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Reform of the House of Lords: a “parliamentary version of Waiting for Godot”1?

Michael PARSONS

Résumés

Après la mise en œuvre rapide de la première phase de réforme de la Chambre des Lords, les projets devant conduire à la deuxième phase ont peu avancé. S’il y a un certain consensus pour dire que la réforme est nécessaire, il y a des divergences importantes entre les deux chambres sur la façon de la réaliser, notamment à propos du mode de désignation des membres de la chambre réformée (nomination ou élection). La conjoncture économique et politique fait qu’une telle réforme constitutionnelle n’est guère prioritaire. Pourtant le mode de fonctionnement de la chambre a évolué au cours de la dernière décennie. Elle s’affirme davantage et s’est donnée un rôle important dans la préservation des libertés individuelles et dans l’examen des implications constitutionnelles de toute nouvelle législation. Ceci soulève un paradoxe, la chambre non-élue se montrant peut-être davantage attachée à la préservation des droits démocratiques que les députés élus de la Chambre des Communes. Une Chambre des Lords élue jouirait d’une plus grande légitimité pour remplir cette fonction particulière et, plus généralement, pour obliger le gouvernement à rendre des comptes sur son action.

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  • 1  In a speech in the House of Commons in 2003, Robin Cook said: “I was struck by the fact that there (...)

1The Labour manifesto for the 1997 general election promised a reform of the House of Lords in two stages. Stage one, the ending of the right of hereditary peers to sit and vote in the House, was partially implemented under the 1999 House of Lords Act. Ten years on, what has changed? Whatever happened to stage two? Will it ever come, or will it, like Beckett’s Godot, remain an increasingly forlorn distant hope? And, in the meantime, how has the House of Lords changed – if at all – in terms of its self-perception, its role and its action? Does it make any difference and does anybody care?

2It could be argued that little has in fact really changed since the 1999 legislation to “restrict membership of the House of Lords by virtue of a hereditary peerage”. On the face of it, the powers of Britain’s second chamber have remained broadly the same. Attempts to complete this first “self-contained reform” of the House’s composition have stalled and there are few observers who foresee any major change in the immediate future. This is not for want of a sense that the process of House of Lords reform needs to be continued; it is rather because there is no consensus about the direction such future reform should take. The House of Commons and the House of Lords seem to have adopted quite radically opposed positions in this respect.

  • 2  This was the term used by critics who feared the reformed House of Lords would be dominated by Ton (...)

3The House of Lords has nonetheless changed in quite substantial ways. To begin with, the party balance is today very different from what it was when Labour came to power in 1997. It is no longer possible to refer to an “inbuilt Conservative majority” but nor has the House become dominated by what some critics feared would be “Tony’s cronies2”. Although the reform process is unfinished, the House of Lords has unquestionably gained in legitimacy (though allegations of “cash for amendments” in January 2009, after the “cash for peerages” scandal of 2006, may damage the public image of the House). It has shown that it wants to be much more than a simple “revising chamber” and in recent years has taken on an increasingly important role with regard to civil liberties and constitutional issues. This raises the paradox of an unelected chamber seeming at times to be doing more to protect certain individual rights at the heart of democracy than the elected House of Commons. However there is substantial support for an elected House of Lords and it seems legitimate to suggest that this arrangement would strengthen the upper chamber and help it fulfil its new role more effectively.

4The “unfinished business” of Lords reform has made it much more assertive and this is reflected in the number of government defeats: the House of Lords is certainly no Prime Minister’s poodle today. Although public perceptions of the Lords may not always recognize the value of the second chamber, a study of some of the more significant defeats inflicted on government legislation by the House of Lords is instructive.

Lords Reform 1997 to today

5Reform of the House of Lords did not of course begin with Labour in 1997. The Parliament Acts of 1911 and 1949 substantially restricted the power of the upper house to block legislation passed by the “other place” (the first limiting the Lords’ power of delay to approximately two years, the second bringing it down to one3). After the 1945 general election, the House of Lords was faced with a new challenge: a Labour government with a radical programme enjoying a clear popular mandate. If the House of Lords opposed legislation which the Labour party had promised in its manifesto it would clearly be out of tune with the wishes of the people. The House recognized this and accepted what became known as the “Salisbury convention” (or “Salisbury-Addison convention”). Under this convention, the House of Lords would not oppose legislation announced in a manifesto and given a clear mandate at a general election4.

Life peers

6One of the most significant reforms to follow the Parliament Acts was the introduction of life peerages under the Life Peerages Act of 1958, which also introduced women to the House of Lords. Since then over 1,100 life peers have been appointed, and 58 hereditary peers5. This reform, introduced by a Conservative government, was seen by some as an attempt to save the House of Lords from inevitable decline and fall.

Attempted reform under Wilson

7Attempts were made during the Wilson government 1964-1970 to reform the Lords and a White Paper was published in 1968. However the Parliament (no. 2) Bill 1969 failed in the Commons (though it was accepted by the Lords) in the face of opposition bringing together such unlikely bedfellows as Michael Foot and Enoch Powell, who were opposed to the reforms for different reasons.

