The House of Lords
The White Paper
Chapter 1. Executive Summary
Chapter 2. Introduction: modernising the House of Lords.
Chapter 3. The present House of Lords.
Chapter 4. Role of a second chamber.
Chapter 5. Modernising the Lords: hereditary peers.
Chapter 6. Modernising the Lords: a transitional house.
Chapter 7. Modernising the Lords: longer-term reform - what should the modernised House do?
Chapter 8. Modernising the Lords: longer-term reform the compostion of a reformed House of Lords.
Back to the introduction. CHAPTER 3
THE PRESENT HOUSE OF LORDS
1. The House of Lords is the original chamber of Parliament, predating the Commons. Its origins can be traced back to Saxon times, when it was the custom of the king to call the leading men of the country to advise him at court. The pattern of the two-chamber Parliament was adopted by the 14th century. The first chamber consisted of those who had been summoned individually by the king as peers of the realm, who were his counsellors, officials and judges. They were also the chief landowners, who held their lands directly from the king and were responsible for providing the armies in time of war. The second chamber consisted of the representatives of the communities of the country: the knights of the shires and the burgesses.
2. Although the Commons established comparatively early its right to determine the resources the Government should have available to it, the House of Lords continued through the patronage of individual lords in other matters to be the dominant House into the 18th century. It was the consequences of the industrial revolution that finally established the pre-eminence of the Commons, as industry replaced land as the main source of wealth, the great cities came to dominate the countryside and changing patterns of society led to the gradual widening of the franchise. Although the most important offices of state were regularly held by members of the House of Lords well into the late 19th century, the Commons continued to establish its dominance as the elected chamber. The widening of the franchise in the 20th century, coupled with governments with a different political base, led to greater pressure for reform of the House of Lords. Two reforms of the House of Lords were carried, to its powers in 1911 and 1949, and to its composition in 1958 following the introduction of life peers. Throughout the 20th century there has been widespread support for further reform, and in particular for the abolition of the rights of hereditary peers to sit in the House of Lords, but four significant attempts at more wide-ranging reform have failed. Further reform of the House of Lords is now unfinished business as the 20th century reaches its end.
3. The structure of the House of Lords is complex. The introduction of life peers, who now form about 40 per cent of the House, has had a marked effect on its composition. At 4 January 1999, the structure of the House of Lords was:
- Life peers - 510 (of whom 7 are on leave of absence
- Hereditary peers of first creation - 9
- By succession - 750 (of whom 67 are without a Writ of Summons and 56 are on leave of absence)
- Archbishops and Bishops - 26
- TOTAL - 1,295
Only 103 peers are women, 16 of whom are hereditary peers. Nearly 40 per cent of the House (excluding those without Writs of Summons or on leave of absence) were born before 1930 about one-third of hereditary peers and nearly half of life peers.3
Hereditary peers, excluding those without a Writ of Summons and those on leave of absence, command a clear absolute majority in the present House of Lords:
- Hereditary peers by succession - 750
- Others - 545
4. But the nominal membership of the House of Lords is misleading. It is perhaps not widely understood that membership of the House of Lords is not a salaried job. Peers may claim only reimbursement of expenses incurred in undertaking Parliamentary duties. Many members of the House attend only rarely. For example, in the 199798 session, only 40 per cent of life peers attended more than two-thirds of the House's sessions and 34 per cent attended less than one-third. The equivalent figures for the hereditary peers are 20 per cent and 67 per cent respectively. Nearly 200 hereditary peers never attended at all, not counting those on leave of absence. The average daily attendance in 1997 was around 400, and a division involving more than 300 peers is rare. The majority of the business of the House is carried out by peers who regularly attend the House, the majority of whom are life peers.
