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BASTON Lewis new

Lewis Baston is author of Reggie: The Life of Reginald Maudling and several books about British general elections. He is a consultant on politics, elections and constituencies.

The Conservative majority government elected in May 2015 has a unique distinction among Conservative governments: it does not have a majority in the House of Lords.

Ever since the emergence of a recognisable party system, the Conservatives have been able to rely on a party majority in the Upper House.

From the party realignment of 1886 until the exclusion of all but 92 of the hereditary peers in 1999 that majority was enormous and overwhelming (although chipped away at the margins by the rising numbers of life peers following the reform of 1958).

Before 1914 it was a ferocious attacker of the Liberal government, drawing the celebrated retort from Lloyd George that: “The House of Lords is not the watchdog of the constitution; it is Mr Balfour’s poodle. It fetches and carries for him. It barks for him. It bites anyone that he sets it on to.”

After 1922 the House of Lords would deliver the occasional nip to Labour governments, but it was a gummy, sleepy poodle that was worried that if it went too far it might be put down.

The Conservative-dominated House of Lords was hardly ever a serious check on the ambitions of Conservative majority governments. David and Gareth Butler’s magisterial British Political Facts records no noteworthy defeat in the Lords for any Conservative government prior to 1980. The only Commons-Lords clash recorded under the Tories was in 1956, when the Lords opposed a Commons proposal to abolish the death penalty.

There are two basic considerations when it comes to assessing, or reforming, the House of Lords – powers and method of composition. They should properly be taken together, and indeed the long succession of official inquiries and reports into the Lords reform question generally try to look at the questions together.

But when it has come to legislation and concrete proposals, it tends to be one or the other. Liberal and Labour governments have legislated on powers (the Parliament Acts of 1911 and 1949), in each case reducing the formal powers of the House of Lords.

The powers of the Lords have remained unchanged since 1949, although the 2015 Strathclyde review of the powers of the Lords on statutory instruments raised the possibility of a further reduction in powers. In December 2016 the government published its response to the review, indicating that they would not take any of its proposals forward in legislation this parliamentary session but would – slightly menacingly – keep the matter under review.

Composition has been reformed more often, and a Conservative government made the most important change of all by introducing life peerages in 1958, one of the two reforms that have created the Lords as we know it today (the other being the exclusion of the bulk of the hereditary peers in 1999). The Tories have also introduced more minor reforms such as the ability to disclaim peerages (1963), resign them, and for miscreant peers to be expelled (2014).

The interaction of powers and composition reflects some fundamental instincts among politicians. The compromise made for most of the century was that the second chamber would be dominated by aristocracy and a more broadly defined conservative elite, but that it would not get any more powers and the exercise of the powers that it formally enjoyed would in practice be very limited.

A conservative institution would survive, but it would be weak and not play the role that constitutional conservatives believed was the function of a second chamber. The Salisbury-Addison agreement was not a new departure, more a statement of the political realities in 1945 when the first majority non-Conservative government since the Parliament Act took power.

Most of the time, most of the Conservative Party has considered an effective bicameral system, although with the Commons having the final say, to be the most desirable structure for our legislature. The ultimate aim of a lot of Conservative thinking on the House of Lords over the last century has been about creating a method of composition legitimate enough to make the exercise of serious powers a possibility.

However, it has often been a case of following the path trod by St Augustine of Hippo: ‘make me chaste and continent, but not yet’.

A second chamber that is an effective check on the powers of the executive and an irritant to the House of Commons is good in principle, but it seems a lot less urgent from the vantage point of 10 Downing Street and a Commons majority. The process of getting there is fraught with difficulty and Labour governments have also found their enthusiasm waning.

Constitutional legislation ties up disproportionate amounts of parliamentary time and summons up the awkward squad in the Commons and the Lords alike. Richard Crossman’s Lords reform of 1968 wilted under the combined pedantry and constitutional theorising of Enoch Powell and Michael Foot.

Tony Blair did manage to legislate in the first flush of enthusiasm, but despite the efforts of sincere reformers like Robin Cook the momentum dissipated and the Prime Minister did not seem unduly bothered. By 2003 Blair was proclaiming the virtues of an all-appointed chamber.