8Arguments against change did not necessarily mean that their protagonists felt that the House was already an effective second chamber and so needed no modernization. For example, the Labour minister Richard Crossman revealingly explains in his diary that he was in favour of unicameral government and that he did not want the House of Lords to be reformed precisely because otherwise it might gain in credibility:

  • 6  CROSSMAN, 1975, p. 553 (entry for Tuesday 28 June 1966).

I said quite bluntly that the best way to get unicameral government in this country was to have two chambers officially but to have the second one so discredited by its composition that it was no threat at all, i.e. to cut the Lords’ powers but otherwise leave it composed of hereditary peers and just enough life peers to keep it going.6

  • 7  BOGDANOR, 1997, p. 119.
  • 8  BOGDANOR,2009, p. 151.

9This is more or less what happened. In 1997, before the recent reforms, Vernon Bogdanor wrote that Britain had a “unicameral system of government but with two chambers of parliament”7, an expression he repeats in 2009 when he says that the 1911 Parliament Act ensured that “Britain, so it seemed, might enjoy the inestimable advantages of what was in effect a unicameral system but with two chambers.”8

10However, the feeling that the Lords themselves had been ready for reform but had been frustrated by the Commons seems to have led to an increased willingness on their part to take a stand against the government, and particularly against the Labour government between 1974 and 1979. This could of course be explained partly in terms of this new-found vigour and partly because of its political bias. The fact that the Labour governments of the 1970s had to cope with small – and declining – majorities in the House of Commons must also be a contributory factor.

  • 9  These figures are from RICHARD & WELFARE, 1999, pp. 51-52.
  • 10  Quoted in SHELL, 2007, p. 41.

11Labour undoubtedly suffered unfairly at the hands of the Lords: in 1975/6 it was defeated 126 times, in 1977/78 78 times. Over the entire period 1974 to 1979 Labour was defeated by the Lords on 343 occasions or an average of 68.5 per session. In comparison, postwar Conservative governments were defeated fifteen to twenty times a year9. Labour was, unsurprisingly, deeply critical of the House of Lords. The party’s 1976 conference described the Lords as an “outdated institution completely inappropriate to a modern democratic system of government [which … ] should not continue in its present form”10. In 1977, the Labour conference called for abolition. James Callaghan, early on in his period as Prime Minister, complained about the way the Lords behaved and threatened to take action if they did not mend their ways:

  • 11  James CALLAGHAN, Speech in the House of Commons, 9 November, 1976, Hansard, House of Commons, 5th (...)

It is quite clear from what has been said and written that, time after time after time, there has been a conspiracy between the Conservative Front Bench in this House and the inbuilt Conservative majority in the House of Lords to defeat legislation that has passed through the House of Commons … I warn the House of Lords of the consequences … it is our strong view that the House of Lords should recall that its role is not that of a wrecking chamber, but of a revising chamber. In recent weeks, it has been wrecking legislation passed by this House.11

  • 12  MORGAN,1997, pp. 510-511. The quotation is from Cledwyn Hughes’ diary entry for 9 February 1978.
  • 13 The Labour Way is the Better Way, Labour party manifesto 1979. In CRAIG 1990, p. 297.

12He felt the House of Lords was senile: in 1978 he told Cledwyn Hughes, a former Secretary of State for Wales among other ministerial positions, and a future Leader of the opposition in the House of Lords, that after his retirement he would prefer “to take seminars in Sussex University and thus have the company of intelligent young people ‘and not the old fogies who frequented the Lords’”12. He controversially refused to allow a commitment on abolition – or an elected upper house without the hereditary peers ­– into Labour’s 1979 manifesto, although the manifesto did claim that no one could “defend on any democratic grounds the House of Lords and the power and influence it exercises in our constitution” and proposed to “abolish the delaying power and legislative veto of the House of Lords”13 After the Labour defeat of 1979 and Callaghan’s subsequent resignation, the party’s position became more radical. The 1983 Labour manifesto, probably Labour’s most left-wing manifesto ever, called for complete abolition.

  • 14  Quoted in SHELL, 2007pp. 43-44.

13The Conservatives were also attracted to the idea of reform, because they feared that otherwise the House would simply fade away or attract the displeasure of a frustrated government which could simply get rid of it, with little risk of any serious opposition from the electorate. A committee appointed by Margaret Thatcher and chaired by Lord Home reported in 1978 that “at best the present House of Lords faces gradual but relentless atrophy; at worst it may be swept away by a government impatient of the modest checks it imposes on the passage of legislation”14. However the proposals put forward by Lord Home were not acted upon and the House remained essentially unchanged (with the notable exception of the fact that it was the first to televise its proceedings, as part of a closed-circuit experiment in 1968 and then fully televised from 1985; the House of Commons was only fully televised from November 1989) until Labour returned to power in 1997 after a long period of Conservative government dominated by Margaret Thatcher.

The experience of the Thatcher years.

