issues that would need to be addressed, as well as incidental ones, for instance those relating to bishops. It is why the House has evolved over time, and for it to continue to do so is probably the best solution.
I regret the passing of the hereditary peers. It was a better chamber before they, and indeed the judges, were forced out. It was more considered and less party political. However, their final departure ought not to be the cause of fundamental reform, but the continuation of incremental change.
The Parliament Acts of 1911 and 1949, along with the Salisbury-Addison Convention1, rebalanced the relationship between an hereditary and a democratic House. More recently, the Life Peerages Act 1958 revitalised a body that had become inert. It not only allowed a new set of peerages to be awarded but also permitted ladies to attend. Oddly, hereditary female peers could only do so from 1963.
Now it is time to consider time-limited peerages, to prevent the inexorable rise in numbers as people live longer and Prime Ministers need to appoint peers to get business through. If Peers were appointed for ten or fifteen years, that would help an incoming government appoint enough members to allow it to have a greater degree of control of the business of the House, and to appoint Ministers. As their peerage would expire within a certain time, it would stop the House becoming ever larger as each new government feels the need to bolster its numbers. To maintain the independence of Peers once appointed, it ought not to be possible for them to be re-appointed after their initial term of office.
Whether for life, or for a certain period, the right to appoint peers is something no wise Prime Minister should ever give up. It is an essential use of the King's prerogative, and the proposal to limit the number of peers is popular in the Lords because it would enhance their Lordships’ power.
A second, revising chamber is a beneficial part of the Constitution. Inevitably, the elected House will concentrate on the wide arc of policy, not the details. A studious body, that ideally has an understanding of the way legislation ought to pass, and desires to protect ancient rights against arbitrary rule is a good thing. The Lords has often in the past stood for limitations on ministerial power, and opposed reductions in jury trials and extended periods of detention without trial. It has the ability to ask the Commons to think again, but fears to use its power too often against a large Commons majority, lest it have this same power curtailed.
It is far from perfect, it is frustrating to governments but it somehow works, and the whole constitution would need revision if it were to be more than incrementally altered.
1The Salisbury-Addison Convention allows for the Second Reading to be given by the House of Lords on any manifesto commitment of a government.
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