The House of Lords 1911–2011: A Century of Non-Reform 9781472561206, 9781849462891

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For Mum and Dad with much love and gratitude.

Acknowledgements ‘It would be interesting to know’, began Geoffrey Marshall in the preface to his published PhD thesis, ‘what precise accidents or experiences provoke the writing of books and the choice of topics for academic study. Often the student himself cannot say.’1 Shortly after Marshall took me for tutorials in the British constitution, I made a first visit to Canberra to research my undergraduate dissertation, and there discovered what was later called a constitutional Platypus: the Australian Senate – a strong, elected upper house in a system of Westminster-derived parliamentary responsible government – was, like the platypus (a mammal which lays eggs) to the naïve observer an apparent biological impossibility.2 The Senate had been constructed a decade before the UK Parliament’s constitutional ‘crisis’ of 1909–11 and had rejected supply in 1901 without provoking a fissure in the constitution. Having found such an upper House, I wanted to find more about how the UK had come to retain the House of Lords. Archival research is the substance on which the majority of the chapters in this work are built. I am most grateful to Lord Salisbury for permission to quote from his grandfather’s papers, to Mr JA Simon and Mr Charles Simon for permission to quote from Viscount Simon’s correspondence, to the Hon Rupert Carington, DL, for permission to quote from the Marquess of Lincolnshire’s diary, and to the Earl of Woolton for permission to quote from his grandfather’s archive. I would like to thank David Butler and Tony Benn for permission to use material from the oral history project that they conducted in the early 1960s. I am also grateful to the Bodleian Libraries, University of Oxford; the Churchill Archives Centre; and the Parliamentary Archives for permission to quote from their archival collections. Much of the material for this book was sourced from the National Archives and the Parliamentary Archives, and I wish to thank their staff for tirelessly fetching and carrying boxes of papers. In particular, I am indebted to the search room assistants in the Victoria Tower at the Parliamentary Archives for directing me to valuable sources that I would otherwise have missed. Where archives were not available, I filled the void with published primary sources and interviews, and I am grateful to my several interviewees for their time and their assistance and especially to David Hill. I was also fortunate to have had comments from Sir Michael Wheeler-Booth, DR Thorpe, DER Faulkner, Sir John Sainty and the Rt Hon Tony Benn, who helpfully guided me in their areas of expertise when I was writing the thesis on which this book has been based. Dr Michael Hart helped me with some of Viscount Simon’s writings. Much 1   Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth (Oxford, Clarendon Press, 1957) vii. 2   The analogy belongs to Dr Stan Bach: Stanley Bach, Platypus and Parliament: The Australian Senate in Theory and Practice (Canberra, Department of the Senate, 2003) 1–2.

viii  Acknowledgements of the material in chapter one of this book was previously published in my article ‘Hedging and Ditching: The Parliament Act 1911’ (2011) 30 Parliamentary History 19 (http://onlinelibrary.wiley.com/doi/ 10.1111/parh.2011.30.issue-1/issuetoc) and I am grateful to the publishers for permission to use the information here. My thesis was funded by two studentships from the Economic and Social Research Council (K00429913403; R42200124047), without which neither the thesis nor this book would have been possible. I would like to thank the ESRC for the funding and the Department of Politics and International Relations at Oxford University for supporting my funding applications. During my research, I was able to spend time in the UK Parliament, assisting the House of Lords Select Committee on the Constitutional Reform Bill (HL): I would like to thank Dr Rhodri Walters and Jake Vaughan in the House of Lords and Andrew Kennon in the House of Commons for making possible my secondment to the Lords, and the Economic and Social Research Council (ESRC) for funding my work there. I also learned a great deal from the opportunity to spend time at the Australian Senate and I am grateful to Wayne Hooper and Harry Evans for facilitating my visit there, and to the ESRC for funding my travel and my time. I would like to thank Richard Hart and his colleagues at Hart Publishing for their patience and assistance, and for their assiduity and skilfulness in copy editing. Many others have been very helpful to me during the course of my research. My greatest debts are to the following people: my unfailingly supportive and encouraging supervisor, Professor Vernon Bogdanor; Dr David Butler; Dr Nigel Bowles, DF Crossley; my students, my colleagues and my friends at Oxford, who stimulated and distracted me throughout my research, especially everyone at Exeter College, Oxford, who have provided such a stimulating environment in which to re-visit non-reform; and Dr Ailsa McLean, without whose patience and support I would not have finished this book. The dedication completes my thanks. Chris Ballinger Oxford May, 2012

Tables Table I-1: Government-sponsored attempts at reforming the House of Lords since 1911..............................................................................................................12 Table 3-1: Party Leaders’ Conference 1948: points of agreement..........................65 Table 4-1: Short and longer versions of a Lords reform bill...................................88 Table 4-2: The first life peers under the Life Peerages Act 1958.............................95 Table 4-3: Attendance of peers.................................................................................97 Table 5-1: Election and by-election results in Bristol South-East, 1959–64........112 Table 5-2: Joint Select Committee voting on retrospective peerage surrender.............................................................................................................117 Table 5-3: Previous proposals for allowing peers to stand for election to the House of Commons............................................................................................124 Table 5-4: Peers who have disclaimed their titles under the Peerage Act 1963...............................................................................................................126 Table 6-1: Analysis of division in the House of Lords on Southern Rhodesia (United Nations Sanctions) Order 1968...........................................................139 Table 6-2: Imagined vote of the House of Lords on the Southern Rhodesia Order 1968 if reform along the lines of the agreed scheme had taken place...139 Table 6-3: Parliament (No 2) Bill Committee Stage: an analysis of speakers during debates on 12, 18, 19, 25 and 26 February (excluding chairman and deputy chairmen)...............................................................................................144 Table 8-1: Lords and Commons votes on the Joint Committee’s seven options, February 2003.......................................................................................194 Table 8-2: Lords and Commons votes on reform options, March 2007.............202 Table 9-1: Key factors promoting and constraining Lords reform, 1911–2011..212

Introduction: Reform and Non-reform The justification for the House of Lords is partly historical, partly practical. It is an original portion of the British Constitution, and it works well. It is only bad political theory that asks for anything more. AJ Balfour, 19081 Lords reform is unfinished business from 1911. Since then, governments of all political colours have left the riddle unanswered. Lord Richard and Damien Welfare, 19982

REFORM AND NON-REFORM

T

HIS BOOK IS about the ‘unfinished business’ of House of Lords reform: the successive attempts across a century to reform both the powers and composition of the House of Lords that did not yield an accepted, lasting solution to the ‘second chamber question’. This ‘unfinished business’ is usually dated to the passage of the Parliament Act 1911. The Preamble to this Act has been important in shaping the expectations of would-be reformers: it proclaimed that ‘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’. Since then, a plethora of proposals for changing the powers and composition of the Lords have been forthcoming, including answers – and partial answers – to the riddle by governments of all political colours. Some of these proposals have been enacted; more have foundered. Yet the feeling is still that reform has not been achieved. The achievement of several changes to the powers and composition of the Lords in the century since the first Parliament Act is not so at odds with the idea of reform being ‘unfinished business’ as it may at first seem. During the discussions within the Liberal Governments in the five years preceding the Parliament Act, ‘reform’ was understood to be a coherent proposal to re-establish the second 1   Parliamentary Archives HL/PO/1. Letter from Mr AJ Balfour to Lord Lansdowne, 22 February 1908 (copy). 2   Ivor Richard and Damien Welfare, Unfinished Business: Reforming the House of Lords (London, Vintage, 1998).

2  Introduction: Reform and Non-reform chamber by altering both powers and composition in a way that would create a lasting constitutional settlement. Those in Cabinet who backed ‘reform’ contrasted it with proposals for ‘veto limitation’. The Parliament Act was veto limitation, not reform. In the century that followed, a number of changes have been brought about through Government-sponsored legislation; other alterations have come about through procedural innovations. These have, jointly and severally, effected a transformation in the roles, functions and composition of the House of Lords, but they have not yet satisfied the desire of some for ‘reform’. ‘Non-reform’ is therefore something that does not achieve reform, but which, had it been part of a coherent programme of change, could have been a component of House of Lords reform; or something which, though looking like a component of reform, does not advance the House towards full reform. We have had, following the Parliament Act 1911, a century of ‘non-reform’: none of the changes which have been realised constitutes ‘reform’ as it was understood when the Preamble to the Parliament Act was written. It is certain that reform has not yet been achieved to the satisfaction of those who wish for a fully comprehensive and lasting settlement. However, it is not quite so clear whether reform is ‘unfinished business’. In choosing veto limitation over reform in 1911, the Liberal Cabinet was acting in accordance with not only its own short-term interests, but also with the settled opinion within the Liberal Party as a whole. The Preamble to the Parliament Act, which has kept alive the hopes of successive advocates of reform, was insisted upon by a small number of reform-minded senior Cabinet ministers, especially Sir Edward Grey, when they realised that they had lost the argument over veto limitation; it was a an admission of defeat as much as a statement of intent. It is therefore arguable that reform is ‘unfinished business’ not from 1911, but from 1999, when the House of Lords Act 1999 failed to fulfil its stated aim of removing all hereditary peers, and following which ‘stage two’ of reform has proved elusive. Moreover, the Preamble, whilst being a political statement, has no constitutional significance. As the former Lord Chancellor, Lord Simon, observed when the amendment of the Parliament Act was being discussed in the late 1940s: [I]n this country every preamble is only important as a guide to the meaning of the enacting words, and if there is no doubt as to what the enacting words mean (and I have never known any competent person in this country to redoubt what the enacting words in the Act of 1911 mean), reference to the preamble does not, with great respect, assist the point.3

The Preamble has been a persistent, albeit influential, red herring, both about the intention of Asquith’s administration as a whole and about the prospect of future reform.

  HHP 5M/Box F. Simon to Salisbury, 17 January 1948.

3

A Century of Non-reform  3

A CENTURY OF NON-REFORM

The Parliament Act 1911 ended the veto of the House of Lords over most primary legislation. In doing so, it changed the terms of debate about House of Lords reform. The Act was explicitly intended to allow the Government to carry major constitutional legislation in the face of objections from the House of Lords – the Act’s raison d’etre was to secure Home Rule for Ireland, for which it was soon put to use – and following the passage of the Act, a future government could seek to carry House of Lords reform against the will of the Lords themselves.4 Paradoxically, this same Act that removed an obstacle from the reform process also took away some of the reasons for reform – the ability of the Lords to block government bills. The Parliament Act 1911 therefore represents a turning point in the long evolution of the House of Lords, and, perhaps ironically, by defusing the issue of the Lords’ veto, it may have become an impediment to reform proper. In 1909–11, the Government took hold of the House of Lords question. Through its advocacy of what became the Parliament Act 1911, Asquith’s Liberal Government ensured that government now controlled the issue of second chamber reform: in the future, no proposal for the comprehensive reform of the powers or composition of the House of Lords would have any chance of becoming law unless it was supported by the government of the day. In the years before 1911, House of Lords reform had been the subject of private enterprise, with bills introduced by individual campaigning peers and MPs in addition to the numerous books and pamphlets advocating reform. The constitutional conflict of 1909–11 changed that, as Lord Curzon observed to his Cabinet Committee in 1921: [P]ractically for the first time the Government itself would be called upon to produce a scheme of Reform for which it must assume full responsibility. Hitherto, save in the case of Lord Salisbury’s Bills in 1888, the schemes had been formulated by persons who were either independent of or in opposition to the Government.5

Whilst non-government proposals continued to flow – in the period 1970–98 alone, backbench bills on Lords reform averaged almost one per year6 – these usually had no critical influence on the reform programmes of governments. It became clear that for reform to succeed, it would need to have the backing, or at least the consent, of the government of the day. In discussing and analysing a century of non-reform, this book therefore focuses on those attempts at reform and non-reform which have reached the agenda of Cabinet or Cabinet Committees, or which (as with the Bryce Conference 4  When, in 1947–49, the Cabinet was discussing the Parliament Bill 1947, which amended the Parliament Act, the issue did not trouble the Cabinet, and the Opposition were likewise sure that the amending Act could be carried under the procedures of the 1911 Act. It was only subsequently that academic discussion took seriously the idea that the Parliament Act 1949 might be invalid. 5   Parliamentary Archives HL/PO/1/300/11. 6   See House of Lords Library Note 98/004, Proposals for Reform of the Composition and Powers of the House of Lords, 1968–1998 (July 1998).

4  Introduction: Reform and Non-reform and Wakeham Commission) were commissioned by the government. It investigates how and why the House of Lords question comes onto the government’s agenda, how proposals change when under consideration, and how and why they succeed or fail. In doing so, it addresses the paradoxes of House of Lords reform: successive governments have expended considerable cabinet and parliamentary time on the issue, but without managing to insist upon reform; at times it has seemed that reform has failed notwithstanding considerable inter-party agreement on both principles and details; governments seem to continue to strive for consensus, but those changes which have been enacted have succeeded in the face of disagreement.

THE EVOLUTION OF THE HOUSE OF LORDS

The achievement of substantial change through non-reform over 100 years might not surprise those who have studied the evolution of the House of Lords. The House, like other aspects of the UK’s constitution, was not designed and set forth as a whole, but has evolved over the centuries. It is part of what AV Dicey termed the ‘historic constitution’: not just ancient, but ‘original and spontaneous, the product not of deliberate design but of historical development’.7 The House of Lords is ancient and has grown rather than being built. Indeed, the constitutional historian AF Pollard went so far as to say that: ‘The House of Lords is not, in fact, founded on any principle; its basis is a patchwork of legal fictions, inconsistent rights, illogical decisions, and palpable uncertainties.’8 The beginnings of the House of Lords are so ancient that Pollard observed in 1926: ‘The Lords themselves are still in doubt about their origin.’9 The English Parliament can trace its beginnings back to the Saxon Witenagemot, an assembly of ‘wise men’ almost certainly comprising the bishops and the earls, which advised the king over 1,000 years ago.10 Nevertheless, as these advisory councils evolved, their nature remained ad hoc: the king summoned whom he pleased to advise him and it was by no means certain that someone summoned to one Parliament would necessarily be summoned to the next. The King’s Court, or ‘Parliament’, in the time of Norman kings was not hereditary, nor was it bicameral. The bicameral structure of Parliament that we know today did not become delineated until the fourteenth century, when the King’s Great Council, the magnum consilium regis, sitting in Parliament – a term that itself emerged only in the

7   SE Finer, Vernon Bogdanor and Bernard Rudden, Comparing Constitutions (Oxford, Clarendon Press, 1995) 100. See also Vernon Bogdanor, Politics and the Constitution: Essays on British Government (Aldershot, Dartmouth, 1996) 4–5. 8   AF Pollard, The Evolution of Parliament 2nd edn (New York, Russell & Russell, 1964 [1926]) 312. 9   Pollard (n 8) 299. 10   FW Maitland, The Constitutional History of England (Cambridge, Cambridge University Press, [1908] 1931) 58. On the early development of the English Parliament, see JAR Maddicott, The Origins of the English Parliament 924–1327 (Oxford, Oxford University Press, 2010).

The Evolution of the House of Lords  5 1230s11 – by virtue of royal writs, transformed itself into an upper house: a body of legislators ‘basing their right to legislate and their independence of the crown upon the principle of primogeniture’.12 Around the same time, the summoning to Parliament of knights and burgesses, who were elected from their local communities, in addition to the ‘lords’ who were summoned by personal writ, became more common.13 Peers, a term that gained currency during the fourteenth century as the name of a member of the emerging upper house of Parliament, increasingly deliberated separately from others, though the designation ‘House of Lords’ was not employed until the reign of Henry VIII.14 The separate deliberations had been formally recognised in legislative terms only in the early Tudor period: shortly after Henry Tudor became monarch, judges ruled that, for a bill to become law, the consent of both Houses was needed.15 Parliament had become truly bicameral.

Evolution: Role, Functions and Powers Until 1911, the formal power of the Lords varied little from the time that it was accepted that the consent of the Commons, as well as the Lords, was required for a bill to pass into law, until 1911.16 Following the reinstatement of the House after the Civil War, Lords and Commons were once again de jure co-equal partners in the exercise of legislative power. Nevertheless, a slippage of de facto constitutional power from the House of Lords to the House of Commons had begun with regard to financial legislation. In 1671 and 1678, the Commons passed resolutions, which asserted that the Lords had no business in amending money bills. The first of these, which declared that ‘in all aids given the King by the Commons the rate of tax ought not to be altered by the Lords’, was prompted by an attempt by the Lords in 1661 to assert a right to initiate or alter financial legislation. The second House of Commons resolution, in 1678, was stronger: the Commons asserted its sole right to propose financial bills and the Lords gave way. The de jure right of 11   The term ‘Parliament’ appeared, probably for the first time, in legal documents in 1236. See GO Sayles, The King’s Parliament of England (London, Edward Arnold, 1975) 40–42. 12  Pollard (n 8) 300. See also Gerald Harriss, Shaping the Nation: England 1360–1461 (Oxford, Clarendon Press, 2005) 66–74. By the late fourteenth century, it was becoming rare for a peer to be summoned unless his ancestor had been. 13  Chris Given-Wilson, ‘The House of Lords, 1307–1529’ in Clyve Jones (ed), A Short History of Parliament (Woodbridge, Boydell Press, 2009) 16. 14   PA Bromhead, The House of Lords and Contemporary Politics 1911–1957 (London, Routledge & Kegan Paul, 1958) 9. 15   David Dean, ‘Patrons, Clients and Conferences: The Workings of Bicameralism in the Sixteenth Century English Parliament’ in HW Blom, WP Blockmans and H de Schepper (eds), Bicameralisme: Tweekamerstelsel vroeger en nu (’s-Gravenhage, Sdu Uitgeverij Koninginnegracht, 1992) 209. Earlier, in the reign of Henry V, the King had acknowledged that the assent of the Commons was necessary for any law binding them (Luke Owen Pike, A Constitutional History of the House of Lords (London, Macmillan, 1894) 325). 16   Excepting, of course, the abolition of the House during the Civil War.

6  Introduction: Reform and Non-reform the Lords to reject financial provisions remained ‘on the tacit assumption that it would not be exercised’.17 The de facto power of the Lords, however, waned across the centuries as the relative power of the Commons increased. The prerogative of the Crown and the Commons to create new peerages had been used to undermine the theoretical co-equal power of the House of Lords, though this depended very much on the willingness of the Crown to acquiesce to the creation of peers. In 1711–12, the Commons and Lords were in dispute over the acceptance of the terms of the Treaty of Utrecht, and Queen Anne was persuaded that she should accept the advice of her ministers and create 12 peers to give the Tory Government a majority in the Lords. Both Houses have always claimed a right to autonomy in their proceedings and in 1719 the Whigs proposed a Peerage Bill in an attempt to limit by statute the ability of the Crown to create peerages. In March 1719, peers approved a series of resolutions on which the Peerage Bill was later founded, and the Bill was passed by the House of Lords in November. The attempt at legislation was, however, unsuccessful: the House of Commons, following Walpole’s aversion to the proposals, never agreed to the Bill and it did not become law.18 The creation of peers was used as a threat once more in 1832, but in the end the execution of this threat proved unnecessary and the Reform Bill was passed by the Lords. It is one of the ironies of history that the Tories had created the precedent for the creation of peers to overcome a hostile majority in the Lords and that the Whigs had attempted to limit this provision, for in 1832 and 1911 the threat of mass peerage creation was sufficient, in the end, to secure the passage of the legislation of a Liberal Government through a hostile, Tory-dominated Lords.19 The direct political power of the Lords diminished throughout the nineteenth century, though there remained an unwillingness on the part of the Lords to accept that deferring to the electorate meant always accepting the pre-eminence of the House of Commons. Where the Lords did defer to the Commons, it often did so on issues on which it could influence opinion in the Commons by controlling its membership. Despite the Reform Act of 1832, membership of the House of Commons ‘was still largely the perquisite of the old ruling caste’:20 even after 1832, about 50 MPs were returned from property boroughs which were controlled by peers. GHL Le May notes that ‘in 1865 it was calculated that a quarter of the members of the House of Commons were connected with 31 great families’21 and FB Smith has calculated that a further quarter of the members of the 1865 House had links with the peerage and baronetage through birth or marriage.22   GHL Le May, The Victorian Constitution (London, Duckworth, 1979) 132.   See Colin Brooks, ‘The Debate on the Peerage Bill, 1719’ in Blom, Blockmans and de Schepper (n 15) 261–77. 19   Pollard (n 8) 313. 20   FB Smith, The Making of the Second Reform Bill (Cambridge, Cambridge University Press, 1966) 15. 21   Le May (n 17) 127. 22   Smith (n 20) 15. 17 18

The Evolution of the House of Lords  7 Having agreed to House of Commons reform in 1832 and 1867, the House of Lords nevertheless proved unwilling to enable the complete democratisation of the lower House. The public goodwill that had arisen from the ease with which the 1867 Reform Bill had passed through the House of Lords was depleted by the peers’ long-standing opposition to the adoption of the secret ballot, opposition which was dropped in 1872.23 In 1884, the Tory majority in the House of Lords, led by Lord Salisbury who developed the idea of a ‘referendal’ role for the Lords (the ability of the Lords to reject government legislation pending it being put to the electorate for decision), caused renewed calls for House of Lords reform through its threat to Gladstone’s Reform Bill. Electoral reform removing the ‘buttresses of aristocratic power’24 finally passed the House of Lords and became law in 1884–85, but it did so against a renewed assertiveness of the upper House that persisted. It is ironic, as one observer noted at the time, that ‘the revived power of the House of Lords dates from the practical establishment of universal suffrage and equal electoral districts in 1885’.25 The Lords asserted its power against the Liberal Governments in the late nineteenth century, and Gladstone spoke in his last parliamentary speech, in 1894, of the need for the Lords’ veto to be ended.

Evolution: Composition After the establishment, from the fourteenth century onwards, of a hereditary right to receive a writ of summons, the bases of membership of the upper House altered relatively little until the mid-nineteenth century. In the earliest times, membership of the House of Lords, as it became, was by the receipt of a writ of summons from the monarch. Lords Spiritual (archbishops, bishops and, until 1540, some abbots), Lords Temporal and the senior legal officers of the country were all summoned to sit in Parliament. ‘By the 1530s, a summons to the Lords was increasingly regarded as an attribute of noble status rather than as the result of a territorial possession.’26 Bishops and abbots had been summoned to the Witenagemot before the Norman Conquest; after the Conquest, they sat in the Great Council, and later in Parliament, where in the fifteenth century they comprised about half of the 100 members of the emerging House of Lords, though many, especially the abbots, attended infrequently. Their summons to Parliament was ‘not as spiritual advisers but by virtue of their feudal status as royal tenants by barony’.27 By the time of the Dissolution of the Monasteries, there were 49 Spiritual Lords of Parliament (19 diocesan bishops, 26 abbots and two priors). The abbots and priors disappeared,   Andrew Adonis, Making Aristocracy Work (Oxford, Clarendon Press, 1993) 119.   David Lindsay Keir, The Constitutional History of Modern Britain Since 1485 9th edn (London, Adam & Charles Black, 1969) 472. 25   ES Beesley, A Strong Second Chamber (1907), quoted in Adonis (n 23) 112. 26   David L Smith, ‘The House of Lords, 1529–1629’ in Jones (n 13) 30. 27   Gavin Drewry and Jenny Brock, ‘Prelates in Parliament’ (1971) 24 Parliamentary Affairs 248. 23 24

8  Introduction: Reform and Non-reform but six new bishoprics were created (one of which, Westminster, soon ceased to exist). Therefore, by the Reformation, the Lords Spiritual reduced in number to 26. The Lords Temporal were in the majority for the first time. The 26 bishops were removed from the House of Lords by the Clergy Act 1642. The House itself was abolished in 1649, but when it was restored in 1660, it was re-created as it had been at abolition – ie without spiritual peers. Only 18 months later, after a debate in the House, were the 26 bishops restored by the Clergy Act 1661. The Bishopric of Manchester Act 1847, responding to the increase in the number of urban bishoprics, capped the number of Lords Spiritual of England and Wales at 26,28 but several bills introduced into Parliament in the nineteenth century, which sought completely to exclude bishops from the House of Lords, were defeated by substantial majorities in the Commons.29 Between the Union with Ireland and the disestablishment of the Church of Ireland by the Irish Church Act 1869, the archbishop and three bishops of the Church of Ireland sat in the House of Lords. The four Irish seats were created in 1800 and abolished in 1869. At the start of the twentieth century, 26 Lords Spiritual sat in the House of Lords, and when the Church of Wales was disestablished in 1920 (under the Act of 1914), the seats in Parliament of the Welsh bishops were taken by bishops of the Church in England. By contrast, the number of temporal peers increased markedly over time. In the fourteenth century there had been about 50 temporal peers. Subsequent creations swelled the number of temporal peers to about 130 by the mid-seventeenth century. The number of English and British members of the House of Lords rose from 162 in 1702 to 270 by 1800, to which were added 16 Scottish representative peers in 1707 and 28 Irish representative peers in 1801.30 By the mid-nineteenth century, the House of Lords ‘was primarily a hereditary aristocratic chamber of some four hundred and fifty members’.31 Membership of the Lords was restricted to a small set of aristocratic landowners: 400 peers owned one-sixth of the land in England and Wales. Many heirs to peerages married either the daughters of peers or the daughters of successful industrialists.32 As Hogan notes: ‘The peers in the mid-Nineteenth Century were amateur politicians but professional aristocrats; the peerage was primarily a social distinction, the seat in the legislature was an accidental by-product.’33 By 1885, of the 498 temporal peers, one-quarter held titles created before the eighteenth century, and a further quarter sat by virtue of eighteenth-century peerages. As many as 239 peers had been created since 1800.34 28   There are still two archbishops and 24 bishops in the House of Lords, from the 43 dioceses of the Church of England. 29   Drewry and Brock (n 27) 249. 30   Clyve Jones and Stephen Farrell, ‘The House of Lords, 1707–1800’ in Jones (n 13) 149. 31   John Hogan, ‘The Political System in the House of Lords in the Mid-nineteenth Century 1846– 1865’ in Blom, Blockmans and de Schepper (n 15) 375. 32   See J Morgan Sweeney, ‘The House of Lords in British Politics 1830–1841’ (DPhil thesis, University of Oxford, 1973). 33   Hogan (n 31) 377. 34   Adonis (n 23) 13.

The Evolution of the House of Lords  9 However, despite the increase in the peerage up to 1885 and subsequent creations which added industrialists to the landowners, the nature of the peerage in the House remained little changed. As Adonis observes: ‘If the peerage was by repute an open élite, in reality its front door was decidedly narrow, penetrable only by the richest and most resolute of non-aristocrats, even after 1885. The peers’ interests and prejudices were, accordingly, homogeneous to a high degree, and remained so until 1914.’35 Judicial Life Peers The issue of a writ of summons to senior legal officers had fallen away, but by the mid-nineteenth century, the House of Lords was in need of greater legal expertise for the exercise of its judicial functions. An attempt to broaden the membership of the House of Lords and to allow for modern-day life peerages was made in January 1856,36 when a barony for life (Baron Wensleydale) was conferred by the Crown (on the advice of the Prime Minister, Lord Palmerston) upon Sir James Parke with two purposes: to enable the House to better perform its judicial functions; and to pave the way for the establishment of non-judicial life peerages. There had been concern over the small number of legally qualified members of the House of Lords and the quality of its decisions in the legal appeals which the House heard as a court of law, and it was hoped that the conferral of life peerages on judges would help solve these problems. However, Parke was afflicted with a severe attack of gout when the House assembled on 31 January 1856, giving opponents of life peerages an opportunity to dissent. Objections – including unconstitutionality, indignity and fears over swamping of the House – were vigorously put by lawyers and members of the Conservative opposition in the Lords. In the debate on the Wensleydale peerage case, some peers thought that the introduction of life peerages would impair the independence of the House of Lords; others may have feared life peerages as being the first step in an attempt to make the upper House into a ‘Chamber of Notables’.37 However, as Olive Anderson argues: ‘The responsibility for the failure to introduce a small band of life peers into the Lords in 1856 . . . rests squarely with the House of Commons and not with the

  Adonis (n 23) 12.   Olive Anderson, ‘The Wensleydale Peerage Case and the Position of the House of Lords in the Mid-Nineteenth Cantury’ (1967) 82 English Historical Review 486, 490n, notes that this was not the first nineteenth-century attempt at introducing life peerages: she cites moves in the 1830s, the 1840s–50s, when Lord John Russell recommended the idea of life peerages to his Cabinet, and the 1850s. In 1851, Lord John Russell offered ‘With the queen’s encouragement’ a life peerage to Stephen Lushington, an Admiralty judge, but he declined it (and declined a comparable offer in January 1856), not least because he could not afford to relinquish his judicial salary in order to go to the Lords (he had been an MP as well as a judge until the Admiralty Court Act 1841 had barred him from holding both offices), although he also foresaw the controversy which would surround the introduction of judicial appointees into the House of Lords. On the Wensleydale case, see also RFV Heuston, ‘TheWensleydale Peerage Case: A Further Comment’ (1968) 83 English Historical Review 777. 37   Le May (n 17) 147. 35 36

10  Introduction: Reform and Non-reform Lords.’38 Certainly, the failure of proposals for judicial life peers alienated both those in the House of Commons, who valued the status quo, and their colleagues who were determined to push for the establishment of a separate Supreme Court outside of Parliament. Nevertheless, even from Anderson’s analysis, it remains unclear whether a solution which would have gained the support of one House could have been made acceptable to the other. In a debate on 7 February 1856, Lord Lyndhurst’s motion that the status of Baron Wensleydale be referred to the Privileges Committee was carried.39 The Committee of Privileges ruled, in what became known as the Wensleydale peerage case, that neither the letters patent creating the barony nor the writ of summons that Parke possessed entitled him to a seat in the Lords: [T]here is not a particule [sic] of doubt that the Crown may create a Baron for life, or for twenty years, or for the life of another, or during the pleasure of the Crown . . . But that is a very different question from having the power to appoint a legislator.40

Parke later sat in the House of Lords and heard cases, following his creation as the hereditary Baron Wensleydale of Walton, an honour which made him eligible for a writ of summons.41 The hereditary stranglehold on non-spiritual membership of the House of Lords was broken by the Appellate Jurisdiction Act 1876, eight years after Parke’s death, which first brought Lords of Appeal in Ordinary into the House of Lords. The need for new judicial blood in the House of Lords had increased, and an incremental advance was determined, under which Law Lords had the rank of Baron for their lifetimes, but a summons to sit only during the tenure of their judicial office. As such, the principles that the hereditary peerage was untouched and the old notion that barons for life had no right to a writ of summons were upheld. This position was amended by the Appellate Jurisdiction Act 1887, which enabled them to sit and vote for life.42 There was a strong argument that their position was (especially before 1887) more like that of the Lords Spiritual rather than that of life peers; indeed, there was a question over whether the Law Lords were, in any real sense, peers at all.43 Other than the introduction of a limited number of Lords of Appeal, the House of Lords in the nineteenth century was unwilling to reform its composition in any way which would affect the privileges or the dignity of the peerage itself.   Anderson (n 36) 499.  Hansard 3, 140, 1856, 263–379. More generally, see Gareth H Jones, ‘Parke, James, Baron Wensleydale (1782–1868)’ in Oxford Dictionary of National Biography (Oxford, Oxford University Press, 2004). 40   Bodleian Libraries, MS Simon 101, fol 244. Lord Campbell, quoted in ‘Reports on the Life Peerage Question 1856’ by MacQueen, House of Lords Library. 41   Although it was ruled that Sir James Parke was not eligible to take a seat in the House of Lords by virtue of his life peerage, he was still entitled to style himself Baron Wensleydale. See: Pike (n 15) 378. 42   Parliamentary Archives LH/4/31. Memorandum: ‘Life Peerages Bill: Revised Note on Resignation by Life Peers and Hereditary Peers of Right to Sit and Vote’, House of Lords, 6 February 1958. 43   This argument viewed a peer as possessing a social as well as political distinction, and distinguished membership of the peerage from membership of the House of Lords. 38 39

Twelve Instances of Reform and Non-reform  11 Lessons from the Evolution of the House of Lords It is easy to look upon the House of Lords as an ancient institution which has survived unchanged for centuries. Certainly, it has altered to maintain its position within the constitution, relinquishing power but avoiding abolition. Its evolution has meant substantial changes to its role, functions, size and composition over the centuries, adapting to the political realities of shifting power within the political system. At the start of the twentieth century, the evolution of the role and membership of the House of Lords was at risk of being left behind by institutional and political changes elsewhere in the political system. The Commons had now democratised and would increase its democratic base thereafter as the franchise was extended, but the additions to the membership of the Lords had not altered its character fundamentally enough to keep pace with the changes in the lower House. Even where there had been a significant driver for change to the membership of the Lords – the need for judicial expertise – the House had proved to be highly resistant to change. Peers, unable to control the Commons, reserved a right to judge the electorate’s sentiment more accurately than the Commons itself. However, attempts after 1906 by some peers to re-assert the power of the House of Lords as an interpreter and defender of public opinion would not only fail but would accelerate change that would prevent that power being exercised again.

TWELVE INSTANCES OF REFORM AND NON-REFORM

In focusing on government-sponsored reform attempts, 12 instances of House of Lords reform and non-reform from the past century are analysed in this book. Four of these attempts at reform resulted in legislation, although not always the legislation which the Government hoped, or expected, would result. Those reforms which succeeded (or otherwise resulted in the passage of legislation) were narrowly focused attempts to target specific issues. More complex or wider-ranging schemes for reform populate the ‘failures’ column of Table I-1. The political events of 1906–11, which resulted in the preference for veto limitation over reform at the start of this century and which preceded these 12 instances, are assessed in chapter one. It is a commonplace that House of Lords reform should be the product of cross-party negotiation. This was certainly the view of reformers during the Great War when they set up the Bryce Conference, which is discussed in chapter two. They hoped that they might build upon the success of the Speaker’s Conference on electoral reform, and in doing so quickly arrive at a lasting agreement about the House of Lords. Their hopes came to nothing, but the content of Bryce’s report continued to inform would-be reformers throughout the century.44 At the 44   Though the House of Lords at the time of the Bryce Report, as Walters notes, was ill-equipped to conduct the role of ‘revising chamber’ which Bryce had recommended. Rhodri Walters, ‘The House of

12  Introduction: Reform and Non-reform Table I-1: Government-sponsored attempts at reforming the House of Lords since 1911 Successful 1947–49: Party Leaders’ Conference/ Parliament Act 1949† 1953–58: Cabinet Committees culminating in the Life Peerages Act 1958 1961–63: Peerage Act 1997–99: Cabinet Committee, resulting in the House of Lords Act 1999 2003–05: Constitutional Reform Act

Unsuccessful 1917–18: Bryce Conference 1921–22: Cabinet Committee (Curzon)

1925–27: Cabinet Committee (Cave) 1933–35: Cabinet Political Committee 1967–69: Inter-Party Conference and Parliament (No 2) Bill‡ 1999–2000: Wakeham Commission 2001–10: Labour’s stage two reform

* Success in this table is defined as those reform attempts which resulted in legislation that gave effect to an important constitutional change. † For a government which wanted to restrict the powers rather than pursue reform, the 1948 Party Leaders’ Conference can be regarded as a success. ‡ Many of the procedural reforms adopted after 1970 were foreshadowed in the 1968 White Paper.

end of the twentieth century, the Royal Commission likewise produced a comprehensive report which set out the issues, but which was ultimately unsuccessful: its workings are discussed in chapter eight. Two inter-party conferences, in 1948 and 1968, are analysed in chapters three and six respectively: both were successful according to their lights, with the first conference guaranteeing the passage of the Parliament Bill and the latter reaching a solution which, though ultimately a failure, was agreed at the time. Despite an oft-stated desire for cross-party consensus on changes to the House of Lords, all the successful government-backed changes in the past century have been achieved despite disagreement. The Life Peerages Act 1958, discussed in chapter four, was carried despite a lack of support from the Labour Party, which it was intended to assist. The Peerage Act 1963 (chapter five) was forced upon a decidedly unenthusiastic government, although it later came to find benefit in its measures. The House of Lords Act 1999, discussed in chapter seven, was the subject of fierce opposition, and consensual attempts to complete that reform all stalled. The Constitutional Reform Act 2005 (chapter eight) came out of changes which, prior to their announcement, not been agreed within the Cabinet, let alone with the Opposition parties. In the late 1960s (chapter six), inter-party agreement Lords’ in Vernon Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, British Academy/Oxford University Press, 2004) 212.

Twelve Instances of Reform and Non-reform  13 was reached at the expense of intra-party agreement, which fatally undermined the reformers. At times, the government has sought pre-emptively to take the initiative on the Lords reform question. This is most clearly seen not only in the appointment of the Bryce Conference, but also in the inter-War Cabinet discussions on Lords reform, which are analysed in chapter two. The principal proponents of Lords reform in this era were Unionist MPs and peers, who sought to regain the initiative on the House of Lords question and bolster the de facto power of the upper House in the face of the possible use of the veto limitation procedure by a future government. The pre-emptive strike taken by the subsequent Attlee Government was quite the opposite of these attempts and was decidedly more successful.

1 Veto Limitation over Reform: The Parliament Act 1911 The House of Lords are expected in every serious political controversy to give way at some point or other to the will of the House of Commons as expressing the deliberate resolve of the nation AV Dicey, 19021 The C-B Plan at least leaves the Constitution and the hereditary principle intact, though it restricts hereditary power. Lewis Harcourt MP2

T

HERE WAS NOTHING in the pre-election policy programme of the victorious Liberal Government in 1906 which was as provocative to the peers as they had found franchise reform, the repeal of the corn laws, or the Irish question, in the late nineteenth century. Social reform was more prominent in Liberal than in Unionist campaigning in 1905–06, but no immediate issue threatened unresolvable conflict between the Commons and the Lords. Indeed, Sir Henry Campbell-Bannerman, as Adonis states, ‘deliberately shelved Home Rule in the run up to the election, and did so not least to avoid an early show-down with the Upper House’.3 In the absence of an anticipation of deadlock, the constitutional issue hardly arose during the 1906 general election campaign.

THE POLITICAL SITUATION, 1906–07

Campbell-Bannerman’s incoming Liberal Government in 1906 was, however, aware of the potential threat posed to its programme by the overwhelming Unionist majority in the House of Lords. The Government had 400 seats in the House of Commons to the Unionists’ 157, and an absolute majority of 130. The 1   AV Dicey, Introduction to the Study of the Law of the Constitution 6th edn (London, Macmillan 1902) 427. Seven years after the publication of this book, Dicey supported the House of Lords’ rejection of the budget, not regarding the peers’ actions as unconstitutional. 2   Bodleian Libraries, MS Asquith 12, fols 114–16. Lewis Harcourt to HH Asquith, 7 February 1910 (emphasis in original). 3   Andrew Adonis, Making Aristocracy Work (Oxford, Clarendon Press, 1993) 136.

16  The Parliament Act 1911 landslide Liberal victory had reversed the numbers of Liberal and Unionist members in the House of Commons. However, whereas the previous Unionist Government had enjoyed a substantial majority in both Houses, the incoming Liberal Government commanded the support of only 88 of the 602 peers in the upper House. The threat to the Government from the House of Lords, at least in the immediate aftermath of the election, was more theoretical than practical: for all the public statements on challenging the Government, Arthur Balfour, the Conservative leader in the Commons, knew that the power of the Lords ought to be used with ‘caution and tact’.4 The House of Lords’ rejection of Home Rule legislation in the 1890s did not provide a blueprint for the Unionist leaders in 1906. The incoming Liberal Government was not a single-issue administration and it was, as a consequence of this, more difficult to attack the whole administration by focusing on one policy area. Moreover, the Unionists were electorally much weaker in 1906 than they had been in 1892: there would be little to be gained by forcing a general election.5 Balfour’s primary concern was not to use the Lords to force an immediate appeal to the electorate, but rather to frustrate the Government and to unite his own party. The Unionists picked their battles carefully. They attacked sectional measures which catered for Liberal Party supporters, such as nonconformist and anti-Church measures; they opposed policies for which the electorate’s support was not wholehearted. Yet the Unionists allowed some legislation to reach the Statute Book (most notably the Trade Disputes Act 1906), which, though they did not instinctively support them, had broader popular appeal or a clear electoral mandate.6 The Unionist majority in the Lords chose its principal battlegrounds to be the 1906 Education Bill, the 1907 land reforms and the 1908 Licensing Bill. In November 1910, the leader of the Unionists in the Lords, Lord Lansdowne, pointed out that the upper House had rejected only six of the 250 Government measures introduced since 1906.7 Peers were selective in exercising their veto, carefully picking their targets from amongst the crowd.

CABINET DISCUSSIONS ON LORDS REFORM, 1907

The position of the House of Lords was broached in the 1907 King’s Speech, which warned that: ‘Serious questions affecting the working of our Parliamentary   Adonis (n 3) 137.   On the Unionist Party’s strength at this juncture, see, for example Jane Ridley, ‘Leadership and Management in the Conservative Party in Parliament, 1906–1914’ (DPhil thesis, University of Oxford, 1985) 120. For a detailed and nuanced analysis of the Liberal Cabinet’s policies on a wide range of issues, including Lords reform, see AS King, ‘Some Aspects of the History of the Liberal Party in Britain, 1906–1914’ (DPhil thesis, University of Oxford, 1962), from which this chapter has drawn. 6  Neal Blewett, The Peers, The Parties, and The People: The General Elections of 1910 (London, Macmillan, 1972) 60–61; Jane Ridley, ‘The Unionist Opposition and the House of Lords, 1906–1910’ (1991) 11 Parliamentary History 235, 243–44. 7   Peter Rowland, The Last Liberal Governments: The Promised Land 1905–1910 (London, Cresset, 1968), 332–33. 4 5

Cabinet Discussions on Lords Reform, 1907  17 system have arisen from unfortunate differences between the two Houses. My Ministers have this important subject under consideration with a view to a solution of the difficulty.’8 The peers had already shown obstruction to the Government’s programme, not least by greatly amending the Education Bill during the 1906–07 Session, and the Government had felt forced to abandon that Bill. Campbell-Bannerman would have preferred to seek a new electoral mandate following this obstruction by the Lords, but he knew that there was insufficient support for this amongst the electorate. Unable to appeal to the country, the Cabinet sought House of Commons resolutions on reform of the Lords and established a Cabinet Committee to consider the House of Lords question.9 Following its preliminary discussions on House of Lords reform in February 1907, the Cabinet referred the problem to a committee under the Lord Chancellor, Lord Loreburn. As Weston notes, ‘the Cabinet Committee interpreted their charge as one of dealing with the lords’ veto but not with the reform of the House of Lords’.10 Yet, in effect, it recommended neither veto limitation nor reform. The following month, the Committee produced a practically unanimous report which favoured joint sittings of the two Houses to overcome disputes between Commons and Lords, preferring joint sittings to the limitation of the Lords’ veto as a means of resolving disputes between the two Houses. The Cabinet Committee’s recommendations, which were accepted by the Cabinet, rejected the reconstruction of the House of Lords on the grounds that any change in the composition of the upper House ‘must tend to strengthen the House of Lords and to increase its power’.11 Further, the report rejected the idea that the Lords could require a referendum before disputed bills could become law, because this would place the Houses on an equal legislative footing. Replacing the House of Lords’ veto with a time-limited delaying power was seriously considered as an option, but was turned down on the grounds that it would, in effect, abolish the House and introduce single-chamber government – proposals which would inspire maximum resistance. Instead, the report recommended joint sittings to resolve inter-cameral disputes: after a year’s delay, a bill would be placed before a joint sitting comprising the entire House of Commons (670 Members) and 100 peers (of whom up to 20 would be government peers). The Cabinet Committee was unsure, however, whether joint sittings would satisfy the wishes of the Liberal Party beyond the Cabinet: restricting the veto had general approbation amongst Liberals. Nevertheless, as Weston observes: ‘If somewhat hesitant about its reception, the Cabinet Committee had no doubt of the intrinsic superiority of their plan to that of the suspensory veto.’12   HL Deb, 12 February 1907, vol 169, c 3.   Adonis (n 3) 138. 10   Corrine Comstock Weston, ‘The Liberal Leadership and the Lords’ Veto’, 1907–1910’ (1968) 11 Historical Journal 508, 511. Weston’s article is the most detailed explication of the Cabinet’s evolving policy on veto limitation. 11   TNA CAB 37/87/38. 12   Weston (n 10) 511. 8 9

18  The Parliament Act 1911 This plan quickly, though misleadingly, became known as the ‘Ripon Plan’.13 Its genesis, however, as Weston has shown, lay in discussions between Lord Crewe, the Lord President of the Council, and Herbert Asquith, Chancellor of the Exchequer. Crewe had considered four plans – unicameralism, a wholly elected senate, ‘Home Rule all round’14 and a referendum – to be ‘either utterly unacceptable or practically unattainable’. The suspensory veto, the preferred option, was in some respects too similar to the referendum proposal. In other respects, the suspensory veto was too short and, though appealing to the Liberal Party, would require for its enactment extreme measures which could not, in the political circumstances prevailing at the time, be justified. Crewe realised that a small House of Lords would be necessary for joint sittings to have effect, suggesting a House of about 150 peers selected according to experience; Asquith modified the idea, suggesting that the House remain unaltered, but that joint sittings be undertaken by a delegacy. This was the foundation of the plan which the Committee reported to Lord Ripon, whose own involvement in the ‘Ripon Plan’ was negligible.15 The Cabinet had agreed to support the joint sitting proposal of its Committee; however, the Prime Minister thought that the proposals would not satisfy Liberal opinion, not least because it would give carte blanche for the Lords to reject government bills if their delegates could not be out-voted in the joint sitting, thus ensuring a Lords veto over modest Liberal Commons majorities. Weston shows how, during May 1907, Campbell-Bannerman started to throw his weight against the proposals.16 He preferred the drastic solution of replacing the Lords’ veto with a suspensory veto of just one year. As discussions continued, three severe problems with the idea of joint sittings quickly emerged and were highlighted in a Cabinet paper issued by Campbell-Bannerman himself at the end of May 1907.17 First, it would be difficult to justify the joint sitting as a ‘joint’ vote when the whole of one body and only a fraction of the other was involved (100 peers, 20 from the Government and 80 others, was ‘a very liberal estimate of the number of working Peers’). Second, 770 people – the House of Commons and 100 peers – was deemed too large an organisation for a genuinely deliberative conference on the differences between the two Houses. Third, the joint sittings would, in effect, allow the House of Lords to block the legislation of a Government which had a majority of 70 or less in the Commons.18 By early June 1907, it had become clear 13   Lord Ripon was Leader of the House of Lords and had been a proponent of the proposals within the Cabinet Committee. Weston shows that Campbell-Bannerman attributed the plan’s parentage to Lord Ripon: Weston (n 10) 512. 14   If Home Rule had been granted to all nations and regions of the UK, with no reference to the House of Lords from the regional legislatures, then the House of Lords would thereby be removed from most areas of practical policy. The question remained, however: how could ‘Home Rule all round’ be secured against the veto of the House of Lords? 15   Weston (n 10) 512–15. He was elderly (80 years old) and infirm. He died in 1909. 16   Weston (n 10) 515–16. 17   Campbell-Bannerman’s memorandum, dated 31 May 1907, is reproduced in full in JA Spender, The Life of the Right Hon. Sir Henry Campbell-Bannerman, GCB, vol II (London, Hodder & Stoughton) 351–55. 18   TNA CAB 1/7. Cabinet Memorandum, 31 May 1907.