14After the collapse of the Labour government at the general election of 1979, Westminster was dominated by a radical Conservative government with a very substantial majority. The Labour party moved quite sharply to the left and a small group of Labour MPs left to form the Social Democratic Party (SDP). The new party gained a moderate amount of support from public opinion: not enough to “break the mould”, as they hoped, but enough to split the opposition vote at the general election of 1983 when the new party fought alongside the Liberals as the Liberal/SDP Alliance. Once Margaret Thatcher had succeeded in quelling dissent from within her own Cabinet, the House of Commons seemed unable to mount any serious opposition against her radical agenda. Would the House of Lords be able to hold her properly to account?

  • 15  RICHARD & WELFARE,1999p. 50.
  • 16  RICHARD & WELFARE,1999pp. 50.

15In fact the “inbuilt Conservative majority” grew larger during Margaret Thatcher’s term as Prime Minister. She created “one and a half times as many Conservative life peers as Labour and Liberal Democrats combined”15. The result, according to Ivor Richard and Damien Welfare, writing in 1999, was “a ludicrously inequitable position. If it were not so serious, it would indeed be laughable. In some ways it already is, as anyone who tries to explain it to a group of American students cannot fail to recognise”16.

16Nonetheless there was at one point hope that the House of Lords might be a place where at least some kind of restraint could be placed on a government which had so little to fear from the House of Commons. The House of Lords did, for example, stand in the way of Margaret Thatcher’s determination to abolish the Greater London Council, though they could only delay the process. It failed however to take a firm and effective stand against the community charge or “poll tax”. The community charge was a policy which Mrs Thatcher drove through Parliament with an iron hand against the better judgement of a great many people and in the face of widespread protest, culminating in riots in the streets of London. Had the upper house used its powers to force the government to stop and think and listen to public opinion, a policy which was deeply divisive and ultimately very short-lived might have been staved off. That, of course, is no more than speculation or counter-factual history. What happened, in brief, is that the Conservative whips were able to mobilize the Tory “backwoodsmen”, peers who voted relatively rarely, to descend en masse on the House and prevent it from blocking the Bill. So even though the House did vote a number of amendments introducing a variety of exemptions to the community charge its unrepresentative composition gave the Prime Minister an unfair advantage.

Lords Reform from 1997 to today - Stage one

17Against this background it is therefore unsurprising that Labour’s manifesto at the 1997 general election included a commitment to reform the House of Lords. In previous manifestoes, Labour had promised to abolish its powers, abolish the House altogether (“We shall … take action to abolish the undemocratic House of Lords as quickly as possible”, 1983) or replace it with an elected second chamber with a power to delay change to “designated legislation reducing individual or constitutional rights” (1992).

18In 1997 Labour announced that it would begin by abolishing the right of hereditary peers to sit in it, before moving on to a second stage during which it would be made “more democratic and representative”. Among other aspects of the second stage, Labour promised to ensure that the party balance would “more accurately reflect the proportion of votes cast at the previous general election”. It also promised to maintain a crossbench element.

  • 17  SHELL, 2007 p. 153.

19The initial process of removing the right of hereditary peers to sit in the House turned out to be more difficult than had at first been thought. Discussions with the Conservative peer Lord Cranbourne led to what became known as the “Weatherill amendment”, named after the former Speaker of the House of Commons, Lord Weatherill. This was designed to ensure that the Bill would pass through the Lords without requiring Labour to resort to the powers defined by the Parliament Act. Under the terms of this Lords amendment ninety-two hereditary peers would remain until stage two. This amendment was carried by a large majority in October 1999, after a day which had seen the largest ever attendance at the House with 752 peers having attended at one time or another during the day17. The House of Commons approved the amendment in November.

Changes in the composition of the House

20By reducing the number of hereditary peers in this way, the 1999 House of Lords Act radically altered the party balance in the House, and since then the balance has continued to change.

21It has often been said that the number of hereditary peers gave a rather inflated image of the real strength of the Conservatives in the House, as many of them rarely voted. Some never voted. Nonetheless, as suggested above in the context of the poll tax vote, there was always a reservoir of Conservative votes to be drawn upon in case of need. Simple comparison of the number of government defeats during postwar Conservative and Labour administrations confirms that a strong Conservative majority could be found when necessary.

22The 1999 Act changed this at a stroke. By abolishing the right of all but 92 hereditary peers to sit in the House, stage one of the reform put an end to the Conservative majority. In April 1999 the breakdown was as shown in the pie-chart below:

Source: http://www.parliament.the-stationery-office.co.uk/​pa/​ld199697/​ldinfo/​ld03mem/​inf3e.htm#party

23The party balance as of 2 February 2009 was as follows:

Source: http://www.parliament.uk/​directories/​house_of_lords_information_office/​analysis_by_composition.cfm

  • 18  RUSSELL, 2007, p. 3. (consulted 19 June 2009).

