«Perhaps the oddest and least defensible part of the British constitution is the power wielded by hereditary peers in the House of Lords. [...] There are no conceivable grounds for maintaining this system» (Blair, Tony. New Britain: My Vision of a New Country, 318-19). As early as 1996, Tony Blair had made it clear he wanted to reform the House of Lords which he considered a bastion of conservatism. Consequently, he committed his government to reforming it in the Labour Party’s manifesto. After the 1997 general election, the House of Lords repeatedly frustrated his government’s legislation: in the 1997-98 session of Parliament, it inflicted over 30 defeats on the government. For example, at the end of the session, the government had to drop the European Parliamentary Elections Bill which provided for a closed, proportional representation voting system for elections to the European Parliament. Although the bill was reintroduced in the next session and received the Royal Assent on 14 January 1999, this was a defeat for the government which failed to achieve one of its manifesto commitments. For Tony Blair, reform of the House of Lords became urgent.

The composition of the House of Lords before the reform

On 1 July 1999 there were 1,289 members of the House of Lords: 
• 26 Lords Spiritual, i.e. the Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester, and the 21 next most senior diocesan bishops of the Church of England; 
• 759 hereditary peers: apart from 8 hereditary peers of first creation, all had inherited their title and position in the House of Lords from their father or mother;
• 477 life peers who were appointed by the Queen on the advice of the prime minister to reward services rendered; their children may not inherit the title;
• 27 law lords who are the senior judges appointed by the Queen to the House of Lords, which is the final court of appeal for civil cases in Britain and for criminal cases in England, Wales and Northern Ireland; their children may not inherit the title either. 

None of the members of the House of Lords was democratically elected, so they could not be said to be representative of the British nation. However, for the Labour government, this was not the main worry. The bone of contention was the state of the parties. 

State of the parties on 1 July 1999: 
• Conservative: 471 
• Labour: 176 
• Liberal Democrats: 66 
• Cross-bencher: 339 
• Other (including Lords Spiritual): 113.
N.B.: 124 peers did not sit because they were either without writs of summons — the document which requires them to sit in the Lords — or on leave of absence.

The figures show that the Conservatives outnumbered Labour and that the cross-benchers, who do not have a political affiliation and are independent, had a strong influence over the outcome of votes. This creates no theoretical difficulty when the Conservatives are in power, although, in practice, Conservative peers have not always passed Conservative bills automatically. For example, when Margaret Thatcher was in power, the House of Lords was rebellious. In 1988The Sunday Telegraph Magazine,  which was angry with the Prime Minister’s authoritarianism, wrote: «it seems that it is only in the Lords that the Prime Minister can be challenged. [...]  Since Mrs Thatcher came to power in May 1979, her governments have been defeated over a hundred times in the Lords» («The new opposition: Power returns to the Lords,» 14 February 1988). When Labour is in power, the figures show that the government cannot win in the House of Lords. However, Labour has been in power several times during the twentieth century and, in most cases, the Upper House has played the constitutional game. Traditionally, when a non-Conservative government is in power, the Upper House should only oppose government measures if they have not been promised to the electors in the manifesto: this is called the Salisbury Doctrine. Yet when Labour is in power, the Conservative peers’ position is uncomfortable. On the one hand, if they frustrate Labour’s legislative programme, they help the opposition in the House of Commons, maintain their authority and retain their credibility in the eyes of their own MPs and the Conservative rank and file. But at the same time, they weaken the House of Lords which can be criticised because it is unelected and goes against the wish of a democratically-elected government — and consequently, of the electorate. In 1964 when Harold Wilson, the Labour Prime Minister, tried to reform the House of Lords, Lord Carrington warned: «once we start using our veto, we’re damaging the object of a Second Chamber.» On the other hand, if the Conservative peers rubber-stamp all Labour legislation, they can be accused of being useless. In that case, why should a Labour government not abolish the House of Lords? Every time Labour is in power, the Conservative peers find it very difficult indeed to be a majority opposition.

The functions of the House of Lords

The very existence of the House of Lords can be questioned, as it is not a democratically-elected body. Is it an anachronism? Does it have any power or is it just an exclusive wining and dining club?