One Conservative approach, particularly popular in the crisis period of 1909-14 and during the 1920s, was to accompany the restoration of full powers with a sort of fancy-franchise Lords in which there would be several routes to membership of the second chamber. These would include an element of the hereditary peerage, probably around a third of the chamber, plus some appointed members and an element that would be directly or indirectly elected.

The problem with most of these schemes was that they were transparently self-interested. The hereditary element would mean that the Conservatives would have a majority in the chamber at all times other than the very highest tides of Labour or Liberal support.

A hybrid chamber like this would never get all-party consensus for the restoration of full powers, and Conservatives such as Baldwin and Churchill were worried that a permanently Tory second chamber with full powers would discredit the possibility of parliamentary reform and thereby drive the working class movement towards revolutionary socialism. Twentieth Century Conservative governments were wise enough to abandon ideas of making the apparently attractive trade of part-reform of composition in exchange for enhanced powers.

Some of the most convinced supporters of a bicameral legislature retain the ambition to restore some more serious powers to the House of Lords, such as a longer suspensory veto (or even an absolute veto), more power over finance, and the resolution of clashes between the two Houses by conference committee rather than giving the final verdict to the Commons. Full powers would be accompanied by a definitive democratic basis for membership through 100 per cent elected composition using a different electoral system and timetable from the Commons.

To a certain conservative temperament, stopping silly things from happening as a result of a sudden rush of popular opinion, and respect for the accumulated wisdom of institutions and past generations, is an important function of an upper House. A second chamber should be a brake, a sort of Superego to dissuade the House of Ego from pandering to the populist Id.

Tories such as Douglas Hogg and Andrew Tyrie have been persuasive advocates of Lords reform on the basis of democratic composition and a stronger political role, in part as a means of striking a blow against the executive’s dominance of the legislature. To quote Hogg in 2007, then an MP and a nominal Viscount but since 2015 a life peer:

“I would be grateful if the Secretary of State stopped using the phrase “primacy of the House of Commons”. What he actually means is the primacy of the Executive. So long as the Government can retain control over their party, they can do as they please. We need Back-Bench Members of this House to reassert their independence, to recover the powers that the Executive have stolen from us, and to free ourselves from the tyranny of the Whips. That is what we need to do.”

Most proposals have been less radical than equal or near-equal powers, and have been aimed at giving the chamber enough democratic legitimacy to exercise the powers it has under the 1949 Act. The ill-fated coalition proposal for a mostly-elected Lords in 2012 did not propose to change the powers of the second chamber.

The Lords themselves have generally seen reform and an effective bicameral parliament as more important than MPs tend to, for obvious reasons. The Tory-dominated Lords were prepared to go along with Crossman’s reform in 1968 that would have restructured the voting strength of the parties in the Lords. After Commons opposition killed the proposals, the Lords became more assertive and took the rare step of vetoing a statutory instrument, arguing that it was not their Lordships’ fault that they remained unreformed.

Latterly, the Lords has taken a consistent view in favour of an all-appointed House while the House of Commons has tied itself in knots in the last two sets of votes on the principles of Lords reform. In February 2003 MPs voted down every proposal that was put before them.

In March 2007 they went one better and voted for two propositions that were logically inconsistent with each other, favouring both a wholly elected House and one composed of 80 per cent elected and 20 per cent appointed members. In 2012, despite the coalition scheme having the support of a clear majority of MPs, it ended up being withdrawn after a certain amount of chicanery.

Despite its honourable conservative philosophical roots, the idea of bicameral checks and balances – and perhaps the deeper concepts behind that – is out of favour.

Conservatives in the 1911-14 period were fond of calling the Liberal government a ‘revolutionary committee’ that had upended the constitutional order. But the Liberals would retort that the 1911 Act was actually the foundation of what we think of as parliamentary democracy, with the primacy of the elected House and its accountability to the electorate.

The idea of direct democracy through referendums has seeped into the constitutional order since 1973, and in 2016 we seem to have passed through another transition point in what we understand by constitutional democracy. As Hogg noted in 2007, the executive is increasingly powerful and through plebiscite feels it has ascertained the ‘General Will’ and should not be constrained in putting it into practice.

Rather strangely, it is now the liberal side of politics that seems inclined to appeal to the philosophies of Burke and Madison, and the conservatives who channel Rousseau and Robespierre. Funny old world, as another philosopher once said.

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