24The overall size of the House of Lords has shrunk significantly, though the number of peers attending has remained relatively stable at a little over 400. It is quite clear that the Conservative majority in the 1999 House of Commons (even allowing for lower attendance rates among Conservative hereditaries) no longer exists, and this was true immediately after the Act was passed, though Labour’s ranks in particular have swelled since then. It has been remarked18 that the party balance in the House of Lords represents better the shades of party support– or even absence of party support – within the UK than the House of Commons, where representation is distorted in favour of the winning party by the first-past-the-post electoral system. This also means that one of the two chambers in the British parliamentary system has been a permanently “hung Parliament”.

  • 19  See www.revolts.co.uk for regularly updated reports on rebellions.

25On the face of it, the reformed house would appear to be made up of three groups of broadly similar size, Labour, Conservative and Crossbenchers, with Labour having slightly more peers than the other two groups, and a fourth, much smaller group of Liberal Democrats. However, the Crossbenchers, because of their very nature, have little cohesion (and relatively few resources). There are no whips to ensure they are present for important votes and steer them through sometimes complex issues where they may not have attended (all) the debates. Consequently Crossbenchers vote proportionally much less than the other three groups. Moreover, since their political leanings are very different, the Crossbench vote can often more or less cancel itself out. The Liberal Democrats, on the other hand, find themselves with an opportunity denied them elsewhere of casting the deciding votes. They enjoy a high level of cohesion and the Liberal Democrat voting record is impressive. Their vote counts: it has been calculated that all but a relatively small number of the government defeats since 1997 would not have occurred had the Liberal Democrats not joined the Conservatives to vote against government Bills. It is of course true that party discipline in the House of Lords is not as tight as in the House of Commons. For one thing, peers do not have to stand for re-election. However, study of voting patterns shows that there are relatively few revolts (at a time when backbench revolts in the House of Commons are frequent)19. So in many cases the Liberal Democrats can actually swing the vote one way or the other.

Sex

26The abolition of the right of most hereditary peers to sit in the House also significantly changed the sex balance:

  • 20  See for example EASON, 2009.

27Before the 1999 House of Lords Act women peers represented 8.8% of the members; immediately after the Act was passed there were 106 women peers representing 15.8% of the total. In December 2008 there were 146 women peers, or 19.9%. It is as yet difficult to measure the impact that this has had though a number of women peers have remarked on this as a very positive aspect of Tony Blair’s term of office20.

Lords Reform from 1997 to today -Towards stage two

  • 21  Useful, regularly updated summaries of the “progress” of House of Lords reform are produced by the (...)

28Attempts to complete the process of reform have been frustrated by an inability to agree on the form the new House should take and, crucially, on whether its members should be appointed or elected. It has been a long process21.

  • 22  A House for the Future (Cm 4534).

29The first major step towards stage two was the report of the Royal Commission on the Reform of the House of Lords chaired by Lord Wakeham, A House for the Future22, which recommended a largely appointed House of Lords, with a small number of elected members to represent the regions of the UK. It also recommended the creation of a statutory appointments committee. The Commission took a large amount of evidence, but ultimately made pretty conservative recommendations which critics found consistent with Lord Wakeham’s reputation as a “safe pair of hands”. A Joint Committee was appointed to examine the proposals made by Lord Wakeham’s Royal Commission. However by March 2001 the government accepted that there was little chance of any major progress being made before the next election. Labour’s manifesto stated that the party was “committed to completing House of Lords reform, including removal of the remaining hereditary Peers, to make it more representative and democratic, while maintaining the House of Commons traditional primacy.”

  • 23  The House of Lords: Completing the Reform. The Stationery Office, November 2001 (Cm 5291).
  • 24  RUSSELL, 2007 p. 1. The Constitution Unit is attached to UCL’s Department of Political Science.

30After the election, the government published a White Paper, The House of Lords: Completing the Reform23, recommending a House of at most 600 peers, 120 of which were to be elected representatives of the regions. The remaining hereditaries would go and a statutory appointments commission would be set up to nominate non-party members. The White Paper was not well-received: the House of Lords library note says that the proposals attracted “little support”; Meg Russell of University College London’s Constitution Unit says that they were “rubbished”24. The Liberal Democrat and Conservative parties announced their own policies. The Conservatives called for a 300-member house called the Senate with members elected by the first-past-the-post system for a 15-year fixed term of office. The Liberal Democrats suggested a maximum of 300 members who would all be elected by proportional representation. The House of Commons Public Administration Select Committee published a report in February 2002 entitled, more cautiously than the government White Paper, The Second Chamber: Continuing the Reform recommending a predominantly elected upper house. The government set up a Joint Committee. When it published its report, at the end of 2002, it suggested a range of possibilities, from all-appointed to all-elected with various blends of elected and appointed in between. The House of Commons met to debate the Joint Committee’s report, which put forward seven options for the composition of the Lords.

Revising chamber or wrecking chamber? The vote in 2003

31Debates on this next stage of reform revealed diametrically opposed views about how members of the upper house should be selected reflecting different ideas about what purpose it should serve.

32Robin Cook has pointed to a confusion created deliberately by Tony Blair in January 2003 between fears that an overly strong second chamber would be a threat to the government – something which many would be prepared to accept, arguing that checks and balances are designed to safeguard democracy and not to make government more effective – and fears that it would become a threat to the House of Commons. Robin Cook writes:

  • 25  COOK, 2003, p. 274.