Cabinet Discussions on Lords Reform, 1907  19 that the Prime Minister’s reservations were well-founded: the proposals would not please rank-and-file Liberals. The Prime Minister therefore suggested that the Lords’ veto be restricted to being a suspensory veto over three Sessions, in addition to conferences between the Houses to resolve disagreements. The Cabinet, after some deliberation,19 reached a compromise, which rejected the idea of joint sittings but supported the suspensory veto and combined it with the suggestion of Lord Crewe (who had not been enthusiastic about the suspensory veto) that the parliamentary term be shortened from seven years to five.20 By reversing Cabinet policy and changing support for the Ripon Plan into support for the suspensory veto, Campbell-Bannerman had ‘carried out virtually by himself a sweeping reversal of a Cabinet policy that had been adopted by the leading members of his Government after a process of discussion and due deliberation’.21 The decision of the Cabinet to support Campbell-Bannerman’s veto limitation plan framed the Government’s response to the House of Lords question for the next four years. The ‘C-B Plan’, as it became known, had in its favour effectiveness and simplicity. Reform – which to the Liberal Cabinets of 1906–11 meant proposals that sought to alter both the powers and the composition of the chamber in ways that were hoped to be a lasting constitutional settlement, as opposed to proposals which purported to modify only the powers of the House of Lords – raised too many points of contention which would cloud the central question of the prerogative of the lower House and which might divide opinion in the Party and the country. Moreover, reform might entrench a strong, conservative-inclined element in Parliament. Whereas some in the Cabinet had instincts towards reform over limiting the veto alone, in the parliamentary Liberal Party, the divide was between veto-limiters and abolitionists: a three-day debate in the House of Commons, on 24–26 June 1907, ended with 20 Liberals joining Irish members in voting for a Labour amendment calling for the abolition of the House of Lords. However, at the same time, the House of Commons supported by 432–147 the Prime Minister’s motion: That, in order to give effect to the will of the people as expressed by their elected representatives, it is necessary that the power of the other House to alter or reject Bills passed by this House should be so restricted by Law as to secure that within the limits of a single Parliament the final decision of the Commons shall prevail.22

The ‘C-B Plan’ for the suspensory veto became, from this point in June 1907, the common ground across the Cabinet and the parliamentary Party, ‘notwithstanding the reluctance of Asquith’ and others.23 It was publicly supported not only by 19   After the Cabinet meeting of 5 June, Campbell-Bannerman noted to the King that a new plan was being considered, but that no decision had been reached. Weston believes that probably ‘the Cabinet remained divided until very late about their plan’ (Weston (n 10) 518). 20   TNA CAB 37/101/137, 5 June 1907. 21   Weston (n 10) 516. 22   HC Deb, 26 June 1907, vol 176, c 1523. 23   José Harris and Cameron Hazlehurst, ‘Campbell-Bannerman as Prime Minister’ (1970) 55 History 360, 381.

20  The Parliament Act 1911 those who saw it as optimal, but also by those who favoured a more extreme solution. Over time, Liberals came to regard the 1907 Cabinet compromise as stated party policy on second chamber reform, and by 1910 most of the parliamentary party was united behind veto-limitation and against wider reform. The House of Lords responded to the Commons’ resolution by establishing a Select Committee under Lord Rosebery. The Committee reported in 1908 with proposals that would still leave the House of Lords as a Conservative-dominated body, but which would nonetheless engender a complete overhaul of the House’s composition, with a severe reduction in the hereditary element. This change in composition would have made the Lords much easier to defend in the event of a disagreement between the Houses. ‘Yet’, as Blewett observes, ‘there was no follow up. The report was not even debated.’24 Earlier, in 1907, Lord Newton, who wished to strengthen the House of Lords through changing its composition rather than weakening it by diminishing its powers, had introduced a Bill for the House to be composed of a mixture of hereditary and life peers.25 The Bill was not without significance – not least because its proposals for drastically cutting back the hereditary element of the Lords gained a deal of support on the Conservative side – but Newton’s Bill of 1907 had as little effect on the House of Lords question as Rosebery’s report had a year later.26 Despite this flurry of activity in 1907, there was no mention of the ‘C-B Plan’ in the King’s Speech of 1908. Roy Jenkins argues convincingly that: ‘It is difficult to accept any conclusion other than that the Prime Minister intended to give the peers another year’s trial before attempting to proceed any further.’27 Certainly, with markers laid down by the House of Commons, there was no further need to forewarn the Lords in the King’s Speech. But there is a further, and crucial, reason why a bill for the limitation of the Lords’ veto power could not be introduced straight away. Campbell-Bannerman saw that his party could not remain in office if a veto limitation bill was rejected by the peers – as he knew it was certain to be – and yet it was too risky to go to the country on this issue alone. He therefore realised that the Government needed a trigger on which to go to the country, and his subsequent retirement, and replacement by Asquith, did not alter that need.

BUDGET REJECTION, 1909

It is not evident that, in framing his ‘People’s Budget’ of 1909, David Lloyd George’s object was to provoke the House of Lords into rejection and to provide an issue on which to go to the country over the powers of the House of Lords. Indeed, Lloyd George devised his Budget as an alternative to conflict with the   Blewett (n 6) 61.   David Southern, ‘Lord Newton, the Conservative Peers and the Parliament Act of 1911’ (1981) 96 English Historical Review 834, 835. 26   Roy Jenkins, Mr Balfour’s Poodle revised edn (London, Collins, 1968) 49. 27   Jenkins (n 26). 24 25

Budget Rejection, 1909  21 Lords rather than an incitement to deadlock,28 and it seems that the Government thought that the Lords, however distasteful they found the Budget, would pass it.29 The Government was, nevertheless, aware throughout that the Tariff Reformers might seek to throw out the Budget, and ‘Lloyd George was by no means unhappy by the prospect of a showdown fight with the upper chamber’.30 The 1909 Lloyd George Budget confronted the Conservatives with a strategic dilemma: taxes would fund social reform and rearmament, some of which they supported, but several measures of the kind included in the Budget had already been rejected by the Lords. The Budget was not, strictly speaking, a ‘money bill’:31 it embodied previously rejected proposals on land reform and licensing restrictions, and, in supporting a move to progressive, redistributive taxation, put forward a policy to which the Unionists were opposed and for which, Ridley notes, ‘the Liberal Government could claim no mandate’.32 For the Liberals, the Budget was politically a win-win policy: the Liberals felt that Conservative peers would be humiliated in the country if they rejected the Budget and would feel humiliated personally if they accepted it. Financial pressures on the Government increased during the summer of 1909. By September, several duties were being levied by authority of a resolution of the House of Commons rather than by an Act of Parliament, and Sir George Murray, the Permanent Secretary to the Treasury, advised that this might be of questionable legality, especially if the Finance Bill was rejected. To borrow would almost certainly have required a future bill, since borrowing for ‘deficiency’ advances would have to be repaid by the middle of 1910.33 The Cabinet was advised ‘from the pen of a high constitutional authority’ that it should not ask the Commons to pass a truncated finance bill, with only those measures acceptable to the House of Lords, as a temporary measure, lest it be regarded as an admission on the part of the Government that the Lords had a right to reject measures within a Budget.34 Moreover, if the Government were forced into an election and won, it would be in an excellent position, not only with regard to securing the whole of the Budget, but also on the more general question of the power of the House of Lords.35 At the beginning of October, it was too early to plan any definite course of action on the question of the Lords until the situation with the Finance Bill was clarified.36 Later in October and into November, the Cabinet was fully occupied in planning for 28   Jenkins (n 26) 40–42; Peter Rowland, The Last Liberal Governments: The Promised Land 1905–1910 (London, Cresset, 1968) 215–21. 29   Blewett (n 6) 54. 30   John Clive, ‘British History, 1870–1914, Reconsidered: Recent Trends in the Historiography of the Period’ (1963) 68 American Historical Review 987, 998. 31   And would not have been classified as a ‘money bill’ under the terms of the Parliament Act 1911. 32   Ridley (n 6) 248–9. 33   TNA CAB 1/7. ‘Effect of the Rejection of the Finance Bill by the House of Lords’, Confidential Memorandum by Sir George Murray, 7 September 1909. Murray had earlier been outspoken about the policies underpinning the Budget. 34   TNA CAB 37/100/123, 9 September 1909. 35   See discussion of tactics in TNA CAB 37/100/123, 9 September 1909. 36   TNA CAB 41/32/37, 5 October 1909.

22  The Parliament Act 1911 the legal and financial complications that would arise from the rejection of the Budget. With its focus on the Budget, the Cabinet had little attention for developing plans for comprehensive Lords reform. What attention it was able to direct towards the modification of the upper House was spent on plans to limit the power of the Lords. The Cabinet memoranda of 1907 were recirculated. Crewe, especially, was worried that there was a risk that the Conservatives might seek to create a strong second chamber as a permanent check against the Commons. Loreburn revived the earlier idea of introducing Home Rule all round as a solution to the veto power of the Lords.37 But Home Rule would be subject to the same opposition from the Lords as veto limitation, and the best way to achieve the former would be to achieve the latter first. On the question of an ‘all-in-one’ reform, Winston Churchill counselled his colleagues that ‘wise proposals are not good electioneering’ and that the best course was to campaign at the next election on the clear and simple issue of smashing the Lords’ veto. If the budget was conclusively rejected by the Lords, the best response was a short measure to overcome the difficulty, and there was none better fitted to this task than the ‘C-B Plan’. By 3 November, the Cabinet thought that the rejection of the Budget by the Lords was ‘probable’ and were fully occupied in planning for that event.38 In the middle of the month, Asquith warned the King that the Cabinet was likely, in the face of the rejection of the Finance Bill by the House of Lords, to ‘seek a dissolution of Parliament at the earliest practicable date’.39 The Budget was firmly rejected by the House of Lords on 30 November by 350 votes to 75. The decision to reject the Budget had been taken by Balfour as early as August, ironically just as the Budget proposals were reaching the height of their popularity.40 Nothing after that time persuaded the Conservative leadership, or their peers in the House of Lords, to change course. The rejection was not the knee-jerk reaction of a group of injudicious peers: it was the consequence of an unstoppable consensus across the Unionist Party, which arose in the autumn of 1909 and was marshalled by Balfour against the counsel of Lansdowne, and in full knowledge of the constitutional practice which went against rejection.41 The Cabinet stood resolute in the face of the Lords’ rejection of the Budget. Asquith introduced into the House of Commons a resolution which deplored the rejection of the Budget by the Lords and re-asserted the role of the Commons as the sole authority over financial matters. The resolution was carried on 2 December by 349 votes to 134.42 But no substitute Budget appeared – and none of the crises, of   TNA CAB 37/101/140, 16 October 1909.   TNA CAB 41/32/40, 3 November 1909.   TNA CAB 41/32/41, 17 November 1909. Earlier on, the Cabinet had been advised that, because of the difficulty of preparing the electoral register in time for a December election, the earliest practicable date for a poll would be in the new year. TNA CAB 41/32/36, 29 September 1909. 40   Bruce K Murray, The People’s Budget 1909–10: Lloyd George and Liberal Politics (Oxford, Clarendon Press, 1980) 209. 41   Jenkins (n 26) 98–100; Blewett (n 6) 76, 95–99; Murray (n 40) 210–15. Lansdowne had advised for amendment rather than rejection. 42   Murray (n 40) 232–35. 37 38 39

Between the 1910 Elections  23 which Sir George Murray had earlier warned, came to pass. Parliament was prorogued on 3 December.

BETWEEN THE 1910 ELECTIONS

The January 1910 election reinforced the prospects of veto limitation over reform in two important ways. First of all, in their election campaigns, most Liberal candidates advocated legislation to overcome the Lords’ veto, but said nothing about wider questions of reform: ‘The rejection of the Budget occasioned no concrete ministerial plan of action for dealing with the Lords, but a cry against the peers and an appeal that they should be put in their place.’43 Whereas it had seemed in 1909 that victory at the election would lead to the immediate passage of the Budget, to be followed by some scheme for Lords reform, it became clear that overcoming the Lords’ veto was a necessary element in maintaining and transmitting the passion of Liberal activists. Dealing firmly with the constitutional question united anti-Unionists, Blewett shows that when the campaign moved away from this issue, the Liberal cause weakened.44 Second, the election resulted in the loss of the Liberal majority in the Commons and made the Government reliant upon other parties to pass any legislation. When Parliament re-convened in February, the Liberals had a plurality of seats, but not a majority: there were 275 Liberal MPs and 273 Unionists. A reduction in the landslide Liberal majority had not been entirely unanticipated. By the time of the dissolution in January 1910, the Liberals’ absolute majority in the Commons had slipped from 130 to 76, and Asquith had told the King as early as October 1909 that he anticipated that the Irish would hold the balance of power if an election was required.45 He was proved right. After the first 1910 election, the Liberals were dependent for an overall Commons majority on the support of the 40 Labour and 82 Irish Nationalist MPs.46 The Irish MPs had voted against the Budget in 1909 and remained opposed to some of its measures. Their price for supporting the Government was concessions on some of the Budget’s measures, especially the whiskey tax, and a credible promise of Home Rule for Ireland. The Budget concessions were sectional and were resisted by the Government, but they found it difficult to resist the pressure for Home Rule. A promise for Home Rule could be made credible only by a credible assurance that the Lords’ veto would be limited, and in opposing the Lords’ veto, the Irish were in accordance with the anti-Unionist sentiment in the House. The leaders of the Irish MPs, John Redmond and TP O’Connor, informed the Cabinet in February 1910 that they could not vote for the Budget until they had seen and approved the Government’s   Murray (n 40) 242.   Blewett (n 6) 105–29.   Blewett (n 6) 132. 46   Gollin shows that some Conservatives sought a coalition with the Irish to evict the Liberals from government, but that Balfour would not agree. Alfred M Gollin, The Observer and J.L. Garvin (London, Oxford University Press, 1960). 43 44 45

24  The Parliament Act 1911 proposals on the veto and had an assurance that the veto limitation proposal would be passed into law within a year.47 Redmond’s position was ‘no veto, no Budget’.48 Following the January 1910 election, the Government’s overriding priority became to secure the Budget, which also required addressing the House of Lords question. But the Government’s policy on the Lords remained, officially, undefined, notwithstanding the 1907 resolutions.49 The Prime Minister himself had given little guidance on the House of Lords question. Sir Edward Grey, the Foreign Secretary, was the strongest advocate within the Cabinet for wider reform of the House of Lords. He was supported by RB Haldane MP, Lord Crewe and Walter Runciman MP in his desire to renew interest in reform, over veto limitation.50 Grey wrote to Asquith that he did not ‘believe that we can win with the so-called C-B plan . . . It is open to the charge of being in effect a Single Chamber plan, and from a Single Chamber’.51 Grey argued persuasively that it was the composition and not the powers of the Lords that really mattered. He seemed to believe that there existed a large number of moderate electors who would support a rational policy of Lords reform, but who would be repelled by veto legislation alone. The irony is that, in seeking the moderate vote, Grey and his colleagues were being much more radical than their ‘radical’ colleagues. Likewise, Herbert Samuel, formerly a ‘staunch supporter’ of the ‘C-B Plan’,52 was worried that the ‘very real’ objections to it ‘might well be fatal to us in an election fought upon that plan alone’, claiming that: ‘The country is almost unanimously in favour of some reform in the composition of the House of Lords.’53 Churchill, who had been a supporter of veto limitation, began to worry that veto limitation was not sufficiently based on principle for a confrontational battle with the Lords.54 Support in the Cabinet for reform over veto limitation was stronger at the start of February 1910 than it had been the previous year, and seemed to be increasing quickly. However, the ‘great weakness’ in the position of those who sought reform, as Blewett’s analysis describes it, was that ‘they overlooked or minimised the fact that the power structure in the Commons militated against any moderate compromise’.55 The firm stance of the Irish MPs that their support for the Budget was contingent upon a credible and deliverable plan for veto limitation was the critical factor in overcoming the resurgent views of the reformers. Before Redmond and O’Connor had informed the Cabinet in February 1910 that they 47   John D Fair, British Interparty Conferences: A Study of the Procedure of Conciliation in British Politics, 1867–1921 (Oxford, Clarendon Press, 1980) 79. 48   Murray (n 40) 261; Blewett (n 6) 147–49. 49   Blewett (n 6) 144. 50   The most comprehensive analysis of this period is in King (n 5) ch 4. King lists Churchill, Reginald Mckenna and Samuel as fellow-reformists in the aftermath of the January 1910 election. 51   Quoted in Blewett (n 6) 149. 52   Blewett (n 6) 150. 53   Bodleian Libraries, MS Asquith 12, fols 105–07. Samuel to Asquith, 3 February 1910. 54   Blewett (n 6) 149. 55   Blewett (n 6) 151.

Between the 1910 Elections  25 were resolute in their insistence on the veto limitation, the Cabinet had reached no definite decisions; once the Irish had declared their hand, the reformists in the Cabinet, though persisting in endeavours to persuade their colleagues to permit a form of words that admitted of the possibility of reform, had lost their case. Reform was not yet fully defined and would be more difficult to rally support for than action on the Lords veto. It would take a good deal of time and have uncertain prospects. Whatever the prospects for fighting a future election, the political reality of the moment was that the Government relied for their majority in the Commons on the votes of those who saw veto limitation as a minimal position. A further important factor which went against reform was Grey’s increasing preoccupation with his foreign affairs portfolio. This meant, on the one hand, that he had less time to devote to formulating proposals for second chamber reform and persuading his colleagues – in the Cabinet and in the parliamentary party – of the merits of reform. On the other hand, his departmental work kept him apart from the rank-and-file Liberal members, with whose views on the Lords he consequently lost touch.56 A third factor which helped the cause of veto limitation was the continued ambivalence on the part of the Prime Minister. Asquith had no enthusiasm for any particular proposal and did not give a strong direction to his Cabinet. In fact, his inclination to postpone crises suited the prevailing circumstances. If the Cabinet had yielded to the desire of some of its senior members for reform over veto limitation, it was likely that several other ministers would resign, and the Irish MPs and a significant number from the Liberal backbench would rebel. Therefore, in the Cabinet on 26 February, the reformers accepted that veto limitation should come first, in the hope that it would open the way for more radical legislation on composition later on. Two days later, it was announced that veto resolutions would be forthcoming. ‘Asquith’, argues Blewett, ‘opted for a masterly shuffle whereby the Cabinet was inched towards the adoption of the CampbellBannerman plan, without ever definitely abandoning reform – thereby preserving both the Cabinet and the anti-Unionist front.’57 The Cabinet on 11 March agreed, apparently without difficulty, the three veto resolutions for consideration by the House of Commons, which eventually would form the basis of the Parliament Bill. These resolutions, closely modelled on the ‘C-B Plan’, forbade the Lords to reject or amend money bills, stated that the Lords could force a delay for only two years on other bills and laid down that the duration of a Parliament should be reduced from seven to five years. These resolutions were tabled in the House of Commons on 21 March. A fourth resolution, which stated a desire to substitute a directly elected second chamber, was drafted for the Cabinet but was not adopted. Even though this draft resolution was not approved, 56   JA Simon, for example, had written to Asquith to report that the grassroots activists he had met during the recent election campaign in Walthamstow had campaigned so hard for their Party because of their desire to see the House of Lords issue dealt with. Bodleian Libraries, MS Asquith 12, fols 111– 13. Simon to Asquith, 5 February 1910. 57   Blewett (n 6) 152.

26  The Parliament Act 1911 on 16 March Grey urged his colleagues to declare publicly that the veto legislation would be used ‘in the first instance, and perhaps exclusively for passing through the proposals to be hereafter made by the government for the reconstitution of the Upper House’.58 The desire of Grey and others for reform came out of a genuine belief in two-chamber government and a lingering concern that the real problem of the second chamber would not be solved by dealing with powers alone. But given the pressing need to maintain support in the Commons and secure Supply, this declaration was never likely to be made. It is surprising that, in the face of these forces which constrained the Government into choosing veto limitation, Grey and his colleagues pushed the Cabinet so hard. The decisive Cabinet came on 13 April: it resolved to force acceptance of the Budget on the Irish MPs by combining a firm stance that the Budget must be passed without acceding to the sectional demands of the Irish with a guarantee of veto legislation. ‘Asquith’s tactics had paid off. The Cabinet and the anti-Unionist front had been preserved.’ 59 The Cabinet on 13 April also decided to press forward with the resolutions on the powers of the House of Lords. If the resolutions were approved by the House of Commons but rejected by the House of Lords, the Cabinet determined to ‘tender advice to the Crown as to the necessary steps – whether by the exercise of the prerogative, or by a referendum ad hoc or otherwise’ to ensure the enactment of their policy, or they would resign office on the condition that they could secure their policy in a new Parliament.60 By the end of the following day, all the resolutions on the Lords’ veto had been passed by the House of Commons, with majorities ranging from 99 to 103,61 and the Parliament Bill, which embodied the resolutions, was introduced and read a first time. On 27 April, the Commons gave the Finance Bill its Third Reading; the Lords accepted the mandate of the 1910 election and duly passed the Budget the following day, and Parliament rose for a recess.62 ‘The period of uncertainty was now over and the Cabinet began to prepare for a midsummer election.’63

The Constitutional Conference 1910 The unexpected death of King Edward VII on 6 May 1910 delayed the anticipated general election.64 The Government’s policy was now that a general election could not occur before it had secured guarantees that the king would create peers if necessary to secure their business afterwards. Prior to his death, Edward VII had been informed that if the Liberals won a general election, he would be asked for assur  TNA CAB 41/40/8, 16 March 1910.   Blewett (n 6) 153. 60   TNA CAB 41/40/9, 13 April 1910. 61   HC Deb, 14 April 1910, vol 16, cc 1424–547. 62   Vernon Bogdanor, The Monarchy and the Constitution (Oxford, Clarendon Press, 1995) 114. 63   Blewett (n 6) 153. 64   On the role of the King in the 1909–10 constitutional crisis, see, especially, Bogdanor (n 62) 113–22. 58 59

Between the 1910 Elections  27 ances that peers would be created if necessary to secure the passage of the Budget or the veto legislation.65 However, it was felt, following the accession of George V, that ‘for the monarch to assume such a course of action so early in his reign was only inviting miscalculation and criticism’66 and that it was too soon to extract assurances from the new King on swamping the Lords. The delay risked the revival of ideas which had previously been ruled out. One such idea was that compromise between the Government and the Opposition was possible. Another was that reform had a second chance to prevail, and Grey began to stir once more. There was some reluctance on both sides to enter a constitutional conference, especially from Liberal proponents of veto limitation, but they felt that ‘public opinion was overwhelmingly in favour of interparty negotiations’.67 Despite assertions from some members that reform was not a realistic prospect or that discussions with the Opposition would discredit the Cabinet in the eyes of the wider Party and the Irish, the Cabinet on 6 June was almost unanimous in acceding to a constitutional conference with the Unionists. The Constitutional Conference met 22 times between 17 June and 10 November.68 The question of the Lords’ power over financial legislation, which had been the genesis for the constitutional conflict and the Conference itself, proved to be uncontroversial. Much more problematic were the Conservatives’ arguments that legislation affecting constitutional matters, including Home Rule, should be subject to legislative safeguards – a position which did not appeal to the Liberals, who wanted the power to pursue radical measures, and for whom the continued parliamentary support of Irish and Radical MPs was essential. Some compromise seemed possible, but whereas Asquith seemed willing to consider Rosebery’s (1908) recommendation of joint sittings in preference to Campbell-Bannerman’s idea of the suspensory veto, there were disagreements over the size of the House of Lords’ delegation to any future joint sittings. In any case, the Unionists preferred the referendum to either joint sittings or a general election as a way of settling constitutional questions. And any suggestion that Asquith was willing to consider compromise was soon offset by Lloyd George’s absolute refusal to seriously consider thoroughgoing second chamber reform.69 The key problem impeding the progress of the Conference was not the powers and composition of the House of Lords itself, but rather the effect of any possible agreed solution on the question of Irish Home Rule. Whilst John D Fair concluded that ‘during the course of their twenty-two sittings the members of this colloquy wrestled with every form of constitutional change which confronted the 65   He had been unwilling to give such assurances in late 1909 in the run-up to the preceding election, and Asquith was advised at that time that a second election would be required before the King could act, not least because of the number of creations that would be required to secure a Liberal majority in the upper House. 66   Fair (n 47) 83. 67   Fair (n 47) 83. 68   The membership of the Conference was: Asquith, Crewe, Lloyd George and Augustine Birrell (Liberal); Balfour, Lansdowne, Austen Chamberlain and Lord Cawdor (Conservative). It was supplied with details of all the recent proposals for settling the House of Lords question. TNA CAB 37/103/24, 22 June 1910. 69   Fair (n 47) 86–91.

28  The Parliament Act 1911 nation’, the only tangible effect of the constitutional conference ‘was to delay a settlement of the House of Lords question for six months after the death of King Edward’.70 As soon as the Conference was dispended, the Cabinet determined to dissolve Parliament and to fight an election on the twin questions of the Budget and veto limitation. With some difficulty,71 Asquith secured a promise for peerage creations from George V, advising the King on 15 November 1910 that he would not advise a dissolution unless the King promised to, if necessary, create peers to ensure the Government’s policy. Although Asquith thought it inadvisable to make public the proposals to create peers unless disclosure should prove necessary, he assured the King that, if the policy was publicised, he felt it necessary to keep ‘the name of the King out of the sphere of party & electoral controversy’.72 The promise from the King to ensure the Parliament Bill’s passage if the Liberal Government was returned at an election was granted the following day. The House of Commons was dissolved on 28 November.

THE PARLIAMENT BILL 1911

The House of Lords question dominated the campaign for the December 1910 general election, and Blewett shows how, for the first time, peers broke the prevailing convention, or practice, by campaigning alongside their House of Commons colleagues. The election left the House of Commons almost unchanged: the Liberals and the Conservatives each had 272 seats, and the Liberal Government remained dependent on the support of 84 Irish and 42 Labour MPs. The Parliament Bill was introduced into the new Session of the House of Commons on 21 February 1911.73 It was identical to the Bill which the Prime Minister had introduced on the passage of the Commons resolutions, which it embodied, on 14 April 1910. ‘Since then’, said the Prime Minister, introducing the 1911 Bill, ‘that Bill has been submitted definitely and specifically to the electorate of the country, with the result that they have returned to this House a majority in its favour in the United Kingdom of, I suppose, something like 120, and in Great Britain of not less than sixty.’74 The Bill was short and simple: it removed from the upper House the right to delay or reject money bills, replaced the Lords’ veto over Commons Bills with a suspensory delay of two years and reduced the maximum length of a Parliament from seven years to five. The Bill was passed through the Commons without incident, despite the lengthy debates and numerous attempted amendments, many of which were made during a 13-day Committee Stage. The Lords gave the Bill an unopposed   Fair (n 47) 102.   Bogdanor (n 62) 117. 72   TNA CAB 41/38/1, 15 November 1910. 73   A very detailed account of the passage of the Parliament Bill is contained in Ridley (n 5). 74   HC Deb, 21 February 1911, vol 21, c 1742. 70 71

The Parliament Bill 1911  29 Second Reading on 29 May, following four days of debate on the policy of the Bill, but amended the Bill heavily through late June and early July. The peers opposed the fundamental premise of the Bill and there was a very real risk that the peers would seek not just wrecking amendments, but also the defeat of the whole Bill. In the face of the Lords’ action on the Bill, the Prime Minister wrote to Balfour on 20 July, outlining the assurances he had received from the King that, in the face of sustained obstruction, sufficient peers would be created to overcome the Lords’ opposition. This letter was quickly published in the press. The revelation had an important effect on Unionist policy.75 The Unionist leaders were all opposed to the policy of the Bill, but their views on how best to deal with it quickly diverged.76 Lansdowne, the Conservative leader in the House of Lords, advocated the quick cessation of opposition to the Bill, realising the strong possibility that the House would be swamped by new creations if it persisted. Balfour was reluctant to capitulate: he no longer supported those who had been willing to ‘die on the last ditch’ in opposition to the Bill, but was unable to advocate joining those known as ‘hedgers’, who sought to advocated avoiding crisis through enabling the Bill to pass – a position that, in effect, required them to vote for the Bill, not least to counteract the strong ‘ditcher’ contingent. Lansdowne succeeded in persuading Balfour that the Party’s official policy should, at least, be to not oppose the Bill, even though they could not advocate voting for it.77 Lansdowne urged his supporters, at first privately and then in a public letter to The Times on 1 August, to encourage all Conservative peers to abstain when the Bill returned to the House of Lords. These efforts defused some opposition to the Bill, but they were not enough to carry the Bill against the ‘die-hard’ opposition. When the Bill returned to the Lords for a two-day debate on 9 August, the Commons having overturned the Lords’ amendments, it was clear that abstention was not sufficient to allow the Bill to pass. Crucially, Lord Newton encouraged about 26 Conservative peers to support the Government in order to counteract those who remained implacable in their opposition to the Bill. Without his intervention, the Bill would have failed;78 with it, the Parliament Bill passed in the Lords on 11 August, after a two-day debate, by 131 to 114: 83 Liberals, 13 bishops and 35 Unionists (‘Judas Peers’)79 voted in favour, including the Archbishop of Canterbury, who, Carrington observed, switched at the eleventh hour;80 those 75   Bogdanor ((n 62) 119) speculates on whether the Conservatives might have acted differently if they had been informed earlier in the proceedings about the assurances from the King, rather than having them revealed, eight months after they had been secured, in the midst of the proceedings on the Parliament Bill in the House of Lords. 76   Corrine Comstock Weston and Patricia Kelvin, ‘The “Judas Group” and the Parliament Bill of 1911’ (1984) 99 English Historical Review 551, 552ff. 77   Southern (n 25) 836. 78   Southern (n 25) 838. However, Weston and Kelvin suggest that Newton was ‘preaching to the converted’: Weston and Kelvin (n 76) 561. 79   On these, see Weston and Kelvin (n 76). St Aldwyn, the acknowledged leader of the ‘Judas Peers’, abstained. Half the Bishops voted for this Bill; only 4 had favoured the 1909 Budget in 1909. 80   Carrington Diary, 10 August 1911. Bodleian Libraries, MS Film 1107 (Papers of the 1st Marquess of Lincolnshire).

30  The Parliament Act 1911 against were other Unionists and some (though only some) backwoodsmen.81 Despite the large number of amendments tabled in both Houses, only four principal amendments were incorporated into the Bill that was presented for the Royal Assent, the most significant of which was a measure which retained for the House of Lords a veto over bills which sought to extend the duration of a Parliament for longer than five years.82

REFORM FOLLOWING VETO LIMITATION? 1911–14

Those within the Cabinet who had regarded the curtailment of the House of Lords’ veto as a step along the path to more thoroughgoing reform – indeed, as a necessary staging post to ensure that reform could be passed without being thwarted by the Lords – were to be disappointed. In early January 1911, whilst the Parliament Bill was still going through Parliament, reformers had begun positioning themselves for the debate on reform that they hoped would follow the Parliament Bill. Some tried to re-ignite the idea of a future revivification of the Constitutional Conference as a method of exploring cross-party agreement on reform, but no promise to discuss reform with Conservative leaders was forthcoming during the passage of the Bill. The Cabinet had not opposed Lord Lansdowne introducing a Bill on reform into the House of Lords,83 but once the Bill had been presented, the Government’s view was that his proposals ‘are still far from fulfilling the conditions which the government has declared to be essential for any real reform; nor do they in any way obviate the necessity of the passing of the Parliament Bill’.84 The Cabinet declined even to enter into ‘talks about talks’ on reform before the Parliament Bill had been secured. Lords reform raised its head only very occasionally between the enactment of the Parliament Act and the outbreak of the Great War. The Cabinet returned, briefly, to the question of House of Lords reform on 6 August 1912 when: ‘The Prime Minister pointed out to his colleagues, before they separated, the necessity of considering and formulating proposals as to a reconstructed Second Chamber foreshadowed in the preamble to the Parliament Act.’85 In October, a Cabinet Committee was set up. Haldane devised one radical scheme for a Senate, in which of 180 senators, two-thirds would be directly elected by the single transferable vote and 60 would be nominated by the Crown (40 political, 20 non-party); senators would have nine-year terms and the Senate and the Commons would have co-equal powers, with conflicts resolved by joint sittings, except that the Senate 81  GD Phillips, The Diehards: Aristocratic Society and Politics in Edwardian England (London, Harvard University Press, 1979) shows that the die-hard peers were not, in the main, ‘backwoodsmen’ (peers who rarely attended the business of the House). 82   On the amendments to the Bill, see J Jaconelli. ‘The Parliament Bill 1910–1911: The Mechanics of Constitutional Protection’ (1991) 10 Parliamentary History 277, 279ff. 83   TNA CAB 41/33/8, 30 March 1911. 84   TNA CAB 41/33/14, 10 May 1911. 85   TNA CAB 41/33/62, 7 August 1912.

Conclusion  31 would have no powers over money bills. Samuel formulated another proposal for a mainly indirectly elected chamber.86 No firm conclusions had been reached by the Committee after a year of discussions. The Committee decided that nomination was ‘impracticable’ as the sole basis for ‘the new Senate’,87 but overall the Committee had little impact: more pressing political issues prevented the Cabinet from devoting to Lords reform the energy which would have been needed to reach agreement, if agreement was possible at all. The view of the Cabinet at the end of 1913, in the light of the Committee’s report, firmly favoured an indirectly elected second chamber, with some nominated members, but this view was simply an exploration of the issues. No definite decision was ever made by a Liberal cabinet. Lords reform was mentioned in the 1914 King’s Speech, but the Cabinet never discussed the topic again. The Parliament Act was used twice in 1914 in order to enact Home Rule for Ireland and to disestablish the Welsh Church, but the onset of war in August 1914 pushed the prospect of House of Lords reform far into the future.88

CONCLUSION

‘The passing of the Parliament Bill in 1911’, wrote Ridley, ‘represented the triumph of the Liberal view that the Cabinet-controlled House of Commons should prevail. The Unionist view of a bicameral legislature was finally defeated.’89 The Parliament Act’s triumph was in re-shaping political expectations of bicameralism rather than transforming the power of the upper House. As Adonis shows, whilst the Parliament Act had curtailed the formal power of the Lords, it had, in doing so, left the Lords with formidable power. Its ability to delay government measures for two years was legitimated and enshrined in law, rather than simply being assumed. Home Rule could no longer be refused, but it could be delayed.90 The procedures under the Act, in requiring the Bill insisted upon by the Commons to be identical to that which it had passed two years earlier (subject to amendments agreed with the Lords) was a substantial barrier to governments pursuing policies which were timely or subject to change. The shortening of the maximum duration of Parliament from seven years to five meant that the peers could, in effect, refer to the electorate any measure presented after the mid-point of a Parliament. The House of Lords retained, as Adonis notes, ‘almost all the effective power it had exercised before 1909’.91 The pressing issue of the Lords’ veto had been defused; however, the potential for progressive governments to be impeded by a Conservative-dominated upper House remained unaddressed.   TNA CAB 37/113/134, 17 December 1912, note by HS (Herbert Samuel).   TNA CAB 37/117/80, November 1913: Reconstitution of the Second Chamber. 88   Fair (n 47) 182. 89   Ridley (n 6) 253. 90   Adonis ((n 3) 159) shows that the two-year delay in securing Home Rule allowed Unionist opinion to mobilise in support of special provisions for Ulster. 91   Adonis (n 3) 158. 86 87

32  The Parliament Act 1911 The Parliament Act represented the ascendency of Campbell-Bannerman’s preference for veto limitation over the more complex processes for resolving disputes between the Commons and the Lords, which were favoured by his Cabinet colleagues. The early adoption of the Campbell-Bannerman veto limitation plan for second chamber reform after 1907 constrained the path of Lords reform in the period 1906–11. Support for the ‘C-B Plan’ by the rank-and-file Liberals ensured that the Plan came to be accepted as the status quo from which supporters of other proposals would have to deviate, and strengthened after campaigning in the two general elections of 1910. Even before the Lloyd George Budget was introduced, and a long time before it was rejected, the presumption within the Liberal Party was for veto limitation rather than for wider reform. The rejection of the Finance Bill by the Lords provided the immediate impetus for the Cabinet to move on veto limitation, but it ‘was the key factor that made possible the Parliament Act’92 only because of the loss of the Liberal majority at the following general election. The Budget was important to the timing of the Act, but the Cabinet’s adoption of veto limitation over wider policies of reform, and the vigour with which it was driven through Parliament, were due to the logic of electoral politics and parliamentary numbers. The need to secure the votes of Irish MPs in the Commons, combined with the unifying power of the Lords veto on the antiUnionist wing of politics, were sufficient reasons alone to pursue veto limitation over reform. That this view also had substantial support amongst the Government ranks meant that the reformers had no prospect of securing their aim during the Asquith Government; were it not for these constraints, reform had a substantial chance of becoming resurgent in-between the two general elections of 1910. Sir John Ross, a former MP, argued in the 1920s that: ‘Few persons at the time believed that the Parliament Act 1911 was to be permanent. It was regarded more as a temporary expedient, as a preliminary to an early reform of the Constitution.’93 Certainly, the Preamble to the Parliament Act 1911 stated that ‘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 reform was the view of a minority – albeit an influential minority – of the Liberal Party in 1906–11. Even that minority, powerful and resurgent in the early days after the January 1910 election, came to realise (before the December election and certainly after it) that the only realisable option was the veto limitation that their late Prime Minister had forced upon them in 1907. As far as most Liberals were concerned, veto limitation was all that they desired: the Parliament Act 1911 met their policy objective of ending the absolute blocking power of the upper House. With veto limitation achieved, the constitution was re-shaped, but the House of Lords was intact. There was no substantial impetus – not anymore in the Cabinet and not at all in the wider Liberal Party – behind the words of the Parliament Act’s Preamble once the Act had reached the Statute Book. Had there been significant support for   Murray (n 40) 290.   Right Hon Sir John Ross, Bt, ‘The Reform of the Second Chamber’ (1925) 7(4) Journal of Comparative Legislation and International Law 131. 92 93

Conclusion  33 reform, then the ‘fourth resolution’ drafted for the Cabinet would have been put to the Commons and would have become a clause in the Bill, rather than drifting into the Preamble. Since there was no such impetus, Lords reform in 1911 was finished business.

2 ‘The Battle is Over’: House of Lords Reform, 1917–45 We have won: and the battle is over. I firmly believe that the House of Lords as it exists is safe for another 80 years. There is no real interest in the country with regard to the Reform of the upper House. Lord Carrington, 10 August 19111 Such a state of things differs little from single-Chamber government, and it is natural that all those who have the future of the country at heart should desire it to be altered. Viscount Cave, 19252

T

HE YEARS BETWEEN the outbreak of the two World Wars saw four significant government-led attempts at Lords reform: Lord Bryce’s Conference of 1917–18; the Cabinet Committee of 1921–22 under Lord Curzon of Kedleston;3 Lord Cave’s4 Cabinet Committee of 1925–27; and the Cabinet’s Political Committee of 1933–35.

THE BRYCE CONFERENCE, 1917–18

The most significant attempt at generating a cross-party consensus on Lords reform during the first half of the twentieth century came in 1917, when, as John D Fair later put it, ‘the spectacular successes of the Speaker’s conference on electoral reform raised the serious hope that other outstanding pre-war issues might 1   Carrington Diary, 10 August 1911, written following the approval by the House of Lords of the Parliament Bill by a majority of 17. Bodleian Libraries, MS Film 1107 (Papers of the 1st Marquess of Lincolnshire). Lord Carrington was President of the Board of Agriculture in 1910 and was one of the few peers in Asquith’s Cabinet. 2   Parliamentary Archives HL/PO/1/300/15 CP 146(25), House of Lords Reform, Memorandum by the Lord Chancellor, 16 March 1925. 3   Lord Curzon had been a Conservative MP in the late nineteenth century and had been a member of the House of Lords since 1908. He was in Cabinet from 1919 to 1924 (Secretary of State for Foreign Affairs, 1919–24; Leader of the House of Lords, 1916–24; Lord Privy Seal, 1915–16; President of the Air Board, 1916; Lord President of the Council, 1916–19). 4   1st Viscount Cave (cr 1918), Lord Chancellor 1922–24 and 1924–28; Barrister; MP (Unionist 1906–18); Home Secretary 1916–19; Lord of Appeal 1919–22.

