Joint Committee on House of Lords Reform First Report

APPENDIX 1: Historical Background

Balances in the Constitution

1. The idea of "balance" in institutional relationships has had a long history in British constitutional theory. Mediaeval monarchs summoned the Estates of the Realm - the Lords Spiritual and the Lords Temporal and the Commons House - to come together in Parliament to discuss the affairs of the Kingdom. Whilst the power of the Crown remained absolute and the two Houses jostled for influence, the notion of a "Gothic" balance between Kings, Lords and Commons was regarded as a beneficial feature of constitutional arrangements.[66] Even during the upheavals of the seventeenth century, when both monarchy and the House of Lords were briefly abolished, it was deemed, by political apologists, to be important to recreate a balance, whether that was within a republican framework (in the case of James Harrington) or a strengthened monarchy (in the case of Sir Robert Filmer).[67]

2. Over the centuries the privileges of both Houses, those rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, added to the notion that members of each House had similar, if separate, functions to perform. Freedom from arrest and freedom of speech were established so that individual members of both Houses could perform their parliamentary duties effectively. The growth of parliamentary privilege therefore added to the notion of a shared purpose (to debate public affairs freely) between the two Houses.

3. A significant shift towards the Commons in one area of Parliamentary control occurred during the seventeenth century. For a century or more the Commons had begun to regard it as exceptional that bills granting aids and supplies should be altered by the Lords. In 1671, the Commons asserted its sole right to set the level of taxes voted to the Crown.[68] The challenge made to this financial privilege, henceforth claimed exclusively by the Commons, was to become the catalyst for the first major restriction on the power of the House of Lords more than two hundred years later in the early twentieth century.

4. Nevertheless, the most important change in the constitutional balance was brought to definition in the settlement known as the Glorious Revolution (1689) which affected the relationship of the two Houses to the Crown. Under its terms, Parliament as a whole gained power at the expense of the Crown. The ancient privileges of the Houses were now enshrined in the Bill of Rights. Although the Crown retained considerable power, it was now no longer unfettered nor could it act without Parliament's approval. Henceforth the balance was to be understood as the Crown-in- Parliament although important royal prerogatives, such as the calling and dissolution of Parliament and the approval of administrations, remained important methods of monarchical influence.

5. The new balance achieved by the constitutional settlement of 1689 led to a period of relative stability in the constitutional relations between the Crown and the two Houses, which remained broadly co-equal except in financial matters where the Commons maintained its priority.[69] Members of the government, including Prime Ministers, could be drawn from either House.[70] However, as result of the development of party mandates after the Reform Act (1832) and the extension of suffrage, the House of Commons came increasingly to regard itself as the more legitimate source of executive power. The Lords, for its part, challenged that view (especially in the form of what became the Salisbury doctrine) nor did it forbear from wholesale amendment of Commons Bills, except those that dealt with money.[71] At the same time, the House of Lords was becoming more and more the House of one party particularly after 1886 when the Liberal Unionists joined the Conservatives; the issues of Home Rule and Free Trade, but particularly the former (a Home Rule Bill but was rejected by the Lords in 1893), affected the behaviour of the Opposition in the House of Lords. Over a long and difficult period, attempts were made by members of both Houses and eminent political theorists to grapple with the increasing constitutional deadlock that was developing between the Houses.[72]

Parliament Act 1911

6. These political and constitutional tensions made the traditional constitutional balance between the two Houses more and more fragile. It was finally destroyed by the outright opposition of the Lords to the radical programme of the Liberal Government, elected in 1906. In particular the Lords attacked the Liberal Government's budget of 1909.[73] Asquith, who had succeeded Campbell Bannerman as Prime Minister made considerable efforts to avert what was regarded as the extreme measure of creating a large number of peers so that the will of the majority in the Commons could be imposed on the House of Lords. Eventually the Government was driven to introducing the Parliament Bill, which got through the House of Lords with a majority of 17 (131:114) after a two day debate on Commons Amendments.

7. The Parliament Act's most important provisions were to—

(i)  restrict the Lords' power to reject "money bills" to a month;

(ii)  allow a public bill introduced in the Commons to pass into law, though not agreed by the Lords, if passed in the Commons in three successive sessions, with not less than two years elapsing between the second reading in the House of Commons in the first session and the passing of the bill in the House of Commons in the third session; and

(iii)  alter the provision of the Septennial Act 1715, setting five-year Parliaments.