I have sat with Tony Blair through enough Prime Minister’s Questions to tell the unscripted answer from the prepared text, and there was no mistaking that this time the offence was premeditated. Indeed, I suspected Alastair Campbell’s hand in the carefully crafted antithesis at the heart of the answer: ‘The key question of election is whether we want a revising chamber or a rival chamber. My view is that we want a revising chamber.’ It was a clever pitch in that it presented reform as a threat to the Commons and thereby conjured up a common interest of both government and Commons in resisting reform.25

33Cook points out that it became difficult under those circumstances to consider that the “free” vote really would be free, with the Prime Minister having laid out his position clearly in this way.

  • 26  See for example, DOREY,2008, 3, pp. 33-35.

34The day of the debate, 4 February 2003, saw an inconclusive series of votes, rejecting abolition, but also rejecting all of the proposals regarding the composition of the House, from all-appointed to all-elected. The proposal which came the nearest to gaining a majority was 80% elected. The motivations behind the various votes, in which MPs were allowed to vote for as many options as they wished, were complex and contradictory. Some MPs favourable to abolition voted for an all-appointed chamber, presumably because this would be the next best thing in their view, as an all-appointed chamber would almost certainly be the weakest of the options put forward. One MP voted for an all-appointed house, an all-elected house, and a “50-50” house (the option preferred by the White Paper). The debate and the comments made subsequently on why MPs voted the way they did is a fascinating though rather long story26.

35It left Robin Cook in a rather difficult position, one which the Conservatives immediately ­– and understandably ­– sought to exploit. Cook deftly and wittily staved off the challenge:

Mr. Forth: On a point of order, Madam Deputy Speaker. Now that the House has put itself in an interesting position, and the Government in an even worse position, in that the commitments made in the Government's manifesto look as if they are now in shreds, and the option that got the closest vote was my party's policy, can we expect an immediate statement from the Leader of the House as to where he expects us now to go—

Hon. Members: Home.

Madam Deputy Speaker: Order.

Mr. Forth: —not least so that the Government honour their manifesto. Can the Leader of the House tell us that now, please?

Madam Deputy Speaker: That is not a point of order for the Chair, but if the Leader of the House wishes to make a comment, he may do so.

Mr. Cook: The view expressed by hon. Members was wise. We should go home and sleep on this interesting position. That is the most sensible thing that anyone can say in the circumstances. As the right hon. Gentleman knows, the next stage in the process is for the Joint Committee to consider the votes in both Houses. Heaven help the members of the Committee, because they will need it.

36Cook’s words were greeted with laughter and MPs began leaving the chamber. However momentum for House of Lords reform had undoubtedly been lost.

37After the vote the Joint Committee published its second report, concluding that the government had to give a clear lead. Debates and discussions, proposals and reports followed. Some changes were made. The Constitutional Reform Bill was introduced in the Lords in February 2004 and contained proposals to abolish the office of Lord Chancellor, set up a Supreme Court and so on. The Lords expressed their will to oppose the Bill and the government backed down because, so close to the probable date of the general election, there seemed little chance that they would get the legislation through in time. Nonetheless Peter Hain MP suggested the need to “bring down the period it [the Lords] can frustrate the will of the Commons”.

38More constitutional proposals were made in the form of consultation papers and 46 new life peers were appointed in 2004 (including 23 Labour, 5 Conservative and 8 Liberal Democrat). The Government reasserted its determination to get reform going. Suggestions began to emerge to the effect that the conventions which in practice restricted the freedom of manœuvre of the Lords should be codified. Libertarians, and less extreme defenders of individual rights, pointed out that this would not work.

  • 27  HC Hansard, 26 January 2005, col. 301.

39Tony Blair reserved the right to nominate directly to the Queen a small number of peers, though most would be appointed as a result of the activities of the House of Lords Appointments Commission. He also expressed grave misgivings about the prospect of a “hybrid, part-elected, part-appointed House of Lords”27.

40Labour gave the issue some prominence in its manifesto, promising to complete the reform, codify the conventions and explore “how the upper chamber might offer a better route for public engagement in scrutiny and policy-making”.

  • 28  HL Hansard, 23 May 2005, col. 253.

41Labour won the general election of May 2005 with a much-reduced majority. Among the twenty-seven peers created after the election, 16 were Labour, 6 Conservative and 5 Liberal Democrat, making Labour for the first time ever the largest party in the Lords. During the debate in the House of Lords on the address, Lord Goodhart, the Liberal Democrat spokesperson on constitutional affairs, suggested that the “Salisbury convention is long out of date and should be scrapped”28.

  • 29  ‘The Future for Parliament’, Jack Straw to the Hansard Society, 11 July 2006.