5. The only groups with a direct and legally guaranteed representation in the House of Lords are the Church of England and the Law and there are special constitutional reasons for both these. For every interest group, representation is a matter of chance. The landed interest, for historic reasons, is obviously strongly represented among hereditary peers. Some peers take seriously their local and regional roots. Others of the life peers know that they have been appointed because of work on behalf of groups to which they belong or in whose interests they have been active. But it is up to individual peers, once members of the House of Lords, to decide what interests they will promote.
6. Bishops have always been members of the House of Lords. Originally they were summoned in their dual role as major landowners and as the king's counsellors. In more modern times, the presence of the Bishops became increasingly associated with the establishment of the Church of England, although in law the two are quite separate. The establishment of the Church of England rests upon Parliament's powers over its legislation and the requirement for the Sovereign as its Supreme Governor to be in communion with it. The Bishops and Archbishops now sit by virtue of the Bishoprics Act of 1878, which provides for the two Archbishops, the Bishops of London, Winchester and Durham, and the next 21 most senior diocesan Bishops to have a seat in the House of Lords. The Bishops are the only true ex officio members of the House of Lords, as they retire from the House on retirement from their see. Since clergymen of the Churches of England, Scotland and Ireland, and Roman Catholic priests, are not able to be members of the House of Commons, the presence of Bishops in the House of Lords was before the introduction of life peers the only significant non-lay representation of the principal religious denominations in Parliament.
7. The position of the House of Lords as the supreme court of the realm also comes from the House's origins as the King's Council. Until 1876, the judicial functions of the Lords had to be provided by those who happened to be members of it, or hereditary peerages had to be conferred to bring suitably qualified men into the House. At that point, concern about the lack of available expertise led to the innovation of conferring life peerages specifically for judicial work in the Lords, so that those who did not feel they had the resources to maintain the estate and dignity of a peerage through future generations could still be appointed. There are 12 active Law Lords at any one time, but retired Law Lords are still able to act judicially up to the age of 75, and all Law Lords are members of the House for life.
POWERS AND FUNCTIONS
8. The Parliamentary functions of the Lords are, broadly defined, fourfold:
- to generate, debate, amend and approve proposed legislation;
- to scrutinise government actions by Parliamentary Questions to Ministers and debates;
- to undertake specialist investigation through their select committees;
- to act as a general forum for debate on matters of public interest.
The House of Lords is distinct from the House of Commons in four key areas:
- the House of Lords has no influence over the choice of who is to form the government;
- the House of Lords has no powers over taxation and spending, which are the exclusive preserve of the House of Commons;
- the House of Lords has no constituency representative functions;
- the House of Lords' powers over legislation are constrained by the Parliament Acts.
9. The House of Lords functions in a different way from the Commons. Government business has no priority. Decisions about the conduct of business and debate are taken by agreement. Although the Lord Chancellor is the Speaker of the Lords, he does not have the powers vested in the Speaker of the House of Commons to select amendments, call members to speak and maintain order.
10. The House of Lords is a self-regulating body and as such is able to develop new procedures and committees to meet changing circumstances. Although the House of Lords has developed a select committee system to question government policies, it has no legislative standing committee procedure comparable to those of the House of Commons. Almost all Bills have their Committee stage on the floor of the House.
11. The powers of the Lords, like those of the Commons, are not precisely defined, although the limitations on them are. The main function which the Lords shares with the Commons is the scrutiny of primary and secondary legislation. For primary legislation, the usual role of the Lords is as a revising chamber, although some Bills can and do begin their Parliamentary passage in the Lords. Every year, the House of Lords passes a large number of amendments to Bills, the overwhelming majority of which are government amendments. The average number of amendments made by the House of Lords to Bills in each of the past ten years is nearly 2,000. The House of Lords therefore performs an important role in improving legislation, and in allowing further consideration of controversial issues.
12. The Lords' powers over primary legislation are constrained by the Parliament Acts. Under these, the Lords must pass without amendment any Bill certified by the Speaker of the House of Commons as a Money Bill within one month of its being sent up to the Lords, otherwise the Bill can be presented for Royal Assent. For all other public Bills, except, importantly, one to extend the life of a Parliament, the House of Lords has only the power to delay a Bill into the Parliamentary session after that in which it was first introduced.