36  House of Lords Reform, 1917–45 be settled by a similar process’.5 On 25 August 1917, the Prime Minister appointed 31 members of the Conference from across the political parties6 to report on the powers and membership of the second chamber, and the method of resolving differences between the Commons and the Lords. Like electoral reform, House of Lords reform cut across party lines, and Bryce stated at the outset of his Conference’s work that he sought ‘to make a road across land scarred with the traces of many conflicts’.7 Bryce, through skilful chairmanship, managed to fashion a broad level of agreement on the three key topics that faced the Conference: powers, resolution of disagreements between the Houses and composition. As early as the second meeting, the Conference had agreed that the two Houses should not have co-equal power and that the second chamber ‘in particular should not exercise direct control over the Executive Government with the power of making and unmaking Ministries’.8 This acknowledged the settlement of the Parliament Act and the pre-eminence of the House of Commons. There was no consensus, however, on the question of how disputes between the two Houses were to be resolved: the Conference was almost equally divided between the referendum and joint sittings (or ‘free conferences’). On the latter question, which had found favour with the Cabinet Committee a decade earlier, there was also dispute between the Earl of Selborne and his colleagues, who wanted a conference to represent each House equally, and others who thought that the House of Commons ought to have a majority in any conference. Some, including Sir Thomas Whittaker, a Liberal MP, thought that a conference would be tantamount to having a third house of Parliament in the legislative system and preferred the referendum instead. Bryce was forced to let the Conference agree to differ.9 The composition of the second chamber was ‘the most difficult’ of the three topics to resolve.10 The method of composition favoured by a ‘large majority’ of the Conference was election by members of the House of Commons grouped in geographical regions, supplemented by a reduced number of bishops11 and 5   John D Fair, British Interparty Conferences: A Study of the Procedure of Conciliation in British Politics, 1867–1921 (Oxford, Clarendon Press, 1980) 182. On 10 August 1917, Bruce had been briefed that the Conference would be ‘somewhat along the lines of the Speaker’s Conference on Electoral Reform . . . will continue its sittings with as much despatch as possible’. No member of the Government would be a member of the Conference; but it was ‘desired to secure the services of the most influential and experienced members of both Houses’: Bodleian Libraries, MS Bryce 250, fols 1–2, 10 August 1917. On the Speaker’s Conference, see Fair (n 5) 163–81. On franchise reform more generally, see Martin Pugh, Electoral Reform in War and Peace, 1906–18 (London, Routledge & Kegan Paul, 1978). 6  Sixteen Conservatives (including Lords Lansdowne, Selborne, Balfour of Burleigh and JAR Marriott MP), 12 Liberals (including Bryce himself, Crewe and the Lord Chancellor, Lord Loreburn), two Irish MPs, one Labour member and the Archbishop of Canterbury. Conference on the Reform of the Second Chamber. Letter from Viscount Bryce to the Prime Minister (1918), Cd 9038. 7  Parliamentary Archives HL/PO/1/300/5/5. ‘Substance of Remarks Made by Lord Bryce on Opening the Conference on the Position of the Second Chamber.’ 8   Parliamentary Archives HL/PO/1/300/5/8. 9   Fair (n 5) 186–87, 193. 10   Cd. 9038. 11   The Conference voted (16 to 8) on 29 January to have five bishops as part of 82 Lords in Parliament (in 1918, bishops constituted 26 of the 673 members of the upper House). A motion by the Archbishop

The Bryce Conference, 1917–18  37 hereditary peers (selected by a Joint Standing Committee), and by Law Lords12 and peers of the Blood Royal. In seeking to avoid an ‘unnecessary’ break with the history of the House of Lords, the Conference sought to strike, as Fair described it, ‘a judicious balance in the proposed chamber between the old and the new elements’.13 There was little mood for a complete break of composition from the past. The Bryce Report was received with admiration for the way in which the problems of the upper House had been explicated, but also with scepticism concerning the merits of the detail of the proposals. Commenting on the Bryce Report on the day of its publication, The Times editorialised: The most obvious reflection on the report . . . is that the Conference have proposed a very elaborate and complex scheme on a subject which at the moment has only a secondary claim upon public attention. Reform of the House of Lords is certainly of real moment to the Empire, but it is in no sense an urgent war measure, such as is, for instance, the question of Ireland . . . the real case against the House of Lords has been and is that a large proportion of its members exercise their functions only at moments of extreme party tension and on confessedly party grounds. It seems possible that this acknowledged defect of the present House of Lords may be surmounted by some simpler plan of reform than that which has found favour with the Conference.14

The scheme proposed by Bryce failed to capture the imagination of members of the House of Commons.15 As Herman Finer has noted: The Bryce Conference on the Reform of the Second Chamber, which was the most scientific and careful inquiry, fell into two difficulties, each unanswerable: (1) the powers were too great for progressives and too small for conservatives; (2) the indirect method of election was too cumbersome, too undemocratic for progressive politicians and not aristocratic enough for conservatives.16

Divisions between the supporters of a strong upper House and those who favoured the pre-eminence of the Commons were difficult to overcome, and some of the details of Bryce’s scheme were too complex.17 Despite its merits, the Bryce Conference did not manage to repeat the success of the Speaker’s Conference. By the end of July 1918, Bryce was warned that, in the likely event of an election in late 1918 or early 1919, it would be ‘quite impossible’ to of Canterbury to increase this to six was defeated (6 to 7); but those against representation of the Church though that five was too many. Fair (n 5) 192–93. 12   The 32nd Meeting (31 January 1918) decided that it was not within the scope of the second chamber conference to determine the future of the Law Lords, but decided that Law Lords should continue as members if the second chamber retained its judicial functions. 13   Fair (n 5) 193. 14   ‘House of Lords Reform’, The Times (25 April 1918), 7. 15   Bodleian Libraries, MS Bryce 251, fol 163. Hobhouse to Bryce, 11 July 1918. 16   Herman Finer, The Theory and Practice of Modern Government 4th edn (London, Methuen, 1961) 414. 17   cf similar objections on the grounds of complexity to the two-tier scheme embodied in the White Paper of 1968 (see ch six).

38  House of Lords Reform, 1917–45 legislate before then.18 Even if there was no election, Lords reform would be complicated by the Irish question and the movement in support of federal devolution. By September, Austen Chamberlain was pessimistic about the ability of the Government to have sufficient command of its supporters to carry the reform proposals in the House of Commons.19 There was no prospect of the Government acting on Bryce’s report before the 1918 general election, and the moment was lost. Bromhead claims that the Bryce Report was not adopted because it was not unanimous and that the dissention of eight members (including Lansdowne) was crucial to the failure of reform.20 Conversely, Fair argues: ‘That the recommendations of the second chamber conference never became law cannot be attributed to any lack of agreement by members of the conference.’21 The disagreement was relatively small when compared to the measure of agreement that was reached amongst the members of the Conference, but by framing the conclusions of the Conference as a chairman’s letter rather than as an agreed report, Bryce was able to mask the level and nature of disagreement and create the impression that measures were approved, rather than merely being supported by a majority. There was no formal record of the extent of disagreement.22 At the Conference’s 46th Meeting in March 1918: [T]he view was strongly urged that separate Memoranda should be avoided as likely to be also a general feeling that it would be desirable for the Report in describing the proceedings and results of the Conference to proceed as from the Chairman rather than that it should proceed from the Conference as a body.23

The masking of disagreement through the Chairman’s letter seemed on the one hand to strengthen the Bryce Conference’s recommendations, by providing them with coherence and unity. Nevertheless, Balfour of Burleigh wrote to Bryce on 10 July 1918, arguing that the report was weaker because it came from the Chairman, not from the Commission as a whole: ‘I always thought and still think it was a grave error not to let us all state our own objections in our own way and in our own words . . . [on composition] There is no approval of it.’24 But even with complete agreement, and a report issued with the backing of a united Commission, House of Lords reform could not have competed successfully for legislative time; in any case, there was no guarantee that other MPs and peers would share the enthusiasm for reform of the Conference members. The differences between the outcomes inspired by the Speaker’s Conference and the Second Chamber Conference lay in the nature and extent of the problems they 18   Bodleian Libraries, MS Bryce 251, fols 169–70. Rt Hon Sir Thomas Palmer Whittaker [stating Asquith’s views] to Bryce, 31 July 1918. 19   Bodleian Libraries, MS Bryce 251, fols 173–74. Austen Chamberlain to Bryce, 25 September 1918. 20   PA Bromhead, The House of Lords and Contemporary Politics 1911–1957 (London, Routledge & Kegan Paul, 1958) 261–62. 21   Fair (n 5) 196. Fair cites the archival evidence to support his argument. 22   Parliamentary Archives HL/PO/1/300/5/51. 43rd meeting, 12 March 1918. 23   Parliamentary Archives HL/PO/1/300/5/51. 46th meeting, 20 March 1918. 24   Parliamentary Archives HL/PO/1/300/5. Balfour of Burleigh to Bryce, 10 July 1918 (emphasis in original).

Cabinet Committees, 1921–22  39 addressed. Franchise reform was a pressing need, the justification for which had been enhanced by the Great War. Proposals for House of Lords reform, on the other hand, as Gwyer noted at the time, were hampered by being published at a critical turning point in the War25 and, as Fair concluded, by the realisation that even a reformed House of Lords did not fit well with the ‘new, more democratic age’ based on mass enfranchisement.26 The House of Lords was no longer a politically salient issue: the issue had been defused by the Parliament Act; other constitutional questions, and then the need for post-War reconstruction, meant that reform was forgotten. It was therefore the decisional constraints of the politics of 1918 which prevented House of Lords reform from progressing as a result of the Bryce Conference: there was insufficient impetus for reform in the face of other pressing concerns. The Bryce Report did, however, have continuing influence over the debates on Lords reform. Whilst some of the complex details of the Bryce proposals were set aside, its recommendations on the role and functions of the second chamber – the scrutiny of government bills, the initiation of less controversial legislation, the interposition of the minimum delay necessary for public opinion to form and the discussion of important questions – remained, for the rest of the twentieth century, the classic statement of the role and functions of the second chamber, cited with approbation by successive reform committees.

CABINET COMMITTEES, 1921–22

The two Labour Party Conferences in 1918, in reacting against the attempt by the Bryce Conference to shore up the House of Lords and responding to the radicalism that arose during the Great War, resolved not just to remove the House of Lords but ‘confirmed opposition to any form of Second Chamber’.27 However, the Labour leadership, as Williamson shows, did not fully share their activists’ desire for unicameralism: they were parliamentary and constitutionalist, believing that the practices of government were an adequate mechanism through which to achieve socialism. Moreover, the Labour Party was unwilling to stoke Conservative fears by attacking the Lords when in government and, in any case, ‘more pressing, and electorally attractive, business’, including social assistance, took its attention.28 The Labour leadership therefore remained silent on the issue of Lords reform before 1923. Despite this silence on the House of Lords question, Conservatives in the Coalition Government were worried by the prospect of a future radical Labour government and sought to secure the House of Lords, and through it Conservative interests, against the actions of a socialist administration. The Conservatives’ fear 25   William Anson, The Law and Custom of the Constitution, Volume I: Parliament 5th edn by Maurice L Gwyer (Oxford, Clarendon Press, 1922) 251–52. 26   Fair (n 5) 183. 27   Labour Party Conference Report 1918, quoted in Philip Williamson, ‘The Labour Party and the House of Lords, 1918–1931’ (1991) 10 Parliamentary History 317, 318. 28   Williamson (n 27) 319.

40  House of Lords Reform, 1917–45 of the advance of the Labour movement in the age of universal suffrage was, in the view of Neil McCrillis, ‘the most important justification for second chamber reform in the 1920s’.29 This fear was augmented by the drive of some hereditary peers to enhance their political careers30 and a desire to restore the pre-Parliament Act powers of the upper House.31 Reform of the House of Lords therefore reached the Government’s agenda and was included in the King’s Speech in 1920, 1921 and 1922.32 A Cabinet Committee met five times between 26 October and 13 December 1921.33 The Committee considered all the schemes for Lords reform which had been put forward since the turn of the century, and especially the recent report of the committee of Independent Unionist Peers under Lord Salisbury’s chairmanship.34 The task that faced the Coalition Government’s Cabinet Committee was, in the words of its Chairman, Lord Curzon, ‘difficult because practically for the first time the Government itself would be called upon to produce a scheme of Reform for which it must assume full responsibility’.35 Hitherto, excepting the Parliament Act 1911 and the resolutions that preceded it, the schemes presented in the nineteenth and early twentieth centuries had been formulated independently of the government or in opposition to it. The 1920s saw the first substantive attempts by a Cabinet Committee to formulate its own proposals for full House of Lords reform. There were two conflicting pressures on the Government from its supporters. On the one hand, Unionists were ‘undoubtedly desirous’ of increasing the checks on hasty legislation that were available to them under the Parliament Act. Whilst the idea of settling inter-cameral disputes by recourse to a referendum had, according to Austen Chamberlain, ‘appeared in late years to have fallen somewhat out of favour’, it still had ardent supporters, including Lords Selborne and Balfour of Burleigh. ‘It would be quite impossible’, the Committee noted in discussion, ‘to carry any proposals through the House of Lords or to obtain the consent of the Conservative party to any proposals which involved the continuance of the Parliament Act machinery’.36 29   Neil McCrillis, ‘Taming Democracy?: The Conservative Party and House of Lords Reform, 1916– 1929’ (1993) 12 Parliamentary History 259, 260. 30   McCrillis (n 29) 260. See also DH Close, ‘The Collapse of Resistance to Democracy: Conservatives, Adult Suffrage, and Second Chamber Reform, 1911–1928’ (1977) 20 Historical Journal 893, 909. 31   This point is emphasised neither by McCrillis nor by Close, but the Cabinet Committee’s discussions show that it was of central importance to the would-be reformers on the Unionist side. 32   See House of Lords Information Service, A Survey of House of Lords Reform in the Twentieth Century, Paper No 2, March 1977. 33   Parliamentary Archives HL/PO/1/300/11. The Committee comprised three Conservatives (the Marquess Curzon of Kedleston (Chairman), the Viscount Birkenhead and Austen Chamberlain MP) and two Liberal MPs (WS Churchill and HAL Fisher). Arthur Balfour MP, by then Lord President of the Council, was appointed, but was indisposed. 34  Parliamentary Archives HL/PO/1/300/11/1. HLC (House of Lords Reform Committee) 1st Conclusions, 26 October 1921 (per Curzon). 35   Parliamentary Archives HL/PO/1/300/11/1. HLC 1st Conclusions, 26 October 1921 (per Curzon). 36   Parliamentary Archives HL/PO/1/300/11/4. HLC 4th Conclusions, 12 November 1921.

Cabinet Committees, 1921–22  41 On the other hand, the Conservatives knew that their Liberal Coalitionist colleagues regarded the Parliament Act ‘as a trophy and the culminating point of a long party conflict’, and they would not see its provisions weakened.37 The Liberals were, moreover, indifferent to the composition of the upper House and were certainly not willing to insist on the retention of a significant proportion of hereditary peers in a reformed House. If the Government supported the views of Lord Selborne and his Conservative colleagues, it would, as Lord Birkenhead observed, ‘at once be faced with immense political difficulties’.38 Faced with these difficulties, the Cabinet Committee looked outside for its starting point. The Prime Minister, Lloyd George, had informed Birkenhead that, if the Committee adopted Lord Bryce’s scheme, ‘which had considerable authority behind it’, then the situation might be greatly eased.39 But there were problems with the Bryce Report. As Curzon pointed out, the idea of joint sittings had failed to command the general assent of the Bryce Conference.40 HAL Fisher suggested a scheme by which the powers of the upper House would be transferred to a committee of about 300 members, elected in part by the peerage. However, Curzon was confident that this would prove unacceptable to the peers themselves, whose consent to any reform scheme was considered vital,41 although in the end Curzon himself supported a very similar scheme when he reported the Committee’s views in 1922.42 Whilst the members of the Committee were disposed towards reaching an agreement, by mid-December 1921 there were still ‘differences of a most fundamental character dividing the Committee’.43 The Committee therefore agreed to report to the Cabinet that it was unable to make a unanimous recommendation. Curzon and Chamberlain were to submit one scheme of reform to the Cabinet; Birkenhead and Fisher were to submit an alternative scheme. Churchill abstained from either report: ‘the more he thought about reform, the more he saw it would be impolitic and most unwise for the Government to undertake any scheme for the reform of the House of Lords. He, therefore, was strongly in favour of doing nothing’.44 The extent of the common ground between the members of the Committee consisted of two proposals: that women should be as eligible for election to a reformed House as men, including that peeresses in their own right should be eligible to sit in the upper House; and that in the event of a composite second chamber, members should be entitled to receive salaries.45 The Committee was ‘in general agreement’ that powers and composition could not be considered in isolation from one another, but that powers were of prior importance; and that the proposals should be based on the   Parliamentary Archives HL/PO/1/300/11/1. HLC 1st Conclusions, 26 October 1921 (Birkenhead).   Parliamentary Archives HL/PO/1/300/11/1. HLC 1st Conclusions, 26 October 1921. 39   Parliamentary Archives HL/PO/1/300/11/1. HLC 1st Conclusions, 26 October 1921. 40   Parliamentary Archives HL/PO/1/300/11/2. HLC 2nd Conclusions, 1 November 1921. 41   Parliamentary Archives HL/PO/1/300/11/12. HLC 5th Conclusions, 13 December 1921. 42   Parliamentary Archives HL/PO/1/300/11 CP 4039, 14 June 1922. Curzon’s proposal was for 350 members: 100 hereditary peers elected by their order, 200 members elected indirectly, 8 or 10 archbishops and bishops and up to 40 peers nominated by the Crown, Law Lords and royal peers. 43   Parliamentary Archives HL/PO/1/300/11/12. HLC 5th Conclusions, 13 December 1921 [Birkenhead]. 44   Parliamentary Archives HL/PO/1/300/11/12. HLC 5th Conclusions, 13 December 1921 [Churchill]. 45   Parliamentary Archives HL/PO/1/300/11/12. HLC 5th Conclusions, 13 December 1921. 37 38

42  House of Lords Reform, 1917–45 Bryce Conference ‘both as the latest authority to examine the subject and as the most impartial body, drawn from all political parties’.46 Curzon proposed that reform should be progressed by a series of resolutions; but although the resolutions were foreshadowed in the Lords on 20 June 1922,47 they had not been agreed by the Cabinet Committee and had never been discussed by the Cabinet.48 This lack of discussion was particularly controversial because a joint sitting to resolve disputes between the two Houses was embodied in Resolution IV, and yet this had been a key point of controversy, with Fisher showing the devastating effect which a substantial House of Lords’ delegation would have had on joint sittings with Liberal governments of the previous 100 years.49 A Cabinet Committee was therefore convened specifically to consider the resolutions on the House of Lords.50 The Committee agreed that after the composition of the House of Lords had been determined, revision of the Parliament Act could be considered, and it issued revised resolutions51 to that effect. The resolutions were presented to Parliament;52 but reform was not pursued. The fall of the Coalition Government in October 1922 intervened. After the 1922 general election, the new Conservative Government did proceed with Lords reform. The key problems facing House of Lords reformers in the Coalition Government 1918–22 were the severe difference of opinion on the House of Lords question and the shortage of time before the 1922 general election. Reporting the deliberations of his Committee to the Cabinet, Curzon admitted that ‘no scheme can be drawn up which will be accepted with enthusiasm by all parties, or will even satisfy both sections of a Coalition Government’.53 Given this disjunction of views, it is difficult to understand Curzon’s optimism, expressed in the same paragraph of this Cabinet paper, that ‘the present Coalition Government . . . is probably the only Government that could find an agreed solution for the problem’.54 The deep differences of opinion within the Government meant that it was unlikely that, had the Government had more time before the general election, sufficient agreement would have been forthcoming to proceed with reform. Even a heavyweight committee under the powerful figure of Curzon was unable to make progress. 46   A total of 100 hereditary peers elected by their order, 200 elected by indirect election, the two archbishops and 6 or 8 other bishops, no more than 40 peers nominated by the Crown, Law Lords and royal peers. Parliamentary Archives HL/PO/1/300/11 CP 4039, 14 June 1922. 47   HL Deb, vol 50, cc 972–77, 20 June 1922. 48   Parliamentary Archives HL/PO/1/300/11 CP 4052 ‘House of Lords Reform’, Memorandum by Churchill, 21 June 1922. 49   Parliamentary Archives HL/PO/1/300/11/12. HLC 23. House of Lords Reform Committee, vol 50, Memorandum by Fisher, 19 December 1921. 50   Parliamentary Archives LG/f/166/2. HLC(R) 1st Conclusions, 6 July 1922. The Committee comprised Lord Birkenhead (Lord Chancellor, Chairman), WS Churchill (Colonial Secretary), HAL Fisher (President of the Board of Education) and the Earl of Crawford and Balcarres (First Commissioner for Works). 51   Parliamentary Archives LG/F/166/2, HLC(R). 1st Conclusions, 6 July 1922. 52   The Lloyd George Government Proposals on House of Lords Reform (Cmd 1715, 1922). 53   Parliamentary Archives HL/PO/1/300/11 CP 4039. Memorandum: ‘Scheme for Reform of the House of Lords’, 14 June 1922. 54   Parliamentary Archives HL/PO/1/300/11 CP 4039. Memorandum: ‘Scheme for Reform of the House of Lords’, 14 June 1922.

The Cabinet Committee, 1925–27  43 THE CABINET COMMITTEE, 1925–27

In the end, the new Conservative Government, formed following the 1922 general election, lasted just a year. The minority Labour Government of 1924, which succeeded it, did not produce any major conflicts between the Lords and the Commons, and there were no proposals for the reform of the House of Lords put forward in the short life of Ramsay MacDonald’s administration. Nevertheless, the fears which some Conservatives held about the era of mass democracy were increased by Labour coming to power. Lords reform was not mentioned in the Conservative manifesto for the October 1924 general election and did not feature significantly in the election campaign. Nevertheless, at its conference in the same month, the National Unionist Association resolved that ‘the powers and composition of the Second Chamber should be so modified as to ensure that no far-reaching change in the law or the Constitution of the country can be made by the House of Commons alone without the expressed assent of the electorate’.55 The Conservatives’ substantial Commons’ majority of 223 following the October 1924 election encouraged Lords reform advocates within the Party to believe that they had a window of opportunity within which to reform the Lords. McCrillis shows how, enlivened by this, and spurred on by the prospect of the franchise being extended even further during that Government, Conservative peers and MPs formed independent committees to investigate reform, including the possible reversal of the Parliament Act’s provisions.56 A Cabinet Committee under Lord Cave, the Lord Chancellor,57 was convened in August 1925. It was established partly as a response to the reality, however fleeting, of a socialist government and partly because of the renewed resurrection of a latent desire on the part of substantial numbers of Conservative MPs and peers for the partial restoration of the powers of the Lords which predated the Parliament Act. The ageing Cave was a far less commanding chairman than Curzon had been.58 The Cabinet Committee issued three reports – first of all in January 1926, and then in March and May 1927 – 59 having taken evidence from several deputations   Quoted in Parliamentary Archives HL/PO/1/300/15 CP 146(25).   McCrillis (n 29) 268–69. Unionist MPs considered ‘The urgent question of the position of the House of Lords in relation to the Parliament Act’ at a meeting on 12 May 1925 and decided to form a committee to consider the issue. See also TNA DO 117/5: ‘Copy of Statement of the Deputation of the Executive Committee, Council and Conference of the NU and CA to the Prime Minister on October 6, 1925’. 57   The Cabinet Committee’s membership was: Viscount Cave (Lord Chancellor, Chairman), the Marquess of Salisbury (Lord Privy Seal), Sir Samuel Hoare MP (Secretary of State for Air) and Viscount Cecil of Chelwood (Chancellor of the Duchy of Lancaster). Sir W Joynson-Hicks, Bt, Viscount Peel, WS Churchill and the Earl of Birkenhead also attended. 58   Indeed, Cave surprised even himself when he was elected to succeed Curzon as Chancellor of Oxford University, defeating Asquith. See Thomas S Legg and Marie-Louise Legg, ‘Cave, George, Viscount Cave (1856–1928)’ in Oxford Dictionary of National Biography (Oxford, Oxford University Press, 2004). Cave was the only Lord Chancellor to get a 4th Class BA in Law from Oxford. 59   The second (CP 86(27)) and third (CP146(27)) reports consisted of draft resolutions to give effect to the conclusions of the first report (CP 27(26)), but contained no substantive changes to the reform proposals. (Parliamentary Archives HL/PO/1/300/15). 55 56

44  House of Lords Reform, 1917–45 of Unionist MPs and peers. There was, the Committee concluded, ‘in the Unionist Party a strong and widespread feeling in favour of an amendment of the Parliament Act’ to prevent ‘the power of a Socialist majority in the House of Commons to carry subversive and, indeed, ruinous changes in the Constitution and social order of the country, without any check on the part of the second chambers or the electors’.60 Yet whilst many Unionist politicians thought it the duty of the Government to act promptly at that time, so as to protect against the actions of a future socialist administration, the Committee decided that the amendments to the Parliament Act which were being sought would be tantamount to the repeal of the Parliament Act and that this would not be acceptable to the wider Unionist Party or to the country. It therefore recommended that the certification of money bills be undertaken by a joint committee of both Houses, rather than by the Speaker of the House of Commons alone, to ensure that non-financial legislation was not incorrectly certified as being a money bill. The Committee also concluded that, in place of the two-year delay under the Parliament Act, the Lords should be able to insist that the electorate had a say in whether a disputed bill became law, either through an intervening general election or a referendum.61 The Parliament Act should therefore be amended in the following ways: in its provision on money bills and on financial legislation; to prevent the amendment of the Parliament Act by its own application;62 and more generally to ensure that the views of the House of Lords were heard. Despite its recommendations that the Parliament Act be amended, the Committee concluded that a scheme for amending the Parliament Act could not be introduced without a reform of composition. The Committee therefore suggested a reform of composition similar to the 1922 scheme, but, significantly – and because of the influence of Salisbury, who was convinced of the essential need to retain a large hereditary element in a reformed House, not least so as not to leave the Crown as the only hereditary part of the constitution63 – with a two-toone majority of peers over indirectly elected members. Moreover, most of these peers would be hereditary members rather than life appointees. The Committee therefore recommended: 150 peers elected by their order,64 100 members elected by county electoral councils and 50 members elected by the Crown.65 But even with up to half of the House being composed of hereditary peers, Salisbury was   TNA CAB 27 CP 27(26) ‘Cabinet: House of Lords Reform Committee. Report’, 25 January 1926.   However, some Unionists who had been seeking a device to protect against a radical government opposed the referendum on the grounds that it diminished the position of Parliament. 62   There was no question in the Committee’s discussions that such a procedure would be illegal: it was the clear view of the Committee, and later of the Cabinet [TNA CAB 27 Cabinet Conclusions 31(27)4] that the Parliament Act could be amended by application of the Parliament Act. After 50 years of post-War academic debate, this was settled in Jackson and others [2005] UKHL 56. 63   Parliamentary Archives PO/300/1/15/5. HL(25), 3rd Conclusions, 4 November 1925. 64   In the preceding Sessions, in the region of 200 temporal peers attended the House on more than 10 occasions. TNA CAB 27 CP 27(26). 65   In addition to bishops, Law Lords and royal peers. Peers not elected to membership of the House of Lords would be eligible for election to the House of Commons; peers not in either House would be eligible to speak in the House of Lords, but not to vote. 60 61

The Cabinet Committee, 1925–27  45 not content, later describing the proposals as embarking ‘upon the risky experiment of abandoning the deeply rooted character of the House’ in order to carry a reform which did not go as far as the Party wished.66 However, by tying the reform of composition to the amendment of the Parliament Act, the Committee had ensured the failure of its proposals. Whereas the ‘overwhelming majority’ of Unionist peers and MPs were fixed to the idea of the restoration of the pre-Parliament Act powers of the House of Lords,67 this, as McCrillis argues, would take the Conservatives away from the political middle ground, which they had occupied since 1924, ceding territory to both Labour and the Liberals, and opening up the possibility of an attack on the upper House by a Labour government.68 The plans would therefore make more likely the very socialist threat to the upper House which they were, in large measure, intended to avoid. Moreover, in the absence of clear evidence of a demand in the country for wideranging reform to strengthen the House of Lords, other priorities prevailed in the King’s Speeches of 1927 and 1928.69 Resolutions, which might have become the genesis of a bill, were approved by the Cabinet. The final proposals were unpopular on all sides: ‘When these proposals were made public [though not printed or proceeded with] on 20 June 1927’, argues Close, ‘the increase in powers simultaneously struck reformers as negligible, and the opposition parties as an attempt to gerrymander the constitution.’70 The strong reaction against the proposals by the Labour and Liberal Parties was shared by 80 Conservative MPs, many of whom were younger ‘progressives’ or from marginal seats in the North,71 who signed an amendment to a vote of censure.72 Salisbury pushed for action on reform – ‘if our friends will be disappointed that nothing is done this year they will be wild should nothing be done before the dissolution’73 – but McCrillis argues that the Prime Minister, Stanley Baldwin, ‘seems to have decided not to pursue second chamber reform’,74 and the hopes he had of helping Labour by establishing a limited number of life peers came to nothing.75 Reform was quietly dropped: it was not mentioned in the Conservatives’ 1929 general election campaign. Baldwin’s only public statement on reform during this period was that for reform to proceed would necessitate ‘complete unanimity . . . co-operation and agreement’.76 66   Churchill and LS Amery, on the other hand, later identified problems in a House which contained too many hereditary peers for there ever to be a party balance under a future socialist administration. See, especially, TNA CAB 27 CP 118(27), Cabinet Memorandum by LS Amery, 4 April 1927. 67  Parliamentary Archives HL/PO/1/300/15/14, Meeting 14, 20 November 1925. This was Lord Middleton’s view, based on his questionnaire survey which secured 200 responses of Unionist peers. 68   McCrillis (n 29) 272. 69   Cabinet Conclusions 64(26)2, 14 December 1926; 4(27)6, 26 January 1927. 70   Close (n 30) 912. In fact, Cave’s speech had been on 22 June. Middleton later cited the Baldwin Government’s resolutions as ‘having secured a very large majority’, but they had not been formally presented in 1927. 71   Williamson (n 27) 333. 72   McCrillis (n 29) 272. 73   TNA CAB 27 CP 26(27), memorandum by Salisbury, 27 January 1927. 74   McCrillis (n 29) 274. 75   Williamson (n 27) 334. 76   Quoted by McCrillis (n 29) 275.

46  House of Lords Reform, 1917–45 LORDS REFORM IN THE 1920S

Donald Shell argues that in both 1922 and 1927, ‘no detailed progress on reform was made, the basic reason being that the motivation for any change lay too transparently in the Conservatives’ desire to block the sort of legislation which a majority Labour Government might introduce’. It is certainly correct to argue that, especially in 1925–27, the Conservatives were troubled by the actions they feared a a future socialist government might take, and sought to ensure that the House of Lords could counteract any such actions. It is also correct to argue that, in posing reforms which not only suggested a strengthening of the power of the upper House but which also ensured the continuance of a Conservative and hereditary peer-dominated upper House, they were unlikely to meet with approval from either Liberal or Labour politicians. But the nature of this impediment needs more detailed explanation. In 1922, the Coalition was split two ways. On the one hand, some Conservative backbenchers resented the 1911 Act and the formal diminution of the power of the House of Lords, and the Conservative leadership wished to bolster the power of the Lords, possibly through the use of a referendum. Conversely, some Liberals saw 1911 as an incomplete (but irreversible) reform. In 1927, despite forceful representations from Unionist backbenchers, it had been ‘most difficult’ to secure agreement across the Conservative Party for any specific proposals.77 The explanation in both 1921–22 and 1925–27 – but especially in the latter period – is that electoral reform was the key influence which underpinned the problems of extending the powers of the upper House. Universal suffrage, with the House of Commons throughout the inter-War period resting on at least 21 million votes, made the upper House even more anachronistic. A Conservative government that insisted on pursuing reform risked an electoral backlash which could undermine its position in the Commons. The Party was unwilling to trade off its chances of forming a government against a strengthened position if it formed the opposition. Baldwin did not want second chamber reform becoming a ‘burning issue’ at every subsequent general election.78 The reform of the Lords, which was partly inspired by a desire to protect the constitution from a future Labour government, was therefore – perhaps ironically – itself impeded by a fear of inducing second chamber reform in such a Labour government. AVOIDING REFORM, 1928–45

It is not quite correct to say that: ‘After 1927, Lords reform languished in the limbo of private members’ business until after the Second World War.’79 Certainly,   Parliamentary Archives LH/4. P(33), 1st Meeting. Cabinet: Political Committee, 29 January 1934.   Parliamentary Archives LH/4. P(33), 1st Meeting. Cabinet: Political Committee, 29 January 1934. 79   Rhodri Walters, ‘The House of Lords’ in Vernon Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, British Academy/Oxford University Press, 2003) 229. 77 78

Avoiding Reform, 1928–45  47 there was little government interest in reform during the period from 1927 until the outbreak of the Second World War (and none 1939–44).80 This was not because of the subservience of the Lords – the Parliament Act procedures, it is true, were not invoked – but still the actions of the Lords under the 1929–31 MacDonald Government, as has been noted elsewhere, led to talk of constitutional crisis and even to the House of Lords coming close to questioning the financial powers of the Commons.81 The peers were further energised by proportional representation for the Commons and the Representation of the People (No 2) Bill.82 The House of Lords question was revived by disagreement over the Coal Mines Bill in June 1930, and the Government considered framing reform proposals as a counter-attack to the upper House’s intransigence. MacDonald instructed three Labour politicians – Lord Parmoor (Leader of the House of Lords), Arthur Ponsonby and HB Lees-Smith – to draw up proposals. This triumvirate determined that the limitation of the powers of the Lords, whether desirable or not in principle, would be ‘a very radical proposal’.83 The tension between the Commons and the Lords was defused only with the formation of the National Government in October 1931, but in that same month, the Labour Party, at its Conference, reaffirmed its commitment to unicameralism: the fears of some Conservatives in 1927 that they might induce radical action in a socialist party which was otherwise content to govern within the constitution had been realised. It seemed after the formation of the National Government that Lords reform would again slip back into the hands of amateur enthusiasts. In late 1932, Cuthbert Headlam MP84 noted that ‘clearly the Reform of the House of Lords is not a matter in which the government is interested’.85 The desire for reform on the part of the Government had been quelled by four factors: the absence of a call for reform from members of the public or from party activists; the lack of an immediate threat from an alternative government or its policies; the existence in the Cabinet of no keen reformers; and a preoccupation with other policies, especially going off the gold standard, economic recovery and rearmament. Despite the lack of incentives to consider Lords reform after 1931, the Government did, nevertheless, establish a Political Committee to consider Lords reform and other matters. The Committee, set up by a Cabinet decision of 22 November 1933, met six times over 15 months.86 The Committee’s establishment   On which, see the next chapter.   See Bromhead (n 20) 151–6; Williamson (n 27) 334–37. 82   On this, see DE Butler, The Electoral System in Britain 1918–51 (Oxford, Clarendon Press, 1953) 63–83. 83   Williamson (n 27) 338–39. Of these, one was an ex-Conservative and two ex-Liberals. 84   MP (Conservative), 1924–29, 1931–35, 1940–52. He had been a Clerk in the House of Lords 1897–1924. 85   Stuart Ball (ed), Parliament and Politics in the Age of Baldwin and Macdonald: The Headlam Diaries 1923–35 (London, Historians’ Press, 1992). Diary entry for 16 December 1932. 86   TNA CAB 127 64(33)11, 22 November 1933. The first meeting was dated 29 January 1933 (a misprint for 1934). The membership was as follows. Conservative: Stanley Baldwin (Lord President), Neville Chamberlain (Chancellor of the Exchequer), Viscount Hailsham (War Secretary), William OrmsbyGore (First Commissioner for Works) and the Marquess of Londonderry (Secretary of State for Air). 80 81

48  House of Lords Reform, 1917–45 was induced by the flurry of interest in Lords reform from Lord Linlithgow’s report for the Conservative Research Department in 1931;87 Salisbury’s committee and bills;88 a memorandum, signed by 163 Conservative MPs, calling for a change to the constitution and powers of the Lords; and the statements of Sir Stafford Cripps that before the next Labour government took office, an assurance should be sought from the King that he would create enough peers to swamp the House of Lords and overcome the Conservative predominance.89 The clamour for reform came from right and left, and the claims built upon one other.90 The Political Committee had initially been worried that it could not stop Salisbury’s Parliament (Reform) Bill being carried in the House of Lords,91 but Salisbury later decided not to proceed with his Bill which, to the regret of the Political Committee, meant that they were unable to use the Bill to gauge peers’ opinions on reform of the House of Lords. The Bill had been approved at Second Reading, but this was taken as a vote for a full discussion of the issues rather than approval of the principles contained within the Bill. It was thought by the Government that Salisbury was unwilling to take on the ‘very heavy and arduous task of piloting the Bill through Committee’. Viscount Hailsham and the Marquess of Londonderry were keen to advance the Bill, but were persuaded by their colleagues in the Political Committee to take a non-committal position on the Bill. In the end, Salisbury abandoned his Bill, and the Committee lamented the lost opportunity of the committee stage, at which the Government could have gauged peers’ views on reform.92 Liberal: Sir John Simon (Foreign Secretary) and Walter Runciman (President of the Board of Trade). National Labour: Ramsay MacDonald (Prime Minister, Chairman), JH Thomas (Dominion Secretary) and Viscount Sankey (Lord Chancellor). On the development of Cripps’ views, see: William Frame, ‘“Sir Stafford Cripps and His Friends”: The Socialist League, the National Government and the Reform of the House of Lords 1931–1935’ (2005) 24 Parliamentary History 316. 87   This suggested: ‘An adequate representation of all political parties’; no sex bar; limited in size; hereditary principle ‘retained as an essential component’; no elected element; nomination rather than creation for new members; bishops and royal peers to remain. 88   Salisbury, who had stepped down as Leader of the House of Lords at the end of the Baldwin Government in 1929, chaired a joint committee of MPs and peers on reform in 1932, which argued that the Cave Committee’s proposals had not gone far enough, and Salisbury attempted to introduce a bill thereafter (Parliamentary Archives FEL/4, ‘House of Lords Reform: Report of a Joint Committee of Peers and Members of the House of Commons’, 4). Salisbury’s Committee recommended a hybrid House: 150 hereditary peers elected by their order for 12-year terms (one-third of these elected every four years by proportional representation) and 150 members appointed from outside. This would (with Law Lords, two archbishops, three other bishops and the royal peers) make for a House of about 320. By, in effect, accepting the Cabinet proposals of the 1920s, Salisbury and his committee (nine of whom were current and former Unionist MPs, and two of whom were current Conservative MPs) had significantly retreated from the demands for the influence of the hereditary peerage that they were making only five years earlier. 89   Parliamentary Archives LH/4/2. P (33), 4th Meeting. Cabinet: Political Committee 1933, 11 June 1934. 90   ‘The intention behind this [Salisbury’s Bill] was to pre-empt Cripps’ threat to swamp the Lords with new peers . . . Many of the speakers in support of the Bill similarly referred to Cripps’: Frame (n 86) 325. 91  Parliamentary Archives LH/4/2. P (33), 2nd Meeting. Cabinet: Political Committee 1933, 12 February 1934. 92   Viscount Hailsham (inter alia Leader of the House of Lords 1931–35, Lord Chancellor 1935–38). Parliamentary Archives LH/4/2. P (33), 4th Meeting. Cabinet: Political Committee 1933, 11 June 1934.

Avoiding Reform, 1928–45  49 JH Thomas MP thought that Cripps’ views pointed to action needing to be taken on Lords reform before a general election.93 However, the Prime Minister, Ramsay MacDonald, urged caution, saying: ‘There was good reason to believe that the views of Sir Stafford Cripps and his friends were encountering powerful opposition within the Labour Party, and that it was very unlikely that they would prevail.’94 In any case, the King was unlikely to agree to a general commitment to swamp the Lords in the absence of a sustained impasse and without the view of the people having been expressed.95 This lack of support for Cripps’ position within the Parliamentary Labour Party was later confirmed: the House of Lords was less unpopular with the Labour Party in 1934 than it had been 15 or 20 years previously: ‘Abolition was not really a live issue among the majority.’96 Sir John Simon MP (Liberal National), the Foreign Secretary, was keen that, for progress on House of Lords reform to be made, the Conservative leadership should accept as final the settlement of powers under the Parliament Act 1911. This would, Hailsham warned, be very difficult to achieve: many Conservatives, who had experienced difficulty in positively supporting any specific proposals, would be strongly opposed; Ormsby-Gore warned that unanimity amongst the Government’s supporters would, in any case, be unattainable. Moreover, some members of the Political Committee (notably Viscount Sankey) feared that reforming the Lords would result in the Government losing the general election. Such a bill would have to be taken after the legislation arising from the Simon Commission (which became the Government of India Act 1935) and would thus have to be the last Act of the Government before the election. It was better to avoid stirring interest in the question of the Lords. The Committee agreed non-committal responses to two backbench bills in 1935: Lord Rockley’s Bill on life peers and Lord Rankeillour’s Parliament Act (Amendment) Bill, which sought to exempt categories of legislation from the scope of the veto limitation contained in the Parliament Act. In April 1935, MacDonald concluded that: [A]ny attempt to make the question of the reform of the House of Lords a first-class question would tell against the Government at the present time [April 1935]. They would get nothing out of it, whilst the Opposition might be able to obtain a certain amount of political advantage out of the matter being raised. At the present time there seemed to be very little interest in the country in this problem.97

The Cabinet Committee had achieved little, except to play backbench peers’ reform proposals with a dead bat and to resolve to come up with no initiatives of 93   Parliamentary Archives LH/4/2. P (33), 4th Meeting. Cabinet: Political Committee 1933, 11 June 1934. 94   Parliamentary Archives LH/4/2. P (33), 4th Meeting. Cabinet: Political Committee 1933, 11 June 1934. 95   Parliamentary Archives LH/4/2. P (33), 4th Meeting. Cabinet: Political Committee 1933, 11 June 1934. 96   Parliamentary Archives LH/4/2. P (33), 4th Meeting. Cabinet: Political Committee 1933, 11 June 1934. 97   Parliamentary Archives LH/4/2. P(33), 6th Meeting. Cabinet: Political Committee, 1 April 1935.

50  House of Lords Reform, 1917–45 its own. As William Frame shows, the party leaders MacDonald and Baldwin, both gradualists, counselled caution and averted any encouragement of the radicals from within their own parties.98 The Second World War did not provide the constitutional reform stimulus which the previous conflict had spawned through the Speaker’s Conference and the Bryce Conference. Time, however, did heal some of the hurt felt by Conservatives at the passage of the Parliament Act, and Labour ministers gained governing experience and credibility as members of the wartime coalition, as well as gaining the increased representation in the Lords which their participation in government required. Nothing in the operation of the House of Lords during the 14 years of national or coalition government gave a future Labour government any cause to fear that the House would seek again to usurp its now settled constitutional position under the 1911 Parliament Act.

  Frame (n 86) 330–31.

98

3 A Pre-emptive Strike: The Parliament Act 1949 It seems to me, therefore, that the soundest policy for a ‘well-meaning and respectable’ Labour Government, which was anxious to act in a constitutional manner, but was at the same time subject to the House of Commons, would be, immediately on coming into office, to introduce a Bill to abolish the House of Lords . . . the Labour Government could then pass its bills into law, however contentious and revolutionary they might be, without any kind of check or delay. Lord Curzon of Kedleston, 19211 I think it good tactics to make the necessary reform before any trouble between the Houses has arisen. Clement Attlee, 19472

T

HE GENERAL ELECTION of July 1945 produced the first majority Labour Government, and its majority was resounding: 146 seats over all other parties.3 This Government provided the first real test of the resolve of the Conservative-dominated House of Lords since the Campbell-Bannerman and Asquith Governments of 1906–16: not since the Great War had the House of Commons contained a single-party non-Conservative majority which might feel threatened by the House of Lords. It was clear that the Lords could not prevent the enactment of proposals brought forward in the first two years of the Parliament, because these early bills could be enacted by invoking the Parliament Act 1911,4 but in any case, politically, the Lords would not challenge such a recently elected House of Commons. However, the Government’s plans for the introduction of large-scale nationalisation, and the prospect of resistance to these

  Parliamentary Archives PO/300/11/11. Further notes by Lord Curzon, 12 December 1921.   TNA PREM 8/1059. Telegram: PM for Addison (who was in Ceylon), 15 October 1947. The Prime Minister was telegraphing the Leader of the House of Lords to inform him that the Cabinet, in his absence, had decided to proceed with the Parliament Bill. 3   Conservative 213, Liberal 12, Labour 393, Communist 2, Common Wealth 1, Others 19. Total 640: a greater majority than in the Liberal landslide of 1906. 4   Though the Parliament Act had limitations and ambiguities in its drafting, and therefore its efficacy was not guaranteed. 1 2

52  The Parliament Act 1949 plans by the peers, loomed large in the Cabinet ministers’ consciousness from the middle of 1946 onwards.5 Different motivations underlay the Labour and Conservative Parties’ appro­ aches to House of Lords reform in the mid-twentieth century. The Labour Party considered reforming the powers of the House of Lords in preference to the reform of composition in order to diminish the threat from the Lords to the Government’s legislative programme. The Conservatives wanted reform of the composition of the Lords so that it could use the Lords’ de jure powers to their fullest extent against the House of Commons (and therefore against the Labour Government): the Conservatives in 1911 had considered the period of delay allowed for by the Parliament Act as the minimum practicable check on the House of Commons,6 although by the 1940s they were prepared to consider reducing powers if a conjoined reform of composition led to a de facto increase in the power of the upper House.