42In late April and early May 2006 both houses discussed the setting up of a Joint Committee to look at proposals to codify practices and conventions and the relationship between the two houses. In the middle of these discussions the Prime Minister took the lead responsibility for Lords reform from the Department for Constitutional Affairs, under Lord Falconer, and gave it to Jack Straw, the Leader of the House of Commons. Later in 2006 Jack Straw stated that his preferred option for the composition of the reformed chamber was 50/50 (half elected, half appointed), to be phased in gently, over twelve or fifteen years29. In November 2006 the Joint Committee on Conventions published its report entitled Conventions of the UK Parliament, stating notably that “’ping-pong’ was not a convention, but rather a ‘framework for political negotiation’” and ruling out “legislation, or any other type of codification, which would turn convention into rules’”.

43After much debate on the Joint Committee’s proposals the government published another White Paper, The House of Lords: Reform, promising a free vote on composition, but recommending at least 20% non-political appointments. The other Lords would be elected directly through a partially open list system. A new statutory appointments commission would be set up and there would be no Prime Ministerial appointments in the future.

  • 30  House of Lords Constitution Committee, meeting with Jack Straw MP, Lord Chancellor and Secretary o (...)

44On 7 March 2007 a vote was again held in the Commons on the composition of the House of Lords, though with (slightly) less confused results than in 2003: the House of Commons voted against an all-appointed house and rejected the government’s preferred option of 50-50. The 80% elected and all-elected options were both approved, though the significance of these results, given the degree of tactical voting (with, for example, opponents of Lords reform as proposed reacting to the majority in favour of 80% by voting for all-elected in the hope that that would scupper the whole project) is less clear than the raw voting figures suggest. The House of Lords then voted massively in favour of an all-appointed house. Realizing that the Lords would not allow legislation for an 80% or 100% house to go through without a fight, Jack Straw announced in October 2007 that a commitment to a largely elected house would figure in the manifesto for the next general election, which must be held by May 2010. This would give added legitimacy to the plan and also probably reduce the risk of a sustained rearguard action by the Lords: the Salisbury doctrine would come into play – if, of course, the next government is another Labour government, which is an increasingly unlikely outcome. Jack Straw said at a meeting of the House of Lords Constitution Committee, that “any change should be the subject of a clear manifesto commitment”30.

  • 31  HC Hansard, 10 June 2009, cols. 797 to 798.

45Perhaps more fundamentally, although Gordon Brown seems genuinely committed to constitutional reform, the current political context is hardly favourable to discussion of such issues. However the Prime Minister has recently made a statement to the House of Commons on “constitutional renewal” in which he recalled that the July 2008 White Paper commits the government to an 80 to 100% elected House of Lords and promised that proposals will be laid before the House of Commons before the summer adjournment31.

  • 32  RUSSELL & SCIARA, 2007 (25 p.), p. 12.

46Despite this prospect of the progress announced by Mr. Brown the House of Lords remains in what Meg Russel and her colleague at the UCL Constitution Unit Maria Sciara have called “constitutional limbo”32. This has however not prevented the House of Lords from taking an increasingly assertive stance. In fact, quite the opposite.

In the meantime: increasing legitimacy and assertiveness in the semi-reformed House?

47There has since 1999 been an increase in the number of “insistences”: occasions when a Bill has been rejected or amended by the Lords, returned unamended by the Commons and defeated again. This growth in “ping-pong” is further evidence of the growing assertiveness of the House.

48The Constitution Unit at UCL provides a helpful list of government defeats. Some are largely technical, but some have been more substantive. Perhaps the most influential have been the defeats of government Bills seen as infringing civil liberties, most notably the Identity Card Bill and most recently the Terrorism Bill.

Partnership?

  • 33  RUSSELL & SCIARA, 2007. p. 16.

49In a number of recent cases it has seemed that MPs opposed to aspects of legislation going through the House of Commons have formed in effect a partnership with the Lords, backing Lords amendments when the Bill returns to the Commons. This has been observed during debates on the Racial and Religious Hatred Bill in 2005-2006. MPs ­– and public opinion – were worried by the definition of “incitement to religious hatred” which they believed was too broad. The Lords clarified the definition to exclude mere ridicule, insult or abuse. This decision was welcomed by the dissenting MPs who recommended that the Lords’ clarification should be adopted by the Commons. For Labour’s Tony Wright, as Meg Russell and Maria Sciara recall, “the Lords delivered to us a Bill which, if it did not completely square the circle, did it as well as was humanly possible”33.

50The House of Lords can only block legislation for two sessions of Parliament. It can insist on its amendments and, as we have seen, become involved in more or less protracted games of “ping-pong” with the Commons. However, it will often ­– but not always ­– seek some kind of compromise rather than hold out in the face of determined opposition from the House of Commons. In some cases, however, the Lords has stood firmly on issues where there have been substantial reservations about government Bills and the government has ultimately decided to drop the contested part of its legislation.

51So is it a more assertive House today? Obviously the House of Lords cannot be examined in isolation from the rest of Westminster and indeed from the general atmosphere of political debate at the time. It is certainly relevant that the 2007/2008 session was much more rebellious in the Commons than previous sessions during the Labour administration, with 29 government defeats and the 2008/2009 session seems to be following the same trend with 15 defeats to date, the most recent at the time of writing on 16 June 2009.