13. Such Bills can be presented for Royal Assent at the wish of the Commons alone if:
- the House of Lords rejects the same Bill sent up from the Commons in two successive sessions; and
- the Bill has been sent up to the Lords at least a month before the end of each of the sessions; and
- at least a year has passed between Commons Second Reading in the first session and the Commons passing the Bill in the second.
This power has had to be invoked very rarely. Although the House of Lords may sometimes fight hard for its amendments, it usually defers to the rights of the elected chamber, rather than forcing the use of the Parliament Acts. The European Elections Act was only the second time the Parliament Acts have been used since 1949. There are no constraints on the House of Lords' powers to delay a public Bill to extend the life of a Parliament.
14. The Lords' powers over secondary legislation are identical to those of the Commons. They may accept or reject it, but cannot amend it. The House of Lords has evolved procedures under which it can call on the Government to delay or amend delegated legislation without itself voting to reject it.
15. The House of Lords' use of its legislative powers is also subject to informal understandings about how far they can reasonably be exercised. A Labour Government has always been in a minority in the second chamber. However, under the so-called Salisbury convention, that "it would be constitutionally wrong when the country has expressed its view, for this House to oppose proposals which have been definitely put before the electorate" (the Marquess of Salisbury, speaking in the debate on The King's Speech in 1945), the House of Lords undertakes not to refuse a second reading to any measure which has been in the governing party's election manifesto. The House of Lords reserves the right to propose amendments to the detail of the Bill although it is generally accepted that the convention applies to wrecking amendments which are intended to be destructive of the purpose of a Bill for which there is manifesto authority. There is also an understanding that the House of Lords does not vote down statutory instruments, although this is less firmly based than the Salisbury convention.
16. The House of Lords also has a similar role in questioning the Government's actions and policies to that of the Commons. It does this through the use of Parliamentary Questions, and also through set-piece debates on the important issues of the day. These debates often draw on the detailed expertise and experience which are available in the Lords, especially among the life peers, and can be influential both within government and amongst groups interested in specialist issues.
17. The House of Lords also has a number of select committees, which can undertake enquiries into any subject of their choice within their terms of reference. Today the most important are those on European legislation and on Science and Technology. Select committee work is widely recognised as informed and influential in specialist areas. The Delegated Powers and Deregulation Committee also scrutinises Bills for the powers which it is proposed should be delegated to Ministers and considers Deregulation Orders (the latter function is paralleled by a Committee in the Commons).
18. Political parties operate within the overall structure of the House of Lords. But unlike the House of Commons, there is a significant independent element the cross-bench peers. At 4 January 1999, the political make-up of the House, broken down by component group and excluding those on leave of absence or without a Writ of Summons,4 was:
1 Includes 28 Law Lords
2 Peers who have not taken a party whip
3 Duke of Edinburgh, Prince of Wales, Duke of York, Earl Snowdon
4 Includes Duke of Kent, Duke of Gloucester
5 510 including those on leave of absence
6 750 including those without a Writ of Summons or on leave of absence
19. As can be seen, the Conservatives have a clear majority over the other parties overall, and an overwhelming majority among the hereditary peers. They constitute nearly 50 per cent of the total of hereditary peers, including the politically non-affiliated. They also form the largest single party among the life peers. The Conservatives' share of the House of Lords far exceeds the Party's vote in recent general elections:
|(% of House)1||(% of vote)2||(% of vote)2|
1 Of those taking a party whip
2 Excluding nationalist and regional parties - House of LordsGeneral Election 1992
EARLIER ATTEMPTS AT REFORM
20. Though the Life Peerages Act 1958 made a great difference to the House of Lords, it did not tackle the question which has been recognised as a constant issue ever since 1911: the position of the hereditary peers. Following a unilateral statement by the Liberal Government of an intent to reform in 1911, three cross-party attempts this century have looked, unsuccessfully, at this question. They have all, however, consistently agreed that the House of Lords can only do its job properly if the automatic hereditary basis for membership is removed, and along with it the inherent bias in favour of one party.