LABOUR AND THE HOUSE OF LORDS

Prior to 1945, the Labour Party had never exhibited a coherent, stable policy for reforming the House of Lords. In 1911, during debates on the Parliament Bill, both Ramsay MacDonald and Philip Snowden criticised the Bill, and especially the commitment to bicameralism embodied in the Preamble.7 Previously, MacDonald had advocated abolishing the House of Lords and substituting for it a ‘revision committee’ consisting of Lords of Appeal in Ordinary.8 Labour’s first policy statement, Labour and the New Social Order, drafted by the Sidney and Beatrice Webb under the direction of the Labour executive and adopted at the Party’s Manchester Conference in June 1918 as a manifesto, committed the Party to abolition – not reform – of the House of Lords. But agreement on abolition did not last long, and by the 1922 election, abolition had been excised from the Party’s manifesto. Sidney Webb’s 1917 suggestion that the second chamber should be elected by the House of Commons, argues Miles Taylor, ‘became the unofficial but widely supported stance of the party effectively until the Second World War’.9 But throughout the inter-War period, reform of the franchise and of the House of Commons was much more pertinent to the Labour Party than reform of the second chamber. 5   The Cabinet on 20 June 1946 held ‘a preliminary discussion’ about the prospective difficulties of passing government legislation through the House of Lords and invited the Lord Chancellor to consider proposals to amend the Parliament Act 1911. CM 60(40)2. 6  This is what Lord Cranborne told Lord Addison in 1947. HHP 5M/Box F: Minute by Lord Cranborne, February 1947. 7   Miles Taylor, ‘Labour and the Constitution’ in Duncan Tanner, Pat Thane and Nick Tiratsoo (eds), Labour’s First Century (Cambridge, Cambridge University Press, 2000) 153. 8   James Ramsay MacDonald, Socialism and Government (London, Independent Labour Party, 1909). See also MacDonald’s speeches in Hansard during 1909. 9   Taylor (n 7)158.

Labour and the House of Lords  53 In government (1924 and 1929–31), Labour had neither the ability nor the inclination to act: its lack of majority in the Commons, combined with MacDonald’s gradualist approach on the Lords, meant that reform was unlikely. Indeed, it was struggle enough for Labour to manage to work the present system, let alone to replace it with a new one. MacDonald appointed to the Lords some supporters who had no heirs and who would therefore be de facto life peers: his guiding principles were that new creations should be made solely to promote government and party business in the Lords, and that the peer should have no heir.10 The first Labour appointee to the Lords who had heirs was William MacKenzie (Baron Amulree) in June 1929 and the first ex-Labour MP to be created a hereditary peer although he had sons was Arthur Ponsonby (Baron Ponsonby of Shulbrede) in January 1930.11 ‘Like Liberal ministers in 1910’, Williamson argues, ‘Lees-Smith, Parmoor and Ponsonby eventually agreed upon the easiest course, a limitation of the Lords’ powers. The delaying power would be reduced from two years to one. This now constituted the Labour conception of “a very radical proposal”’.12 Any criticism of Labour’s inability to act on Lords reform is unfair: in its short periods as a minority government, in 1924 and again in 1929–31, it simply did not have the time or the opportunity to act.13 The Labour Party programme of 1935 had included a proposal to introduce unicameral government, but the increase in the number of Labour MPs in 1935 returned some leading moderates, including Hugh Dalton and Herbert Morrison, to the Commons. Pressure for radical Lords reform waned.14 As Jennings notes of Labour’s abolitionist tendency: ‘It was, however, plain by 1945 that this proposal, by itself, was unsatisfactory, because some machinery had to be substituted for the exercise of the function of cleaning up Bills which had left the Commons in an unsatisfactory condition.’15 Whilst the Labour Party manifesto of 1945 gave ‘clear notice that we will not tolerate obstruction of the people’s will by the House of Lords’,16 the Party had no extant commitment to single chamber government.

10   Philip Williamson, ‘The Labour Party and the House of Lords, 1918–1931’ (1991) 10 Parliamentary History 317, 323. In 1924, MacDonald created three peers to increase his ministerial representation in the Lords: Baron Olivier, Baron Thomson and Baron Arnold. 11   This creation is perhaps surprising. In 1923 he had declared: ‘when a Labour govt comes to power neither for party purposes nor for the acknowledgement of public services will it have recourse to the conferring of hereditary Honours’, and in the same year he had introduced the Hereditary Titles (Abolition) Bill. See Williamson (n 10) 326–27. Between the 1929 general election and early 1931, eight Labour peers were created. Another barrier to Labour peers was the lack of payment. 12   Williamson (n 10) 339. The quotation is taken from a letter by Ponsonby to MacDonald, 10 April 1931 (TNA CAB 30/69/1176). 13   Taylor (n 7) 156–57. 14   On this period, see William Frame, ‘“Sir Stafford Cripps and His Friends”: The Socialist League, the National Government and the Reform of the House of Lords 1931–1935’ (2005) 24 Parliamentary History 316. 15   Sir W Ivor Jennings, Parliament 2nd edn (Cambridge, Cambridge University Press, 1957) 430. 16   Labour Party, Let Us Face the Future: A Declaration of Labour Policy for the Consideration of the Nation (1945); FWS Craig, British General Election Manifestos 1900–1974 (London, Macmillan, 1975) 125.

54  The Parliament Act 1949 MOVES TOWARDS REFORM, 1943–47

The issue of House of Lords reform had been raised by the Conservatives during the wartime coalition Government, nearly two years before Labour’s landslide election victory. In the second half of 1943, the 4th Marquess of Salisbury,17 who had become ‘resigned to the Parliament Act [1911], to qualifications for hereditary peers, to a limited number of life peers’,18 approached Lord Addison, who was Labour’s leader in the House of Lords during the War and who became Leader of the House of Lords when Labour came to power in 1945, to enquire whether the Labour Party would consider reforming the House of Lords. The previous year, Salisbury had privately acknowledged that there was a need to bolster Labour and Liberal representation in the House of Lords and accepted a substantial role for life peers, though he did not wish the Conservatives to touch upon ‘the thorny question of powers’.19 In 1943, Salisbury presented Addison with a bill which ended the automatic right of hereditary peers to sit and vote in the House and provided for the creation of some life peerages. Addison led Salisbury to believe that he was anxious to reach an enduring settlement on House of Lords reform and had already been consulting his own colleagues on the subject.20 Addison made the Labour leadership aware of this proposal, and preliminary meetings between party leaders were held, but Addision later recalled that he ‘subsequently informed Lord Salisbury that our view was that the time was not appropriate for any action to be taken’.21 It was clear to Salisbury from his conversations with Addison that Ernest Bevin MP, the Foreign Secretary, Arthur Greenwood MP, the Lord Privy Seal, and Herbert Morrison MP, the Leader of the House of Commons, were open to persuasion in favour of reform; however, ‘Mr. Attlee was the great critic of the draft’, and because of Attlee’s opposition, Salisbury was not hopeful of an agreed resolution.22 The tension within the Cabinet on the question of House of Lords reform was between those who wanted to reform prospectively and those who thought that only reactive legislation would be justified. Many members of the Attlee Government were, as Herbert Morrison recalled, ‘apprehensive about what we 17   Salisbury had, by this time, sat for 40 years in the House of Lords, having succeeded his father in 1903, and had held several offices, including that of Leader of the House of Lords (1925–29). This approach seems to have been on Salisbury’s own initiative. His son, Viscount Cranborne, was, at the time of his father’s approach to Lord Addision, Leader of the House of Lords. Salisbury kept Cranborne closely informed of his discussions with Addison. 18   Stuart Ball (ed), Parliament and Politics in the Age of Churchill and Attlee: The Headlam Diaries 1935–1951 (Cambridge, Cambridge University Press, 1999) 408 (15 June 1944). 19   HHP 5M/Box E. Salisbury to Cranborne, 18 December 1942. Salisbury was commenting on a draft proposal from the Earl of Onslow, who had been one of the most active thinkers about Lords reform in the 1930s and 1940s. The correspondence between Salisbury and Onslow broadened to support several committees on Lords reform in the 1940s. 20   HHP 5M/Box E. Memo by Lord Salisbury (4th Marquess), 3 August 1943. 21   CP (46) 382, 15 October 1946. 22   HHP 5M/Box E. Lord Salisbury: minute, 27 July 1944. For a full discussion of Conservative Party reform schemes in 1942–48, see Olga Borymchuk, ‘Labour and the House of Lords’ Dilemma: Constitutional Reform in Post-War Britain, 1945–51’ (DPhil thesis, University of Oxford, 2005).

Moves Towards Reform, 1943–47  55 considered to be the power for mischief that still existed in the House of Lords during the later sessions of a Parliament’.23 Quite apart from this apprehension, the Lords themselves had provided no justification for triggering the Government’s manifesto threat to cut their powers. The Lords was a much-changed body from its counterpart in 1906, both in terms of composition and temperament, and the upper House did not obstruct the Attlee Government’s programme. Following a Cabinet meeting in mid-1946, which held ‘a preliminary discussion about the difficulties which might be encountered in passing Government legislation through the House of Lords’,24 the Lord Chancellor, Lord Jowitt, reported that the House of Lords had not insisted upon most of the criticisms and amendments that it had put down to government bills and that ‘it cannot therefore be said at the present time that the House has made harsh or unreasonable use of its power to carry such amendments’.25 In the first 12 months of the Attlee Government, therefore, the House of Lords had not caused significant obstruction of the ‘people’s will’, and the situation had not changed a year later: two years into Labour’s administration, the Prime Minister acknowledged the validity of the argument that the Government lacked a mandate to further limit the powers of the Lords.26 The fears of some ministers, which arose from the Lords’ latent threat to the Government’s legislative programme, was not fully assuaged by the cooperation of Viscount Cranborne,27 leader of the Conservative Opposition in the Lords. In the debate on the 1945 King’s Speech, Cranborne had explained his doctrine that: ‘Whatever our personal views . . . it would be constitutionally wrong when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate.’28 This principle, which later became known as the Salisbury–Addison Doctrine,29 acknowledged that the Lords should not vote down the Government’s manifesto proposals on second reading.30 However, the Labour leadership knew that Cranborne personally could not control the actions of every Conservative peer: the Cabinet believed that the Conservative leaders were ‘very apprehensive of any possible action by the hundreds of peers who seldom, if ever, attend’;31 if the backwoodsmen turned up, ‘it was unlikely that the more moderate counsels of the Leaders of the Opposition 23   Herbert Morrison, Government and Parliament: A Survey from the Inside 2nd edn (Oxford, Oxford University Press, 1959) 172. 24   CM 60(46)2, 20 June 1946. 25   CP(46)376, 11 October 1946. 26   CM 80(47)1, 14 October 1947. 27   Leader of the House of Lords, 1942–45, 1951–57. Viscount Cranborne succeeded his father as the 5th Marquess of Salisbury on 4 April 1947. 28   HL Deb, 16 August 1945, vol 137, c 47. 29   As the ‘Salisbury Convention’ is, perhaps correctly, named. For a full view of the evolution and application of this doctrine, see House of Lords Library, The Salisbury Doctrine (LLN 2005/004, June 2005). 30   Later, this doctrine was extended to include the principle that the House of Lords should not carry wrecking amendments to a bill. 31   CP(46)382, 15 October 1946,

56  The Parliament Act 1949 Parties in the House of Lords would prevail’.32 Furthermore, Morrison was worried that the Conservatives were, two years after Labour’s election victory, becoming less demoralised and quiescent, and that, with Labour heading into trouble over nationalisation and the Conservatives’ electoral prospects improving, the Conservatives might feel emboldened and flex their parliamentary muscles.33 Four more immediate and pressing reasons together meant that 1947 provided a window of opportunity for reforming the powers of the Lords. First, iron and steel nationalisation was known to be controversial within the Cabinet and therefore might be vulnerable to the Lords’ delaying powers. Curtailing the Lords’ powers was, strictly, unnecessary for the passage of iron and steel nationalisation, but restricting the Lords’ veto made the balance of legislative activity across the 1947–48 and 1948–49 Sessions more convenient for the Government. Second, no by-elections had gone against the Government, and thus their political mandate was still unblemished. Third, ‘legislation introduced before a confrontation between Lords and Commons would enable rational discussion of the issues on their merits’.34 Fourth, a reform measure introduced in 1947 could certainly be forced through, if necessary, under the Parliament Act 1911.35 This deadline was close at hand and the Cabinet therefore concluded that the balance of arguments was in favour of the introduction of legislation during the 1947–48 Session further to reduce the Lords’ delaying powers.36 It was therefore a mixture of fear, mistrust and internal party politics, and the knowledge that the King’s Government could have its business considered, that induced the Cabinet to reject Jowitt’s earlier counsel that to pursue Lords reform without provocation or without crossparty agreement ‘might seem provocative’ and thus that a unilateral approach was imprudent.37 NATIONALISATION AND HOUSE OF LORDS REFORM

The key spur to House of Lords reform during the first Attlee Government was the nationalisation programme. Labour’s 1945 manifesto had committed it to a wide-ranging programme of nationalisation, including bringing iron and steel production into public ownership.38 By April 1946, the nationalisation of gas and of iron and steel remained to be addressed. The Prime Minister acknowledged on 4 April that the weight of legislation in the 1945–46 and 1946–47 Sessions left very little Government capacity for further nationalisations. Thus, because of legisla  CM 80(47)1, 14 October 1947.   Bernard Donoghue and GW Jones, Herbert Morrison: Portrait of a Politician (London, Weidenfeld & Nicolson, 1973) 427. 34   Donoghue and Jones (n 33) 427. 35   The Cabinet considered, but rejected, the question of whether the Parliament Act 1911 could be used to amend itself: CM 91(47)3, 27 November 1947. 36   CM 80(47)1, 14 October 1947. 37  CP(46)382, 15 October 1946. Jowitt and Addison, like several Conservative inter-War Lords reformers, were former liberal MPs. 38   Labour Party (n 16); Craig (n 16) 123–31. 32 33

Nationalisation and House of Lords Reform  57 tive congestion and the need for policy consolidation, two nationalisations – gas, and iron and steel – were deferred until the 1947–48 Session.39 On 20 March 194740 and again on 17 April,41 the Cabinet considered which of gas, and iron and steel should be introduced in 1947–48 and which should be deferred until 1948–49. The Iron and Steel Bill would, the Cabinet acknowledged, be the more difficult of the two: iron and steel nationalisation was complicated by the nature of the industry, since these metals were often manufactured by large organisations for whom metal manufacture was only a small part of their enterprise. The nationalisation of the gas industry was ‘rather simpler’:42 the latter ‘broke new ground and raised difficult and complex issues; it would be keenly opposed by the industry; and it would arouse bitter controversy in Parliament. In particular, it might become an issue between the two Houses of Parliament’.43 The Ministry of Supply needed to increase its policy experience; the Cabinet needed to consider the policy implications more carefully. There was, however, one further constraint on proceeding with iron and steel nationalisation: the Cabinet’s ‘lengthy and heated arguments over the merits of steel nationalization’.44 There had been reservations within the Labour leadership as to the wisdom about the inclusion of iron and steel nationalisation in the Party’s election programme for 1945,45 and those disagreements continued. The Government ‘suffered from a split mind if not a divided heart on the wisdom of nationalising’ iron and steel.46 But given the possibility of inter-cameral conflict, there would have been a tactical advantage to introducing this more controversial of the two nationalisations first, not least because a bill introduced in 1947–48 could be passed under the Parliament Act 1911 before the end of the Parliament.47 As Chester later noted: ‘If the Iron and Steel Bill were not introduced in 1947–8 it was unlikely to be introduced in the lifetime of the present Parliament. The Cabinet therefore agreed that the Iron and Steel Bill should be included in the legislative programme for 1947– 8, the Gas Bill being deferred.’48 This decision was announced, in an answer to a question in the Commons, on 28 April 1947. 39   CM 30(46). A full account of the nationalisation programme of 1945–51 is given by Sir Norman Chester, The Nationalisation of British Industry 1945–51 (London, HMSO, 1975). 40   CP 79(47) and CM 30(47). 41   CM 37(47), 17 April 1947. 42   Henry Pelling, The Labour Governments 1945–51 (London, Macmillan, 1984) 83. 43   CM 37(47), 17 April 1947, 44   Pelling (n 42) 335. 45   At the Party Conference in December 1944, Ian Mikardo successfully proposed a motion to commit the Party to public ownership of banking, land, heavy industry, transport, fuel and power. The National Executive Committee was unable to oppose this; the motion was carried without a division: KO Morgan, Labour in Power 1945–51 (Oxford, Clarendon Press, 1984) 32–33. 46   Duncan Burn, The Steel Industry, 1939–1959 (Cambridge, Cambridge University Press, 1961) 291. On the Iron and Steel Bill generally, see pp 292–312. 47   Importantly, the Parliament Bill 1947 was drafted to be retroactive, so that iron and steel nationalisation, although introduced late in the Parliament, could still pass under its terms. 48   Chester (n 39) 36.

58  The Parliament Act 1949 The Government’s electoral popularity and its large Commons majority, coupled with no by-election losses, was a solid base from which to launch Lords reform, but this base quickly evaporated after the middle of 1947. During the second half of 1947, economic concerns – the post-War American loan was quickly running out – pushed iron and steel nationalisation into the political distance. In July, Morrison, the minister in charge of the nationalisation programme, favoured compromise with representatives of the Iron and Steel Federation. Attlee ‘sympathised to the extent of saying that “in the present economic situation it would be inexpedient to proceed with legislation”’,49 but Aneurin Bevan began to make clear his opposition to compromise. By August 1947, the Government was ‘in the thick of an economic crisis’50 and the Cabinet moved to defer the introduction of the Iron and Steel Bill. The Future Legislation Committee reported that the Iron and Steel Bill would make heavy demands on the Ministry of Supply, to the detriment of the Ministry’s other responsibilities, and that the introduction of such a controversial measure might lead to a downturn in steel production as it would inevitably distract the steel industry.51 The Gas Bill on the other hand was much less controversial and could be easily drafted, as it followed the model of the Electricity Act 1947. Personalities, as well as economic conditions, shaped the Government’s approach to iron and steel nationalisation. A vote by the Parliamentary Labour Party (PLP), demanding full and immediate nationalisation, was narrowly avoided in August 1947. The Prime Minister received threats of resignations from Cabinet ministers on both sides of the nationalisation debate: Bevan, if reform was not achieved within the lifetime of the Parliament; and Jowitt, if nationalisation was immediately forthcoming.52 Attlee suggested a compromise to defuse the conflict: to proceed with gas nationalisation immediately and to alleviate problems of delaying iron and steel nationalisation to the following session by introducing in the current session a bill to limit the delaying power of the House of Lords to one year. This would allow for the enactment of an Iron and Steel Bill before the forthcoming general election. The Parliament Bill 1947 was therefore brought forward as a short-term measure to ensure the passage of the Iron and Steel Bill against a combination of, first, the fear of opposition from the House of Lords, second, actual opposition from within the Cabinet and, third, the logistical problems of timetabling Bills because the iron and steel nationalisation had been deferred for so long.53 However, as The   Pelling (n 42) 84.   Chester (n 39) 36. 51  CP(47)281. 52   Pelling (n 42) 85. 53   Viscount Addison, who as Leader of the House of Lords had taken a keen interest in House of Lords reform since 1945, was absent from the meeting at which the Cabinet decided to proceed with the Parliament Bill, as he was on government business in Ceylon. Attlee wired him with the message: ‘Cabinet considered King’s Speech yesterday. It was agreed to take gas and not iron and steel this session. It was decided to introduce Bill to reduce period of delaying action of Lords provided under Parliament Act on general lines proposed last year by Lord Chancellor. This will safeguard Government programme in later years of this Parliament. I hope you will agree’ (TNA PREM 8/1059. Attlee to Addision, 49 50

The Parliament Bill 1947  59 Economist editorialised in November 1947: ‘To tamper with the constitution merely in order to forestall a possible opposition of the Upper House to a Bill which must be highly controversial is hardly an indication of much confidence either in the virtue of the legislation proposed or in the solidity of the British parliamentary tradition.’54 The Parliament Bill was, strictly, unnecessary for the passage of iron and steel nationalisation, and could have been avoided by earlier moves on this policy: it was a matter of convenience rather than necessity.

THE PARLIAMENT BILL 1947

The fundamental step of depriving the Lords of its veto over public bills had been taken by the Parliament Act 1911. The Parliament Bill 194755 was a short Bill to amend the Parliament Act 1911 so that a public bill could pass into law in the face of Lords’ opposition if it had been passed by the Commons in two successive sessions (instead of three) and if one year (instead of two years) had passed between the first Second Reading in the Commons and the date on which the bill left the Commons for the last time.56 The Cabinet had, in November 1947, considered very briefly – and rejected – the suggestion that it might not be legally valid to amend the Parliament Act under its own procedures.57 Salisbury, likewise, considered this question when the Bill came forward and found that ‘all the great lawyers in the House of Lords’ were united in the view that it was impossible to guard against further amendment of the constitution – including the Parliament Act – under the procedures of the Parliament Act 1911.58 One of the great lawyers in the House of Lords with whom Salisbury consulted was Lord Simon, the former Lord Chancellor, who replied that: Our Parliament (King, Lords and Commons) can validly legislate anything, and the effect of the Parliament Act 1911 is to say that (save for an exception specially mentioned) a bill which is carried by the Commons in the way there defined, may be presented for the Royal Assent, and become law, even of the Lords have consistently rejected it . . . No English Constitutional Lawyer, and no Court in this country, would ever maintain the opposite view. Moreover, the exception (namely, this does not apply to a bill 15 October 1947). Addision was ‘glad to hear of decision regarding iron and steel’, but pressed for reform of the Lords to remain a possibility: ‘I should think that we should state the announcement in such terms as would not confine it to the delaying period only, but would make it possible to adopt, if agreement can be obtained. Some [sic] such change in the constitution of the House’ (TNA PREM 8/1059. Addision to Prime Minister, 16 October 1947). On Addison’s strong support for reform beyond powers, see Kenneth Morgan and Jane Morgan, Portrait of a Progressive: The Political Career of Christopher, Viscount Addison (Oxford, Clarendon Press, 1980) 261–65. 54   ‘The Parliament Bill’, The Economist (8 November 1947), 745. 55   Commons Bill (8) and (1) 1948. 56   On the Parliament Bill and its early stages in the Commons, see Owen Clough, ‘The Parliament Bill, 1947–48’ (1948) XVII The Table 136. 57   CM 91(47)3, 27 November 1947. 58   HHP 5M/Box G, Salisbury to EF Iwi (Solicitor), 18 February 1948.

60  The Parliament Act 1949 extending the life of the Commons beyond five years), is a further proof that in other cases the provision does apply.59

Simon pointed to the passage of the Home Rule Bill and the Welsh Disestablishment Bill as being further evidence that the Parliament Act was suitable for substantial change. It is certainly the case, as argued above, that the Parliament Act’s raison d’etre, was major constitutional change. The arguments about the validity of what became the Parliament Act 1949, which were to surface in the following decade in academic literature60 and were settled only by the Appellate Committee of the House of Lords in 2005,61 were non-issues for those leading both sides of the debate at the time. Moving the Second Reading of the Parliament Bill, on 10 November 1947, Morrison ‘argued that Labour would have reduced the delaying power of the House of Lords even if there was no question of them rejecting steel nationalisation in the future’.62 The Cabinet minutes do not, however, fully bear out Morrison’s claim: whilst the curtailment of the Lords’ powers had been discussed in the Cabinet several times before the Parliament Bill was introduced to Parliament – and had been included in the King’s Speech on 21 October 1947 – it was the political need to delay iron and steel nationalisation that directly caused the Parliament Bill to be introduced.

Reform Beyond the Delaying Power Whereas the first 18 months of the Attlee Government had been strong, ‘1947 was’, in the words of Kenneth Morgan, ‘a year of almost unrelieved disaster’.63 A cold snap early in the year brought on problems in the coal supply and by November ‘it was obvious that the fuel shortage was becoming alarming’.64 Problems escalated with the sterling convertibility crisis in August 1947 – the worst currency crisis since 1931 – which meant that Britain was facing bankruptcy. Other problems abounded: maintaining a large military presence overseas; the death of the Minister of Education, Ellen Wilkinson MP, early in 1947; continuing heart trouble for Morrison. These crises combined to put the Cabinet under great pressure and subjected Attlee’s leadership to intense scrutiny. Surrounded by a Cabinet of heavyweight ministers, Attlee survived Cripps’ attempt at a leadership putsch in August–September 1947. The Cabinet had many more pressing matters than comprehensive constitutional reform. The general view of the Cabinet was that October 1947 ‘was not a suitable moment for reforming the House of Lords. And, in any event, the initiative in   HHP 5M/Box F, Simon to Salisbury, 17 January 1948. (emphasis in original)   HWR Wade, ‘The Basis of Legal Sovereignty’ (1955) 13 CLJ 172.   Jackson and others v Her Majesty’s Attorney General [2005] UKHL 56. 62   Donoghue and Jones (n 33) 431n. 63   Morgan (n 45) 331. 64   Morgan (n 45) 331. 59 60 61

The Parliament Bill 1947  61 bringing forward any reforms should be left with the Opposition. It was unlikely that any proposals which they put forward would prove acceptable to the Labour Party’.65 When Viscount Samuel, leader of the Liberal peers, sought a conference of all political parties to discuss reforming the Lords, the Cabinet decided, first, ‘that the Bill amending the Parliament Act, 1911, should be passed into law before any negotiations were opened for the reform of the House of Lords’, and, second, ‘that the Government were not prepared to take any initiative in seeking agreement on proposals for the reform of the House of Lords’.66 The Cabinet was resolute that the passage of the Parliament Bill was not negotiable and that more comprehensive reform would have to wait. It further agreed that: ‘Nothing should be said to imply the views of the Labour Party on the broader question of House of Lords reform, or that the Party favoured the retention of a reformed House of Lords.’67 To borrow the language of the Labour Government 50 years later, the Parliament Bill was to be an initial, self-contained change, which was in no way dependent on future reform plans. The reliance on the Opposition to put forward proposals for House of Lords reform went counter to the Government’s ‘ownership’ of reform and was the opposite of the fears held later by the Wilson Labour Governments of the 1960s that the Government would lose control of reform if it waited for the Conservative Opposition to bring forward its own proposals. In saying that it should wait for the Opposition to produce proposals, the Government was acknowledging that any reform would make the House of Lords more likely to use its powers, and saw a core Conservative Party advantage in stronger bicameralism. Waiting – and waiting for proposals which would be likely to strengthen the upper House – would severally and jointly make Lords reform much less likely. The Cabinet remained unwilling to seek a broad-based reform of the Lords in the 1947–48 Session, lest this open a Pandora’s Box. There was some pressure from within the Cabinet for the reduction in the powers of the Lords to be accompanied by the quid pro quo of wider reform of the composition of the House. Tangible benefits would accrue to the Labour Party in reforming the composition of the House of Lords: reducing the Conservative preponderance, creating Labour life peers and paying peers a reasonable salary68 would all increase the capacity for a Labour government to manage its business in the upper House. The leading proponent of this position was Addison, now Lord Privy Seal, who argued that ‘it would be a first class political blunder if we did not make use, if we can, of the present anxiety of the opposition parties to obtain a more rational composition of the House of Lords’.69 But Attlee was worried on the one hand about stirring up support for controversial reform proposals within the PLP, and on the other hand about 65   CM 83(47)3, 30 October 1947. cf Conservative claims at other times that it was appropriate only for Labour to alter the composition of the Lords. 66   CM 87(47)3, 13 November 1947. 67   CM 81(47)2, 20 October 1947. 68   CM 1(48)5, 6 January 1948. 69   CP(48)20, 15 January 1948.

62  The Parliament Act 1949 giving the Opposition parties hope of extracting compromises from the Government by holding up the Parliament Bill. Addison had, on his personal initiative, been pursuing informal discussions on Lords reform with key members of the Opposition for most of the 1940s, arguably at the expense of keeping in touch with the sentiment of his Cabinet, let alone of those on the backbenches. Indeed, Attlee had been a strong critic of Addison’s reform plans even before becoming Prime Minister.70 With this opposition from Attlee, and stirrings on the backbenches against reform, the Government held to its line from late 1947: Parliament Bill before reform.71

The Coming of Negotiations In entering negotiations with the Government, Lord Salisbury (as Lord Cranborne had, by this time, become), on behalf of the Conservatives, promised that the Parliament Bill would – regardless of the outcome of the negotiations – be firmly accepted or firmly rejected by the House of Lords, thus ensuring the Bill would either be approved by the Lords or that the Parliament Act procedures could be invoked. Sir Edward Bridges, Permanent Secretary at the Treasury, thought that negotiations were unnecessary to secure the enactment of further veto limitation: the Government could get the Parliament Bill through ‘with some fuss, but without any bitter conflict, without having to introduce a measure for the reform of the House of Lords’.72 Nevertheless, the Government considered the security of its Parliament Bill, and therefore of the forthcoming Iron and Steel Bill, acceptable conditions for the decision to enter into negotiations.73 The Cabinet knew in advance of the inter-party negotiations that it was constrained in seeking agreement by the lack of consensus within the PLP on the path of reform: [T]here would be great political disadvantages in raising the general issue of House of Lords reform. There was no settled body of opinion on this question in the Labour Party; and, once the question was thrown open for discussion, many difficult and controversial issues would be raised on which there might well prove to be wide differences of opinion within the Party. It was true that the scheme suggested by the Lord Privy Seal [Addison] proposed no very drastic changes; but, once the issue was raised, discussion could not be confined to the merits of the scheme – it must extend to the wider questions of whether any Second Chamber was necessary at all and, if so, what the ideal form of Second Chamber would be. There was no practical or political necessity for deciding these difficult issues at the present time; and the Government would be open to serious criticism if they allowed Parliament to occupy itself with these matters at the cost of postponing urgent measures of social and economic reform.74   HHP 5M/Box E, Minute by Lord Salisbury, 27 July 1944.   CM 1(48)5, 6 January 1948.   TNA T/273/69: EE Bridges to Sir Stafford Cripps, 3 January 1948. 73   Had the Lords failed decisively to reject the Parliament Bill, it could still have been presented for the Royal Assent, but it would have been delayed longer. 74   CM 1(48)5, 6 January 1948. 70 71 72

The Parliament Bill 1947  63 Moreover, the Government felt that it would have to defend anomalies left after its reform plan had been put into effect. In Cabinet discussions of January 1948, some ministers expressed concern that peers of first creation might be included in a reformed House of Lords: it was, they argued, ‘difficult to defend so large a breach in the principle of abolishing the hereditary right to attend and vote’.75 However, these arguments were misguided: so long as there was no intention to permit the heirs and successors of these peers to sit by right of a hereditary peerage, the effect of including peers of first creation in a reformed House would be akin to that of permitting the creation of life peers. A key incentive for the Government to enter into negotiations, quite apart from securing its other bills, was the public perception that refusal would engender: the Cabinet knew that, if it declined negotiations, it ‘would appear to be adopting an unreasonable attitude, and would be likely to forfeit public sympathy if they [sic] refused to enter any discussions’.76 If agreement during the course of discussions could not be reached, ‘the Government would have strengthened their position by having made a public offer to enter into discussions on conditions which would be generally regarded as reasonable’.77 Given the low importance which the public ascribe to constitutional reform and the scale of the Government’s 1945 election victory, this desire to seek public affirmation is somewhat surprising. Nevertheless, the guarantee that the Parliament Bill would be passed into law – either by consensus or by compulsion – and the danger of public perception of governmental intransigence if it refused discussions were, together, enough to induce the Cabinet to support negotiations. In agreeing to enter cross-party discussions, the Cabinet left little room for negotiation. The Government would not agree to an amendment of the Parliament Bill which ‘would substantially derogate from its primary object of enabling a Government to secure the passage of important measures introduced in the last two years of a Parliament’.78 The Cabinet’s promise to consult the PLP before any decisions on House of Lords reform were made effectively killed off any chance of reaching cross-party consensus at the talks even before they had begun.79 The negotiations were also constrained by behind-the-scenes negotiations between Addison and Salisbury on the terms of engagement of the parties. Salisbury successfully resisted attempts to start by discussing powers, but could not persuade Addison and his Labour colleagues that it was ‘a serious snag’ that composition and powers were not considered as one, even though Addison saw these two conversations as happening in parallel.80 With these constraints upon the Government’s negotiating position, the Party Leaders’ Conference began in February 1948.

  CM 1(48)5, 6 January 1948.   CM 9(48)1, 2 February 1948.   CM 9(48)1, 2 February 1948. 78   CM 8(48)4, 29 January 1948. 79   CM 14(48)4, 16 February 1948. 80   HHP 5M/Box G. Salisbury to Oliver Stanley, 17 January 1948. 75 76 77

64  The Parliament Act 1949

THE PARTY LEADERS’ CONFERENCE 1948

A conference of party leaders and other leading politicians from the Labour, Conservative and Liberal Parties met eight times between February and May 1948.81 The Conference discussed the composition of the House of Lords for the first two meetings, powers of the House in the third, fourth and fifth meetings, and spent the final three meetings agreeing its report. The Conference’s meetings were termed ‘preliminary’ meetings, as it was hoped that further negotiations, possibly incorporating a wider membership, would follow up on its conclusions. The prevailing recollection of the Party Leaders’ Conference is that it produced a ‘considerable consensus’82 between Labour, the Conservatives and the Liberals on the question of composition, but that the talks broke down over the question of powers. Indeed, the Agreed Statement published after the talks ended states that: ‘The representatives of all three Parties were united in their desire to see the House of Lords continue to play its proper part in the Legislature.’83 However, on closer inspection, it becomes less certain whether these talks were ever likely to generate fresh agreement over composition or powers, or, indeed, whether any such consensus was a result of the Party Leaders’ Conference. Moreover, it is far from certain that any consensus between the party elites had a realistic chance of being shared by their parties. Whilst agreement on the composition of the Lords was expressed at the Conference, it is too much to state that the Conference produced this consensus. Two of the eight meetings of the Party Leaders’ Conference discussed composition, but the agreed points that arose from the Conference were, as Table 3-1 shows, almost all laid down at the First Preliminary Meeting. These points did not, in any significant way, evolve during the discussions at that meeting – a broad-based elite consensus on these issues pre-dated the Conference, rather than being the product of the Conference. It was always likely that the full participation of all hereditary peers as members of the House of Lords would not survive the next stage of reform. Salisbury and his father had repeatedly attempted to reform the hereditary principle, and Labour had never been enthusiasts for heredity. Moreover, election was not a principle for composition of the upper House that either party leadership was 81  Its members were as follows. Government: Clement Attlee MP (Prime Minister), Herbert Morrison MP (Lord President of the Council), Viscount Addison (Lord Privy Seal), Viscount Jowitt (Lord Chancellor) and William Whiteley MP (Chief Whip, meetings 3–8). Opposition: the Marquess of Salisbury, Viscount Swinton, Sir David Maxwell Fyfe and Oliver Stanley MP (meeting 5 only). Liberals: Clement Davies MP and Viscount Samuel. At its third preliminary meeting (2 March 1948), the Conference discussed claims to representation from Lord Selkirk (on behalf of the Scottish Representative Peers) and Lord Teviot (on behalf of the Liberal National Party). The Conference reached no final conclusion on these requests (Second Meeting, 25 February 1948). 82   This is the phrase of Donald Shell, The House of Lords 2nd edn (Hemel Hempstead, Harvester Wheatsheaf, 1992), 14. 83   Parliament Bill, 1947: Agreed Statement on Conclusion of Conference of Party Leaders, February– April 1948, Cmd 7380.

Admission to SC should be on merit: hereditary right to attend and vote no longer sole qualification Hereditary peers who are meritorious should be eligible to sit as LPs Hereditary peers not in SC should be entitled to stand for the House of Commons (HC) Power to create life peers on grounds of personal distinction of public service to sit as LPs Power to create life peeresses on grounds of personal distinction of public service to sit as LPs Hereditary peeresses in own right should sit, but only if qualified on same basis as hereditary peers Desirable for membership of SC to be open to suitable people of limited means No agreement on reasonable salary Impracticable to impose an age limit

In principle, no one party should be assured a permanent majorityb

Hereditary peers

Party predominance Cross-benchers

[no reference]

‘Some consideration’ was given to disqualification of a member who was no longer capable ‘To secure as far as practicable’ no permanent majority

Some remuneration would be payable so as not to exclude people of limited means

Suitably qualified commoners could be created life peers and sit as LPs Women should be capable of being appointed LPs on the same criteria as men

Final agreed statement Second Chamber should be complementary to, not a rival to, lower House Revising chamber Members of the SC should be styled ‘Lords of Parliament’ (LPs) Hereditary should not be a sufficient qualification for membership of the second chamber Suitably qualified hereditary peers could be appointed LPs Hereditary peers not in SC should be entitled to stand for HC

Sources: House of Lords Reform: Parliament Bill. Party Leaders’ Conference. Minutes of the First Preliminary Meeting, 19 February 1948; Parliament Bill, 1947: Agreed Statement on Conclusion of Conference of Party Leaders February-April, 1948, Cmd 7380, May 1948.

a

  The Government proposed that the powers of the second chamber should not exceed those outlined in the Parliament Act 1911, coupled with the Parliament Bill 1947. The Conservatives ‘indicated that they would prefer not to commit themselves to the extent, if any, to which the powers should exceed those which were to be left to the Second Chamber under the present Bill . . . Neither the Conservative nor the Liberal representatives desired any larger powers than those left to the House under the Parliament Act, 1911, merely because it was now proposed to render the House more efficient’. b   ‘Although this proposal was agreed in principle, Lord Salisbury thought that there might be practical difficulties unless some form of election was instituted, a proposal which none of the Parties desire’ (Minutes of First Preliminary Meeting)

Age limit

Remuneration

Women

Preserve, if possible

Revising chamber rather than a constituent body Members of the SC should be styled ‘Lords of Parliament’ (LPs)

Role Title

Life peers

First preliminary meeting Second Chamber should be complementary to, not a rival of, lower Housea

Topic Powers

Table 3-1: Party Leaders’ Conference: points of agreement

The Party Leaders’ Conference 1948  65

66  The Parliament Act 1949 willing to embrace. Nevertheless, despite the convergence of the party leaderships’ views on composition, and Attlee’s later claim that the Conference ‘reached substantial agreement as to the composition of a reformed House’,84 it was denied by the Conservative negotiators that anything had, in fact, been agreed. Eden noted during the negotiations that ‘there had never been any formal agreement on any specific proposals as regards composition’. Powers and composition ‘being interdependent and no general agreement having been reached, the true conclusion was very far from having agreed on any points relating to composition’.85 And Salisbury later recalled that: [B]efore any agreement had been reached, the Labour Government switched the discussions over to Powers, and the talks totally broke down . . . I think that we should not accept what appears to be a general assumption that agreement was reached on composition in the 1947 [sic] talks, or we shall be asked later why we now adopt a different plan, as we are likely to do.86

Views on composition had not shifted and, in any case, the discussions were ad referendum the parties, and no binding agreement was ever intended to be reached between the Conference participants. Compromise on the issue of the powers of the House of Lords was always unlikely. Each party supported what it saw as the status quo, but the Government viewed the status quo as the Parliament Bill 1947; the Opposition, although having abandoned a desire to have the pre-1911 powers returned to the Lords, saw the Parliament Act 1911 as the status quo. The headline disagreement was only a matter of three months’ delay, but the real gap was one of constitutional theory: ‘there appeared’, as Salisbury noted at the time, ‘an unbridgeable gap between them [the parties] which was not related merely to a difference of three months on the period of delay’.87 The discussions had ‘shown that the real issue between the Parties was not, as might first appear, their differing views about the period of delay but a fundamental difference of view regarding the purposes for which the period of delay should be granted and used’.88 As WH Morris-Jones observed at the time, this ‘gap in constitutional theory which is not so easily bridged’89 overcame the apparently minimal difference between the parties. The Conservatives echoed the ‘referendal theory’ of the 3rd Marquess of Salisbury,90 anxious that the period of delay ‘should be sufficiently long to enable   CR Attlee, As It Happened (London, Heinemann, 1954) 168.   TNA CAB 130/37. Party Leaders’ Conference (hereinafter PLC), Sixth Meeting, 20 April 1948. 86   TNA CAB 124/1123 Salisbury to Rab Butler, 3 November 1953. Reiterated in C(53)114, 23 March 1953, and in TNA CAB 124/1129 Salisbury to Balfour of Burleigh, 16 January 1957. 87   TNA CAB 130/37. PLC, Fifth Meeting, 18 March 1948. 88   CM 28(48)5, 15 April 1948. 89   WH Morris Jones, ‘Parliament Bill, 1947: Agreed Statement on Conclusion of Conference of Party Leaders, February–April, 1948. (Cmd. 7380)’ (1948) 11 MLR 332, 333. 90   See, for example, Peter Marsh, ‘Salisbury’s Definition of the Powers of the Lords’ in Richard W Davis (ed), Leaders in the Lords 1765–1902 (Edinburgh, Edinburgh University Press, 2003), 91–99; Corrine Comstock Weston, The House of Lords and Ideological Politics: Lord Salisbury’s Referendal Theory and the Conservative Party 1846–1922 (Philadelphia, American Philosophical Society, 1995). 84 85

The Party Leaders’ Conference 1948  67 public opinion to crystallise on the issues in a dispute between the two Houses’.91 The records of the Conference record Salisbury telling his fellow delegates, in an echo of the views of Conservative peers of the nineteenth century, that: ‘Conservatives did not accept the view that the House of Commons inevitably represents public opinion . . . in any event there are moments of time when the state of public opinion is uncertain.’92 Salisbury told Churchill that: ‘The gap between us does not in itself seem large, but the real truth is that the two sides are divided by a very definite matter of principle. We believe in some suspensory veto by the Second Chamber, the Government don’t. We have gone as far as we can to meet them. We cannot go any further without sacrificing our principle.’93 The Labour Government, on the other hand, ‘could not agree in any event that the House of Lords was a better judge of public opinion than the House of Commons’.94 Labour, and Attlee in particular, ‘did not believe that any Second Chamber should have the power to cause the fall of a Government’.95 At the Fifth Meeting of the Party Leaders’ Conference, Attlee summed up the fundamental differences between the parties: The Government conception of a reformed House of Lords has been as a revising Chamber . . . in cases of dispute, however, the will of the Lower House would prevail. The Conservative conception of the House of Lords, on the other hand, appeared to be a Chamber which, after disagreeing with the Lower House, might be in a position to force a General Election, against the will of the Government and of the Lower House . . . Conservatives would make it [the House of Lords] sufficiently strong to be able to thwart the Government of the day.96

Salisbury, however, maintained that, on the Conservative Party view, ‘the purpose of the power of delay was not to enable the will of the Government of the day to be thwarted by the Upper House, but to prevent an extreme Government, either of the Right or the Left, from acting before the people had had a proper opportunity of considering a point of difference which had arisen between the two Houses’.97 Both Labour and the Conservatives had gone as far towards the other as they dared, but even then it was, as Salisbury later recalled, ‘like two bits of elastic stretched out as far as possible to meet each other but which yet left a gap; and neither could go any further’.98 The inter-party talks had foundered, as Morrison had foreseen, on the period of delay, because of entrenched and distant initial bargaining positions.99   TNA CAB 130/37. PLC, Note by the Cabinet Secretary.   TNA CAB 130/37. PLC, Third Meeting, 3 March 1948 (Salisbury). 93   Churchill Archives Centre, CHUR 2/66. Salisbury to Churchill, 22 March 1948. Salisbury had written to Churchill the previous year explaining that he had been personally predisposed to fighting the Government’s Bill on the grounds of a fear of single-chamber government and the peers’ proven sensibleness: Churchill Archives Centre, CHUR 2/66, Salisbury to Churchill, 26 October 1947. 94   TNA CAB 130/37. PLC, Third Meeting, 3 March 1948. 95   TNA CAB 130/37. PLC, Third Meeting, 3 March 1948. 96   TNA CAB 130/37. PLC, Fifth Meeting, 18 March 1948. 97   TNA CAB 130/37. PLC, Third Meeting, 3 March 1948 (Salisbury). 98   TNA CAB 124/1129. Salisbury to Balfour of Burleigh, 16 January 1957. 99   See Bodleian Libraries, MS Addison, Box 18, Morrison to Addison, 2 February 1948; Addison to Mackenzie King, 9 April 1948. 91 92

68  The Parliament Act 1949 The difference between the parties, though one of principle, was not just one of constitutional theory: it was also based on practical politics about the delaying power of the Lords under the Parliament Bill. An extension from 12 months’ delay to 18 months’ delay ‘would have to be resisted, since it would make it more difficult to pass controversial legislation under the Parliament Bill in the present Parliament’. An extension to 15 months’ delay from Second Reading was subject to similar objections from the Government.100 Lord Samuel sought a compromise on the period of delay. On 2 March, he proposed that either: (a) the proposed delay of 12 months from the first Second Reading in the Commons should be extended to be 12 months from the first Third Reading in the Commons; or (b) that the Bill should be amended according to the formula ‘twelve months from second reading or nine months from third reading, whichever is the longer’. The effect of (a) on a substantial bill, which would take up to six months to pass through the Commons, would be to extend the de facto delaying power from 12 to 18 months, and it would have prevented the presentation of the Iron and Steel Bill until 12 May 1950. The proposals under (b) would delay a substantial bill by several months, but would not mean any delay for other measures: it would mean that the Iron and Steel Bill could not have been presented for the Royal Assent until 12 February 1950.101 Moreover, to set the delaying period from the Third Reading in the Commons would encourage Opposition MPs to delay the passage of the Bill, knowing that because a bill under the Parliament Act procedure could not include Lords’ amendments, the Government would be unwilling to resort to a Guillotine in their quest for a nearperfect bill leaving the Commons.102 But despite possible delays to the Iron and Steel Bill, Attlee had been minded to accept Samuel’s proposals under (b), if the Conservatives would agree to them, in order to secure the advantages of easing the management of parliamentary business in the remainder of the 1947–48 Session, of passing the Parliament Bill as an agreed measure and of guarding against a future Conservative government altering the delaying period.103 Subject to the problems of getting the PLP to accept an apparent concession, adopting (b) ‘would be a small price to pay’ for the resulting benefits.104 It was only ‘with reluctance’, despite the advantages, that the Cabinet agreed to this formula, and once it was rejected by the Conservatives at the Party Leaders’ Conference, there was no prospect that the Cabinet would agree to further concessions on powers. Attlee decided not to raise the matter again.105

  TNA PREM 8/1059. ‘Parliament Bill: Period of Delay’ (undated, but early 1948).   TNA PREM 8/1059. GEN 222/6, House of Lords Reform: Parliament Bill, Period of Delay, Note by the Secretary (GP Coldstream) to Ministers, 5 March 1948. 102   TNA PREM 8/1059. ‘Parliament Bill: Period of Delay’ (undated, but early 1948). 103   CP(49)79, Cabinet: Parliament Bill, Memorandum by the Prime Minister, 9 March 1948. 104   TNA PREM 8/1059. Norman Brook to Prime Minister, 5 March 1948. 105   TNA PREM 8/1059. 17 March 1948. 100 101

The Parliament Bill Resumed  69 Party Divisions and Backbench Opinion Even if there had been a possibility of reaching an agreed position on powers through the Party Leaders’ Conference, the implementation of an agreed solution to House of Lords reform would have remained difficult, for the party leaders were negotiating ad referendum their respective parties. Attlee admitted that the Labour leadership ‘had no mandate to come to a decision, but we were prepared to recommended the acceptance of the scheme, provided that we could be satisfied as to the powers to be entrusted to the reformed House’.106 Morrison recalled that: ‘There was not universal agreement with the proposals in the Parliamentary Labour Party, but the need for decision never arose.’107 Further, Morrison claimed that if the need for decision had arisen, ‘the Government would have got our proposals through at that time, for most of us were convinced that an agreed settlement of the constitutional future of the House of Lords would be worthwhile’,108 but it is not clear from Addison’s comments to Salisbury about switching debate onto difficult ground whether Morrison’s claim is quite made out. Moreover, the ability of Salisbury to carry his backbenchers in the House of Lords was no more certain than the Cabinet’s prospects for carrying the PLP; however, the attitudes of the Conservative peers mattered less than opposition from the Government backbenches in the House of Commons. Regardless of any elite consensus on the composition of the House that was reached, it thus seems that reform was always doomed because of the decisional constraint of the need to gain wider support from the parliamentary parties. The Party Leaders’ Conference on the Parliament Bill 1947 thus achieved little. The Government were resolute from the outset that the Parliament Bill was nonnegotiable and had no incentive to give ground to the Opposition, which would inevitably have distanced the Government from its own backbenchers. Labour’s best interests were vested in the failure of the Party Leaders’ Conference, for which it had never been enthusiastic.