Until the beginning of the twentieth century, the Upper Chamber had considerable power since it could veto any bill that the House of Commons submitted to it. Successively, in 1911 and in 1949, its power was greatly reduced, while the House of Commons’ increased. Today the House of Lords does not scrutinise the budget or taxation. Yet it has a legislative function: it can initiate legislation and it considers all the bills which have already been examined in the House of Commons. Since it can amend them, often to make them more workable, it can be considered a revising body which helps the House of Commons; however, in some cases, the government and the Commons see the Lords’ amendments to bills as intolerable obstacles. Bills can also be introduced in the House of Lords; they are then examined by the House of Commons, which relieves the Lower House of some of its work: this is useful as it is often pressed for time. The House of Lords also has a judicial function: it is the final court of appeal for civil cases in Britain and for criminal cases in England, Wales and Northern Ireland; in that case, only five law lords attend the debates. Finally, it has a delaying function: it may veto any public bill, except a money bill, for one parliamentary session. If the government introduces the same bill into Parliament in the next session and if the House of Commons votes in its favour again, the Lords have to accept it. The Lords have the power to resist a prime minister who would like to impose some legislation they think the electorate would refuse. The House of Lords can be considered a guarantor of citizens’ rights and privileges. However, in practice, the delaying function is limited: the Lords can only delay the passage of the bill for a maximum period of thirteen months. 

Although the functions of the House of Lords are limited, it is useful: it acts as a  safeguard against the increasing powers of the government and of the prime minister. It has more time and more independence than the House of Commons to debate issues in depth. Opinions and ideas can be expressed freely, because the peers do not have to worry about reelection.

The crisis

The new Labour government quickly realised they faced a problem: how were they to deal with a rebellious unelected Upper House? In 1998 the House of Lords successively defeated the government on the Greater London Authority (Referendum) Bill, the Firearms (Amendment) Bill, the Competition Bill, the Bank of England Bill, the Data Protection Bill, the National Minimum Wage Bill, the Social Security Bill, the School Standards and Framework Bill, to name but a few. Although the Commons overturned all proposed amendments, the Lords proved a thorn in the government’s side. The Lords also rebelled on the government’s decision to ban the sale of beef on the bone. The most publicised defeats were on the Teaching and Higher Education Bill, and the Crime and Disorder Bill. 

Understandably, the Labour MPs called for a reform of the Upper House, in particular a reform of its composition; the calls became stronger as the session continued. For example, on 10 June 1999, Mr Touhig, a Labour MP, asked the Prime Minister to «assure the House that the government are determined to end the right of hereditary peers to sit in Parliament» (Whitaker’s Almanack 1999, 1164). Mr Blair answered: «I confirm that. It is not just the injustice of hereditary peers sitting in the other place and making laws; there is an inbuilt majority of three to one in perpetuity for the Conservative party in the House of Lords, irrespective of who wins the general election» (Whitaker’s Almanack 1999, 1164). Surprisingly, they only targeted the hereditary peers. It would have seemed logical to target all peers since a majority of life peers are Conservative-leaning too, so the hereditary peers seemed to be scapegoats. Admittedly, a Labour prime minister is free to ask the Queen to appoint a large group of Labour life peers to restore the political balance. Their reaction was pragmatic rather than deeply-rooted in well-thought out theory.

One solution

Baroness Jay of Paddington, the Leader of the House of Lords, presented the White Paper Modernising Parliament: Reforming the House of Lords to Parliament on 20 January 1999. It suggested a range of possibilities for the future composition and powers of the House of Lords. Its main proposals were to remove the right of hereditary peers to sit and vote in the Lords, nominate life peers thanks to an independent Appointments Commission and establish a Royal Commission to consider wide-ranging long-term reform; that Commission was to report by 31 December 1999. 

On 19 January 1999, the government introduced the House of Lords bill, which provided for the exclusion of hereditary peers from the Upper Chamber. Understandably, the debate in the House of Lords was stormy, since the Lords argued that the hereditary peers would lose the right to sit and vote in the Upper House for nothing more than party political advantage. They also pointed out that they did not know what the Lords’ composition would be once the hereditary peers were removed. During the Committee Stage, Lord Weatherhill, a former Speaker of the House of Commons and cross-bench peer, introduced a compromise amendment which was passed by 351 votes to 32: 92 hereditary peers would remain in the Lords until the Upper House had been fully reformed. He said this would «provide a means of easing the transition from the present Chamber to a fully reformed second Chamber» (Whitaker’s Almanack 2000, 1163). This clause was included in the House of Lords Act (1999); in October 1999 the hereditary peers campaigned, and they elected 75 of them on 5 November; the remaining seventeen are deputy Speakers and other Office holders.