  • 34  The figures have been slightly rounded to simplify the case. The exact figures are 1945: Labour 11 (...)

52There is perhaps one other way in which perceptions within the House of its own legitimacy have changed. The Salisbury/Addison convention as developed during the 1945-1951 Attlee government reflected the perception by the House of Lords that it could not reasonably oppose government legislation which had been announced in a manifesto and given clear support at a general election. But in 1945, Labour had won the general election with twelve million votes to the Conservatives’ ten million: 47.8% of the total vote. In 1951, when Labour lost, it had 48.8% of the vote, and the turnout was 82.5%. In 2005, the turnout was 61.2% and Labour won nine and a half million votes34 or 35.2% of the votes cast. The mathematics are strikingly different: in 1951 48.8% of 82.5% of the electorate voted Labour; in 2005 35.2% of 61.2% of the electorate voted Labour. That boils down to 40.26% of the electorate in 1951, against 21.55% in 2005, almost half. There are of course other factors at play here, but the figures have been used by some peers, especially Liberal Democrats, to suggest that the justification of the Salisbury/Addison convention has been singularly weakened. Against that is the declaration by the 2008 White Paper that the government is keen to codify this and other conventions.

  • 35  RUSSELL,12 December 2005.
  • 36  YouGov Survey for the Hansard Society, 2007. yougov.com
  • 37  This rather neglects the fact that the House of Lords has no power to delay money bills.

53Public perceptions of the House of Lords have also changed. Polls carried out by MORI and the Constitution Unit35 found that in 2005, 51% of the public, 57% of MPs and 78% of peers believed that the House of Lords was more legitimate as a result of the 1999 reform. A majority of the public believed that it was “at least sometimes justified for the House of Lords to vote against a government bill”, unless it was a manifesto bill with strong public support (and even then 48% felt the House could at least sometimes vote against it). A little more recently a YouGov survey for the Hansard Society36 found that 67% of the sample thought that it was either vital to have a second chamber or on balance a good idea. When asked what they thought were the most important functions of the House of Lords the most frequently selected function was to “hold the government to account for its policies and expenditure37”, significantly ahead of “revise legislation”. A vast majority were in favour of a house which was either all elected (42%) or made up of a mixture of elected and appointed members (40%). If the house was all elected, 33% thought it should be allowed to block laws proposed by the Commons and 25% that it should be able to delay laws for a fixed period: i.e. 58% thought that the House of Lords should, if it were all elected, have powers at least equal to those it enjoys today.

The House of Lords has lost its hereditary peers (and therefore changed its composition), but has it found a new role?

54Upper chambers in other countries play very different roles from those of the lower chamber and tend to be elected on a different basis. For example the United States Senate is comprised of two senators for each state while the composition of the House of Representatives reflects the size of the population. Suggestions that the House of Lords should play a similar role and represent the devolved nations and regions have not been followed up to any great extent. The powers exercised by upper chambers also vary widely. The Australian Senate, for example, has much greater powers to block legislation than the House of Lords.

  • 38  HAZELL, April 30 2009.
  • 39  HL Hansard, 22 May 2006, cols. 582–583.

55Does the House of Lords as it stands today have any real use or have any real power as one of the checks and balances of the British constitution? Of course it plays a very useful role in revising legislation, especially as the amount of legislation going through Parliament has increased in recent years. The effectiveness of the House of Lords in this respect is widely recognized. As Robert Hazell points out in a recent Anthony Sampson memorial lecture, the fact that the allegations concerning cash for amendments involved the Lords and not the Commons is vivid proof of this: ‘The NGOs and lobbyists know that if you want legislation amended, the Lords is the place to target’38. But it wants to be something more than a simple “laundry”, to use the colourful metaphor suggested by Lord Peyton in May 2006, taking the Commons’ washing and sending it back clean and ironed39. It is adamant that an important part of its job is to hold the government to account. It plays a role in raising awareness of aspects of government Bills that it considers unacceptable, and uses its power as a “long stop” to force the Commons to think again. The time thus gained is also an opportunity for greater public debate.

  • 40  One peer likened the House’s role to that of a character called ‘Tufty the squirrel’ who featured (...)
  • 41  COWLEY and STUART, www.revolts.co.uk

56The Lords sees one of its roles as that of a kind of constitutional watchdog, drawing attention to instances where the government, perhaps acting under pressure to strengthen its powers to deal with what may be exceptional circumstances, as with the anti-terrorist legislation we have discussed, may have sought to curtail individual freedoms. On important constitutional or civil liberty issues the House of Lords sometimes seems able to force the government to “stop, look and listen”40. It is no doubt noteworthy in this respect that one of the most recent major defeats imposed by the Lords on the Commons was over the government’s desire to extend the period of pre-charge detention of suspected terrorists from 28 to 42 days. The Lords rejected this increase, after a Commons vote in which the proposal was only passed by a majority of 9 (which happened, as Philip Cowley and Mark Stuart of the University of Nottingham point out in their study of Commons revolts, to be the exact number of DUP MPs voting with the government, for reasons which may not have been solely connected with the merits of the issue itself41). Fearing that any ping-pong session might see a further erosion of Commons support, the government decided to withdraw the 42 days ceiling.