THE PARLIAMENT BILL RESUMED

The Party Leaders’ Conference, which began in February 1948, was abandoned in May after just eight meetings and having agreed its report.109 The Second Reading of the Parliament Bill resumed in the House of Lords on 8 June. Addison thought that the Conservative peers were likely to urge outright rejection (which would, at some stage, be necessary in order to invoke the Parliament Act 1911’s procedures, and in any case had been one of the promises of entering inter-party negotiations),   Attlee (n 84) 168.   Morrison (n 23) 190. 108   Morrison (n 23) 190. 109   Cmd 7380. 106 107

70  The Parliament Act 1949 although there was a substantial cross-bench opinion in favour of giving the Bill a Second Reading and then amending the Bill at the Committee Stage.110 Some amendments were put forward, in late 1948 and early 1949, which would enable peeresses to sit in the House of Lords: these were not pursued, but would in any case have been out of order.111 There were several problems inherent in extending the scope of the Bill beyond the Government’s proposal to limit the delaying power of the upper House. First, these amendments would prevent the Bill from being carried in the 1948–49 Parliament, as further consideration by the Commons would be required. Second, the Government felt that it must avoid giving any support, however tacit, to the extant hereditary composition of the House of Lords, and Cabinet was resolute that the Government ‘must avoid committing themselves to finding some alternative basis for the constitution of a Second Chamber’.112 Third, whilst opposing the extension of the hereditary membership of the House of Lords, the Government did not wish to appear to be opposing the principle of sex equality. It therefore advised its peers to vote against the motion to confer membership of the House of Lords on peeresses in their own right in order to avoid tacit acceptance of the hereditary principle. Whilst the motion for peeresses in their own right to be admitted to membership of the House was carried in the Lords on 27 July 1949 by 45 to 27, against the wishes of the Government, the debate surrounding the amendment had been ‘confused’ and it was thought that consequent political embarrassment for the Government was unlikely.113 Earlier, in November 1948, the Government had resisted proposals for a conference on the disqualification of peeresses on the grounds that it would be difficult to confine any membership question to the narrow issue in hand.114 The House of Lords debated the Second Reading of the Parliament Bill for a third time on 29 November 1949.115 The Conservative leadership had decided to advise its peers to vote against the third Second Reading of the Parliament Bill, without any reasoned amendment or any long debate. The Government welcomed this from a tactical point of view, as it would ensure, without delay, that the Parliament Act 1911 could be invoked. There was, however, some concern within the Cabinet that a refusal by the House of Lords to grant the Bill a Second Reading might not amount to a rejection. If a vote against granting a Second Reading was not a technical rejection of the Parliament Bill under the terms of the Parliament Act 1911, then the Parliament Act procedures could not, at that point, be brought into effect, and the Government might have had to adjourn Parliament   CM 35(48)5, 3 June 1948.   Sir Henry Badeley had noted in advice to Lord Salisbury back in 1947 that, if the Parliament Bill was confined to powers, any amendments dealing with composition would be out of order. HHP 5M/ Box G. Sir Henry Badeley to Salisbury, 24 October 1947. 112   CM 47(49)3, 21 July 1949. 113   A ‘confused debate’ (CM 50(49)3, 28 July 1949) on a motion by the Marquess of Reading was held in the House of Lords on 27 July 1949. 114   Parliamentary Archives LH/4/8. Lord Privy Seal to Prime Minister, 8 November 1948. 115   In order to comply with the Parliament Act 1911, the Parliament Bill could not be sent to the House of Lords for the third time before 11 November 1949. 110 111

The Iron and Steel Bill  71 in December 1949 rather than proroguing it.116 In the event, the Second Reading was defeated by 110 to 37 and it was decided that this did amount to a rejection under the Parliament Act 1911, and therefore the Bill could be presented one month later for the Royal Assent.117 While the Parliament Bill was going through the House of Lords, Viscount Samuel mooted the re-starting of discussions between the parties in the hope of securing, before the election, wider agreement on House of Lords reform. But Salisbury dismissed such discussions: ‘It is obviously far too late’, he wrote to Viscount Simon, ‘for such conversations to have any chance of success, and they would only have the result of showing a division of opinion between the Liberals and Conservatives on what is probably the only point of politics on which they at present do not agree.’118 Any hope of inter-party agreement, even between Liberals and Conservatives, had been lost.

THE IRON AND STEEL BILL

The Iron and Steel Bill, which had been introduced into the House of Commons in 1948 and received its Second Reading in the lower House in November of that year, eventually reached the House of Lords in May 1949.119 During its passage, the fears expressed by some Cabinet ministers that the Bill would run into trouble in the Lords were realised: some peers disputed the Government’s claim to have a mandate to nationalise these industries. Lord Swinton, for example, claimed that the Bill resembled neither the manifesto commitment nor the Commons resolution on nationalisation passed in 1946.120 Lord Salisbury aired the argument that the Government, despite its landslide majority of seats, had received slightly fewer votes at that election than the Liberal and Conservative Parties combined: ‘there was a majority against the Government. It was a very small majority, but it was certainly not a majority in favour of a Bill of this kind’.121 Salisbury argued that the proposals for nationalisation had expanded in scope, with the Iron and Steel Bill 116   CM 68(49)2, 24 November 1949. If the House of Lords did not vote down the Bill, it could not have been deemed to have been rejected by that House until the end of the Session. 117   CM 69(49)2, 1 December 1949. There had been much speculation that the Government would call an election in autumn 1949. The Parliament Bill could not become law (unless the Lords passed it) before November 1949 (two years from its first Second Reading in the House of Commons). However, if the Parliament Bill was passed again by the House of Commons shortly before the dissolution of Parliament for a 1949 general election, this would fulfil the terms of the Parliament Act 1911, and the Parliament Bill could come into force early in the new Parliament. Moreover, if the Parliament Bill were to be placed on the Statute Book at the start of a new Parliament, it would not be possible to pass the Iron and Steel Bill before a 1949 general election. TNA PREM 8/1059. Alan Ellis (Parliamentary Counsel) to A Johnston (Cabinet Office), 18 July 1949. 118   Bodleian Libraries, MS Simon 98, fol 83. Salisbury to Simon, 16 November 1949. 119   On the detail of the passage of the Iron and Steel Bill through the House of Commons, see AH Hanson and H Victor Wiseman, Parliament at Work: A Casebook of Parliamentary Procedure (London, Stevens & Stevens, 1962) 121–80. On the politics of the Iron and Steel Bill, see GW Ross, The Nationalization of Steel (London, Macgibbon & Kee, 1965) 60–119. 120   HL Deb, 24 May 1949, vol 162, c 994. 121   HL Deb, 29 June 1949, vol 163, c 552.

72  The Parliament Act 1949 being more invasive than had been envisaged in 1945: ‘Even if, therefore, the Government could claim a mandate for this measure at the time of the General Election – and I think that is not borne out by the figures – I should have thought it inconceivable that they should say that they are confident that they have a mandate now.’122 Addison opposed Salisbury’s sentiment completely.123 Despite Addison’s protestations that the Government would not admit of delay by the upper House, the Lords did not give way on the question of the vesting date for iron and steel nationalisation. Salisbury insisted on his amendment that iron and steel nationalisation should not come into effect until after the 1950 general election. George Strauss, MP, the Minister of Supply, explained away the delay of the vesting date when he told the House of Commons in November 1949 that to appoint a corporation of sufficient calibre on the eve of a general election would be impossible.124 Given their earlier statements on obstruction by the upper House, the Government’s acceptance of the Lords’ amendment on the vesting date, in the words of Morgan and Morgan, therefore ‘represented a notable victory for the Tory peers’.125 The Conservative Opposition in the Lords had achieved the delay of the nationalisation of iron and steel beyond the general election – an achievement reminiscent of the ‘referendal theory’ of the 3rd Marquess of Salisbury – without using its formal delaying powers. Although iron and steel nationalisation was delayed, Attlee’s recollection that ‘It was, however, clear that the Iron and Steel Bill would not get through the Lords without the use of the Parliament Bill’126 is not borne out by the evidence from the period. Not only was the Parliament Bill not invoked to ensure the passage of the Iron and Steel Bill, but its use would neither have speeded up its passage nor aided other pieces of legislation, because this would have soured relationships in the House of Lords. It is true that, by 1949, Conservative peers were expressing opposition to the Iron and Steel Bill and that the passage of the Parliament Bill in late 1949 greatly diminished the ability of the Lords to hold up the nationalisation, but the weakening mandate was foreshadowed by Salisbury as early as 1945, and the looming election excited anti-Government sentiment. Had Labour not prevaricated in bringing forward the Iron and Steel Bill, and had internal Government tensions on the Bill not given the Opposition an opportunity to gain leverage on the Bill, its passage would have been easier. The Parliament Act 1949 might have emboldened the Government in its pursuance of iron and steel nationalisation, but the Act was by no means necessary to ensure the passage of the Bill which inspired its drafting.

  HL Deb, 29 June 1949, vol 163, c 552.   HL Deb, 29 June 1949, vol 163, c 556. 124   Burn (n 46) 311. 125   Morgan and Morgan (n 53) 265. 126   Attlee (n 84) 167. 122 123

Conclusion  73

CONCLUSION

Labour entered government in 1945 with widespread popular support and a landslide majority in the House of Commons. The new Cabinet chose to invest its energies in building the welfare state, nationalisation and post-War reconstruction. The calls for the reform or abolition of the upper House, so often heard in the preceding 45 years of Labour’s history, went largely unsaid. Putting right the machinery of government hardly registered on the Cabinet’s agenda, except insofar as the Lords might threaten the implementation of the other policy objectives. By not taking the initiative to formulate plans for Lords reform early in the 1945–50 Parliament, the Labour Government put almost out of reach comprehensive reform of the composition and powers of the House of Lords for the remainder of that Parliament, but in any case, its backbench MPs would not have tolerated reform of the House of Lords. Whilst the House of Lords was compliant and whilst the threat of two years’ delay was unproblematic, the Government had no pressing need to reform the House. It felt no need to plan ahead to alleviate the problem of delay in the final Sessions.127 When an attempt at veto limitation, rather than full reform of the House of Lords, did come forward, it was valued as a short-term measure to overcome the problems caused by divisions within the Cabinet and not for its utility in reforming Parliament. The Lords had not sought to destroy the Government’s legislative programme, and it was fear that it might act in the final sessions in the face of Cabinet divisions, rather than actual obstruction, that caused the Cabinet to act on veto limitation. It is therefore not tenable to say, as Professor Judge does, that ‘The circumstances surrounding the introduction of the 1949 Act mirrored those of 1911’:128 the circumstances which led to legislation in 1909–11 and 1947–49 could hardly have been more different. The Party Leaders’ Conference was constrained from the start by the nonnegotiability of the Parliament Bill 1947 and was further hampered by the unbridgeable gap between the conceptions of the role and functions of the second chamber, and little consensus existed, even at the elite level. ‘In these circumstances, it seemed inevitable that the Party Leaders’ Conference should be broken off.’129 The Conference failed to move the parties from their initial negotiating positions, and thus achieved no real agreement. The House of Lords therefore remained substantively unreformed, its formal powers tweaked and realigned with the long-term trend towards the dominance of the elected Chamber; the upper House’s practical force, despite the fears of the effect of giving the Lords a ‘useable’ one-year delay, was unaltered. Its composition was untouched.

127   Importantly, the Parliament Bill was drafted to be retroactive, thus applying to proposals which had already been introduced to Parliament. 128   David Judge, Political Institutions in the United Kingdom (Oxford, Oxford University Press, 2005) 67. 129   CM 28(48)5, 16 April 1948.

4 Diluting the Hereditary Principle?: The Life Peerages Act 1958 There is now a general agreement that the House of Lords never did a more foolish thing than when, in 1856, it refused to allow Lord Wensleydale, who had been created a Life Peer by the Crown, to sit and vote in Parliament. JAR Marriott, 19371 For one thing – and this is what has undoubtedly modified the attitudes of all but the most extreme diehards in the House itself – it is becoming increasingly clear, with every year that passes, that, without reform, the House will, within a measurable time, for financial and other reasons, die on its feet. It is very feeble now . . . But we shall have to force the Bill through against the opposition of Labour, just as they had to force their Bill through against our opposition in 1948. Marquess of Salisbury, 19562

T

HE ATTLEE GOVERNMENTS had curtailed the delaying power of the House of Lords, but had done nothing to alter its composition, despite the apparent convergence of views which the Party Leaders’ Conference of 1948 had illustrated. Conservative leaders had been keen to limit the problem of backwoods peers whilst retaining a hereditary element of the temporal membership of the Lords, and to re-invigorate the House with the introduction of peers for life. The key driver for Salisbury, and fellow Conservative Party supporters of House of Lords reform, at the start of the 1950s was concern that the House of Lords, because of its hereditary basis, which is seen as anomalous in the present day,3 would be ineffective in providing a check on the House of Commons, should the need arise. As Sir Charles Hendricks, Salisbury’s Private Secretary, noted in 1   Letter in The Times (12 March 1937). Marriott mooted in his letter that the present Committee of Privileges might be able to undo the decision of 1856. In a reply, Algernon Law (Assistant UnderSecretary of State for Foreign Affairs, 1914–16) dismissed the notion that it was possible for the House of Lords to reverse the decision taken by the Committee for Privileges in the Wensleydale Peerage Case, writing that: ‘The case of Sir James Parke showed the thin end of a new wedge. It was a try-on. The proper method of approach was by legislation, as was suggested at the time. From this legitimate course the Whigs shrank’: The Times (15 March 1937). 2   TNA FO 1109/350. Memorandum by Salisbury, March 1956. 3   HHP 5M/Box F. Article on the House of Lords, sent by Lord Salisbury to Eric Underwood, 3 April 1951.

76  The Life Peerages Act 1958 1954: ‘We seek to restore authority to the Second Chamber so that, in the event of the House finding it necessary to take a stand against the popularly elected Chamber upon some major political issue, its view shall command attention and impost restraint.’4 Two issues arose out of these concerns: the need to limit – and rationalise – the hereditary membership of the House of Lords and the desire to revivify the House through the introduction of new, life, members. As discussions continued throughout the 1950s, the need to bolster the authority of the House became ever more pressing, lest it die of atrophy. The Conservatives came to power in 1951 with a manifesto commitment to ‘call an all-Party conference to consider proposals for the reform of the House of Lords’.5 Lords reform was, nevertheless, slow out of the starting blocks: it was only in 1953 that the Labour Party was approached with the prospect of negotiations – an offer which Labour rejected. In their 1955 manifesto, the Conservatives again foreshadowed Lords reform, pledging that: It has long been the Conservative wish to reach a settlement regarding the reform of the House of Lords, so that it may continue to play its proper role as a Second Chamber under the Constitution. The Labour Party’s refusal to take part in the conversations we have proposed on this subject must not be assumed to have postponed reform indefinitely . . . We believe that any changes made now should be concerned solely with the composition of the House.6

In this context, to ‘postpone reform’ meant to cease the search for a thoroughgoing and sustainable solution to the problem of the upper House. Any thought of reforming the formal powers of the upper House – and reversing the Parliament Act 1949 – had been set aside by the Government, but it would be two years more before the Cabinet finally settled on a short bill to reverse the decision of a century about the inadmissibility of life peers, rather than a more comprehensive reform of the composition of the House of Lords. One reason for preferring reform of composition over an increase in de jure powers was a knowledge amongst Conservatives that increased powers would inevitably attract the attention of a future Labour administration, although to reform the constitution would, as the Cabinet later realised, inevitably enhance the de facto powers of the House. This chapter explores the attitudes of the Churchill, Eden and Macmillan Governments to House of Lords reform in the period 1951–58, and explains the incentives for reform which induced the Governments to act and why more comprehensive reform was jettisoned in favour of the introduction of life peers alone.

4  Parliamentary Archives HL/LH/4/16. Sir Charles Hendricks to Lord Salisbury, 17 June 1954. Hendricks was Private Secretary to Salisbury when the latter was Leader of the House of Lords. 5   Conservative Party, The Manifesto of the Conservative and Unionist Party (1951). FWS Craig, British General Election Manifestos 1900–1974 (London, Macmillan, 1975) 172. 6   Conservative Party, United for Peace and Progress: The Conservative and Unionist Party’s Policy (1955). Craig (n 5) 202.

Life Peers  77

LIFE PEERS

Originally membership of the House of Lords was not hereditary. It was not even for life. Over the centuries, the writ of summons, and thereby the membership of the peerage in the House of Lords, developed to rest on an entirely hereditary basis.7 The exceptions to the hereditary membership of the Lords in the midnineteenth century were the Lords Spiritual and the representative peers from Scotland and Ireland. Bishops sat only for the duration of tenure of their office: they were not peers because they were not ‘enobled in the blood’, nor were they Lords of Parliament with a right to sit and vote for their own lifetimes. When the Government attempted to create life peerages for judicial members of the House in 1856, the peers fought hard against a breach in the hereditary principle, and judicial members were not admitted until 1876 (for their tenure of office) and then in 1887 (for their lifetimes). Backbench attempts after 1856 to introduce life peerages were unsuccessful.8 The House of Lords before the introduction of the Life Peerages Act 1958 was not, however, so reliant on ancient heredity as might be perceived. In 1953, a quarter (202) of the members of the House of Lords sat because of peerages created since the end of Baldwin’s Government in the late 1920s, and 103 of these peerages had been created since 1939.9 It was, however, becoming increasingly difficult to persuade people who would be active in the work of the upper House – particularly on behalf of the Labour Party – to accept hereditary peerages, sometimes because of a revulsion to the idea of hereditary governance or (in earlier times) the expense that would be involved in maintaining the dignity of a peer, or, on all sides of politics, through a desire not to hamper their sons’ political careers.

INTER-PARTY DISCUSSIONS

The Conservatives, in Opposition, had been the principal party in favour of interparty negotiations on Lords reform. Now in Government, they once more committed themselves to seeking reform through negotiation. The Conservatives had fought the 1951 general election with a pledge to calling an inter-party conference 7   Luke Owen Pike, Constitutional History of the House of Lords (London, Macmillan & Co, 1894) 99. Since the hereditary summons took hold, 29 life peerages were conferred suo jure between 1377 and 1855, although only one of these (the Earldom of Huntingdon) was granted to a man (countesses could not sit in the House) who was not a hereditary peer, an heir to a peerage or a royal prince. 8   For a discussion of the coming of judicial life peers in the nineteenth century, see the Introduction to this book. 9   TNA CAB 21/3721. Paper to Cabinet Committee, House of Lords Reform: Suggestion for Two Bills. Memorandum by the Lord Chancellor (Lord Woolton), May 1953. Ramsay MacDonald had recommended for creation 11 Labour peers whilst Prime Minister. Bogdanor notes that, by 1997, 147 extant hereditary peerages had been created before 1832, 120 between 1832 and 1918, and 500 since 1918. See Vernon Bogdanor, Power and the People: A Guide to Constitutional Reform (London, Victor Gollancz, 1997) 118.

78  The Life Peerages Act 1958 on House of Lords reform. However, within a year of that election, the Cabinet had come to the conclusion ‘that the prospects of finding any basis of agreement with the Opposition on this question were so slender that it would unwise to arouse expectations by referring to it in the Queen’s Speech’.10 Whilst the absence of Lords reform from the Queen’s Speech would not preclude action in the 1952– 53 Session, the Government seemed unenthusiastic about reform in general and was in any case pessimistic about the outcome of any negotiations. Although the Government did not move quickly to establish inter-party discussions on Lords reform and thought that such discussions would not yield consensus, it nevertheless used the prospect of forthcoming negotiations as a reason to foreclose on other attempts at reform. When Viscount Simon, a former Lord Chancellor, brought forward his Life Peers Bill at the end of 1952, Salisbury told Simon that the Government could not give any encouragement to his Bill since it had made plain its intention to convene an all-party conference on House of Lords reform, ‘and they could not prejudice the results of this conference by supporting any limited measure of reform which might be proposed in the meantime’.11 Whereas the Attlee Government of 1945–50 had put forward legislation in advance of a conference on House of Lords reform and insisted before the 1948 Party Leaders’ Conference was convened that the terms of the 1947 Parliament Bill were not negotiable, the Conservative Cabinet declined to follow this precedent. Simon was, he told Salisbury, ‘most unwilling to press my Life Peers Bill when I understand that you feel that its passage might adversely affect the prospects of the [three party] conference [on Lords reform]’.12 It was indeed likely that Simon’s Bill would prejudice not the results of an inter-party negotiation, but rather the very likelihood of any conference taking place at all. Lords Jowitt and Shepherd, two senior Labour peers, thought that progress on Simon’s Bill would make it more difficult to bring Labour into an inter-party conference on Lords reform, and Jowitt moved to put down a motion to reject Simon’s Bill. Labour was, in any case, keen to postpone the starting date of the conference, preferring it to take place near to the end of the 1951–55 Parliament. This was not acceptable to the Conservative leadership, not least as it would then become near-impossible to legislate for any agreed measures until the following Parliament. Lord Salisbury, Leader of the House of Lords, and Viscount Swinton, Deputy Leader of the House of Lords, therefore agreed ‘that the idea of a long postponement is most undesirable and inconsistent with our pledges and plans’.13 The question was therefore how to prevent Simon’s Bill impeding inter-party negotiations, since an inter-party conference remained on the Government’s agenda as the first formal step in the Lords reform process. Simon had suggested to Salisbury in December 1952 that he (Simon) might table a question on an   CC 88(52)2, 22 October 1952.   CC 108(52)5, 30 December 1952. 12   Bodleian Libraries, MS Simon 101/89. Simon to Salisbury, 22 December 1952 (emphasis in original). 13   Parliamentary Archives LH/4/12. Swinton to Prime Minister, 2 February 1953, Serial No 4/53. 10 11

Inter-Party Discussions  79 inter-party conference at the Second Reading of his Life Peers Bill, and that if he was satisfied that the Government would convene a conference, then he would withdraw his Bill.14 Salisbury told his colleagues that he was anxious to proceed with such a conference, ‘but was not willing to do so under a threat of this kind’.15 The threat did, however, have some effect. The prospect of negotiations was used to forestall Simon’s Bill, but Simon’s proposals nonetheless acted as a spur to the convening of the inter-party conference. In a letter to Simon just a few days after his refusal to bow to Simon’s pressure for a conference, Salisbury conceded that it was difficult for the Government to oppose the Bill without having announced the conference.16 In January 1953, with Simon’s Bill before Parliament, the Government therefore made an offer to the Labour Party to join in talks on House of Lords reform. Swinton sought to adjourn the Second Reading of Simon’s Bill indefinitely.17 Whether Simon’s Bill fell because of Labour Party objections or a Conservative-led adjournment, Swinton’s object was clear: ‘Either way’, he told the Prime Minister (Churchill), ‘this tiresome Bill will be scotched.’18 Though committed to a conference taking place, ministers had not been confident that such a conference would prove to be productive. Salisbury had told his colleagues at the end of December 1952 that he could not guarantee that the results of any consultation would be available by mid-summer 1953, ‘and in fact had no expectation that the three Parties would find any common ground of agreement’.19 The questions of the starting dates and reporting deadlines of the conference, which had concerned the Cabinet, were, in the end, of no moment. The Government’s offer of a conference on the House of Lords question was rejected: in February 1953, the PLP voted by 58 votes to 51 not to cooperate with the Government on reform.20 Opposition within the PLP was already known – in November 1952, over 100 Labour MPs signed a Commons motion disassociating themselves from proposals for such a conference21 – but, as Tony Benn recalled a few years later, the decision was a close one and ‘It might have easily have gone the other way’.22 Attlee replied to Churchill’s letter of invitation, telling the Prime Minister that: ‘In view of the fact that the previous discussions in 1948 on this subject revealed a fundamental cleavage of opinion between Labour and the Conservative parties . . . we have come to the conclusion that no useful purpose would be served by our entering into such a discussion.’23 Salisbury noted this in a Cabinet memorandum of 23 March 1953, telling his colleagues that:   CC 108(52)5, 30 December 1952.   CC 108(52)5, 30 December 1952. 16   Parliamentary Archives HL/4/10. Letter to Viscount Simon (copy), 2 January 1953. 17   CC 5(53)3, 27 January 1953. 18   Parliamentary Archives LH/4/12. Swinton to Prime Minister, 2 February 1953, Serial No 4/53. 19   CC 108(52)5, 30 December 1952. 20   Martin Lindsay MP, ‘Reforming the Lords’, Sunday Times (22 February 1953). 21   HC Deb, 13 November 1952. Referred to in CAB 21/3721. 22   MSS Nuffield OHP, IV, 38. 23   Attlee to Churchill, 18 February 1953. Reproduced in Herbert Morrison, Government and Parliament: A Survey from the Inside 2nd edn (Oxford, Oxford University Press, 1959) 191. 14 15

80  The Life Peerages Act 1958 The Labour Party have refused our invitation to take part in conversations on the reform of the House of Lords. This is not surprising . . . the rank and file of the party no doubt prefer the House of Lords in its present impotent yet vulnerable state. We need not break our hearts over their refusal.24

Later in 1953, George Christ, a strategist at Conservative Central Office, wrote that: ‘Mr. Attlee’s rejection of the offer of inter-party talks leaves us with the initiative for the remainder of this Parliament. If we do not take it we cannot tell whether we shall again have such a favourable opportunity.’25 Christ echoed concerns held within the Conservative Party that, without the position of the House of Lords being shored up, a future left-wing government would further diminish the power of the upper House or seek wholesale abolition: reform now was necessary to counteract this possibility. The refusal of the Labour Party to join in further discussions on House of Lords reform was not surprising. Labour had, by the Parliament Act 1949, achieved its aim of preventing the House of Lords encroaching into the fourth session of a Labour government, and had no desire to participate in any activity which might lead to a strengthening of the upper House against a future Labour government. As Hugh Gaitskell later wrote in his diary, there was ‘a great disinclination [within the PLP] to think at all about the problem of the Second Chamber’.26 Gaitskell later told The Observer that the Labour leadership was ‘suspicious of reform projects coming from the Conservatives lest these might involve, directly or indirectly, increasing the powers of the Second Chamber’. Reform of the composition of the House, Labour feared, ‘might be only the first move’ towards reinforcing the power of the second chamber.27 Labour was willing, if not to abolish the Lords, then to let it die of atrophy.28 ‘All the indications’ were that Labour’s non-cooperation on Lords reform would continue indefinitely, and extended not only to vetoing negotiations but also to declining to support any reform proposal within Parliament. After Anthony Eden became Prime Minister, his Cabinet Secretary, Sir Norman Brook, asked whether Labour’s attitude of non-cooperation would force the Government to abandon all attempts at legislating for Lords reform.29 It did not. Eden’s Government decided to formulate proposals unilaterally. It was the difficulty of finding an answer to the House of Lords question suitable to the Conservative Party itself, and not the problems of securing cross-party consensus, that impeded progress and meant that legislation was not realised until six years after Labour had declined the offer of a conference.   Lord Privy Seal (Marquess of Salisbury), C (53)114, 23 March 1953.   HHP 5M/Box F. Paper by Mr Christ, forwarded to Salisbury by Patrick Hepburn, 12 October 1953. 26   Philip M Williams (ed), The Diary of Hugh Gaitskell 1945–1956 (London, Jonathan Cape, 1983) 411. Diary entry for 9 January 1956. 27  Interview, The Observer (5 February 1956). 28   Bagehot had warned of the House of Lords in the nineteenth century: ‘Its danger is not in assassination, but atrophy; not abolition, but decline.’ Walter Bagehot, The English Constitution (London, Fontana, 1993) 151. 29   TNA CAB 21/3721. Sir Norman Brook to the Prime Minister, 4 November 1955. 24 25

Discussions, 1953–55  81

DISCUSSIONS, 1953–55

In the years following Labour’s refusal to take part in a three-party conference on House of Lords reform, the Government pressed ahead with formulating reform plans by itself, and in April 1953, a Committee of Ministers was established to investigate Lords reform.30 Given the non-cooperation of the Labour Party, no Government legislation would be uncontroversial,31 but Salisbury believed that little would have come of any conference in any case. Salisbury’s Cabinet Committee made little progress. It rejected an idea from Lord Exeter to allow peers to take leave of absence, despite acknowledging the problems of the large membership of the House, and declared that Lord Simon’s proposal for life peers was one of ‘little merit . . . which would merely have the effect of adding to the numbers of an already large House without tackling the problem of the backwoodsmen’.32 Despite rejecting proposals from outside its membership, the Committee was able to achieve little consensus on proposals from its members, which included Lord Woolton’s suggestion that reform should be dealt with in two separate bills. Salisbury himself initially favoured a system mirroring the arrangements for Scottish representative peers, whereby the hereditary peers would elect some of their number, who would sit alongside 100–150 nominated life peers appointed in proportion to votes cast in the previous general election.33 One of the key constraints at this stage was the acceptability of any proposals to existing peers: ‘It was most important to know what the House of Lords themselves would be prepared to accept. The right of a peer to sit in the House of Lords was an immemorial one, and many peers would object to its removal.’34 The House or Lords was known to favour life peerages and might accept a limitation on the numbers of hereditaries who were entitled to sit and vote in the House if those who did sit were assured of the right to vote in the proceedings of the House. Following its two meetings in mid-1953, the Committee had made few positive suggestions, except to mandate Salisbury to consult further on possibilities for Lords reform. These consultations stalled for almost two years.

30   CC 26(53)4, 26 April 1953. The Committee comprised: the Lord President (Salisbury), the Lord Chancellor (Lord Simonds), the Home Secretary (Sir David Maxwell Fyfe MP), the Chancellor of the Duchy of Lancaster (Lord Woolton), the Lord Privy Seal (HFC Crookshank MP), the Commonwealth Secretary (Viscount Swinton), the Minister of Supply (Duncan Sandys MP) and the Minister of Health (Iain Macleod MP). 31   TNA CAB 124/1123. HL Reform Cabinet Committee 1953. Note by Lord Llewellin, May 1953. 32   Parliamentary Archives LH/4/24. GEN.432/1st Meeting, Cabinet: House of Lords Reform, 8 May 1953. 33   Parliamentary Archives LH/4/24. GEN.432/2nd Meeting, 18 June 1953. 34   Parliamentary Archives LH/4/24. GEN.432/2nd Meeting, 18 June 1953.

82  The Life Peerages Act 1958 Eden Becomes Prime Minister The Ministerial Committee, under Salisbury’s chairmanship, had not met after June 1953 until it reconvened in February 1955,35 and thereafter strove to make progress. By the time that the Committee met in early 1955, only its third meeting, two important changes had occurred. First (and most importantly), the vitality of the House of Lords had declined to the point at which rejuvenation was necessary ‘fairly soon’. As Lord Woolton described the situation to Salisbury slightly later in 1955: ‘I am in full agreement with you on the general thesis that some changes are urgently necessary. I have been in the House now for 16 years and the thing I notice most is that it has lost its own sense of usefulness.’36 Second, Lord Samuel had laid a motion on Lords reform for debate on 9 March 1955, which was couched in the proposals of the 1948 statement of party leaders, and the Government was again forced from outside to consider its position on reform.37 Salisbury, who had continually disputed the supposed level of agreement actually reached in 1948 over Lords reform, preferred to react to these two stimuli by proposing a short-term measure to bolster the Lords. ‘It would therefore’, Salisbury told his ministerial colleagues, ‘be necessary to face up to the question of a surgical operation in the very near future if the patient’s life was to be saved.’38 But surgery had to wait whilst the doctors made their minds up as to the nature of this emergency operation. It had also to await a change of leadership and a general election. Shortly after Eden became Prime Minister on 6 April 1955, Salisbury urged Eden that: ‘There must be a strengthening of the Government in the Lords after the election.’39 A few months after the election, Eden instructed Salisbury ‘to get on with Reform’.40 Salisbury, the Prime Minister lamented to his Cabinet Secretary, ‘can make no progress – unless he does what can I do?’.41 The patient, the House of Lords, continued to weaken. Lord Jowitt, a prominent Labour peer, announced that he would step down at Christmas 1955, and Lord Henderson was ‘the only Labour ex-Minister capable of talking about foreign policy’.42 Brook replied to the Prime Minister, advising him that to introduce allowances or payments for peers 35  Parliamentary Archives HL/LH/4/24. GEN.432/3rd Meeting, 10 February 1955. Sandys and Simonds had left the Committee, and Maxwell Fyfe had become Lord Chancellor (as Viscount Kilmuir) in succession to Simonds; no other changes in personnel had occurred. 36   Bodleian Libraries, MS Woolton 24. Woolton to Salisbury, 22 June 1955. 37   Parliamentary Archives HL/LH/4/24. GEN.432/3rd Meeting, 10 February 1955, per Salisbury. 38   Parliamentary Archives HL/LH/4/24. GEN.432/rdd Meeting, 10 February 1955. 39   Salisbury to Eden, 13 April 1955. Quoted in DR Thorpe, Eden: The Life and Times of Anthony Eden, First Earl of Avon, 1897–1977 (London, Chatto & Windus, 2003) 435. 40   TNA CAB 21/3721. Eden to Sir Norman Brook, 1 November 1955. Eden later complained that Salisbury was becoming a nuisance, bombarding him with letters on many subjects, including House of Lords reform: Peter Catterall (ed), The Macmillan Diaries: The Cabinet Years 1950–1957 (London, Pan, 2004), 3 February 1957. Eden’s failure or refusal or reluctance to bring more peers into central positions in his Cabinet led to tensions between him and his erstwhile friend, Salisbury (private information). 41   TNA CAB 21/3721. Eden to Sir Norman Brook, 1 November 1955. 42   TNA CAB 21/3721. Woolton to the Prime Minister.

Limiting the Hereditaries: Proposals  83 would be ‘at best only a palliative. It seems unlikely that it would, by itself, revivify the House of Lords’.43 But the prospect of securing agreement on more wideranging reform, even within the Government, let alone with Conservative backbenchers or the Opposition, was looking bleak: Lord Salisbury’s Cabinet Committee on House of Lords Reform has come to a full stop. Technically, it has suspended work while Lord Salisbury takes soundings among his fellow peers. But there have been no signs of life for months past.44

Eden tried to push the issue forward by chairing a meeting on reform at Number 10.45 It was decided that there should be further consideration of reform and that Salisbury should be charged with advancing proposals ‘with a view to the possible introduction, at an early date, of legislation’.46 Salisbury consulted with the other peers in the Cabinet and with Lord Fortescue, Government Chief Whip in the Lords. The deliberations considered in parallel the two questions of composition that had been on the agenda for the preceding five years: how to limit the numbers of the existing hereditary peers in the House and how to introduce new members.