21. In 1911, the Government made its intentions clear in the preamble to what became the 1911 Parliament Act:
"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 be immediately brought into operation."
Though a Cabinet committee was set up by the Government of the day to put into place the intentions expressed in the preamble to this Act, it did not report back to the Cabinet on the issue.
22. The first cross-party attempt at reform came when in 1917 the Government appointed an inter-party conference of members of both Houses under Viscount Bryce, a former Chief Secretary for Ireland, to consider the powers of the Lords; its relation to the House of Commons; and "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".
The principles they drew up in response were:
- the Lords should be a revising chamber with limited powers to ask the Government to think again, but should not rival the House of Commons;
- the House should not be dominated by a single party; it should contain an independent element; and it should be made up of those of personal eminence.
23. To achieve these results, the membership of the hereditary peerage would gradually be phased out, with the present peers electing a reducing number of seats in the House. The bulk of the House would be indirectly elected, with MPs acting as an electoral college electing by proportional representation on a regional basis. Each term of office would be for 12 years, with one-third being elected every four years. No time was found during the 1920s to put these proposals before Parliament.
24. The second cross-party attempt at reform came when the 1948 Party Leaders' Conference agreed that:
- so far as possible, no party should be assured of a permanent majority;
- heredity alone should not be a qualification to sit and vote.
In addition, there were a number of other proposals which were eventually enacted in 1958. The Party Leaders' Conference was unable to agree changes to the powers of the House of Lords. The Government therefore proceeded unilaterally with the amendments to the 1911 Parliament Act to reduce the House of Lords' delaying powers from two years to one, which had already passed the Commons when the Conference was convened.
25. The third cross-party attempt came when the committee set up in 1967, whose driving force was Richard Crossman, then Leader of the House of Commons, agreed that:
- the main purpose of the House of Lords was to revise legislation, but without undermining the Government's expectation that it should get its legislation through. The balance between the parties should be informed by the results of the preceding general election;
- the hereditary peerage and the in-built Conservative bias which resulted undermined the legitimacy of the House;
- the House should retain both a non-party and an expert, part-time element; members of it should be free to vote without fearing for the consequences for their membership of the House;
- membership should be divided between voting and non-voting peers, with the former being selected on their own merits;
- there should be a retirement age which would allow for the introduction of new elements, especially after a general election, without inexorably increasing the size of the House.
26. These proposals were broadly welcomed by the House of Lords itself when it debated the White Paper in which they were set out. The White Paper was approved by nearly 5 to 1 (251 votes to 56). A majority of Conservative, Liberal and Cross Bench peers who voted (including Bishops and Law Lords) supported the proposals, as well as all Labour peers voting. However, the Bill never completed its Commons passage, not least because of a breakdown of co-operation between the party leaderships in both Houses, caused by the House of Lords' decision to vote down the Southern Rhodesia (UN Sanctions) Order, which left it vulnerable to back-bench rebellions on both sides of the House of Commons.
27. The House of Lords is not an institution which has stood unaltered over time. In this century, it has changed significantly, but it has long been considered ripe for further reform. A number of attempts at reform have failed, but the structure and political composition of the Lords remain an overwhelming argument for reform to succeed at the start of a new century and a new millennium.
2 Figures supplied by the House of Lords information office.
3 Information derived from House of Commons Research Paper 98/104, p.11.
4 The Standing Orders of the House of Lords require peers to attend and those who cannot do so are expected to obtain 'leave of absence' from the House. This excuses a peer from attending for the rest of the Parliament, but can be rescinded at one month's notice.