Although the Parliament Act 1911 curtailed the power of the Lords, it did so in quite narrow circumstances - that of a dispute between the Houses over a particular bill. By virtue of its provision of a two-year period between a second reading in the Commons and Royal Assent, it also meant that a Government would only effectively use it in the first two sessions of a five-year Parliament. It is important to understand that even when the provision was reduced to a year in the Parliament Act, 1949, the Lords retained considerable legislative power. Moreover, in the day-to-day workings of the two Houses, conventions (restraining the behaviour of the Lords in cases of contest) are as significant as the terms of the Parliament Acts.[74]

Further Attempts at Reform: 1917-1918

8. The preamble of the Parliament Act 1911 contains the well-known words:

  "and whereas it is intended to substitute for the House of Lords as it at present exists a second chamber constituted on a popular instead of hereditary basis, but such substitution cannot immediately be brought into operation....".

They suggest, on the face of it, that further reform was envisaged at that time.

9. That further reform was not embarked upon until 1917 when a conference of twenty members from both Houses was appointed under the chairmanship of Lord Bryce, with the following terms of reference:

  "To inquire and report - (i) As to the nature and limitations of the legislative powers to be exercised by a reformed Second Chamber. (ii) As to the best mode of adjusting differences between the two Houses of Parliament. (iii) As to the changes which are desirable in order that the Second Chamber may in future be so constituted as to exercise fairly the functions appropriate to a Second Chamber."

Eventually the Bryce Report proposed a House of Lords, seventy-five per cent of which was to be elected indirectly by members of the House of Commons on a regional basis and twenty-five per cent which would be appointed by a Joint Standing Committee of both Houses, retaining a proportion of hereditary peers and bishops. The Bryce proposals laid some stress on the Lords as a revising chamber which could reconsider in details bills passed by the Commons (particularly those introducing new principles or legislation affecting the Constitution) or deal with non-controversial legislation.[75] That notion of the Lords, as a revising chamber, was only taken up seriously much later in the century.[76] In the event, substantial agreement on the hereditary element could not be reached; the question of composition proved intractable. The Conference did not agree unanimously to its Report and the scheme was abandoned.

Conference of 1948 and Parliament Act 1949

10. Although various schemes for reform of the House of Lords were proposed in the interim period (both in party circles and in Government), it was not until 1948 that the next serious attempt was made. A conference was called to consider the Lords' powers afresh, but there was no agreement. Instead, a Bill was introduced under the Parliament Act 1911, the validity of which procedure has subsequently been challenged on the grounds of vires.

The Act reduced from three years to two years the number of sessions in which a disputed bill must be passed by the House of Commons and from two years to one year the period of delay from second reading in the House of Commons.

Although the Conference of 1948 reached no agreement on powers for a reformed House, particularly in respect of its power of delay, an agreed statement, published as a White Paper, sets out certain significant conclusions:

(a)  The second chamber should be complementary to and not a rival to the lower House, and, with this end in view, the reform of the House of Lords should be based on a modification of it existing constitution as opposed to the establishment of a second chamber of a completely new type based on some system of election.

(b)  The revised constitution of the House of Lords should be such as to secure as far as practicable that a permanent majority is not assured for any one political party.

(c)  The present right to attend and vote based solely on heredity should not by itself constitute a qualification for admission to a reformed second chamber.

(d)  Members of the second chamber should be styled "Lords of Parliament" and would be appointed on grounds of personal distinction or public service. They might be drawn either from hereditary peers, or from commoners who would be created life peers.

(e)  Women should be capable of being appointed Lords of Parliament in like manner as men.

(f)  Provision should be made for the inclusion in the second chamber of certain descendants of the Sovereign, certain lords spiritual and the law lords.

(g)  In order that persons without private means should not be excluded some remuneration should be payable to members of the second chamber.

(h)  Peers who were not Lords of Parliament should be entitled to stand for election to the House of Commons, and also to vote at elections in the same manner as other citizens.

(i)  Some provision should be made for the disqualification of a member of the second chamber who neglects, or becomes no longer able or fitted, to perform his duties as such.

Life Peerages Act 1958 and Peerage Act 1963

11. The two changes which occurred in 1958 and 1963 fulfilled some of the principles advanced in 1948. The more significant was the Life Peerages Act 1958 which introduced life peers into the Lords. Under the Peerage Act 1963, peers by succession were able to renounce their peerages. By that time, peers were enabled (by Resolution of both Houses) to recover, within limits, expenses incurred for the purposes of attendance at sittings of the House of Lords. The Peerage Act also admitted peeresses by succession and dealt with anomalies relating to Scottish and Irish peers.