LIMITING THE HEREDITARIES: PROPOSALS

The problem of the rising membership, but declining attendance, of the House was not a new one. The House of Lords had 150 members in 1800, 567 a century later and 846 in 1955, yet attendance in the mid-1950s was low, something that was attributed to the diminished powers of the House and the need for peers to work for money outside the chamber. The non-attenders outnumbered those attending by four to one.47 For the House to be effective, it needed a modest cadre of committed members and no fear for a left-wing administration that backwoodsmen would swamp its proposals. Whilst Salisbury’s Committee was deliberating during 1955–56, two possibil­ ities for limiting the size of the House, and the risk presented by the backwoodsmen, came to the fore. First, it would be simple to draft a one-clause bill which would declare that the power of the Lords over its own proceedings extended to regulating the membership of that House and the rights of attendance of hereditary peers. This proposal would place reform of composition of the House of Lords entirely in the hands of that House itself, which was unlikely to command the support of members of the House of Commons. Moreover, the Government could not escape some involvement without indicating the grounds on which hereditary peers could be excluded, even though such involvement was thought   TNA CAB 21/3721. Brook to the Prime Minister, 4 November 1955.   TNA CAB 21/3721. Brook to the Prime Minister, 4 November 1955.   TNA CAB 21/3721. Minute of meeting under the Prime Minister’s chairmanship, 16 November 1955. 46   TNA FO 1109/350. Memorandum by Salisbury, March 1956. 47   Bodleian Libraries, MS Woolton 24(2). Salisbury to Woolton, 24 June 1955. 43 44 45

84  The Life Peerages Act 1958 to be undesirable.48 Exclusion could occur: (a) on the basis of a selection committee (as envisaged by Lord Salisbury’s extended proposals for Lords reform); (b) on the basis of frequency of attendance (though this left open the problem of the definition of attendance and ensuring the continuing membership for those whose contributions were infrequent but highly regarded); and (c) by a method which left the decision to apply for leave of absence up to the peer concerned. The second option for the Government would be to accept the Swinton Committee’s proposals that new standing orders of the House of Lords should allow for leave of absence. Peers at the beginning of each Session would receive an invitation to apply for leave of absence, and a failure to reply would be taken as an application for such leave of absence. Proposals for leave of absence were not novel: they had become the first serious proposals for Lords reform after the previous Parliament, when Lord Exeter had suggested them in April 1952. Exeter had argued that the rights of peers to attend the House had been changed over the course of centuries, most recently in 1844 when the case of O’Connell v R established the rule that lay peers ought not to vote in judicial proceedings.49 But in the early 1950s, the Lord Chancellor, Lord Simonds, argued strongly in return that as a matter of law ‘it would not be competent for the House to make a Standing Order in the terms proposed by Lord Exeter’ because the duty of a peer to attend the House of Lords could not be waived.50 Exeter had written to Swinton at the outset of the latter’s committee deliberations that when Exeter had proposed his draft standing orders in March 1952, he ‘received such a dressing-down by Lord Simonds I could not see how to continue the fight with him as Lord Chancellor . . . though I am quite sure that, in the main, his arguments were fallacious’.51 The Swinton Committee argued in its report ‘that it would not be legitimate for the House under the guise of granting leave of absence to a Peer in effect to deprive him of his right to sit, speak and vote’.52 A peer in receipt of leave of absence would be expected not to sit and vote, but a provision for leave of absence could not affect a peer’s legal right to insist on sitting and voting in the House whether or not he had been granted leave of absence. Whilst in practice the Swinton Committee thought that such absence provision would be effective, the legal rights conferred by a writ of summons could be affected only by legislation. ‘The   TNA LCO 2/5219. ‘The Swinton Proposals’, note for Lord Chancellor (undated).   The last occasion on which a lay peer attempted to sit on a judicial hearing was in 1883, in the case of Bradlaugh v Clarke, ‘when the intrusive lay peer’s opinion was superciliously ignored by the lawyers’. SE Finer, Vernon Bogdanor and Bernard Rudden, Comparing Constitutions (Oxford, Clarendon Press, 1995) 87. 50   Parliamentary Archives ST/168. Memoranda by Exeter and by the Lord Chancellor. Inter alia, Exeter cited the House’s rebuff to Queen Victoria’s letters patent and writ of summons created for Wensleydale, which the House ruled did not entitle him to sit and vote in the House. Exeter’s draft standing orders included that: ‘No Peer may vote in a division of this House unless he had, if resident in England or Wales, attended the House at least X times, and if resident elsewhere, attended at least Y times during the previous session in which the House has sat for Public Business on twelve or more days.’ 51   TNA CAB 124/1125. Exeter to Swinton, 13 March 1955. 52   Report by the Select Committee on the Powers of the House of Lords in Relation to the Attendance of its Members. 1955–6 HL (7) (66-1) (67). 48 49

Wider Reform: The Cabinet Committee, 1955–56  85 Swinton proposals’, the Lord Chancellor was told, ‘present no real solution to the problem of back-woodsmen.’53 Legislation would, ideally, be required to give effect to the Swinton Committee’s proposals, either by empowering the Crown to withhold a writ of summons which had not been applied for or by empowering the House to regulate its membership by standing order. But the Lord Chancellor was advised that ‘The House of Commons would be sure to resent the conferment on the Lords of power to alter the Constitution by a mere amendment to its own Standing Orders’54 and, indeed, such proposals might bring the backwoodsmen into the House rather than expelling them. Nevertheless, it was felt that ‘there is a good deal to be said for promising to bring the Swinton Standing Orders into force as a palliative to those Lords who press for something more than a mere Life Peer’s Bill’.55

WIDER REFORM: THE CABINET COMMITTEE, 1955–56

Neither of these possibilities for limiting the number of hereditary peers in the House of Lords was especially satisfactory. Three further suggestions to limit the number of hereditary peers were later rejected by an Official Committee. The members of the Committee turned down56 a proposal which had earlier been made by the Earl of Home for a two-writ solution, under which some peers would receive a writ which entitled them to attend speak, and others to attend, speak and vote.57 The idea that Parliament should confer upon the House of Lords the powers to reform itself was deemed unlikely to find favour with the Commons. A proposal that the selection of peers should be by a Committee of the Privy Council and not by a Committee of the House of Lords was thought likely to politicise the selection of peers, as the Privy Council contained a number of MPs as well as peers and others. Salisbury’s Committee therefore made its own proposals about limiting the hereditary membership of the House of Lords. When Salisbury’s Committee came to its conclusions in 1956, it began by rejecting the idea of resurrecting the conclusions of the 1948 Party Leaders’ Conference. It did so for four reasons. First, ‘the measure of agreement reached at the 1948 talks seemed to be more apparent than real’.58 Second, the scheme was too restrictive: by including only those hereditary peers who were also Privy Counsellors, most of the younger peers would be excluded, thus impairing the ability of the House to conduct committee work. Third, there was no guarantee of   TNA LCO 2/5219. ‘The Swinton Proposals’, note for Lord Chancellor (undated).   TNA LCO 2/5219. ‘The Swinton Proposals’, note for Lord Chancellor (undated). 55   TNA LCO 2/5219. ‘The Swinton Proposals’, note for Lord Chancellor (undated). 56   TNA CAB 21/3722. Cabinet Committee on House of Lords Reform: The Third Report of the Official Committee, 14 September 1956. 57   TNA CAB 124/1127. Letter from Home to Salisbury, 21 March 1956. The two-writ system had been suggested by Mr Henry Burrows, a Clerk in the House of Lords, and later came into favour when the Wilson Governments were deliberating on Lords reform. 58   TNA FO 1109/350. Memorandum by Salisbury, March 1956. 53 54

86  The Life Peerages Act 1958 an even geographical distribution of these peers. Fourth, broad schemes would ‘only arouse the maximum of controversy, even among supporters of reform, and render agreement virtually impossible’.59 Salisbury and his ministerial colleagues therefore discarded the 1948 proposals and determined that the Government ‘must be able to force the Bill through against the opposition of Labour, just as they had to force their Bill through against our opposition in 1948’.60 The Committee was against complex and wide-ranging schemes of reform in principle: ‘It will be hard enough to get agreement on a simple plan: complicated schemes with representatives from this, that and the other sphere of our national life, would, we are sure, only arouse the maximum of controversy, even among supporters of reform, and render agreement virtually impossible.’61 It therefore determined five broad principles on which to build a reform proposal: hereditary peers, non-hereditary peers, spiritual peers, Law Lords (unchanged) and women members. From these principles, Salisbury evolved a scheme for reform of the composition of the House of Lords which had the confidence of all ministers, senior and junior, in the House of Lords: ‘I do not say that they all regard it as the best conceivable plan; but they regard it as the best that can be got.’62 Salisbury’s preference was for a House of Lords comprising 400 members (250 elected hereditary peers, 150 nominated, bishops and Law Lords as before).63 A ministerial committee later altered the balance of hereditary to nominated peers to 200:200,64 with the proposed number of hereditary peers eventually increasing to 221 on the grounds that it would be better to have the round figure of 200 UK hereditary peers on the face of the Bill.65 Salisbury envisaged discussing the proposals with the Independent Unionist peers, and then introducing the principles of the reform proposals as a resolution of the House of Lords in advance of the summer recess in 1956, prior to incorporating the proposals into the Queen’s Speech in autumn 1956. He anticipated that the committee of the Independent Unionist Peers, which had been considering the question of House of Lords reform, would be reluctant to accept anything which impinged upon the privileges of the hereditary peerage, but thought that it was likely to accept that no scheme less than Salisbury’s would command any support from the Cabinet as a whole.66 Salisbury negotiated the agreement of peers in 59   CP(56)116. Memorandum by Salisbury, 9 May 1956. Salisbury’s Committee did include in its report the potential objection that membership of a government department (which the Privy Council is) should not be a prerequisite for membership of a House of Parliament. 60   TNA CAB 124/1127. HL Reform. Memorandum, February 1956. 61   TNA FO 1109/350. Memorandum by Salisbury, March 1956. 62   TNA FO 1109/350. Memorandum by Salisbury, March 1956. 63   Adapted from TNA FO 1109/350. Memorandum by Salisbury, March 1956. 64   TNA FO 1109/350. House of Lords Reform: Meeting of Ministers, 30 May 1956, 65   A total of 200 elected hereditaries, plus 16 Scottish representative peers, plus the five remaining Irish representative peers for their lifetimes only (notwithstanding Irish Home Rule and later independence, the Irish representative peers continued to sit in the House of Lords for the remainder of their lifetimes). TNA FO 1109/350. House of Lords Reform Official Committee, 1st Meeting, 7 June 1956. 66   TNA FO 1109/350. Memorandum by Salisbury, March 1956.

Short and Long Bills  87 advance of finalising his proposals for reform, but the agreement of the House of Commons would not be so easily forthcoming.

SHORT AND LONG BILLS

The happy agreement of the House of Commons to Salisbury’s proposals did indeed seem difficult to obtain. In June 1956, ministers entertained the possibility ‘whether in view of the possible difficulty of securing Commons agreement to the curtailment of the hereditary element in the Lords on the lines proposed, the simpler course might not be to leave the hereditary peers alone and merely to legislate for a sufficient number of nominated peers’.67 A short bill might be limited to the power to create life peers and possibly also the payment of peers and the possibility of their resignation from Parliament, whereas a longer version of the bill would seek to deal both with the limitation of hereditary membership of the House and also to provide for some life members, along the lines of the proposals previously outlined by Salisbury. The passage of a long bill would be controversial and difficult, and the selection committee to determine which hereditary peers should serve in a reformed House of Lords would be especially controversial in the House of Commons, since it would be deemed a measure to perpetuate the hereditary peerage. A short bill would, however, be easier to present as providing the necessary action to preserve the second chamber and to enable Labour members who were unwilling to accept hereditary peerages to participate in the House of Lords.68 The Official Committee, which had been working in parallel with Salisbury’s reports to the Cabinet in May and June,69 reported on 30 June, evaluating the two alternatives bills. The bills differed markedly: [T]he philosophy of the two versions is quite different. The longer version contemplates what amounts to a thoroughgoing reform. The shorter version is based on the view that thoroughgoing reform is too difficult to be attempted, at any rate in the circumstances of the next session and . . . something much less ambitious is more likely to pass.70

The shorter bill avoided most of the problems which arose from the longer bill: it avoided the potential scheduling clash of the longer bill;71 the longer version opened up the potential for wider discussion – should denominations other than the Church of England be represented? Should peers be able to resign to make way for new members of the Lords? The short version was not devoid of   TNA FO 1109/350. House of Lords Reform Official Committee, 1st Meeting, 7 June 1956.   TNA FO 1109/350. House of Lords Reform Official Committee, 2nd Meeting, 13 June 1956. 69   CM(56)37, 17 May 1956. Its members were Sir George Coldstream (Lord Chancellor’s Office, in the Chair), Sir Francis Lascelles (Clerk of the Parliaments), Sir John Rowlatt (First Parliamentary Counsel), Sir Austin Strutt (Home Office), Sir Charles Cunningham (Scottish Office) and Mr Burke Trend (Office of the Lord Privy Seal); its secretary was Mr CWB Rankin (Lord Chancellor’s Office). 70   TNA CAB 21/3722. House of Lords Reform: Report of the Official Committee, 30 June 1956. 71   It was likely that the longer bill would reach the Commons late in the 1956–57 Session and might jostle for time with the Finance Bill: TNA FO 1109/350. Trend to Lord Privy Seal, 4 July 1956. 67 68

88  The Life Peerages Act 1958 problems: payment was open to greater attack without a limitation on the number of peers, though to give life peers the power to renounce their titles without granting the same right to hereditary peers might engender criticism;72 peerage take-up, especially by young and socialist politicians, might be hampered without the provision to switch back to the Commons, and yet switching would complicate a short bill whose virtue was its simplicity.73 Nevertheless, the problems left by the shorter version could be dealt with following its implementation. Moreover, the shorter bill had considerable advantages: it allowed for a temporary solution for the pressing need for more active peers in the House, especially on the Labour side, whilst avoiding ‘the need to defend, and to a certain extent even to discuss, the considerable anomalies which necessarily remain, whatever plan of reform is adopted’.74 The shorter version was a businesslike attempt to deal with the essentials of a pressing problem. The shorter version of the bill, Burke Trend advised his minister, RA Butler, in July 1956: [T]acitly turns its back on any genuine reform of the Lords . . . The choice therefore appears to be a (relatively) simple choice – i.e. it amounts to asking whether the shorter Bill would be worth introducing, in spite of its patent inadequacy as an instrument of genuine reform, or whether the longer Bill would be the only scheme which would be really worth attempting, even at the cost of the severe complications which it would involve.75

For his own part, Salisbury felt that he could not ‘recommend that so restricted a measure should be introduced’. Public confidence, he believed, needed bolstering, and this could be achieved only if the problem of the backwoodsmen was Table 4-1: Short and longer versions of a Lords reform bill Longer version

Shorter version

Life peerages (max 200) Limit on number of hereditary peers who can sit (max 200) Peeresses in own right to have same rights and privileges as peers Power of peers to renounce certain peerage rights (and sit in the House of Commons) House of Lords to include five nominees of Church of Scotland Free railway travel and allowances

Life peerages (no limit) – – Power of peers to renounce certain peerage rights – Free railway travel and allowances

  TNA FO 1109/350. House of Lords Reform Official Committee, 2nd Meeting, 13 June 1956.   TNA FO 1109/350. LR(O)(56)2. House of Lords Reform: Report of the Official Committee, 30 June 1956, para 16. 74   TNA CAB 21/3722. House of Lords Reform: Report of the Official Committee, 30 June 1956. 75   TNA FO 1109/350. Trend to Lord Privy Seal, 4 July 1956. 72 73

Short and Long Bills  89 addressed, which the shorter version of the bill did not do: ‘the shorter version should only be considered if all else fails’.76 Salisbury therefore continued to use his considerable influence to promote a comprehensive, long bill. The Lord Chancellor, Lord Kilmuir, wrote to Salisbury that, within the House of Lords, ‘it is impossible to under-estimate your personal influence’, something which, he said, was the opinion of everyone with whom he had discussed the problem of House of Lords reform.77 However, the personal influence of Salisbury did have its limitations. Lord Home, continuing to pursue his two-writ proposal, wrote that: I support the paper and the conclusions circulated by the Lord President [Salisbury] but I am doubtful whether we can persuade the hereditary peers to accept a system which would exclude a substantial number of them from attendance and speaking in debate. The Independent Unionist Peers were very lukewarm and I suspect that opposition to proposals including election will grow as they become more widely known. If they could attend and speak I do not believe that the objectors would mind if they did not vote.78

Home came to have substantial influence over the demise of Salisbury’s proposals, not least when he replaced Salisbury as Leader of the House of Lords in 1957.

Scheduling the Legislation The parliamentary timetable came down decisively in favour of a short bill. During the time that ministers were discussing whether to favour a short bill over a long bill, they were also considering when they would be able to schedule the legislation. RA Butler, Lord Privy Seal, sought to hold the introduction of the reform bill over to the 1957–58 Session. This would, he wrote, lighten the programme for the 1956–57 Session ‘by a significant, perhaps decisive, degree’.79 It was not an obvious decision to take: the 1957–58 Session was not guaranteed to be less crowded, and delay might make the House of Lords an election issue. Moreover, Butler himself was advised that, given the Government’s intention to proceed with House of Lords reform in the 1955–59 Parliament, the 1956–57 Session represented ‘the last chance which the Conservative Party may have to deal with the House of Lords Reform for some time; and the Government will wish to consider carefully whether they can afford to let this chance pass’.80 Nevertheless, allowing time to take the bill on the floor of the House of Commons, Burke Trend advised that it would take 10 of the 46 sitting days available for legislation in the 1956–57 Session.81 The bill was anticipated to be controversial, and although the restriction of the bill to the composition of the Lords would prohibit   CP(56)189. Cabinet: House of Lords Reform, Memorandum by Salisbury, 24 July 1956.   TNA CAB 21/3722. Kilmuir to Salisbury, 22 October 1956.   TNA CAB 124/1127. HL Reform, Letters and Memoranda. Earl of Home, 23 May 1956. 79   TNA CAB 21/3722. Memorandum by RA Butler, 4 October 1956. 80   TNA FO 1109/350. Memorandum for RA Butler, 16 May 1956 (emphasis in original). 81   TNA FO 1109/350. Memorandum for RA Butler, 16 May 1956. 76 77 78

90  The Life Peerages Act 1958 the tabling of amendments at Committee Stage relating to powers, it would not forbid the criticism of the scope of the bill, and the questioning of the whole principle of reforming composition without powers, at a Second Reading.82 Further time could be taken up with these discussions. The parliamentary timetable in the end proved decisive in persuading the Cabinet to defer the introduction of the bill until the 1957–58 Session. By the time that Eden, damaged by the Suez crisis, resigned as Prime Minister on 9 January 1957, proposals for House of Lords reform were well advanced. A one-clause bill dealing only with the reversal of the Wensleydale judgment and the creation thereby of life peerages had been formulated, and was not complicated by any restrictions on the power of the Prime Minister to recommend appointments. There was, moreover, an outline commitment to legislate in the 1957–58 Session. Harold Macmillan’s premiership inherited a policy on Lords reform for which its leader never could engender any great affection, though he had mustered even less enthusiasm for wider reform.83 Even as late as May 1957, it would still have been possible to take the short bill in the 1956–57 Session, so long as it was introduced in the House of Lords (to introduce it in the Commons would interfere with the Committee Stage of the Finance Bill), the Opposition leaders promised to give the bill ‘a fair wind’ and ministers accepted the possibility of an autumn ‘spill-over’. The bill was a simple one and would take four to six days to pass through the Commons.84 Yet, despite its simplicity, the Government would not prioritise it until the following year.

Macmillan’s Influence On coming to the premiership in January 1957, Macmillan had informed Salisbury that he ‘was not a great supporter of House of Lords Reform in the sense of the full-blooded plan’. Macmillan preferred a measure to reverse the Wensleydale judgment.85 Salisbury had been Leader of the House of Lords throughout the post-War Churchill and Eden Governments, but he abruptly resigned at the end of March 1957, just two months into Macmillan’s premiership, and was replaced by Lord Home.86 Shortly after his appointment, Home wrote to the Prime Minister, suggesting that the wide-ranging proposals for Lords reform which Salisbury had formulated be dropped in favour of a proposal which   TNA FO 1109/350. Memorandum for RA Butler, 16 May 1956.   Macmillan soon saw the benefits of having a new stream of patronage available to him, and offering a life peerage to Boothby got him out of the Commons. On Macmillan’s recollections of inheriting the proposals for life peers, see Harold Macmillan, Riding the Storm, 1956–1959 (London, Macmillan, 1971) 731–32. Macmillan always referred to life peers as ‘day boys’. 84   TNA FO 1109/350. AWP (Arthur Peterson) to RAB (RA Butler), 20 May 1957; AWP to RAB, 21 May 1957. 85   Parliamentary Archives LH/4. Macmillan to Salisbury, 11 January 1957. 86   The immediate cause of Salisbury’s resignation was the Cabinet’s decision to release Archbishop Makarios from detention, but he was also agitated about other issues and had frequently threatened resignation (Catterall (n 40), 3 February 1957). 82 83

Short and Long Bills  91 dealt only with the creation of life peerages. The Official Committee, which had been reviewing proposals since June 1956, considered the proposal and ‘were unanimous in thinking that any attempt to compromise between the present proposals [for life peerages only] and a comprehensive scheme of reform was likely to be fatal’.87 Whilst a short bill was more likely to pass at all, the Government knew that by pursuing this minimal chance in composition, they were risking a negative effect on wider reform. Burke Trend, later the Secretary to the Cabinet, advised Macmillan that if simple legislation to overturn the Wensleydale case was preferred to a comprehensive reform, the last chance to give effect to a comprehensive reform could have been missed.88 There was pressure late in the day to extend the provisions of the short bill to include a range of matters relating to hereditary peers. Lord Hailsham89 and Anthony Wedgwood Benn lobbied the Government for the bill to include a provision for heirs to hereditary peerages, if MPs at the time of succession, to be permitted to disclaim for life.90 Home advised against accepting this request, as it extended the rights of the hereditary peerage and went beyond the purpose of the bill.91 Kilmuir concurred, reporting that it was not possible, according to Sir Edward Fellowes, the Clerk of the House of Commons, to tack the Wedgwood Benn proposal onto the bill as an amendment in the House of Commons after the bill had passed through the Lords, as this was outside the scope of the bill. It would, however, be possible to draft the bill at the outset to allow for such an amendment.92 There was pressure, too, to alter the position of hereditary peeresses. On 15 October 1957, Kilmuir reported to the Cabinet that there was some pressure, given the proposal to create life peeresses, to end the exclusion of peeresses-by-succession from the Lords. However, following Cabinet discussion on this occasion, and in light of the debate on the Constitution of the House of Lords, held in the Lords on 30 October 1957, Kilmuir and Home jointly advised that the Government should confine its bill to the creation of life peerages for men and women.93 Whilst these ancillary proposals might find favour with the House of Commons, they would detract from the intention that the bill should be a short one. Home reported on 21 November 1957 that the debate in the House of Lords of 30 and 31 October ‘had shown that the proposal to create life Peerages was acceptable to all shades of opinion in the House of Lords, and had confirmed the wisdom of   TNA HO 392/1. Coldstream to Home, 17 April 1957.   TNA CAB 21/3722. Trend to Prime Minister, 15 May 1957.   C(57)111. House of Lords Reform: Memorandum by the Minister of Education, 3 May 1957. 90   Parliamentary Archives ST/171. Wedgwood Benn to the Prime Minister, 1957. 91   TNA CAB 21/3722. Home to the Prime Minister, 19 September 1957. See also CC 73(57)6, 15 October 1957. 92   TNA CAB 21/3722. Kilmuir memorandum, 26 September 1957. 93   TNA CAB 21/3722. Memorandum by Kilmuir and Home, November 1957. Kilmuir wrote to Home on 20 November 1957 stating that a long bill ‘would not get through the Cabinet’ and ‘would have difficulty with the Party in the Commons’ (Parliamentary Archives HL/LH/4/31.) 87 88 89

92  The Life Peerages Act 1958 the Cabinet’s decision not to embark upon a more far-reaching scheme’.94 Given that, two and a half years earlier, ‘The Leader of the Opposition in the House of Lords had informed [Lord Salisbury] that the Labour Party were quite unwilling to support at the present time any proposals for the reform of the House of Lords’,95 gaining the support of Labour peers was a significant development. Home reported that ‘there was little doubt’ that a more ambitious scheme would have induced Labour to pledge abolition of the second chamber. Indeed, the Cabinet resolved to give informal warnings to peers who put down amendments extending the scope of the bill that an extended bill would not be carried through the House of Commons and might therefore have to be abandoned.96 The Government therefore strengthened its resolve for a short bill dealing with life peers only, rather than wider reforms limiting membership of hereditary peers in the House of Lords.

Salisbury’s Influence It is perhaps ironic that the departure from the Cabinet of Salisbury, who was in Tony Benn’s phrase ‘the great architect of Lords reform’,97 coincided with the acceleration of House of Lords reform. Yet, despite describing Salisbury as a great architect, Benn recalled that Salisbury was a key impediment to the very reform for which the 5th Marquess so strongly campaigned: He never knew it but he was aiming too high. It was only after he went when the Cabinet came back to the problem and put someone else in charge that the thing went forward with life peers and the control of absentee peers and the beginning of pay . . . these turned out to be major successes for the Government. But, at the time [of Salisbury’s resignation], I thought that’s the finish.98

Certainly, Salisbury had long held the view that life peers should not be introduced as a stand-alone measure. A decade previously, early in the Attlee Government, he had written to Lord Woolton that: I think that most of us would in principle be in favour of the appointment of Life Peers. It is a proposal that forms an essential part of nearly all the schemes that have been got out in recent years on the reform of the House of Lords. But it is one thing to deal with it as part of a comprehensive scheme for House of Lords Reform and quite another to deal with it by itself.99

Salisbury was primarily concerned that the creation of life peers without parallel safeguards would weaken the House of Lords by making swamping much easier.

  CC 81(57)8, 21 November 1957.   CC 19(55)10, 2 March 1955.   CC 84(57)5, 12 December 1957. 97   MSS Nuffield OHP, V, 99. 98   MSS Nuffield OHP, V, 99. 99   Bodleian Libraries, MS Woolton 24. Salisbury to Woolton, 25 February 1946. 94 95 96

The Life Peerages Bill  93 It is not clear, however, that Salisbury was such a key impediment to reform as has sometimes been suggested. Certainly, reform progressed onto the public stage only after Salisbury resigned from the Cabinet in late March 1957, but this can be explained by three factors. First, although the Cabinet and the Cabinet Committee had not finalised their conclusions by the time of Salisbury’s departure from the Cabinet, much of their deliberations had been guided by Salisbury. Second, the decision to delay Lords reform from the 1956–57 Session to the 1957–58 Session was squarely attributed to the busy schedule in the former session and the need to avoid complications in attempting to pass the Homicide Bill (which restricted the applicability of capital punishment in murder cases) and Lords reform in the same session.100 These two factors, combined with a third – the coming to power of a Prime Minister (Macmillan) who had acknowledged the need for some alteration to membership but remained unenthused by more than the creation of life peerages – meant that Lords reform made relatively swift progress during 1957. None of these factors suggested that Salisbury was a crucial impediment to his own reform proposals. Indeed, it was feared that Salisbury’s resignation might hamper any attempt at Lords reform. Hailsham thought that the Government might produce a reform proposal which Salisbury would attack violently for being inadequate. Hailsham told Benn: ‘Bobby’s so anxious to bring the Government down that he’d do anything, use any stick, to beat us with.’101 In the event, Salisbury refrained from attacking the Life Peerages Bill. As Benn notes: ‘He sank without a trace when he resigned because he was never prepared to mobilise public opinion behind his views.’102 The case for Salisbury as an internal – or external – impediment to Cabinet-sponsored Lords reform is easy to overstate.

THE LIFE PEERAGES BILL

Introducing the Life Peerages Bill to the House of Lords for the Government on 3 December 1957, Home emphasised that the Bill was an interim measure introduced for practical reasons, not a final point in the process of Lords reform.103 Salisbury voted for the Bill, despite highlighting its failings, but of his proposals to limit the hereditary peerage in the House, as Bernard Crick noted at the time, ‘it became clear . . . would be totally unacceptable to the Labour party as tending to increase the prestige, and this possibly the power, of a still hereditary House’.104 In the Commons, Labour opposed the Bill without offering proposals of their own. On 28 November 1957, the PLP had unanimously decided to propose a

  TNA FO 1109/350. Memorandum to the Lord Privy Seal (RA Butler), 4 October 1956.   MSS Nuffield OHP, V, 100. 102   MSS Nuffield OHP, V, 101. 103   See eg Bernard Crick, ‘The Life Peerages Act’ (1957) [sic] XI Parliamentary Affairs 455, 459. 104   Crick (n 103) 460. 100 101

94  The Life Peerages Act 1958 Commons’ reasoned amendment dissenting from the Bill on the grounds that it tinkered with the problem of the Lords, but left the hereditary peerage and the powers of the second chamber untouched.105 Labour was suspicious that the Life Peerages Bill would give the Lords an air of respectability and would lay the ground for a future Conservative administration to extend the powers and authority of a rejuvenated upper House. The Bill nevertheless passed both Houses without amendment and received the Royal Assent on 30 April 1958. A list of the first life peers under the Act was published on 24 July. As Crick noted, all 10 male life peers amongst the inaugural creations were of the calibre of people who might be offered hereditary baronies (‘full peerages’ as Crick called them at the time), although not all of them might have accepted hereditary peerages in order to go to the Lords.106 The four women were, likewise, uncontroversial candidates for membership of the House of Lords.107 However, despite an aim of the introduction of life peerages being to bolster the representation of the Labour Party in the House of Lords, only six of these initial 10 life peers were created on the recommendation of Gaitskell. A decision in principle to treat life peers similarly to hereditaries – in terms of their introduction ceremony and status in the House – melded the life and hereditary peers into one body.

LIMITING THE HEREDITARY PEERS

Without Lord Salisbury’s proposals for limiting the numbers of hereditary peers who might attend and vote in the House of Lords, the problem of the hereditary preponderance remained. As Salisbury’s Private Secretary, Sir Charles Hendricks, remarked to him four years earlier: It would indeed be a disaster if they all obeyed the Summons. There is neither room to contain them nor work to occupy them . . . So we have this absurdity – a House whose efficient operation depends upon the persistent refusal of over 50% of its members to attend its sittings.108

The life peers were but a drop in this ocean of hereditary peers, although they quickly became significant in terms of their contribution to the work of the House. One week after Home had introduced the Life Peerages Bill into the Lords, that House affirmed Lord Swinton’s resolution to establish a Select Committee on Leave of Absence in order to give effect to the proposals relating to leave of absence which had been advanced in the earlier Select Committee on the Powers

  ‘Labour Challenge to the Life Peerages Bill’, The Times (29 November 1957) 10.   Crick (n 103) 463. 107   On the Life Peerages Act and women in the House of Lords, see Mari Takayanagi, ‘A Changing House: The Life Peerages Act 1958’ (2008) 27 Parliamentary History 380. 108   Parliamentary Archives HL/LH/4/16. Sir Charles Hendricks to Lord Salisbury, 17 June 1954. 105 106

Baron Shackleton

Baron Stopford of Fallowfield Baron Taylor Baron Twining

Baron Granville-West

* Edward Shackleton

Sir John Sebastian Bach Stopford * Dr Stephen Taylor Sir Edward Twining

* Daniel Granville West

54

47 58

70

47

61 58

57 55 60

Note: the first female life peer to receive her writ of summons was Baroness Wooton of Abinger, but the first female life peer to take her seat in the Lords was Baroness Swanborough. Sources: The Times (24 July 1958), 6; Who Was Who.

*  ‘Recommended by the Prime Minister after consultation with the Leader of the Opposition.’

Geddes of Epsom Baron Ferrier

* Sir Charles Geddes Victor Noel-Paton

Sir Robert Boothby * Victor Collins Lieutenant-Colonel Sir Ian Fraser

61

Baroness Wootton of Abinger Baron Boothby Baron Stonham Fraser of Lonsdale

Con Baroness in her own right and elder daughter of 1st Marquess Curzon of Kedleston (Con) Con Widow of 1st Marquess of Reading (Liberal MP and Lord Chief Justice of England) Lab Broadcaster and economist; Emeritus Professor of social studies (University of London) Con MP (Con) since 1924 Lab Labour MP 1945–50 and since 1954 Con MP (Unionist) 1924–29, 1931–36, 1940–. Barrister. Formerly President of the British Legion. Blinded at the Somme; promoter of the welfare of the blind Lab Lately General Secretary, Union of Post Office Workers – Prominent member of the Church of Scotland, but not an official representative of the Church in the House of Lords Lab MP (Labour) 1946–55, Parliamentary Private Secretary to Herbert Morrison – Lately Vice-Chancellor of Manchester University and Emeritus Professor of Experimental Neurology Lab MP (Labour) 1945–50, PPS to Herbert Morrison – Colonial administrator and Governor of North Borneo, and Tanganyika Lab MP (Labour) since 1946, solicitor

62

* Mrs Barbara Wootton

Con Widow of Mr Walter Elliot MP (Con)

54

Age Party Political background

64

Life Peerage title

Baroness Elliot of Harwood Mary Irene, 2nd Baroness Baroness Ravensdale of Ravensdale Kedleston Stella, Marchioness of Reading Baroness Swanborough

Dame Katharine Elliot

Name

Table 4-2: The first life peers under the Life Peerages Act 1958

Limiting the Hereditary Peers  95

96  The Life Peerages Act 1958 of the House in relation to the attendance of its members.109 The new Select Committee produced a short report on 2 April 1958 proposing to allow provisions for leave of absence, which were adopted as standing orders of the House of Lords.110 There was, however, no requirement for peers who attended rarely to take leave of absence, and only about 200 hereditary peers normally applied for leave of absence at any one time.111 Moreover, leave of absence provisions were made less effective by subsequent alterations.112 Forty years after the scheme for leave of absence was introduced, the view of the Clerk of the Parliaments was that ‘the scheme contains an inherent flaw, in that it is voluntary and the House has no power to stop Lords who have been granted leave of absence from attending the House, nor has it any sanction to do so’.113 Life peerages and leave of absence, combined with enhanced provisions for the payment of peers,114 despite the flaws in each, encouraged the rejuvenation of the House. Nonetheless, the Government had handed the responsibility for the exclusion of the hereditary peers not simply to the House of Lords, but to those peers themselves, something that it described just two years earlier as being unacceptable.

  See that Committee’s report, 1955–56 HL (7) (66-1) (67), paras 15, 29–39.   Report from the Select Committee on Leave of Absence, 1958 HL (60), 2 April 1958.   David Butler and Gareth Butler, Twentieth Century British Political Facts 1900–2000 (Basingstoke, Macmillan, 2000) 230. The House of Lords Act 1999 removed the need for leave of absence as a partial answer to the problem of backwoodsmen. A very few peers who sat in the House of Lords after the 1999 Act (notably the Marquess of Salisbury) still applied for leave of absence. 112   From 1958 to 1967, leave of absence was granted unless a peer made clear within 28 days that he or she wanted to receive a writ of summons; after 1967, leave of absence was granted only following a specific request, and there fell out of use a system for drawing to the attention of peers that a leave of absence may be requested. Parliamentary Archives WHE/1/1/13. RCRHL(99)30: HL leave of absence scheme, paper by the Clerk of the Parliaments. 113   Parliamentary Archives WHE/1/1/13. RCRHL(99)30: HL leave of absence scheme, paper by the Clerk of the Parliaments. 114   On 21 May 1946, the House of Lords resolved that peers ought to be reimbursed for the cost of rail travel when attending the House, and the Government had acted to implement this resolution: PA Bromhead, The House of Lords and Contemporary Politics 1911–1957 (London, Routledge & Kegan Paul, 1958) 257. Remuneration for attendance proved more difficult: some objected to conferring, in effect, a hereditary right to employment at the public expense; others revelled in the amateur status of the House and wished to preserve this. There was a dual problem: to ensure that ministers in the Lords were adequately remunerated and to enhance the pay of junior ministers without forcing inflation in ministerial salaries which would challenge the pay of Cabinet ministers (C(56)108. Cabinet: Parliament: Remuneration of Members, Note by the Chancellor of the Exchequer, 30 April 1956). Salisbury and Kilmuir reversed their position on including the remuneration of peers in a set of proposals for Lords reform, deciding that ‘it would seriously prejudice the passage of any reform Bill if it contained provisions for payment’. The issue of payment was to be left until it could be resolved alongside the outstanding issue of junior ministers’ salaries (CP(56)189. Memorandum by Salisbury, 24 July 1956). Earlier, in 1931, Lord Linlithgow produced a report on Lords reform for the Conservative Research Department. Afterwards, he wrote to Neville Chamberlain, saying that every peer who had an income of less than £600 a year should receive from public funds a top-up to that amount (Linlithgow to Chamberlain, 31 July 1931, cited in Parliamentary Archives LH/4/2 P(33)5, Cabinet: Political Committee). 109 110 111

Conclusion  97

CONCLUSION

Whatever the intentions held by Conservative Party House of Lords reformers in 1951, seven years later they had achieved nothing more comprehensive than preventing the House decaying ‘beyond the point of reform’.115 The Life Peerages Act would, over time, ensure the full revival of the Lords.116 Average daily attendances rose from 136 in 1959 to 241 in 1966. By the mid-1980s, the sitting days accumulated in a year by life peers exceeded those of hereditary peers. Almost half a century after it was passed, the Act would be assessed as ‘the most significant change in the House of Lords since 1911’,117 but the conclusion of five years of deliberations seemed timid nonetheless. In addition to the hereditary system itself, three problems faced the House of Lords in the mid-1950s: the potential threat of the backwoodsmen; the difficulty of sustaining a Labour opposition when numbers of Labour peers were low; and the problem, brought to light by Tony Benn, of heirs who were also MPs. Reversal of the Parliament Act 1949 was not on the agenda of the Cabinet Committee: such a move would provoke the Opposition into further reforms, or reversals of forthcoming reforms, when it was next in power.118 These incentives were combined with a fear of what a future Labour government might do to the House of Lords – an important for incentive for Conservative reform, although not one that pointed in a specific direction. The key incentive for House of Lords reform in the 1950s was the fear that the Lords was dying of atrophy. Table 4-3 shows that attendance was about 250. Of these, the effective Official Opposition in the House in 1953, noted the Earl de la Warr, consisted, at best, of only 15 Labour peers, of whom only three or four did most of the work: ‘all elderly men who may not be with us for long’.119 The Table 4-3: Attendance of peers Session

Total

Attendees

Not attending*

1948–49 1951–52 1953–54

843 858 810

280 244 244

563 614 566

* Or attending fewer than 10 times in the Session. Source: adapted from CAB 124/1124, CAB 124/1125 (memoranda by Francis W Lascelles).   CC 37(55)4, 17 May 1956.   See eg PHS, ‘How Mr Wilson Reformed the Lords with 107 Life Peers’, The Times (30 December 1968), 8. 117   Michael Wheeler-Booth, ‘The House of Lords’ in Robert Blackburn and Andrew Kennon (eds), Parliament: Functions, Practice, and Procedures 2nd edn (London, Sweet & Maxwell, 2003) 641. It is arguable, however, that the payment of peers’ expenses was also significant in revivifying the House. 118   CC 26(53)4, 14 April 1953. 119   TNA CAB 124/1126. HL Reform Cabinet Committee 1955. Earl de la Warr, December 1955. 115 116

98  The Life Peerages Act 1958 Observer emphasised this two years later: ‘While the doctors continue to hesitate and argue, there is a danger that the patient may pass away from pernicious anaemia. The Labour leadership in the Lords was always small and is now growing old.’120 Salisbury, in particular, was seized of the need for pre-emptive reform before the Labour Party had another opportunity. He wrote to Sir David Eccles MP that: You say that there is at present no public demand for reform of the composition of the House [of Lords]. But that has always been so. The left prefer the House of Lords in its present vulnerable state, and the right have always funked the issue . . . Today, I believe, the left are only waiting for the opportunity to give the coup de grace to the House of Lords.121

Salisbury saw the need to make the composition of the House of Lords less vulnerable to attack: the left had not been given an excuse to abolish the House of Lords yet, and it should not be given the chance. Merely legislating for life peers and admitting women would not protect the House. The appeal for peers to be allowed to disclaim had the sympathy of the Prime Minister,122 and Hailsham argued the case within the Cabinet. However, the plea to add the disclaiming of hereditary peerages to a bill which was about allowing for life peerages was a complication to which the Government was unwilling to open itself. Ironically, the Earl of Home was the minister who advised the Cabinet against taking up this measure.123 Previous inter-party discussions did not constrain the Government, and Salisbury rejected the resurrection of the proposals which had been discussed at the 1948 Party Leaders’ Conference: in retrospect, the level of agreement was less than was thought at the time, and the proposals would no longer suit the needs of the House. The House of Lords provided little resistance to the reform proposals. Indeed, the Lord Chancellor reported in 1956 that there was ‘virtual unanimity’ amongst the younger peers in favour of reform.124 A year later, it was clear to the ministers in charge of piloting change through Parliament that life peerages, for men and women, would be welcomed by the Lords themselves.125 They therefore drafted what was, in effect, a one-clause bill to enable the creation of peerages for life. Many MPs thought that the House of Lords was fulfilling its role already and were unwilling to countenance more than a small innovation in the upper House’s membership.   The Observer (4 December 1955).   TNA CAB 124/1128. Salisbury to Sir David Eccles, KCVO, MP, 15 October 1956. But cf 1832 and 1910, when there was some degree of public demand for changes to the Lords’ influence, if not a definite consensus within the public on changes to the upper House’s composition. 122   TNA CAB 124/1123, Churchill to Wedgwood Benn, 2 September 1953. 123   Ironically, because when the Peerage Act 1963 came into force both Home and Hailsham disclaimed in order to stand for the Conservative Party leadership. Home, who here opposed hereditary peers disclaiming, won the premiership. Both returned to the Lords as life peers (Hailsham as Lord Chancellor 1970–74 and 1979–87), but Hailsham’s later tirades about the superiority of the hereditary peerage over appointed peers sat awkwardly with his own situation. 124   CP(56)119, House of Lords Reform: Memorandum by the Lord Chancellor, 10 May 1956. 125   C(57)263. House of Lords Reform: Memorandum by the Lord Chancellor and the Secretary of State for Commonwealth Relations, 12 November 1957. 120 121

Conclusion  99 On its face, the 1958 Life Peerages Act was a dilution of the hereditary principle. Indeed, in reversing the judgment in the Wensleydale peerage case, it forcibly overcame objections that peers had raised in the 1850s about the erosion of hereditary rights. But in doing so, Cabinet ministers explicitly eschewed Lord Salisbury’s fervent attempts to dilute the hereditary principle (but increase its longevity and influence) by severely limiting the number of hereditary peers who could sit in the House of Lords. Ironically, by diluting the hereditary principle, Salisbury would have been strengthening the hereditary peers who remained in the House and would have ensured in perpetuity both the hereditary peerage in Parliament and the conservative predominance within the upper House. By 1959, then, the question of the House of Lords was settled as far as the Conservative Party was concerned: its 1959 election manifesto was the first since 1945 not to mention House of Lords reform. But the campaign for the right to renounce a peerage remained and was to intensify a year later when, in November 1960, Tony Benn’s father died.

5 ‘A Wedgwood Benn Enabling Bill’: The Peerage Act 1963 1 The doctrine that a Peer cannot surrender, or in any other way restore any dignity at all to the sovereign, is thus Lord-made law of comparatively recent growth. Luke Owen Pike2 So long as the hereditary principle is maintained as part of the fabric of the constitution . . . it would seem to us to be wholly inconsistent with that principle that the successor to a hereditary peerage should have a free option as to which House he desires to sit in. Election Court3

T

HE LIFE PEERAGES Act 1958 left a number of anomalies untouched. Whereas women who were life peeresses had a place in the House of Lords, the 19 peeresses by succession could neither sit nor vote.4 Indeed, on 28 January 1960, the Government had come out strongly against enabling hereditary peeresses to receive writs of summons.5 Furthermore, Scottish peers who were not representative peers in Parliament were still not permitted to stand for election to the House of Commons, and sitting MPs who inherited peerages were disbarred

1   ‘The real point is that the Government would have to fight or concede an election in Bristol SouthEast to Mr. Wedgwood Benn. The sitting Member, Mr. Malcolm St. Clair, has given specific pledges that he would resign if Mr. Benn’s position was altered by Parliament. This in effect would make the Bill from the point of view of the Governments supporters in the House of Commons a Wedgwood Benn Enabling Bill.’ C(63)131. Cabinet: ‘Peerage Bill: Memorandum by the Chancellor of the Duchy of Lancaster’ (Iain Macleod), 17 July 1963. 2   Luke Owen Pike, A Constitutional History of the House of Lords (London, Macmillan, 1894) 272. 3   Re Parliamentary Elections for Bristol South East [1964] 2 QB 257. 4   There were 19 peeresses by succession in 1962. By the Representation of the People Act 1918, peeresses had the right to vote in parliamentary elections, but the question of whether they could stand for election to the House of Commons had not been resolved by 1962 (though Borrie argues that the clear conclusion from the Election Court on the Benn case is that their status as peers excluded hereditary peeresses from the House of Commons: Gordon Borrie, ‘The Wedgwood Benn Case’ (1961) Public Law 349, 361n). In the case of Viscountess Rhondda on 4 July 1922, peeresses in their own right were deemed to be excluded from receiving writs of summons and therefore from sitting in the House of Lords. However, the House of Lords had twice resolved – on 27 July 1949 and 21 January 1959 – to admit hereditary peeresses to the upper House. See memorandum on peeresses in their own right, 6 March 1962: Parliamentary Archives HL/PO/1/608/5. 5   HL Deb, 28 January 1960, vol 220, cc 769–70.

102  The Peerage Act 1963 from the House of Commons. As noted in the previous chapter, the Cabinet considered these issues when formulating proposals for the introduction of peerages for life, but declined to include them in the bill.6 It was to be just one of these outstanding issues – the position of MPs who succeeded to peerages and thus lost their seats in the Commons – that became the sole driving force behind legislation to change the composition of the House of Lords in the final Macmillan Government. Whilst the 1958 Life Peerages Act had made it easier to attain membership of the House of Lords, once there, it remained impossible to leave. There was no concept of ‘Life Commoner’ to mirror the award of ‘Life Peer’. And when Tony Benn’s father, the first Viscount Stansgate, died on 17 November 1960, the machinery of Parliament was set in motion: Benn was put on an escalator from the Commons to the Lords; it was moving Benn up and he was desperate to stop it moving. Despite running as fast as he could with an immense amount of energy, it took him three years to descend to the foot of the aristocratic stairway. This chapter is about the events of the three years from the death of the first Viscount Stansgate to the enactment of the Peerage Act 1963. This piece of Lords reform, as Peter Bromhead noted at the time, ‘went a good deal further than was necessary to solve the problem of Mr Benn’s exclusion from the House of Commons’.7 Benn’s predicament could have been resolved by a simple bill to the effect that a peer could sit in the House of Commons, provided that he had never received a writ of summons to sit in the Lords.8 One question is therefore why renunciation, which seemed such a difficult issue in 1960, came to bring forth other reforms to the membership of the House of Lords. A prior question is how the issue had come to the fore in 1960–63, whereas reform had not been forthcoming before that time. Quintin Hogg succeeded his father as Lord Hailsham in 1950 and traversed the escalator from the Commons to the Lords with only a whimper. However, as Bromhead observed in 1960: [I]t is not really fair to compare Mr Benn’s case with Lord Hailsham’s. The Labour Party is very different from the Conservative Party. Conservative peers always have been and still are a very important element in the party as a whole . . . A seat in the House of Lords is of much less value to a member of the Labour Party, anxious to play a full part in the main stream of his party’s ideas and policy-making, than to a Conservative.9

Indeed, some Labour supporters envied Benn because he had a place in Parliament for life and he would be alright when the Labour governments came to the fore.10 But this was not guaranteed in his party as it was in Hogg’s. Benn, too, was much 6   At Committee Stage of the Life Peerages Bill in the House of Commons, the amendment enabling peers to resign their titles was not selected. 7   Peter Bromhead, ‘The Peerage Act and the New Prime Minister’ (1963) XVII Parliamentary Affairs 57. 8   Bromhead (n 7) 57. 9   Peter Bromhead, ‘Mr Wedgwood Benn, the Peerage and the Constitution’ (1960) XIV Parliamentary Affairs 493, 503–4. 10   MSS Nuffield OHP IV, 14.