It is paradoxical that there should be «elected hereditary» peers, a provision which seems to come from Alice in Wonderland. Needless to say, the Conservative hereditary peers voted for their Conservative-leaning friends: there are only two Labour elected hereditary peers. The Labour government has hardly won the war: it has an interim House of Lords with a Conservative majority and it is bound to face another major battle if and when it wants to carry on with its step-by-step reform of the Lords.

The present composition of the House of Lords

On 4 April 2000, there were 669 members of the House of Lords:
• the two archbishops and 24 bishops;
• 524 life peers;
• 27 law lords; 
• 92 peers under the House of Lords Act (1999), i.e. «elected hereditary» peers, deputy Speakers and other Office holders.

State of the parties on 4 April 2000: 
• Conservative: 232 
• Labour: 181
• Liberal Democrats: 54
• Cross-bencher: 166 
• Other (including the archbishops and bishops): 32.
N.B.: 4 peers do not sit because they are on leave of absence.

The main differences in the composition of the present Upper House are its reduced membership and the limited number of hereditary peers. It is not a modern, democratically-elected house; the hereditary peerage remains in existence, albeit in a reduced form. The Conservatives still outnumber Labour, and the cross-benchers have undue power. The second chamber is an interim one, which means either that another reform is pending or that the transitional period is going to last for a long time. The 1911 reform was an interim one too. Logically, since the removal of most hereditary peers, the House of Lords has proved just as ready to fight the government and the House of Commons as it was before the reform; for example, on 20 January 2000, it forced the government to withdraw its bill to end the right to jury trials.

The government has not addressed the right question: the issue of the composition of the House of Lords is entangled in its powers. If its composition is changed deeply, its members will wish to have interesting political careers; in that case, its powers ought to be reformed and made explicit.

A House for the Future

The Royal Commission on the Reform of the House of Lords, chaired by Rt Hon Lord Wakeham DL, «was appointed on 18 February 1999 with the following terms of reference:
‘Having regard to the need to maintain the position of the House of Commons as the pre-eminent chamber of Parliament and taking particular account of the present nature of the constitutional settlement, including the newly devolved institutions, the impact of the Human Rights Act 1998 and developing relations with the European Union:
• to consider and make recommendations on the role and functions of a second chamber;
• to make recommendations on the method or combination of methods of composition required to constitute a second chamber fit for that role and those functions;
• to report by 31 December 1999.’»
On 23 December 1999 it submitted its report entitled A House for the Future to Her Majesty the Queen. It was presented to Parliament on 20 January 2000.

Writing a report is a difficult exercise indeed: a Royal Commission must present recommendations with justifications and alternative plans; it must discuss their advantages and drawbacks. Its recommendations must not be too radical: they might anger the government, which would shelve the report. Its proposals must not be too weak either, which would be an incentive for the government to make no change whatsoever. In short, a Commission has to strike the right balance.

Although the Royal Commission on the Reform of the House of Lords has had to work rapidly, it has produced a well-researched document which shows that reading and consultation have been extensive. Before discussing the question of the composition of the «new second chamber,» the Commission has addressed the problem of its powers, which are necessarily linked to the Commons’, the prime minister’s and the government’s. As the Royal Commission had been asked not to alter the balance of powers between the House of Commons and the new second chamber, the recommendations are non-committal. The verb «continue» and such clauses as «we believe that the new second chamber should continue to play such a role» are used extensively, a sign that the proposed reform is not far-reaching: the powers of the new second chamber will be roughly the same as those of the current House of Lords; the suspensory veto will remain the same for most primary legislation and the Commission has not tackled the question of the second chamber’s judicial functions because they «are outside our terms of reference» (92). It makes no revolutionary recommendation, but there are some minor proposals to improve the work of the second chamber. However, the report does suggest means thanks to which the work of Parliament as a whole will improve, such as the carry-over of bills, which would enable Parliament to go on examining bills over two successive sessions rather than one at the moment, or the scrutiny of Statutory Instruments — legislation issued by government departments or local authorities which is drafted by the ministers in charge and submitted to Parliament for approval. Yet these ideas are not innovative, since they have been aired repeatedly by the media and many politicians over the past few years.