  • 42  See the regularly updated pages on government defeats on the Constitution Unit’s web site at http: (...)
  • 43  Taking Liberties, www.bl.uk/takingliberties, (consulted 19 June 2009).

57In all, a substantial number of defeats over the last year or two have essentially focused on questions of individual freedom. Eight of the 29 government defeats in 2007/2009 concerned the Criminal Justice and Immigration Bill and three the Counter-Terrorism Bill, and four of the 15 defeats in the current session have concerned the Borders, Citizenship and Immigration Bill, and some of the other defeats have also involved issues that could have an impact on civil liberties and democratic process42. So although it would not be true to say that even the majority of the defeats imposed on the government by the upper house concerned constitutional and civil liberty issues, it is evident that those questions have become, as Meg Russell says in an interview recorded for the British Library’s online exhibition Taking Liberties, “an important part of the profile of the House of Lords”43.

58Study of the number of government defeats must underestimate the influence of the House of Lords, since it takes no account of compromises reached before the legislation is sent to the Lords and no account of the impact that potential House of Lords opposition might have on the government as it defines the details of its policies. And while it is something of a commonplace to say that the quality of debate in the House of Lords is better than that in the Commons it is nonetheless broadly speaking true: many peers have acknowledged specialized skills in a variety of areas of public life corresponding to the professional activities they had or still have, and the more leisurely pace and less confrontational style of debate in the Lords means that peers have time to develop carefully thought-out argument without having to fend off other members pressing them to give way. The existence of such a forum must be an asset in itself.

  • 44  Select Committee on the Constitution, First Report, The Stationery Office, 11 July 2001.
  • 45  Surveillance: Citizens and the State, HL Paper 18–I, The Stationery Office, February 2009.

59The role of House of Lords’ Select Committee on the Constitution in alerting the public to potential infringements of civil rights is also of significance in this context. The committee was set up in 2001 after a recommendation in the Wakeham report, to “examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution”44. One of the most recent reports published by the Constitution Committee alerted Parliament, and opinion generally, of the dangers of surveillance which was not fully justified. The report, entitled Surveillance: Citizens and the State45, asserted that “electronic surveillance and the collection and processing of personal information have become pervasive, routine, and almost taken for granted” and felt that the public was not always sufficiently aware of this and that government should do much more to raise public awareness and ensure that surveillance is only used where the infringement of privacy is justified by a compelling need.

Democracy and the role played by the House of Lords in safeguarding civil liberties

60The special role with regard to the constitution given to or assumed by the House of Lords and its growing concern with individual freedoms raises some important questions on the nature of parliamentary democracy. There is something which many people find slightly worrying about an unelected chamber fulfilling such an important function. Some seem to welcome this, enjoying the paradox of the undemocratic Lords appearing better-placed or more inclined to defend long-standing democratic principles than the elected other place. The Lords themselves favour an appointed house, basing their case on the need to ensure that people with special skills and expert knowledge, rather than career politicians, were available to fulfil the functions of the upper chamber. Lord Norton of Louth, for example, is opposed to election because, he says, it would “undermine the House in fulfilling its current functions, which it fulfils rather well because of who sits in the House of Lords”46. He expresses doubt about whether a second elected chamber alongside the elected House of Commons would represent a useful change. On the contrary, he believes that it is “important that the House of Lords is not elected, because it enables people to be brought in to provide experience and expertise which may not be achievable through the medium of election”47.

61Opinion polls consistently show, however, that the people would clearly prefer a more assertive House of Lords to be an elected chamber. So long as the Lords’ action is broadly speaking either ignored or approved by public opinion then the paradox might not matter too much; but if the Lords were to take a robust stand against a question of constitutional importance which the people felt strongly about, the situation could change very quickly indeed, as it did when the Lords opposed the Liberal government’s ‘people’s budget’ in 1909.

62One wonders whether it is not possible to have both experience and expertise and the legitimacy of election. However that may be, in the end, whether the House of Lords remains only partially reformed or goes on to become a largely or completely elected chamber, it is likely that its increased assertiveness and legitimacy will be seen as having strengthened parliamentary democracy. That might make governments more uncomfortable, but it is likely to make government better. In referring to Godot, Robin Cook was no doubt expressing his own pessimism about the chances of reaching any kind of agreement on stage two. Six years later, it has to be said that Godot has still not arrived. Nor do we have any expectation that he will be with us within the next few years. But a lot has happened. There has been significant change in the House of Lords, which has become more assertive and has begun to play a role in ensuring that individual freedoms in particular are not lost as governments try to deal with complex and worrying emergencies connected primarily with terrorism. However, although this is a view that not everybody would share, my feeling is that unless this process moves on to produce a more democratically accountable upper chamber, the House of Lords will not be able to fulfil the important roles I have outlined as effectively as it would like, and that would be a very great pity.

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