A Heredity Life Peerage  103 more of an energetic campaigner than Hogg had been 10 years earlier and overcame antagonism from colleagues and institutional constraints from the Cabinet and the peerage. When renunciation became possible, Hogg tried to ‘have it both ways’ and to be both a peer and an MP; Benn wanted to be an MP only.11

A HEREDITARY LIFE PEERAGE

The House of Lords had to an extent been weakened by the hereditary nature of the peerage. Whilst inheritance provided an intake of relatively young and active men into the Lords, membership of the Lords rather than the Commons had been regarded as ‘a positive drawback to political ambition’ since Walpole’s time,12 and thus in the twentieth century, some politicians had refused peerages for the sakes of their sons’ political ambitions.13 ‘[I]t’s a terrible thing’, Winston Churchill wrote to Benn, ‘to doom a son to political extinction.’14 This problem had been entirely solved by the Life Peerages Act; but an existing hereditary peerage was still in 1960 just as it had been described by Mr Justice Dodridge in 1626: ‘a personal dignity annexed to the posterity and fixed in the blood’.15 Despite the weakening of the House over several centuries through its hereditary nature, Benn thought that the House of Lords was more resistant to external attack in late 1960 than it had been prior to 1957: ‘Life peers were popular. . . . The payment of peers brought people, the leave of absence provision kept the backwoodsmen at a respectable distance . . . I was fighting a much more popular House of Lords in 1960 than I would have been in 1955.’16 The Viscountcy of Stansgate, despite being ‘fixed in the blood for ever’, was as near to a life peerage as a non-judicial member could expect before 1958. In 1941 William Wedgwood Benn had, along with three colleagues in the Labour Party,   Tony Benn to the author, 18 February 2006.   AF Pollard, The Evolution of Parliament 2nd edn (New York, Russell & Russell, 1964 [1926]) 313. 13   MSS Nuffield OHP IV, 21. Benn suggests that Arthur Greenwood, Leo Amery and Philip NoelBaker all refused hereditary peerages for their sons’ sakes. 14   Churchill to Chief Whip, cited in MSS Nuffield OHP III, 3. Benn distributed copies of Churchill’s letter to the Conservative wards of Bristol South-East on the eve of polling in the Bristol South-East by-election of 1961, and he believed that this was a major factor in his victory (MSS Nuffield OHP V, 12–13). Churchill himself declined a dukedom: Jenkins wrote: ‘He was tempted, but restrained by his desire to stay in the Commons and perhaps even more by the thought of Randolph succeeding . . . which Churchill politely disguised by pretending that it would interfere with Randolph’s already hopeless political career.’ R Jenkins, Churchill (London, Macmillan, 2001) 896. Churchill himself was but one death away from succeeding to the Dukedom of Marlborough: had the Duke died at the same age as Tony Benn’s elder brother, Michael, then Churchill would have inherited the Dukedom and would have never sat in the House of Commons. Leo Amery was appointed a Companion of Honour, having refused a peerage so as to avoid inhibiting the political career of his son, Julian. Deborah Lavin, ‘Amery, Leopold Charles Maurice Stennett (1873–1955)’, in Oxford Dictionary of National Biography (Oxford, Oxford University Press, 2004). 15   Re Henry de Vere, late Earl of Oxford, [1625] Jones, W96, 82 ER 50. Originally, however, the upper House was not made up of hereditary peers. Moreover, titles were, legally, not personal property to be passed down the generations, but incorporeal hereditaments. 16   MSS Nuffield OHP III, 25–27. 11 12

104  The Peerage Act 1963 taken up what would half a century later have been termed a ‘working peerage’. A statement from Number 10 Downing Street of 21 December 1941 stated that: ‘These creations are not made as political honours or rewards, but as a special measure of state policy. They are designed to strengthen the Labour Party in the Upper House, where its representation is disproportionate, at a time when a coalition Government of three parties is charged with the direction of affairs.’17 It is certain that, had life peerages been available in 1941, Lord Stansgate’s peerage would have been for life, and not hereditary,18 and, as Crick argued, since this was ‘a special measure of state policy’, there was ‘an element of ungenerosity’ in not invoking a similar special measure in 1960 to cancel out the state’s actions of 19 years earlier.19 The need for members of the House of Lords to assist Labour in government had outstripped the pace of reform, and the Viscountcy of Stansgate and the subsequent problems for Tony Benn were two consequences of this: ‘had the life peerage system been working for the last generation’, Macmillan admitted in 1961, ‘many heirs might not have arisen’.20

EARLIER ATTEMPTS AT RENOUNCING PEERAGES

William Wedgwood Benn’s creation as the first Viscount Stansgate should never have impacted upon Tony Benn’s political career. Prior to accepting his peerage, William Wedgwood Benn consulted with his eldest son, Michael. Since Michael Benn had no political ambition (he wished to become a parson), the prospect of one day inheriting the peerage did not concern him. But when Michael Benn was killed in an aircraft crash on 23 June 1944, Tony Benn became heir to the Viscountcy.21 Several proposals for House of Lords reform in the eight decades before the death of the 1st Viscount Stansgate had included some provision for hereditary peers to become eligible to sit in the House of Commons. These attempts came, in most but not all cases, as a correlation of a proposal to reduce or exclude the hereditary element in the House of Lords: Other initiatives were focused on removing the disability of peers by succession from sitting in the House of Commons. The proposals are summarized in Table 5-3. The first attempt to legislate to remove such a disability was a bill introduced by three MPs: Mr Brodrick, Mr Curzon and Viscount Wolmer (heirs apparent to the Barony of Brodrick (Viscountcy of Midleton), the Barony of Scarsdale and the Earldom of Selborne respectively). This bill received a First Reading and was ordered to be printed on 17   ‘Four New Labour Peers: Strengthening the Party in the Lords’, The Times (22 December 1941), 4. The other creations were all baronies: Reginald Fletcher MP (Baron Winster), Charles Latham and Josiah Wedgwood MP. Wedgwood died only 18 months later. 18   Bromhead (n 9), 496. 19   Bernard Crick, The Reform of Parliament 2nd edn (London: Weidenfeld & Nicolson, 1968) 140. 20  TNA FO 1109/350. Harold Macmillan to Viscount Kilmuir, 22 April 1961. Prime Minister’s Personal Minute Serial No M.121161. 21   Michael Benn’s aeroplane suffered from technical problems and he crashed on landing at RAF Tangmere, Sussex, after an aborted mission. Jad Adams, Tony Benn: A Biography (London, Macmillan, 1992) 35–37.

Earlier Attempts at Renouncing Peerages  105 16 March 1894, but it was withdrawn. It was revived the following year on 4 February 1895, but was withdrawn on 20 May, before its Second Reading.22 Under this bill, any peer would be eligible to stand for and, if elected, to sit (or continue sitting) in the House of Commons, until such time as he applied for a writ of summons to the Lords, after which he would be permanently excluded from the Commons. The bill was introduced primarily to stimulate discussion. After this attempt at legislation, two cases of MPs succeeding to peerages came up in quick succession, involving, first, Bernard Coleridge MP23 and then Viscount Wolmer MP himself.24 Following the Coleridge case, a Select Committee of the House of Commons convened to consider the case decided that a person was disqualified from the Commons by succession to a peerage and that it was not necessary for a writ to be issued for exclusion to be confirmed – the Commons could determine its own membership.25 In deciding this, they rejected the arguments of scholars including Luke Owen Pike, who showed that the surrender of a peerage higher than a barony was possible before the mid-nineteenth century.26 By choosing their precedents to suit the proposition that peerages were historically inalienable, the Committee of Privileges not only consigned Lords Coleridge and Wolmer to the House of Lords, but also set down a precedent which itself was to be firmly followed 65 years later, when the House of Commons Committee of Privileges ruled on Tony Benn’s status. The 2nd Viscount Astor attempted in 1919, on succession to his peerage, to extinguish it, but to no avail. He never brought his proposals before Parliament. The next attempt to tackle solely the question of MPs succeeding to peerages was on 11 February 1953, when Reginald Paget MP27 introduced a bill similar to the 1894 bill. Paget’s bill was defeated when Walter Elliot MP objected to a 10 minute rule bill being used to attempt constitutional change.28 22   Parliamentary Archives HL/PO/1/6–8/5. Details taken from ‘Disqualification of Lords from the House of Commons’. Memorandum by JCS (John Sainty, Parliament Office, House of Lords), 11 May 1961. 23  The first Baron Coleridge died on 14 June 1894, but his eldest son, Bernard Coleridge (the Gladstonian Liberal MP for Sheffleid (Attercliffe)), was unwilling to succeed to the peerage, not least because it was thought at that time that membership of the Lords might be incompatible with his practice at the Bar. He later became only the second hereditary peer to practise at the Bar – the first regularly to do so – and the first hereditary peer to become a judge outside of the House of Lords itself (Andrew Adonis, Making Aristocracy Work (Oxford, Clarendon Press, 1993) 46n). PA Landon, ‘Coleridge, Bernard John Seymour, second Baron Coleridge (1851–1927)’, rev Hugh Mooney, Oxford Dictionary of National Biography (Oxford, Oxford University Press, 2004). 24   Wolmer’s case came before the Commons Committee had ruled on the Coleridge case. When Roundell Palmer, a former Lord Chancellor and the first Earl of Selborne, died on 4 May 1895, Wolmer continued to sit in the Commons, arguing that he was ‘a peer but not a Lord of Parliament’, until his presence was objected to; he then withdrew pending a decision as to his status. It is apparent that Brodrick, Curzon and Wolmer had an agreement that the first amongst them to succeed to a peerage would raise the matter of disqualification in the House. 25   HC Papers, 1895, 10. 26   Pike (n 2) 269–72. 27   MP (Labour) Northampton, 1945–February 1974, created Baron Paget of Northampton 1974. His father had been a Conservative MP. 28   It was negatived by 238–145: HC Deb, vol 511, cc 426–32. After Elliot’s death in 1958, his wife became the first Scot to be created a life peeress under the 1958 Life Peerages Act.

106  The Peerage Act 1963

THE PERSISTENT COMMONER

Tony Benn’s fight to remain an MP began in earnest in 1954–55, six years before the death of his father, when Mr Benn tried to get a personal bill, the Stansgate Titles Deprivation Bill, through the House of Commons.29 His father, the first Viscount Stansgate, then took up the matter in the House of Lords. The Lord Mayor and Burgesses of Bristol drew up a petition asking for Mr Benn to remain their representative.30 The real barrier to Benn achieving legislation in the 1950s was the Personal Bills Committee’s decision not to act: it had enough historical precedent to act if it had been minded to do so. Commander Henry Burrows, Principal Clerk of Bills in the House of Lords, observed at the time that a public bill was appropriate where the question was one of not renouncing a title, but merely of giving a general right to sit in the House of Commons after the succession to a peerage; yet, given that the question at hand was the renunciation of an individual peerage, Burrows thought that a personal bill was the more appropriate course. ‘The machinery of a Personal Bill’, wrote Burrows, ‘is in many ways preferable to that of a Public Bill.’31 The Commons Committee, however, ruled that the peerage was a matter of national rather than personal concern and concluded that ‘the object of the Bill raises questions of general importance and is not proper to be enacted by a Personal Bill’.32 Benn’s Bill was re-introduced as a public bill on 17 March 1955 and was read a first time. Following the passage of the House of Commons Disqualification Act 1957, which regularised the exclusions from membership of the Commons, and the succession of George Lambert MP to his father’s viscountcy in 1958,33 Benn petitioned the House of Commons, suggesting that there existed ambiguity in the law on peerages and asking for a select committee to enquire into the matter. Benn put it to the Privileges Committee in 1960–61 that the 1957 Act had created a right for MPs not to accept a ‘place’ which would disqualify them for membership of the lower House. However, he did not succeed: the Committee would not accept that a peerage was an ‘office’ or ‘place’. On 22 November 1960, five days after the death of his father, Mr Benn signed an Instrument of Renunciation of the Viscountcy of Stansgate and petitioned the House of Commons that he should remain an MP. When Benn came to deliver this petition to the House of Commons and to argue that he was entitled to 29   The Clerks in the House of Commons took the view that anything touching on the composition of the Lords must start its passage in that House: MSS Nuffield OHP III, 5. 30   Bromhead (n 9) 495n. 31   Parliamentary Archives HL/PO/1/608/1. Wedgwood Benn (Renunciation) Bill: Procedural Points, 21 April 1955. 32   See generally Report from the Personal Bills Committee on the Wedgwood Benn (Renunciation) Bill, HL Paper 23 (1955). 33   MP (National Liberal-Conservative) South Molton Division, Devon, July 1945–February 1950, (National Liberal-Conservative) Torrington Division, Devon, 1950–58, succeeded his father as 2nd Viscount Lambert 1958.

Fears Over Loss of the Hereditary System  107 renounce his peerage under the House of Commons Disqualification Act 1957, the Cabinet agreed that, given that this could result ‘in a debate which might be expected to concentrate less on the effect of the present law than the desirability of amending it, it would be preferable that the petition should be referred at once to the House of Commons Committee of Privileges’.34 The Government in late 1960 was unwilling to entertain the idea of a change in the law to allow peers to renounce their titles. Nevertheless, Benn believed that he got as far as he did in late 1960 only because of his earlier unsuccessful attempts at regularising his position. He feared that his attempt to renounce his succession in 1954–55 by proposing a personal bill had diminished his standing within the Labour Party,35 but he was sure that this bill ensured his limited progress later: ‘If I hadn’t done the 1955 operation and then left it fallow for five years, I don’t believe that RA Butler would have agreed to the Committee of Privileges’, he said. The parliamentarians and clerks ‘only took it seriously because I had established some claim to have done it seriously earlier’.36

FEARS OVER LOSS OF THE HEREDITARY SYSTEM

Benn thought that a lot of people were against his attempts to disclaim because of a feared effect on the hereditary monarchy.37 Certainly, the Garter Principal King of Arms appealed to support for the monarchy as an argument against renunciation.38 But Benn counteracted his own presumption about the influence of the monarchy on the peerage renunciation debate by citing the Queen’s purported views. It was reported that the Queen had said: ‘I don’t know what my place is in the hearts of my people, but I don’t think it can depend upon Mr Benn being conscripted to the House of Lords.’39 Whilst calls for supporting the monarchy played better with the popular mindset than appeals to save the hereditary peerage, the question of ‘kicking away the props’ of the monarchy did not, in the end, play a significant part in inhibiting Benn’s campaign. A more pressing fear was that to allow hereditary peers to disclaim would have a negative effect not on the monarchy, but on the House of Lords itself. Peregrine Worsthorne asked at the time: ‘If one hereditary peer is free to divest himself at will of his nobility, how can this avoid making other hereditary peers who wish to keep their titles look rather foolish?’40 Some of Benn’s opponents worried that the here­ ditary system as a whole would not survive if it was possible for peers to renounce.   CC 49(60)4, 25 November 1960.   MSS Nuffield OHP III, 13.   MSS Nuffield OHP III, 8. 37   MSS Nuffield OHP IV, 53. 38   ‘One must reflect also on the theory that the peerage as an institution adds lustre and support to The Crown; anything which is harmful to the peerage is, according to this theory, “kicking away the props”’: the Garter Principal King of Arms (Sir Anthony Wagner, KCVO) to Tony Benn, 15 December 1960, quoted in Adams (n 21) 177. 39   Cited in MSS Nuffield OHP XI, 24. 40   Peregrine Worsthorne, ‘The Reporter’, 6 July 1961, quoted in Borrie (n 4) 361n. 34 35 36

108  The Peerage Act 1963 The Conservative Party had its own reasons for being ill-disposed to campaigns to renounce hereditary peerages. ‘The “House of Lords” endures’, wrote Crick, ‘because the Conservative Party has a political interest in retaining a connection between the Order of Peerage and the membership of the House of Lords, and because the Labour Party has had no better idea of how to find enough people to do the work.’41 It was possible to have a fulfilling political career as a Conservative peer in the mid-twentieth century, and peers were, in general, not desperate to return to the Commons. Indeed, some of their colleagues might have feared an influx of peers into the Commons.42 In opposing Benn’s campaign, Conservatives were consequently shoring up their own interests.

PARTY SUPPORT FOR BENN

People were aware of Benn’s predicament when he was selected as Labour candidate for the Bristol South-East43 by-election of 1950, ‘but there was very little sympathy really in the party’.44 Benn tried on a number of occasions to engage Labour Party supporters with his attempts to renounce, but they were not interested for four principal reasons: first, the Labour Party was terrified of the whole issue of Lords reform; second, there was an issue of social class – Benn was seen by some in the party as an aristocrat with a comfortable living;45 third, Benn was not popular within all sections of the PLP because of his resignation from the National Executive Committee (NEC) earlier in 1960; and, fourth, there was a feeling that Benn was ‘trying to have it both ways’ by seeking to renounce his succession and remain in the Commons. There was a section of opinion in the Labour Party which wanted to see Benn removed to the Lords. Benn felt especially let down by his party leader, Hugh Gaitskell, who was ‘really totally unsympathetic’ to Benn’s cause.46 Clement Attlee, who had been a Junior Counsel on the Earldom of Norfolk peerage claim of 1907, ‘was always friendly about it’. Richard Crossman MP was described as being very bitchy about Benn and called him ‘Lord Stansgate’ throughout, which Benn found ‘intensely offensive, he really is a bloody nuisance at the moment’.47 Benn was left by most of his party colleagues to fight an adroit, but lonely, campaign. Benn found some sympathy on the Conservative side, which contained more hereditary peers. But he ‘came increasingly to the view that the Conservative leadership does believe in the hereditary system and that one is fighting not just a preju  Crick (n 19) 105.  Adams ((n 21) 167) reports RA Butler’s expressed relief when Benn informed him that his attempts to return to the Commons would not necessarily enable Quintin Hailsham to renounce his viscountcy, and therefore become a rival for the Conservative leadership election. 43   Officials are not consistent in their hyphenation of this constituency name. I prefer to hyphenate South-East, unless I am quoting from a source in which it is not hyphenated. 44   MSS Nuffield OHP III, 2. 45   MSS Nuffield OHP III, 3. 46   MSS Nuffield OHP III, 32. 47   MSS Nuffield OHP XI, 29. 41 42

The Committee of Privileges  109 dice but a real political deep down feeling in the leadership which it going [sic] to be very hard to crack indeed’.48 Churchill was sympathetic to Benn – he was a good Tory ally – and he had written to Benn in 1955, confidentially stating his support for ‘sons having the right to renounce the peerages they inherit from their fathers’.49 But any constitutional change was conditional on a decision by the Cabinet, which Churchill could not secure.50 Four days after Churchill retired as Prime Minister, he wrote to Benn releasing his earlier confidential letter regarding his support for the right to renounce. Churchill’s encouragement of Benn was ‘in marked contrast to the complete coolness of Sir Anthony Eden’s response’ to his letter and ‘the frank hostility of Macmillan’s response’ to a similar letter.51 Viscount Lambton and Enoch Powell (both Conservative MPs) had frequently provided Benn with reports of the progress of Salisbury’s plans on Lords reform in the mid-1950s.52 When Benn’s father died in 1960 and he was excluded from the Commons, neither the Attorney General nor the Prime Minister was especially sympathetic. The Attorney General, Sir Reginald Manningham-Buller, thought that ‘the Wedgwood Benn predicament arises solely in consequence of the Labour Party’s decision to refuse to discuss the matter in 1953’.53 That the rejection by the Labour Party in 1953 of talks on the reform of composition alone had ‘sealed Mr. Benn’s fate. (In the same way, Mr Attlee refused Lord Hailsham’s plea in 1950)’ was also the view of the Prime Minister.54 But it was RA Butler who Benn felt was his ‘principal adversary throughout his attempts to disclaim’.55 It was ironic, then, as Thorpe notes, that ‘Butler was one of those who paved the way for the Reform’.56

THE COMMITTEE OF PRIVILEGES

The exclusion of Benn from the House of Commons from the moment of the death of his father was the subject of a petition to the House of Commons from Sir Lynn Ungoed-Thomas, a Labour MP, who argued for the redress of Mr Benn’s grievance and the appointment of a select committee of enquiry. The petition was referred to the House of Commons’ Committee of Privileges. In front of the Committee, Benn argued, inter alia, that peers were not, on historical precedent, excluded from the Commons, and that exclusion applied only from the moment of acceptance of a writ of summons to the Lords and not at the moment of succession. The Committee rejected all of the points that Benn put to it, finally concluding:   MSS Nuffield OHP III, 23.   Churchill to Benn, 9 April 1955, in Tony Benn, Years of Hope: Diaries, Letters and Papers 1940–1962 (London, Arrow, 1995) 376. 50   MSS Nuffield OHP III, 4. 51   MSS Nuffield OHP V, 14. 52   MSS Nuffield OHP III, 19. Lambton was heir to the Earldom of Durham (see p 126). 53   TNA FO 1109/350. Manningham-Buller to RA Butler, 26 April 1961. 54   TNA FO 1109/350. Macmillan to Kilmuir, 22 April 1961. Prime Minister’s Personal Minute Serial No M.121161. 55   MSS Nuffield OHP IV, 13. 56   DR Thorpe, Alec Douglas-Home (London, Sinclair-Stevenson, 1996) 261. 48 49

110  The Peerage Act 1963 Your Committee do not feel that they should put forward any proposals as to the possible changes of law and as to the circumstances and conditions under which a peer might renounce his peerage or his right to sit in the House of Lords without full consultation with the House of Lords and ascertaining the wishes of the Crown.57

The Committee of Privileges thereby recommended against a retrospective bill to enable Mr Benn to remain a Member of the House of Commons, and the Cabinet accepted this, agreeing that: [T]he Government should resist amendments advocating legislation to permit the renunciation of Peerages and to enable those who had renounced them to be Members of the House of Commons. If there was a case for amending the constitution of the House of Lords and the law of succession to Peerages, it should be examined as a whole, with all its implications, and not in the context of one particular issue.58

In a Resolution of 13 April 1961, the House of Commons noted that Mr Benn, on the death of his father, had ceased to be a Member of Parliament and agreed with the Committee of Privileges’ Report that he was disqualified from the Commons on the grounds of succession to the Viscountcy of Stansgate and that a peer could not surrender or renounce his status. It was never likely that the Committee of Privileges would rule that Benn’s succession was an infringement of the privilege of the House of Commons. Indeed, Benn thought that he might have got a different outcome had a committee other than the Committee of Privileges been instructed to investigate his evidence. However, the Committee did aid Benn’s campaign, albeit indirectly: for Benn, the real value of his petition being referred to the Committee of Privileges was that it gave him time to organise his own case and to increase his support in Bristol South-East.

‘RE-ELECTION’

Despite Benn’s exclusion from the House of Commons on the grounds that he was a peer, once Labour had moved the writ for the Bristol South-East by-­election, on 18 April 1961, the returning officer was powerless to reject Benn’s nomination as a candidate in the seat. The writ sought to elect ‘a member to serve in the present Parliament . . . In the room of Anthony Neil Wedgwood Benn’,59 and the wording might be taken as suggesting that Benn ought not to have been suitable to fill the vacancy. Moreover, in standing at the by-election, Benn had to sign nomination papers stating that to the best of his knowledge he was not disqualified from membership of the House of Commons. However, he defied his detractors in both the Government and in his own party and secured the nomination. 57   1960–61 HC (142), Report from the Committee of Privileges Petition Concerning Mr Anthony Neil Wedgwood Benn para 28. 58   CC 20(61)1, 13 April 1961. 59   TNA FO 1109/350. Writ quoted by Manningham-Buller to RA Butler, 26 April 1961.

‘Re-election’  111 Although there was a common law prohibition on members of the House of Lords being elected to the House of Commons or voting in House of Commons elections,60 there was nothing in law to prevent a person from standing for election to the House of Commons: it was only once elected that an Election Court could consider a petition arguing that the election was invalid. Benn won the Bristol South-East by-election on 4 May 1961 by 23,275 votes to Malcolm St Clair’s 10,231.61 Sir Edward Fellowes, Clerk of the House of Commons, worried that to prevent Benn taking his seat after the 1961 by-election would bring the Speaker into conflict with the Opposition and would lay the speaker open to claims that he had pre-judged the outcome of the Election Court.62 But the Attorney General, incensed by Benn’s ‘temerity to offer himself for re-election to the House of Commons for which he is clearly ineligible’, saw no ambiguity: the House had ruled that Benn was a peer and was therefore ineligible to sit: ‘If he tops the poll he has not removed the disqualification.’63 Benn was denied admission to the House of Commons’ Chamber on the Speaker’s instructions. During the by-election campaign, the Conservative candidate, Malcolm St Clair,64 had issued a statement to the effect that, should Benn be victorious in the by-­ election, he (St Clair) would ‘present an election petition, seeking my return as the legitimate member’.65 The result of the election was consequently challenged at an Election Court.66 At the Election Court, Benn’s core argument was that, since he had not received a writ of summons to the Lords (indeed, he had not applied for one), he was not a member of the House of Lords: the common law disqualification from being a member of the House of Commons, he argued, therefore did not apply to him. ‘In other words, he argued that what makes election to the House of Commons untenable for a peer is not peerage per se but rather, the formal assumption or invocation of a peer’s right to sit in the Lords.’67 The Election Court disagreed 60   In 1699, the Court of Common Pleas had noted the House of Commons resolution that ‘no peer of this kingdom hath any right to give his vote at the election for any member to serve in parliament’. Cited in The Earl Beauchamp v Overseers of Madresfield (1872) LR 8 CP 245 at 247. See Parliamentary Archives WHE/1/1/13. Treasury Solicitor to DJR Hill, 20 September 1999. 61   The result at the 1959 general election had been Benn 26,273, St Clair 20,446. 62   TNA FO 1109/350. EA Fellowes to Leader of the House and Chief Whip, 19 April 1961. There were also oddities of procedure about admission of new members coming before points relating to privilege, so if Benn tried to sit on the first day after the by-election, he could sit before objections were raised. Therefore, Fellowes thought that it would be best – subject to controversies arising – for the Speaker to make a prior statement, before admission of new members. 63   TNA FO 1109/350. Manningham-Buller to RA Butler, 24 April 1961. 64   St Clair, perhaps ironically, was at that time himself the heir to a hereditary peerage – the Barony of Sinclair – a position he retained until the son of the 17th Baron Sinclair was born on 09 December 1968. Had St Clair lived (he died on 1 February 2004, exactly two months before the 17th Baron Sinclair), he would have become the heir to the 18th Baron. Being a Scottish Peerage, the Barony of Sinclair excluded its holder from membership of the House of Commons without ensuring a seat in the House of Lords. 65   Statement by Mr Malcolm St Clair, prospective Conservative candidate for Bristol South-East, issued 18 April 1961. 66   On this, see Adams (n 21) 190–98. 67   Parliamentary Archives WHE/1/1/13. Treasury Solicitor to DJR Hill, 20 September 1999.

112  The Peerage Act 1963 with Benn’s core argument, citing the Beauchamp case68 as the principal case law in this area and concluding: ‘the true ratio decidendi of this case is that no English peer may vote at a Parliamentary election’.69 It added: By the fact of succession he [Benn] has entered a particular class of persons upon whom the duty of attending the House of Lords (unless granted leave of absence) is imposed by law and immemorial usage; and no modern constitutional or convention to the contrary has in our view been established.70

The Election Court therefore ruled that Benn was disqualified as a peer, and that, since this was well known, votes cast for him, rather than being a democratic expression of support for his position, were, in the eyes of electoral law, thrown away. Therefore, the Election Court seated St Clair as the candidate with the most validly cast votes.71 RA Butler’s confident and relaxed prediction that ‘he was not worried about the bye-election [sic] at Bristol South East. Labour would have a majority of about 10,000 and the Conservatives would have a seat’72 came true. Following the decision of the Election Court that Benn was a peer on the date of the by-election, St Clair took his seat on 31 July 1961. St Clair immediately considered applying for the Chiltern Hundreds (ie, resigning his seat in the House of Commons), but since the judgment of the Election Court did not make it possible for the Returning Officer to refuse Benn’s nomination at the ensuing byelection, senior Conservatives did not think St Clair’s resignation from Parliament to be in the interests of the electors of Bristol South-East.73 St Clair therefore resolved to resign from Parliament if Benn promised not to stand (which he Table 5-1: Election and by-election results in Bristol South-East, 1959–64

Benn, AN Wedgwood (Lab) St Clair, Malcolm (Con) O’Brien, RS (Con) Others* Total vote Labour majority

1959 1961 1963 1964 26,273 56.2% 23,275 69.5% 20,313 79.7% 29,117 60.2% 20,446 43.8% 10,231 30.5%

–

–

–

–

– – – – – 19,282 39.8% – – – – 5,165 20.3% – – 33,506 81.4% 33,506 56.2% 25,487 42.2% 48,399 77.8% 5,827 12.5% 13,044 39% 15,479 60.7% 9,835 20.4%

*  National Fellowship Conservative 4,834 (19%), Independent 287 (1.1%), Anti-Socialist Liberal-Conservative 44 (0.2%). Source: The Times Guide to the House of Commons 1964. 68   The Earl Beauchamp v Overseers of Madresfield (n 60). The Earl, who had already taken his seat in the House of Lords, sought to establish whether he could remain on the electoral register. 69   Re Parliamentary Elections for Bristol South East [1964] 2 QB 257, 285. 70   Re Parliamentary Elections for Bristol South East (n 69) 289. 71   Re Parliamentary Election for Bristol South East (n 69). 72   TNA FO 1109/350. Minute of meeting, 21 April 1961. 73   CC 46(61)4.

Seating the ‘Defeated’ Candidate  113 would not) or if Benn’s disqualification was altered by Parliament. This second condition was to have unexpected consequences for Benn’s fate.

SEATING THE ‘DEFEATED’ CANDIDATE

Crick believes that the act of seating a defeated candidate was critical in providing Benn’s campaign with its impetus. ‘[I]t is doubtful’, he says, ‘whether the Committee would have been appointed at all and the Bill brought forward if the Election Court had contented itself with disqualifying Benn and had not made nonsense of the electoral process by seating his opponent.’74 It is difficult to tease out the support which Benn had gained from a successful campaign and a large victory in the Bristol South-East by-election from the additional support gained by the seating of the ‘losing’ candidate. Nevertheless, Borrie’s observation that ‘The Election Court pronounced the hereditary system to be part of the fabric of the constitution . . . the effect of the judgment, backed as we have seen by ample authority, is that the hereditary principle prevails over the democratic’75 is indicative that the Election Court sealed public opinion in support of Benn’s return to the Commons and therefore in favour of him being enabled to renounce his peerage. Benn himself said of these events: ‘I did realise at a later stage that this battle would never be transformed from more than just a minuet in the ballroom of the Establishment into a successful battle until it went through the controversial period.’76 It is certain that the refusal of the Election Court to seat the victorious candidate in Bristol South-East was politically embarrassing for the Government. But even if the actions of the Election Court had helped to ensure the enactment of the Peerage Bill in 1963, it did not kick-start the Macmillan Government into movements towards Lords reform.77 On 23 March 1961, nearly a month before the by-election was called, Sir Lynn Ungoed-Thomas, a Labour MP, introduced the Peerage (Renunciation) Bill. This Bill sought to extend the general principles of the Wedgwood Benn proposal, but included, notably, the provision by which a peer who had already received a writ of summons and had voted in the Lords could still execute an Instrument of Renunciation. At the same time, RA Butler told the Cabinet that: The simplest course would be for the Government to put down a Motion taking note of Mr Wedgwood Benn’s disqualification and approving the Committee’s report. There was, however, a substantial body of opinion, not only in the Opposition but among Government supporters, in favour of referring the whole question to a joint committee of both Houses.78   Crick (n 19) 145.   Borrie (n 4) 360. 76   MSS Nuffield OHP III, 17. 77   CC 19(61)1, 28 March 1961. 78   CC 19(61)1, 28 March 1961. 74 75

114  The Peerage Act 1963 Two days after the writ for the by-election had been moved, the Cabinet concluded that the Government might ‘strengthen their position by taking the initiative’ by instigating an enquiry into the issues raised by the Benn case. Given that ‘Parliament, and in particular the House of Lords, might not welcome any form of independent enquiry’, a joint select committee of both Houses was preferred.79 The Labour leadership was disappointed that it had not been informed of the possibility of this decision: it might have delayed moving the writ in the hope of getting Benn’s position changed. But the possibility of legislation to alter Benn’s situation being enacted within a year was even then seen as remote, and it was thought by the Government that it would ‘be indefensible to leave the constituency unrepresented for so long’.80 The decision to appoint the Joint Committee (ministers considered and rejected convening a Committee of Privy Councillors to consider reform, along the lines of the 1948 model)81 therefore came long before the Election Court handed down its decision on 28 July 1961; although having made the decision in April to proceed with a joint committee on the composition of the House of Lords, the Cabinet concluded after the Election Court had seated Mr St Clair in summer 1961 that there would not be time in the 1960– 61 Session for a debate on the appointment of the Joint Committee.82 THE JOINT SELECT COMMITTEE83

There was support among Government and Opposition supporters for referring the question of renunciation to a Joint Select Committee of both Houses. Crick states that Labour’s participation in the Joint Committee came about ‘largely on grounds of sympathy for a very popular colleague’.84 But the attitudes of senior Labour politicians towards Mr Benn and his peerage case were not so clear-cut. The Government was slow to initiate the Joint Committee after its initial decision in April 1961 to proceed with its appointment. The Joint Committee was established to consider broad issues relating to membership of the House of Lords, but not that House’s powers or functions.85 However, Macmillan’s proposal to include in the Committee’s terms of reference to enquire ‘whether the number of Peers and Peeresses entitled to sit and vote in the House of Lords should be limited, and if so to what extent and in what manner’ was omitted from the final terms of reference, lest it lead to ‘attacks on the principle of hereditary succession to the House of Lords and political embarrassment for the Government’, and to ensure that there was   CC 22(61)3, 20 April 1961.   CC 24(61)1, 26 April 1961. 81   TNA FO 1109/350. Minute of meeting, 21 April 1961. 82   CC(61)46, 1 August 1961. 83   The deliberations of the Committee and the resultant debates in Parliament are recorded in J Sainty, ‘The Joint Committee on House of Lords Reform and the Peerage Bill’ (1962) XXXI The Table 13. 84   Crick (n 19) 143. 85   CC(61)22, 20 April 1961. 79 80

The Joint Select Committee  115 sufficient focus on the immediate Wedgwood Benn issue.86 The terms of reference were later further restricted to exclude the payment of peers (the inclusion of which had also been favoured by the Prime Minister)87 to ensure the cooperation of the Opposition and to focus on the Wedgwood Benn case. To ensure sufficient focus on the Benn issue, however, was not to let it be the sole issue under consideration. Macmillan wrote to the Lord Chancellor on 22 April 1961, stating: I am rather distressed to hear that the proposal is to limit the subject for enquiry for the Joint Select Committee to the question of peers and peeresses becoming eligible for election to the House of Commons. This is the Benn point ‘pure et simple’. Would it not be better tactics to widen the terms of reference? . . . to take the opportunity which is offered to us, not merely to deal with the immediate problem but by widening the scope of the enquiry do something to settle the composition of the House of Lords and perhaps establish it for many years to come?88

A wider enquiry would enable the Government to pick and choose from the proposals, to claim the mantle as the true reformers of the Lords and to ‘put the Opposition Leaders in great difficulty’ because they would be divided between reformers and abolitionists.89 A wider remit would also, ministers thought, diminish the prospect of the question of renunciation coming up at the following general election. 90 The Cabinet strove slightly to widen the terms of reference of the Joint Committee, specifically to avoid a ‘Wedgwood Benn enabling Bill’, but was unwilling to stretch the terms too wide.91 Any Committee should, the Cabinet thought, be prevented in its terms of reference from considering retrospective legislation. And it was acknowledged that supporters of renunciation might be in a majority on any joint committee and that therefore the Government should agree to a joint committee only if it was willing to accept change.92 However, the Wedgwood Benn point ensured that the Committee had to consider the position of those who had already succeeded to their peerages, even though there was no question of backdating renunciation. It was suggested to the Cabinet that the Opposition might be less unwilling to cooperate with the Joint Select Committee if the Government were to invite the Committee to submit an interim report on succession to peerages and their suspension or termination.93 But the Home Secretary decided that, on balance, it would not be preferable to have such an interim report.94

  CC(61)23, 25 April 1961.   TNA FO 1109/350. Macmillan to Kilmuir, 22 April 1961. Prime Minister’s Personal Minute Serial No M.121161. 88   TNA FO 1109/350. Macmillan to Kilmuir, 22 April 1961. 89   TNA FO 1109/350. Macmillan to Kilmuir, 22 April 1961. 90   TNA FO 1109/350. Minute of meeting, 21 April 1961. 91   CC(61)46, 01 August 1961; CC(61)74, 14 December 1961. 92   CC (61)19, minute 1, 28 March 1961. 93   CC 36(61)2. 94   CC 40(61)1. 86 87

116  The Peerage Act 1963 By the middle of December 1961, it was likely that agreement could be reached between Opposition leaders and Government supporters on the terms of reference of the Joint Select Committee on House of Lords reform. ‘All parties seemed likely to accept an enquiry which would not be empowered to deal with powers, composition, or remuneration but would be confined to the specific anomalies which had been the subject of recent controversy.’95 What had caused this about-turn in Government policy on the terms of reference of this Committee? RA Butler was pleased with his involvement in manoeuvring his Government colleagues into a position of favouring Benn. The Government could have sought to include the powers of the House of Lords within the terms of reference of the Joint Select Committee, but to have done so would either have jeopardised the Committee’s existence or would have promoted stalemate.96

Work of the Joint Committee The Joint Select Committee on House of Lords reform met for the first time on 9 May 1962 with the Lord Chancellor, Viscount Kilmuir, in the Chair.97 Eleven members of the Committee were from the House of Commons and 12 were from the House of Lords, a situation which was without precedent in the history of joint committees since they were re-established in 1864.98 The Committee met nine times in the 1961–62 Session, was re-appointed in the following session and had four further meetings. It reported99 in December 1962. The Shadow Cabinet met on 19 December 1962, two days after the publication of the report. It did not want to have to deal with the problem of renunciation in future: a Labour government would be much too busy with other matters, so it was in its interests to let the Government deal with the problem.100 Labour was not prepared to be enthusiastic about the Bill, but was prepared to cooperate in order to secure its passage, on the condition that the Government stuck to the recommendations of the Joint Committee in toto. Benn remarked that ‘this is the   CC (61) 74, minute 1, 14 December 1961.   Crick (n 19) 144. 97   He continued as Chair after his resignation from the Cabinet in July 1962, which was thought by Benn to be good for the continuity of the work of the Committee but presented problems for securing legislation, as the Chair was no longer a Cabinet minister (MSS Nuffield OHP XI, ii–1). He was created Earl of Kilmuir on 20 July 1962. 98   Sainty (n 83) 16. The Committee’s members were, from the House of Commons, six Conservatives (Mr Frederic Bennett, Mr du Cann, Mrs Emmet, Mr Longden, Sir Charles Mott-Radclyffe and Sir Kenneth Pickthorn), four Labour members (Mr Gordon Walker, Mr Hale, Mr Mitchison and Mr Charles Pannell) and one Liberal (Mr Wade). From the Lords, there were six Conservatives (the Lord Chancellor (Viscount Kilmuir), the Marquess of Salisbury, the Earl St Aldwyn, the Earl of Swinton, the Viscount Colville of Culross and Lord Derwent), four Labour (Viscount Alexander of Hillsborough (Leader of the Party in the Lords), the Earl of Listowel, Lord Silkin and Lord Morrison of Lambeth), one Liberal (Lord Rea (Leader of the Party in the Lords)) and one law lord (Lord Morton of Henryton, appointed to give legal expertise to the committee). 99   HL 23, HC 38 (1962–63). 100   MSS Nuffield OHP XI, ii–7. 95 96

The Joint Select Committee  117 Government’s first reaction to the report as well and that they are beginning to look upon the report as if it were the report of the Boundary Commission’.101 The recommendations of the Joint Committee were arrived at only after much difficult argument and in the face of a number of close divisions. The decision to permit sitting peers to be eligible for surrender – the central ‘Wedgwood Benn point’ and the key reason for the existence of the Committee – was reached only by 11 votes to 10 (with two members of the Committee not voting). As such, the Committee set up to investigate Mr Benn’s situation only by the smallest of margins avoided giving the right to renounce to future hereditary peers, but not to the most vociferous advocate of renunciation – Mr Benn himself. Charlie Pannell MP told Benn at the time that he had never been on a committee which had been so anxious to rid itself of its task: they had broken the back of their discussions, were happy with their solution and decided that they did not wish to take evidence.102 Benn recalled at the time: Table 5-2: Joint Select Committee voting on retrospective peerage surrender Motion: ‘They consider that since the right to some form of surrender of a Peerage can only arise by legislation consequent upon this Report, it seems just that hereditary Peers, who might have been glad to exercise such a right, had it existed when they succeeded to their Peerages, should now be given an opportunity to exercise it within a reasonable time.’ Contents Viscount Alexander of Hillsborough (Lab) Lord Hare (E of Listowel) (Lab)

Not contents Marquess of Salisbury (Con)

Did not vote Mr du Cann (Con)

Earl St Aldwyn (Con)

Sir Kenneth Pickthorn (Con)

Lord Rea (Liberal) Earl of Swinton (Con) Lord Silkin (Lab) Earl of Kilmuir (Con) Lord Morrison of Lambeth (Lab) Viscount Colville of Culross (Con) Mrs Emmet (Con)* Lord Derwent (Con) Mr Gordon Walker (Lab)* Lord Morton of Henryton (Lord of Appeal in Ordinary) Mr Longden (Con) Mr Frederic Bennett (Con) Mr Mitchison (Lab)* Mr Hale (Lab) Mr Charles Pannell (Lab)* Sir Charles Mott-Radclyffe (Con) Mr Wade (Lib)* * Later a life peer Source: 1962–63 HL (23) HC (38). Report of the Joint Select Committee on House of Lords Reform. December 1962. Subject: Surrender of Peerages.   MSS Nuffield OHP XI, ii–7.   MSS Nuffield OHP XI, 15.