The Royal Commission, however, makes more original recommendations for the composition of the new second chamber. It should not be composed only of professional politicians and should be representative of the population: it should include women (at least 30 percent of members), as well as representatives from the ethnic minorities, the voluntary sector, and cultural, sporting, professional, vocational and human rights organisations. 

The Royal Commission does not determine exactly how many people would sit in the second chamber, but it suggests that there should be about 550 members, a number which could change depending on circumstances; many members should participate on a part-time basis and remain active in other spheres of life. There would be four classes of members: representatives of the Church of England, Lords of Appeal in Ordinary (judges), regional members and members directly appointed by an Appointments Commission which would be fully independent of political parties and which the prime minister could not influence. The members would serve for a maximum period of fifteen years and would be able to retire. The present life peers would remain members of the new chamber for life, but they would be allowed to retire if they wished to do so; they would smooth the transition between the House of Lords and the reformed second chamber. The hereditary peers would be removed. The Commission rules out direct elections for the second chamber, since «widespread support for elections to the second chamber was combined with near-universal cynicism about the role of political parties and a desire to limit their influence in the second chamber» (15). Yet there are several alternatives for discussion for the appointment of regional members that amount to a form of indirect elections.

Understandably, considering the Lords’ obstructionism, the Royal Commission insists that «the new second chamber should be composed in a way which both ensures that no one party is ever in a position to control it, and also limits the influence of political parties upon its individual members» (26). It hammers the idea that no party should have an overall majority to limit the influence of the government of the day, and that 20 percent of members should be cross-benchers.

The recommendations of the report only address two defects of the present House of Lords: the presence of hereditary peers and the domination of the Conservative party. The Commission claims that the reformed second chamber «will be more democratic» and «more representative» (115), an assertion which can be questioned, considering the system of appointments, although it is right that the prime minister should have no say in the choice of members for the second chamber. The report only proposes minor alterations to its powers. Admittedly, the Commission did not have much scope for innovation since it could not challenge the pre-eminent position of the House of Commons and the dominant role of the government there. The wording of the report shows that the members of the Commission were often embarrassed, especially when they made recommendations which were paradoxical, ambiguous, and occasionally conflicting.

If the recommendations of the report are implemented, the second chamber will no longer be a luxurious retirement home for ageing politicians: the average age of its members should drop significantly. But the complex structure and the limited functions of the House of Lords remain in existence. The work of the Royal Commission could have been an opportunity to transform the British political institutions radically and to draft a written constitution. Britain has lost a chance to have a «more democratic» and «more representative» political system. It can only look forward to a cosmetic reform of the House of Lords, if Mr Blair attempts to put it into practice, which is unlikely since a general election is pending.

                                                 Marie-José Arquié
                                                 Université de Metz

Sources
Blair, Tony. New Britain: My Vision of a New Country. London: Fourth Estate, 1996.
Claude, Patrice. «Ne réveillez pas le lord qui dort.» Le Monde, 20 January 1999, 13.
Morgan, Janet P. The House of Lords and the Labour Government 1964-1970.
Oxford: Clarendon, 1975.
 Parker, Andrew. «Call for elected members in upper chamber.»The Financial Times, 21 January 2000, 8.
Pasquini, Séverine. House of Lords Reform since 1945: Democracy in Danger. Maîtrise dissertation, Université de Metz, 1999. (There are many primary documents in appendix).
Britain 2000: The Official Yearbook of the United Kingdom. London: TSO, 1999.
Whitaker’s Almanack 1999. London: TSO, 1998.
Whitaker’s Almanack 2000. London: TSO, 1999.
A House for the Future. Cm 4534, 2000. http://www.official-documents.co.uk/document/cm45/4534/4534.htm
«Elect the Lords.»The Economist, 22 January 2000, 19.
«Fixing the Lords.»The Financial Times, 21 January 2000, 10.
«Lost chances in the lords.»The Sunday Times, 23 January 2000, I,18.
«The new opposition: Power returns to the Lords.» The Sunday Telegraph Magazine, 14 February 1988, 20-23.
Useful sites: 
http://www.official-documents.co.uk
http://www.lords-reform.org.uk (site of the Royal Commission on the Reform of the House of Lords).
http://www.parliament.the-stationery-office.co.uk