Crossman Reform 1968

12.   In the Queen's Speech of 1968, the Labour Government announced legislation that would reform the composition and powers of the House of Lords.[77] All-party talks were held. The Government made the following propositions, which once again echo conclusions reached in the 1948 White Paper:

(a)  in the framework of a modern parliamentary system the second chamber has an essential role to play, complementary to but not rivalling that of the Commons;

(b)  the present composition and powers of the House of Lords prevent it from performing that role as effectively as it should;

(c)  the reform should therefore be directed towards promoting the more efficient working of Parliament as a whole; and

(d)  once the reform has been completed, the work of the two Houses should become more closely co-ordinated and integrated, and the functions of the House of Lords should be reviewed.

The Government added that it believed any reform should achieve the following objectives:

(a)  the hereditary basis of membership should be eliminated;

(b)  no one party should possess a permanent majority;

(c)  in normal circumstances the government of the day should be able to secure a reasonable working majority;

(d)  the powers of the House of Lords to delay public legislation should be restricted; and

(e)  the Lords' absolute power to withhold consent to subordinate legislation against the will of the Commons should be abolished.

13. After all-party talks were suspended, Richard Crossman, Leader of the House of Commons, introduced the Parliament (No. 2) Bill which removed the right of future hereditary peers to sit in the House of Lords, allowing those who were already there to stay as non-voting peers. Only life peers would be entitled to vote. It proposed a reduction of bishops from twenty-six to sixteen. The Bill would become law, after the elapse of a certain period, even if amended or disagreed to by the House of Lords. In the event the Bill never reached the House of Lords - after eight days in Committee of the Whole House and faced with opposition from defenders of the status quo (led by Enoch Powell) and abolitionists (led by Michael Foot), the Bill was abandoned.

House of Lords Act 1999

  1. The present Government acted upon the Labour manifesto commitment to reform the House of Lords and particularly to remove the hereditary peers from its membership. This was achieved by the House of Lords Act 1999 which extinguished the right of hereditary peers to sit in the Lords, save for 92, 75 of whom would be elected from their party or group, 15 elected by the whole House (to serve as Deputy Speakers and Chairmen) and 2 ex officio members (the Earl Marshal and the Lord Great Chamberlain). At the same time the Government announced its intention to complete the reform, the next stage of which would be undertaken on the basis of recommendations from a Royal Commission, chaired by Lord Wakeham.[78]

66   See J. G. A. Pocock, The Thought of James Harrington, Cambridge, 1977, passimBack

67   See M. Jack, Corruption and Progress: The Eighteenth-Century Debate New York, 1989. Back

68   Erskine May, Parliamentary Practice 22nd Edition, 1997, page 797. Back

69   The Commons control of taxation increased its influence over policy significantly in times of war as highlighted in the latest work of the History of Parliament Trust. See The House of Commons 1690-1715 (ed. E. Cruickshanks, S. Handley & D.W. Hayton), 5 vols, Cambridge, 2002. Back

70   H. Morrison, Parliament and Government, Oxford, 1954, page 171. Back

71   W. Ivor Jennings, Cabinet Government, Cambridge, 1947, pages 32ff. Back

72   Politicians who returned to the subject again and again included Lord Rosebery and the Marquess of Salisbury, whilst it was also debated by distinguished political theorists including Walter Bagehot and John Stuart Mill, see P. Norton, The Constitution in Flux, Oxford, 1982, page 117. Also see E. A. Smith The House of Lords in British Politics and Society 1815-1911, New York, 1992. Back

73   For a detailed account of the parliamentary debates during the whole crisis, see R. Jenkins, Mr Balfour's Poodle, Peers v People, London 1954. For detailed background see C. Jones and D. L. Jones (eds) Peers, Politics and Power 1603-1911 London, 1986. Back

74   Three Acts passed into law without the agreement of the Lords under the terms of the 1911 Act as originally passed, namely the Government of Ireland Act 1914, the Welsh Church Act 1914 and the Parliament Act 1949. Since 1949 three further Acts have been passed in this way, namely the War Crimes Act 1991, the European Parliamentary Elections Act 1999 and the Sexual Offences (Amendment) Act 2000. Back

75   For a discussion of the Bryce proposals see K. Mackenzie, The English Parliament, London 1965, pages 187-8. Back

76   These matters are fully discussed by R. Walters in 'The House of Lords in the Twentieth Century' (to be published). Back

77   For an account of the Lords in this period see J. Morgan The House of Lords and the Labour Government, Oxford, 1975. Also see D. Shell, The House of Lords, Oxford, 1988 (2nd edition, Hemel Hempstead, 1992). Back

78   There is considerable current literature on reform including I. Richard & D. Welfare, Unfinished Business: Reforming The House of Lords, London (1999); A. Mitchell, Farewell My Lords, London, 1999, and M. Russell, Reforming the House of Lords, Oxford, 2000. Back

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Prepared 11 December 2002