101 102

118  The Peerage Act 1963 There has been an alliance between the Tory backwoodsmen and the Tory back-benchers in the Commons in favour of the complete obliteration of a man who renounces from all precedences. The reason for this is the Tory backwoodsmen feel that if a man gives up his peerage then he should have no privileges at all . . . The Tory MPs – the back-benchers – are terrified of peers coming and stealing the best constituencies and so they are determined to exact this.103

This was just what Benn wanted: it would restore his ‘Wedgwood Benn-ness’.104 THE PEERAGE BILL

The Joint Committee reported that people succeeding to peerages should be able to renounce their titles (and therefore stand for and sit in the House of Commons), without reference to their heirs or to the Crown, within 12 months of succession (one month for sitting MPs; six months for those who succeeded before the Act was in force). A peerage which was renounced would go into abeyance for the lifetime of the renouncer, and neither the holder nor any others would be entitled to any style, title or position in right of that peerage until the renouncer had died. The Joint Committee also recommended that all Scottish peers should be admitted to membership of the House of Lords as Lords of Parliament and that women who were peeresses in their own right should also be permitted to sit as members of the House of Lords. The Joint Committee declined, against the advice of the Garter Principal King of Arms, to recommend that ‘all Peers existing at the time, including Life Peers and Lords of Appeal in Ordinary, should be permitted to surrender’ (emphasis added),105 which would have enabled Lord Longford to resolve his predicament.106 The Report of the Joint Committee was considered by a Committee under the chairmanship of the Prime Minister.107 The Cabinet regretted that one situation, that of Mr Benn, ‘should lead to a measure which might gradually reduce the vitality of the Second Chamber by discouraging able individuals from accepting succession’, but concluded with resignation that ‘the public support for the recommendations of the Joint Select Committee was sufficiently clear and widespread to make it desirable for the Government to implement them, with the   MSS Nuffield OHP XI, 16.   MSS Nuffield OHP XI, 17.   Churchill Archives Centre, The Papers of Lord Kilmuir, KLMR 6/18. ‘Surrender of Peerages’ Note by Garter King of Arms (Sir Anthony Wagner), 13 June 1962. 106   In 1945, Frank Pakenham, a Labour Party candidate in the 1945 general election, had accepted a peerage (a hereditary peerage of first creation, since general life peerages had yet to be introduced) rather than seek further to become an MP in the resigned knowledge that he was inevitably destined to succeed a hereditary peerage. In 1961, he succeeded his brother as Baron Silchester (and was thereafter known by the senior Irish title of Earl Longford, though it was the UK Barony and not the Irish Earldom which conferred the duty to sit in the Lords). Under the terms of the Peerage Act, Pakenham could disclaim the Silchester Barony, but not the Barony of Pakenham which had been conferred upon him in 1945. The Cabinet later decided that there was an insufficient groundswell of opinion within Parliament to permit a deviation from the Joint Committee’s Report (CC 29(63)9, 9 May 1963). 107   CC 6(63)6, 24 January 1963. 103 104 105

The Peerage Bill  119 minor exceptions now proposed’.108 Indeed, ministers had earlier concluded that any potential detraction from the House of Lords through the renunciation of peerages would damage the House less in the medium term than would consistent attacks.109 The Cabinet was advised by the Chancellor of the Duchy of Lancaster and Leader of the House of Commons (Iain Macleod) that ‘it would be desirable to proceed with legislation, since there was little doubt of the public feeling in favour of enabling Peers to stand for election to the House of Commons’.110 The proposals of the Joint Committee would be presented en bloc as an integrated whole ‘in order to minimise the risk of conflict between the two Houses’.111 These proposals became the Peerage Bill, which authorised the disclaimed for life of certain hereditary peerages, made it possible for peeresses in their own right and for Scottish peers to sit in the House of Lords, and removed disqualifications of peers of Ireland in relation to elections to the House of Commons.

Commencement The Peerage Bill had a relatively swift passage through both Houses of Parliament, from its First Reading in the Commons on 30 May to receiving the Royal Assent just two months later. The key potential stumbling block relating to the Bill was the date of commencement of its provisions. The Government promised in January 1963 that the Bill should ‘become law in time to take practical effect at, but not before, the next General Election’.112 Macleod advised his colleagues in the Cabinet that ‘It would be undesirable to allow the composition of a Parliament to be modified during its lifetime’ and also that the Government might, if this was the case, suffer embarrassment in Bristol South-East, since St Clair had promised to resign, and force a by-election, should Benn’s position change.113 On 15 May 1963, a statement had been made in both Houses that the measure would be operative at the next election. But Labour wanted the measure to be in place before then and tabled an amendment at Committee Stage in the Commons. In the face of the Opposition amendment, the Cabinet on 25 June re-affirmed its view that ‘it was objectionable in principle to amend the composition of a Parliament until a dissolution’.114 It was also concerned by objections from the House of Lords of the admission of new members, in the form of hereditary 108   CC 29(63)9, 9 May 1963. As Table 5-4 shows, few people renounced peerages, and some of those who did renounce later took up life peerages and served in the House of Lords. 109   TNA FO 1109/350. Minute of meeting, Lord Chancellor’s Room, 21 April 1961. 110   CC 6(63)6, 24 January 1963. 111   CC 6(63)6, 24 January 1963. 112   CC 6(63)6, 24 January 1963. 113   CC 42(63)1, 25 June 1963. 114   CC 42(63)1, 25 June 1963. Renunciation would de facto alter the composition of the Commons, because Mr St Clair had given assurances that he would take the Chiltern Hundreds if Mr Benn’s position was altered by legislation. The Cabinet also foreshadowed objections from the House of Lords on the alteration, between elections, of its membership, through the admission of peeresses and Scottish peers.

120  The Peerage Act 1963 peeresses and Scottish peers, before the end of the Parliament (nowhere is the argument recorded that, in fact, the composition of Parliament is often altered, mid-term, by new creations). The Cabinet was resolute that the amendment should not be allowed. Just two days later, on 27 June, the Cabinet’s position shifted – subtly, but importantly. The Cabinet decided after a five-minute discussion that, although the weight of opinion was against the Opposition’s amendment to ensure that the Peerage Bill came into effect on receiving the Royal Assent rather than at the following election, if the amendment were to be carried, then it should be accepted.115 In entertaining the possibility of amendment, the Cabinet was admitting that the date of commencement – something which ‘must be regarded as an integral element in the arrangements’116 – might be altered. It is important to note that, despite the Cabinet’s continued assertions that it was an integral element of the Bill that it should not come into force before dissolution, Macleod pointed out to his colleagues that: ‘The Joint Select Committee made no recommendation on this point [date of commencement] and so it is not part of what has been commonly referred to as the “package deal”.’117 Whilst Macleod and his Commons Chief Whip, Martin Redmayne, believed on 27 June that the weight of opinion amongst their supporters in the Commons was against the Peerage Bill coming into force before dissolution,118 two weeks later, the Lord Chancellor, Lord Dilhorne, reported that now the Opposition in the Lords had tabled an amendment to ensure that commencement was upon receiving the Royal Assent, and that this amendment might well be carried.119 The Cabinet still opposed the amendment ‘even at risk of defeat’.120 The Cabinet was defeated: on 16 July, the House of Lords, with many who usually supported the Government voting against it, endorsed by 105 votes to 25 the Opposition amendment on the date of commencement.121   CC(63)43, 27 June 1963.   CC(63)43, 27 June 1963. 117   C(63)131. Cabinet: ‘Peerage Bill’: Memorandum by Macleod, 17 July 1963. 118   Their predictions in that morning’s Cabinet were correct: later that day, on a division strictly on party lines, the Commons voted by 174 to 113 to reject the Opposition’s amendment on commencement. 119   CC(63)45, 11 July 1963. Lord Swinton had tabled an amendment which was designed to mitigate the effect of this Opposition amendment by allowing 12 months (rather than six months) for a peer to decide to renounce if he succeeded before the Act had come into effect. The Cabinet sought to accept the Swinton amendment if the Opposition amendment was carried. 120   CC(63)45, 11 July 1963. 121   C(63)131. Cabinet: ‘Peerage Bill’: Memorandum by Macleod, 17 July 1963. In the House of Commons, Charlie Pannell MP had said of this argument a month earlier that: ‘If we look at Appendix 18 in the Committee’s Report – the memorandum by Lord Hailsham – we find that it was a cry from the heart. In that document he puts forward the plea that people like him, who, for reasons of public duty as they saw it, accepted service in the House of Lords, should not be denied the advantages given to people who refuse the writ of summons. That argument was carried by one vote, and immediately it was this Bill ceased to be a Wedgwood Benn enabling Bill, because it allowed Lord Hailsham to come back here, and also every other peer who has ever gone to the other place, except peers of first creation and life peers. It is, therefore, a complete travesty of the facts to suggest that this is now a Wedgwood Benn enabling Bill. There can be no argument about this’: HC Deb, 19 June 1963, vol 679, cc 515–16. 115 116

The Peerage Bill  121 In the wake of this vote, Macleod warned his Cabinet colleagues: Nevertheless, the provision that the Bill should operate from dissolution has been our intention from the beginning and has been reaffirmed on more than one occasion by Cabinet. There are really no new arguments to be adduced and the precedents such as they are on the whole favour bringing in such a change on dissolution . . . The real point is that the Government would have to fight or concede an election in Bristol South-East to Mr. Wedgwood Benn. The sitting Member, Mr. Malcolm St. Clair, has given specific pledges that he would resign if Mr. Benn’s position was altered by Parliament. This in effect would make the Bill from the point of view of the Government’s supporters in the House of Commons a Wedgwood Benn Enabling Bill. The difficulty is that from the beginning we have told our supporters in the House of Commons that this is the one thing we would never allow to happen. It is really because of this that the other provisions are in the Bill at all. The Cabinet of the day was not really concerned with the rights of those Scottish representative Peers who do not get themselves elected to Parliament or the case for hereditary Peeresses in their own right. We inserted these matters so that this Bill should not single out Mr. Wedgwood Benn. When a year ago I was invited to discuss this Bill with the Government’s supporters in Parliament it was this point which they pressed on me in very fierce terms. Of course, it is open to any Peer to disclaim when this Bill becomes law but the only one that has said formally that he will is Mr. Wedgwood Benn.122

A key factor driving the Government’s position on the date of commencement of the reform proposals, in addition to the questionable claim of constitutional principle, had therefore been to avoid being politically embarrassed in a by-election and to avoid political awkwardness from its own supporters in Parliament. The amendment on the date of commencement having been carried, the Cabinet decided not to seek to reverse the decision. Opinion amongst the Government’s supporters in the Commons shifted, not least so as to avoid a conflict with the Lords, but also because the risk of peers imminently resigning their peerages in a pre-election flurry was mitigated by the acceptance of an amendment from Lord Swinton extending the renunciation window for existing peers from six to 12 months (which had, in any case, been the recommendation of the Garter Principal King of Arms to the Joint Committee).123 Moreover, the leadership question in the Conservative Party was rising up and a pre-election enactment would enable Hailsham, and possibly Home,124 to enter the candidate   C(63)131. Cabinet: ‘Peerage Bill’: Memorandum by Macleod, 17 July 1963.   CC(63)47, 18 July 1963. 124   It is, however, questionable whether Home was a serious candidate in the Conservative leadership discussions prior to October 1963. A poll of Conservative MPs undertaken by the Daily Telegraph political correspondent, Harry Boyne, mentioned Home, but put him last on seven votes (Maudling led with 147, then Hailsham with 56). See Philip Goodhart with Ursula Branston, The 1922: The Story of the Conservative Backbenchers’ Parliamentary Committee (London, Macmillan, 1973) 187. Home and Hailsham had met in May 1963 to discuss their position regarding the Peerage Bill and the decision on 8 May that renunciation would not extinguish a peerage ensured that Home could renounce (if disclaiming his Earldom meant that it would have been extinguished for ever, not just put into abeyance for his lifetime, Douglas-Home would have not disclaimed, and would therefore have chosen to stay in the Lords), but it was not until October that the possibility of a convenient seat for Home became a reality. See Thorpe (n 56) 259–62. 122 123

122  The Peerage Act 1963 pool.125 In the end, the Government capitulated and let the amendment on the commencement date stand. The Peerage Act therefore came into effect on receiving the Royal Assent on 31 July 1963. Tony Benn renounced his peerage at 6.22 pm that evening. Malcolm St Clair honoured his promise to take the Chiltern Hundreds, and Tony Benn won the resultant by-election with almost 80 per cent of the vote. The headline statement by The Times Guide to the House of Commons 1964 that there had been ‘no change’ in Bristol South-East between 1959 and 1964 belied the two changes of MP, an Election Court, a joint committee and an Act of Parliament that the Bristol South-East had seen in that time.

CONCLUSION

For all the vigorous campaigning by himself and his father, Benn was unable to attain the right to renounce the Stansgate Viscountcy whilst his father was alive. The possibility of succession could not engender sufficiently widespread support in order to change the law. The Committee of Privileges was unwilling to adapt itself to a new situation, the hereditary ‘working peerage’: it was not the best avenue for Benn to seek satisfaction through, but it was the only non-legislative route and had to be attempted. Both the Committee of Privileges and the Election Court declined to acknow­ ledge that the concept of the inalienability of peerages was peer-made law, based on case law which had been determined by interested parties. Furthermore, the Court refused to acknowledge the votes for Benn, declaring that rather than messages of support for the Labour candidate, votes for him were intentionally wasted because the electors knew that he was disqualified. On both counts, the Election Court proved itself to be intransigently constitutionally conservative. What the Bristol South-East by-election did result in, however, was the generation of a great deal of public support for Mr Benn, and this support was reinforced by the seating of his opponent by the Election Court. This level of support ensured the setting up of the Joint Select Committee (which was already planned in response to the early signs of the public’s mood) on the Wedgwood Benn issue, and other questions, it mandated this Committee to find a resolution for Benn’s predicament and it compelled the Government to accept the recommendations of that Joint Committee, and therefore to accept the principle of renunciation. Timetabling pressures towards the end of the 1962–63 Session (and a desire to get the Peerage Bill through, despite an initial belief that it would be impossible to secure the Bill within the Session), together with the fact that the Government could not insist on the date of commencement because it fell outside the ‘package 125   On this, see Thorpe (n 56) 261–62; Bromhead (n 7). Hailsham had co-authored with Macleod a paper to the Cabinet pushing the argument that commencement should occur at – but not before – the next general election (C(63), 18 January 1963).

Conclusion  123 deal’ to implement the Joint Committee’s proposals, enabled Benn to regain his Bristol South-East seat before the 1964 general election. This, in turn, enabled Home and Hailsham to contest the leadership of their party. Ironically, St Clair’s promise to resign the seat if Benn again became eligible for the Commons almost delayed Benn’s return to Parliament, but in the end the momentum of Benn’s campaign – and the desire to avoid renunciation becoming an election issue – overcame this obstacle. Benn’s predicament opened a window of opportunity for tidying up other ongoing issues relating to the hereditary peerage. But more than that, Benn’s situation required this tidying-up as a way of disguising the Peerage Bill and making it seem less of a ‘Wedgwood Benn Enabling Bill’. Some Conservative backbenchers would have been more opposed to a simple provision that was restricted to relieving Benn’s disqualification from the Commons, even if this had extended to others, than for the wider reforms. For once, complicating a reform process helped its passage rather than hindering it. Widening the pool of candidates for the Conservative leadership might have helped the Opposition secure its Lords amendment and then change the opinion of the House of Commons to reverse its initial rejection of a similar amendment. But the prospect of a Conservative leadership contest was not critical to the enactment of the Peerage Bill and was probably not necessary for the amendment on the date of commencement. In the end, the Macmillan Government ended up with just what it had attempted to avoid – a Wedgwood Benn Enabling Act – albeit one with finial details. The need for justice and democracy had prevailed, but only with an extension in the hereditary principle. However, the party imbalance remained and no action in the 13 years of Conservative government 1951–64 had assuaged the Labour Party’s fear of the latent threat of the House of Lords.

124  The Peerage Act 1963 Table 5-3: Previous proposals for allowing peers to stand for election to the House of Commons126 1888, Lord Dunraven’s House of Lords (Constitution) Bill Hereditary peers gradually replaced with Lords of Parliament (nominated by Crown or elected by hereditary peers). Holders of existing hereditary peerages would remain unless they resigned. Hereditary peers and former Lords of Parliament in the House of Lords could stand for the Commons. 1893, Mr Labouchère’s Peers’ Disabilities Removal Bill Any peer could request to be put on the electoral roll and to stand for election to the Commons. Any such request would both make the peer into a commoner, and extinguish the peerage for ever. The peerage would also be extinguished if the holder accepted a major political office (Prime Minister, Secretary of State, or Chancellor of the Exchequer). 1894, Mr Brodrick’s Peers’ Disabilities Removal Bill Arose from the imminent removal from the Commons of Vt Wolmer MP on succeeding as Second Earl of Selborne. On succeeding to a peerage, a hereditary peer would, if elected to the Commons, lose his seat in the Lords or his right to stand as a representative peer, for that Parliament. Having sat once in the Lords, a peer would permanently be disqualified from election to the Commons. 1895, Mr Brodrick’s Peers’ Disabilities Removal Bill As the 1894 bill. 1907 Lord Newton’s House of Lords Reform Bill No automatic right of a peer to sit in Lords. A peer with no seat in the Lords and who had not stood as a representative peer would be entitled to stand for election to the Commons, but doing so would forfeit his right to sit in the Lords. 1908 Rosebery Select Committee report A scheme based on Lords of Parliament. Hereditaries elected by their peers, or otherwise qualified by having held certain offices. Peers not thus qualified, and who had never stood for election to the Lords, would be able to stand for the Commons. 1911, House of Lords Reconstitution Bill (Lord Lansdowne) A version of the ‘Lords of Parliament’ proposal. One hundred hereditary peers elected by their order for 12 years, and only peers with certain qualifications eligible to stand for election to Lords. Any hereditary peer not a member of the Lords could stand for the Commons. 1914, Hereditary Titles (Termination) Bill (Mr Ponsonby) No explicit proposal for allowing peers to stand for the Commons included, but the bill would end all hereditary peerages. Hereditary peers could disclaim their titles by deed 126   ‘Previous Proposals for allowing Peers to Stand for Election to the House of Commons’, memorandum by the Lord Chancellor’s Office, 31 May 1961. None of the proposals prior to the 1948 Party Leaders’ Conference were Government proposals. Source, Parliamentary Archives LH Papers.

Conclusion  125 poll, whereupon the peerage would revert to the Crown.127 No peerage could be inherited after the enactment of the bill. 1918, Bryce Report There would be 81 hereditary peers and bishops in the second chamber, chosen by a joint committee of both Houses. A peer who was not a member of the second chamber would be eligible for election to the Commons. 1922, The House of Lords Reconstitution Bill One hundred members elected from amongst hereditary peers who held other qualifications. A peer who was not a Lord of Parliament could stand for the Commons. (Dropped without proceeding to Second Reading.) 1923, Hereditary Titles (Termination) Bill (Mr Ponsonby) Identical to Mr Ponsonby’s 1914 proposals. (Dropped without proceeding to Second Reading.) 1925, Lord Birkenhead’s scheme Closely resembled the scheme proposed by the Baldwin Government in 1927. (Motion withdrawn after two days’ debate.) 1927, Baldwin Government proposals (Lord Cave) Hereditary peers would elect some of their number to be Lords of Parliament for a fixed term. Those peers who were not Lords of Parliament could stand for the Commons. (Proposals lapsed, following opposition from Conservative MPs.) 1933, Parliament Reform Bill (Lord Salisbury) A total of 150 hereditary peers elected for 12-year terms. Any hereditary peer not an elected Lord of Parliament would be eligible for the Commons. 1948, Party Leaders’ Conference proposals Peers who were not in the Second Chamber could stand for the Commons. 1958, Life Peerages Bill128 Amendments proposed (but not carried) to enable hereditary peers (with the consent of their heirs) to convert their peerages into life peerages, and to make life peers able to resign their titles. On conversion, and then resignation, a peer would become eligible for election to the Commons.

127   It is often said that a peerage ‘becomes extinct’. However, peerages actually return to the Crown (and can be re-issued) when the holders themselves become extinct or, in the case of this proposal, when the title is disclaimed. 128   These amendments were moved at the Committee Stage in the House of Lords. They were rejected. Such amendments would probably have been ruled out of order had they been raised in the Commons (there was no such procedure in the Lords).

126  The Peerage Act 1963 Table 5-4: Peers who have disclaimed their titles under the Peerage Act 1963 Date Peerage 1963 Vt Stansgate

Disclaimer Notes A Wedgwood Benn* 1963 Ld Altrincham J Grigg* Died 2001; succeeded by his brother, who did not disclaim. 1963 Vt Hailsham Q Hogg* Took life peerage Baron Hailsham of St Marylebone, 1970. Died 2001; succeeded by his son, D Hogg MP, who did not disclaim. 1963 E of Home Sir Alec Took life peerage as Baron Home of the Hirsel Douglas1974. Died 1995; his son resumed the title. Home 1964 Ld Southampton E Fitzroy Died 1989; his son resumed the title. 1964 Ld Monkswell W Collier Died 1984; his son resumed the title. 1964 Ld Beaverbrook M Aitken* Died 1985; his son resumed the title. 1964 E of Sandwich

V Montagu

Known by the courtesy title Vt Hinchingbrooke when an MP prior to succeeding in 1962. Died 1995; his son resumed the title. 1966 Ld Fraser of Sir H Fraser* Succeeded father, who had been created a Allander hereditary Baron in 1964, after the Life Peerage Act came into operation. Died 1987; title extinct. 1970 E of Durham A Lambton Allowed by Mr Speaker Lloyd to continue sitting in the House of Commons under his courtesy title Vt Lambton after he disclaimed his Earldom. Succeeded (2008) by his son, who resumed the title 1971 Ld Sanderson of A Sanderson* Succeeded father, who had been created a Ayot hereditary Baron in 1960. 1972 Ld Reith C Reith* 1973 Ld Silkin A Silkin* Died 2001. A younger brother had been created a life peer as Baron Silkin of Dulwich, 1985: his son succeeded as 3rd Baron Silkin in 2001, but disclaimed for life. 1975 Ld Archibald (G) Died 1997; title extinct. C Archibald* 1977 Ld Merthyr T Lewis 1994 E of Selkirk J DouglasCreated a life peer as Baron Douglas of Selkirk, Hamilton 1997. 1995 Vt Camrose M Berry Created a life peer as Baron Hartwell, 1968. Died 2001; succeeded by his son who resumed the title. 2002 Ld Silkin C Silkin Succeeded uncle (above). Son of Baron Silkin of Dulwich (Life Peer). * Succeeded a person who had been made a hereditary peer of first creation. Sources: David Butler and Gareth Butler, Twentieth Century British Political Facts 1900– 2000 (Basingstoke, Palgrave, 2000), 231; Who’s Who, Who Was Who.

6 Adding to Wilson’s Strife: The Inter-Party Conference and the Parliament (No 2) Bill [1968–69] In the House of Commons the only loud cheer on our side had come down when the P.M. mentioned the reform of the Lords. Provided we make it a good reform they are going to like it. Richard Crossman, 31 October 19671 I am doubtful whether we can persuade the hereditary peers to accept a system which would exclude a substantial number of them from attendance and speaking in debate. Lord Home, 19562

M

UCH HAD CHANGED in the House of Lords during Labour’s 13 years in Opposition from 1951 to 1964. Life peers had started to fill out the House of Lords from its previously emaciated state, enhancing the active membership. Attendance allowances had also helped make the House more active. Furthermore, the link between inheritance of a hereditary peerage and membership of the House had been broken. Life peers, however, constituted only a very small minority of members,3 and the Lords still remained an overwhelmingly hereditary and Conservative body. Despite the changes that had been introduced, there was a feeling at the time amongst Labour ministers that the Conservatives had tinkered unilaterally with 1   Richard Crossman, The Diaries of a Cabinet Minister, Volume Two: Lord President of the Council and Leader of the House of Commons 1966–68 (London, Hamish Hamilton and Jonathan Cape, 1976). cf the reception of Labour MPs to the announcement in the 1998 Queen’s Speech of the removal of the right of hereditary peers to sit and vote in the House of Lords. The Speech is usually heard in silence, but the ‘announcement of the plans for the Lords was greeted by cheers from Labour peers and MPs’: Philip Webster, ‘Passions Flare over Lords Reform’, The Times (25 November 1998). 2   TNA FO 1109/350, ‘Reform of House of Lords’, memorandum by Home, 25 March 1956. 3   63 life peers, excluding Law Lords (and 47 hereditary peers), had been created between 1958 and the end of the Douglas-Home Government in 1964, less than seven per cent of the total membership of the House (LLN 98/005). Janet Morgan, The House of Lords and the Labour Government 1964–70 (Oxford, Clarendon Press, 1975) 16, notes that, by November 1971, 221 life peerages had been created (of whom 190 were then still alive) and that many of these creations had taken place in the early years of the Wilson Governments: 39 in 1964–65, 20 in 1965–66 and 51 between March 1966 and October 1968.

128  The Parliament (No 2) Bill [1968–69] the problem of reform, ‘but have never gone to the heart of the matter’.4 The House of Lords in 1964, noted Janet Morgan, retained ‘considerable latitude for hampering the executive by directly delaying the passage of Bills and rejecting subordinate legislation’.5 Nevertheless, Harold Wilson’s first Government showed no sign of rushing into constitutional reform: with a small majority of only four and an uncertain future, it was not the right time for the Government to take preemptive action on Lords reform. In 1964, the Labour Party’s manifesto declared that, as part of modernising government in order to satisfy the ‘need to make government itself more efficient’, Labour would ‘not permit effective action to be frustrated by the hereditary and non-elective Conservative majority in the House of Lords’.6 But House of Lords reform did not make the Cabinet’s agenda during Wilson’s first Government. The Prime Minister rejected setting up a Ministerial Committee on Lords reform in April 1965.7 Lord Longford, Leader of the House of Lords, told Lord Gardiner, the Lord Chancellor, shortly after the 1966 general election that: During the 18 months of the last Parliament, it was desirable to steer the subject of the House of Lords away from public discussion. The first task was to carry a mass of legislation as quickly as possible, giving no one inside or outside the House an excuse to describe our treatment of the House of Lords as unreasonable. This primary task can fairly be said to have been successfully accomplished.8

Just as Clement Attlee had found two decades earlier, in the absence of unreasonable action by the upper House, there were more pressing concerns for the Government: Wilson’s first 100 days were occupied with the balance of payments crisis, and this issue continued to occupy the Government’s attentions for most of the short 1964–66 Parliament. Furthermore, an attempt to re-nationalise the 14 largest steel-making firms caused the Government problems. The Lords, however, had not appeared on the Government’s agenda. Nothing in the 1964–66 Parliament had given the Labour Government cause to resent the Lords’ delaying powers: Lord Shepherd, the Government Chief Whip in the House of Lords, noted this in May 1966, informing Longford that: ‘Since 1964 the Lords have created no difficulties with regard to Government legislation.’9 Nevertheless, the Government remained nervous of the potential power of the Lords, regarding the upper House as a Damoclean sword hanging above its programme. In this vein, 4   Parliamentary Archives HL/PO/1/477. ‘Outline Scheme for Reforming the House of Lords’ (draft by Michael Wheeler-Booth, 26 September 1967). The Conservatives had not touched the powers of the House of Lords and they had conspicuously failed to tackle the problem of the large Conservative Party predominance in the House or the voting power of the backwoodsmen. 5   Morgan (n 3) 46. 6   Labour Party, Let’s Go with Labour for the New Britain (1964). FWS Craig, British General Election Manifestos 1900–1974 (London, Macmillan, 1975) 272. 7   Parliamentary Archives HL/PO/1/477. Lord Shepherd (Government Chief Whip in the House of Lords): Report of interview with the Prime Minister, 23 April 1965. 8   Parliamentary Archives S/35. Memorandum by Lord Longford to the Lord Chancellor (copy), sent 20 July 1966 (original draft dated 10 May 1965). 9   Parliamentary Archives HL/PO/1/477. Shepherd to Longford, 18 May 1966.

The Parliament (No 2) Bill [1968–69]  129 Gardiner advised his Cabinet colleges within three months of the 1966 general election that: ‘The present situation clearly provides the House of Lords with too great an opportunity for tactical manœuvring of a kind which could embarrass the Government.’10 Gardiner therefore urged that a pre-emptive reform proposal should be brought forward in the 1967–68 Session to cut the Lords’ power of delay to three months. In the 1966 election manifesto, this worry had been foreshadowed in the final plank of the Labour Party’s ‘modernising Parliament’ agenda, which declared that ‘legislation will be introduced to safeguard measures approved by the House of Commons from frustration by delay or defeat in the House of Lords’.11 Whereas in 1964 the manifesto could have been satisfied by reforming the Lords so that it was no longer hereditary and non‑elective or in order to remove the Conservative majority, the 1966 proposals focused clearly on the powers of the House of Lords to obstruct House of Commons’ business. By focusing on the powers and not on the membership of the Lords, the manifesto pledge went beyond a re-statement of the Salisbury–Addison Doctrine that the Lords should not block mandated government bills: it extended the claim against the Lords’ delaying powers to all House of Commons measures, not just those foreshadowed in the Government’s manifesto. Moreover, it promised pre-emptive action irrespective of the conduct of the House of Lords. The 1964 manifesto commitment had been conditional; the 1966 promise was unconditional.12 This unconditional manifesto commitment provided the basis for Gardiner and Longford’s consideration of Lords reform later that year.13 Five factors provided incentives for early government action on the Lords’ powers. The first was political: the Government had a majority of 96 in the Commons, sufficient to carry a reform proposal under normal circumstances, and Gardiner and Longford believed that the Cabinet would not be forgiven by the Labour movement if, for a third time, a majority Labour government failed to address the question of the powers of the upper House.14 The potential power of the Lords themselves, as stated in the manifesto, was the second incentive driving the reformers forward. The Cabinet agreed that the power of the House of Lords to reject secondary legislation should be ended.15 Despite its Commons majority and the reduced powers of the Lords under the Parliament Act 1949, the Government still feared that its will could be frustrated in the later years of a Parliament.16 There was no real danger that the Lords would   CC 32(66)2, Confidential Annex, 28 June 1966.   Labour Party, Time for a Decision (1966); Craig (n 6) 307. 12   This point was explicitly recognised by Gardiner in C(66)87. The 1964 manifesto, despite its reticence on Lords reform, had largely been drafted by Richard Crossman, perhaps the keenest advocate of House of Lords reform amongst Labour Commons ministers. The 1966 manifesto was more quickly put together and included the input of Mr Crossman and many others. See DE Butler and Anthony King, The British General Election of 1966 (London, Macmillan, 1966) 87–89. 13   CC 32(66)2, Confidential Annex, 28 June 1966. 14   C(66)87. Memorandum by Gardiner and Longford, June 1966. 15   CC 32(66)2, Confidential Annex, 28 June 1966. 16   CC 32(66)2, Confidential Annex, 28 June 1966. 10 11

130  The Parliament (No 2) Bill [1968–69] seriously threaten the Government – the prospect that an activist House of Lords might question the legitimacy of a Labour Government with a small majority had disappeared with Labour’s substantial victory at the 1966 election – but the Government was still worried by the powers to delay bills and to veto secondary legislation. This power to obstruct House of Commons’ business was enhanced by the third incentive: bills presented under the procedure of the Parliament Acts had to be identical to their original forms, which greatly reduced the manoeuvrability of the Government’s policy and the ability of the House of Commons to amend bills. Hence, the Parliament Acts did not limit the power of the House of Lords in practice as much as they limited it in theory. Fourth, there was a belief that the reform of powers would open the way for a second stage of reform. Gardiner and Longford wrote that: ‘If the powers of the House of Lords are dealt with, we believe that there would be much less difficulty in dealing with their composition.’17 The composition of the House of Lords, they argued, was indefensible. On balance, the Cabinet concluded that ‘the controversial question of the composition of the House of Lords should not be re-opened’ during the initial reform process.18 Stage one – the further emasculation of the powers of the Lords – would later enable stage two – the comprehensive reform of composition.19 Finally, the Government was keen not to lose control of the House of Lords reform agenda. Despite the fact that no proposal for House of Lords reform which did not have Government support would enjoy any serious prospect of becoming law, the Ministerial Committee was concerned that there was ‘strong evidence that both the Conservatives and the Liberals are working on proposals for the reform of the composition and functions of the Lords. If the Government do not take the initiative at present available to them to reform the Lords, the other Parties will take the initiative from them’.20 The Ministerial Committee thus concluded ‘that there would be much to be gained, and nothing to be lost, by the Government’s taking the initiative’ in the 1967–68 Session.21 The Government wanted to lead and hence to shape discussions on House of Lords reform, rather than being forced, later, to react to others’ proposals. The Government therefore resolved to introduce a Bill for reforming the House of Lords ‘at a convenient juncture’, and preferably in the 1967–68 Session. The reform proposals would include that: a government bill would receive the Royal Assent three months after being sent to the Lords, whether or not it had been passed through the upper House; bills introduced in the House of Lords should be passed by the upper House within three months; House of Commons’ amend  C(66)87. Memorandum by Gardiner and Longford, June 1966.   CC 32(66)2, Confidential Annex, 28 June 1966. 19   cf the position of the 1997 Labour Government, which focused on the reform of composition as stage one. 20   Report of the Ministerial Committee on the House of Lords, C(67)157, 9 October 1967, Appendix II. 21   C(67)157, Appendix II. 17 18

Abandoning the Unilateral, Two-Stage Approach  131 ments should not be subject to the agreement of the Lords; and delegated powers should be subject to affirmation only by the House of Commons. The proposed bill therefore dealt only with the formal powers of the House of Lords – reform of the composition of the House – and therefore the questions of the Conservative predominance and the backwoodsmen would follow at a later date. The need for secrecy over plans for House of Lords reform was paramount: the Cabinet agreed that ‘co-operation [with the House of Lords] might be prejudiced if it were known that the Government intended to introduce legislation to curtail the power of the House of Lords in the 1967–68 Session’.22 Worries of leaks surrounded policy on House of Lords reform just as they did with so many government policies during Wilson’s premiership.

ABANDONING THE UNILATERAL, TWO-STAGE APPROACH

The strong early commitment to a two-stage process of Lords reform, focusing first on powers and then on composition, weakened upon further consideration. At the first meeting of the Ministerial Committee on the Powers of the House of Lords in May 1966,23 Longford had put forward his disagreement with the Cabinet’s majority preference for a two-stage reform process and ‘put on record his own conviction that the only way in which any move to reform of the Lords could be of real use would be too [sic] look at the problem of composition, as well as its powers’,24 although he still, at this stage, formally supported Gardiner’s argument for a two-stage process that: ‘If the powers of the House of Lords are dealt with, we believe that there would be much less difficulty in dealing with their composition.’25 Some Lords ministers, notably Shackleton and Shepherd, argued that if a reform dealt only with powers, the hereditary peers would still be in charge of the House.26 Henry Burrows’ two-writ plan, which was one route towards dealing with composition, had been cited with approbation by Gardiner and Longford in their initial Cabinet paper on Lords reform in June 1966.27 The preference for one-stage reform over two-stage reform started to gain ground. As consideration of reform by a Ministerial Committee,28 which had been established in June 1966, continued into 1967, negotiating an agreed reform with 22   CC 32(66)2, 28 June 1966. The minutes of the 1966 Cabinet discussion were held in a Confidential Annex, and the Prime Minister stressed that no indication should be given that the Government was considering House of Lords reform in the 1967–68 Session. 23   Parliamentary Archives HL/PO/1/477 PL (66) 1. 24   Parliamentary Archives HL/PO/1/477 (cc(66)32, 28 June 1966, Confidential Annex). Note by Wheeler-Booth, 7 November 1966. 25   C(66)87, Memorandum by Gardiner and Longford, 24 June 1966. 26   Morgan (n 3) 172. 27   Commander Henry Burrows was sometime Clerk-Assistant of the Parliaments. 28   The Ministerial Committee had been established by the Cabinet in June 1966 ‘to work out proposals for the abolition of the power of the House of Lords to withhold consent to subordinate legislation subject to affirmative or negative resolution, and to delay the passage of Bills; and to arrange for the preparation of the necessary legislation’. It reported in October 1967.

132  The Parliament (No 2) Bill [1968–69] the Opposition became a credible proposal. Whilst there had been little agreement between the main parties on the question of House of Lords reform before the 1960s, the Cabinet sought to establish a kind of consensus over reform. To reach such a consensus with the Opposition, or at least to secure some degree of acquiescence on the part of the Opposition, was deemed ‘clearly desirable’, although supporters of a consensus seemed to value it more for its own sake than for any positive consequences which it might entail.29 The Ministerial Committee advised the Cabinet that ‘while we must be prepared if necessary to over-ride opposition we believe that because these proposals involve major constitutional changes, they can best be worked out in the course of negotiation’.30 But a desire to reach agreement was borne not only out of adherence to perceived con­ stitutional principle or an altruistic desire to include the other parties: there was a key practical incentive to cooperate on reform. To force reform through under the Parliament Acts would not only take more parliamentary time by itself, but it would also disturb working relations within the House of Lords and would threaten the Government’s whole legislative programme for a minimum of 12 months. Crossman argued that agreement with the Opposition parties would be achievable if the Government was willing to agree a two-writ scheme for reform, under which some peers were full members of the House of Lords and others remained members of the House but had the right only to sit and speak in the House, and not to vote.31 He argued that the two-writ scheme would enable the Conservatives to abandon the hereditary principle.32 The Ministerial Committee accepted Crossman’s view and concluded that the Government should be prepared to accept a two-writ system ‘in order to reach agreement with the Opposition while preserving the essential objectives of reform’.33 In advocating a two-writ scheme, the Ministerial Committee argued against the previous conclusion of the Cabinet and advised that legislation which dealt only with powers would be unsatisfactory, since it would engender criticism from both its own supporters and from the Opposition. A further incentive for a one-stage reform process was that reducing the powers of the House of Lords whilst leaving the Conservative predominance intact would, ministers feared, paradoxically lead to greater delay of Government legislation than if the powers were left alone. This was because the Opposition peers knew in 1967 that they existed only on sufferance and would feel empowered if reform   C(67)157, Report of the Ministerial Committee on the House of Lords, 9 October 1967, Appendix

29

II.   C(67)157, Report of the Ministerial Committee on the House of Lords, 9 October 1967, Appendix

30

II. 31   This scheme was the idea of Commander Henry Burrows, who developed the idea in the 1950s and presented it publicly in an article in The Times in 1966: see Henry Burrows, ‘How the House of Lords Might Reform Itself ’, The Times (26 May 1966) 15. Burrows’ initial idea was that peers might be excluded from voting by an alteration to the standing orders of the House, according to a scheme suggested by Lord Exeter in 1953. 32   CC 1(67)59, 12 October 1967. 33   CC 1(67)59, 12 October 1967.

The Inter-Party Conference  133 impliedly legitimated their existence by leaving untouched the composition of the House of Lords. There was, concluded the Ministerial Committee, ‘no satisfactory way of dealing in isolation with the Lords’ powers over legislation and that if the Lords’ powers only can be dealt with, we must advise that there should be no change in this Parliament’.34 For party-political reasons and to ensure the maintenance of short-term relations between the Government and the House of Lords, a scheme was adopted which encompassed not only powers but also composition.

THE INTER-PARTY CONFERENCE

The two-tier scheme, suggested to ministers by Crossman and Shackleton, was used as a basis for starting the negotiations with the Conservative and Liberal Parties, and the Government decided to enter negotiations on Lords reform during a secret meeting at Chequers on 12 September 1967.35 These discussions on Lords reform came at a time of mounting problems for the Government. The economic crisis in July 1966 had blown it off course,36 and although the special measures adopted had eased the problem, its economic woes began to mount. The consequence, on 18 November 1967, was a devaluation – a substantial policy reversal for the Wilson Government, which had a major and ongoing negative effect on the Government’s popularity.37 Additionally, the Government’s application to join the European Economic Community had resulted in the backbench rebellion of 35 MPs in May 1967 (with another 50 abstaining)38 and a ‘non’ from General de Gaulle on 27 November. Crossman recalled that he promoted negotiation as being a useful device to overcome ministerial conflict between supporters of the one-tier scheme and advocates of the two-tier scheme: Then, rather than putting forward the two-tier system as our own plan, we could propound it as the end of the negotiations if we thought there was a chance of it being accepted. This was suggested after dinner and the Committee quickly reached an agreement that we should put a firm commitment into the Queen’s Speech to abolish the hereditary element and that we should treat the two-tier scheme not as acceptable on its   C(67)145, Report of the Ministerial Committee on the powers of House of Lords reform.   Although a majority of the Ministerial Committee on House of Lords reform supported a two-tier scheme, the Committee remained divided between a one-tier and a two-tier scheme: ‘their views on the merits of the two schemes would be influenced by the extent to which a two-tier scheme could be introduced as a substantially agreed measure, or at least one in which the Opposition would acquiesce’. Parliamentary Archives, HL/PO/CP/1/2, MISC 154(64), 4th Meeting, held at Chequers on 12 September 1967 and continued on the morning of 13 September 1967. 36   KO Morgan, The People’s Peace: British History 1945–1990 (Oxford, Oxford University Press, 1992) 266–76. 37   On the devaluation, and the effect on the Government’s popularity, see especially John James Taylor, ‘Continuity and Change in Government-Media Relations: A Case Study Approach to the British Experience with Particular Reference to the Sterling Devaluation of 1967 and Britain’s Withdrawal from the ERM in 1992’ (DPhil thesis, University of Oxford, 2000) 164. 38  David Butler and Michael Pinto-Duschinsky, The British General Election of 1970 (London, Macmillan, 1971) 20. 34 35

134  The Parliament (No 2) Bill [1968–69] merits but as a scheme to be accepted only if the opposition parties agree. It they didn’t agree we could then be much more radical in a really thorough one-tier scheme. To my amazement, all this was agreed.39

This Chequers meeting, financed personally by Gardiner, produced a remarkable breakthrough in melding the one-tier and two-tier approaches into a unified proposal.40 The Queen’s Speech on 31 October 1967 therefore announced that ‘Legislation will be introduced to reduce the present powers of the House of Lords and to eliminate its present hereditary basis’ – a commitment that was to bind the Government’s future manoeuvres on Lords reform. The Inter-Party Conference, at which the Labour, Conservative and Liberal Parties were represented, met for the first time on 8 November 1967 and on 12 occasions thereafter.41 Harold Wilson told the first meeting that he hoped any agreement would emerge quickly from the discussions: the Government was committed to legislating in the current session, and he therefore hoped that the main discussions would be concluded by Christmas, although he declined to impose a deadline.42 As negotiations progressed, however, politicians and officials continually threw up new problems. Whilst substantial agreement was reached, the proposals stalled in April 1968 and collapsed under external pressure in June. Substantial agreement was formed at the five meetings held during 1967. The importance of continuing a cross-bench element in the Lords was agreed.43 There would be no formal limit on the size of the House and the nomination of life peers would continue to be made by the Prime Minister – the parties agreed that there was no other practicable alternative.44 The Conservatives conceded that the Lords’ veto over subordinate legislation should be replaced with a delaying power.45 Despite this progress, by the start of January 1968, 31 points awaited resolution.46 Some of these questions were of fundamental importance: whether the 39  Crossman (n 1), 12 September 1967. See also Parliamentary Archives HL/PO/CP/1/2. James Callaghan, who was later to be charged as Home Secretary with piloting the reform bill through the House of Commons, was not present at this meeting: in his role of Chancellor of the Exchequer, he was fully occupied in dealing with the impending devaluation of sterling. Harold Wilson, also preoccupied with devaluation, was not present. 40   Michael Stewart MP (Foreign Secretary) was also important in this process. 41  The members of the Inter-Party Conference were as follows. For the Government: Richard Crossman MP (Lord President), Roy Jenkins MP (Home Secretary – replaced as Home Secretary and member of the Inter-Party Conference by James Callaghan MP, November 1967), John Silkin MP (Chief Whip), Lord Gardiner (Lord Chancellor), Lord Longford (Leader of the House of Lords) (until January 1968) and Lord Shackleton (Deputy Leader, later Leader, of the House of Lords). For the Conservatives: Reginald Maudling MP, Iain Macleod MP, Lord Carrington, Lord Jellicoe and Lord St Aldwyn (Opposition Chief Whip in the Lords) (occasionally). For the Liberals: Jeremy Thorpe MP and Lord Byers. Harold Wilson MP (Prime Minister) and Edward Heath MP (Leader of the Opposition) attended the first meeting only. 42   Burke Trend (Cabinet Secretary) had impressed upon the Prime Minister the ‘need for speed’ in the negotiations. 43   TNA CAB 130, minutes of the Inter-Party Conference (hereafter IPC). MISC 172(67), 2nd meeting. 44   But this was unpopular with some in the Labour Party, who distrusted Harold Wilson’s judgement. 45   TNA CAB 130. MISC 172(67). IPC, 4th meeting, 12 December 1967. 46  TNA CAB 130. MISC 172(67). IPC, 4 January 1968. Cabinet: House of Lords. ‘Inter-Party Conference: A “Check List” of Undecided Questions’, Note by the Secretaries.

The Inter-Party Conference  135 House should be one-tier or two-tier; the size of the House; categories of and qualifications for membership; and the power to delay public bills. Two meetings of the full Inter-Party Conference in early January made good progress. It was agreed that the Government should have a 10 per cent majority of voting peers over the other parties, and that speaking rights, in the two-tier system, should be for life, and not hereditary as the Conservatives had originally wanted. The useful part played by the Law Lords in the legislative business of the House was acknowledged, and it was agreed that they ought to remain in a reformed House, in addition to the numbers set aside for cross-benchers.47 It was agreed that the future of the bishops in the House would not be made a partypolitical matter.48 The early January meetings also settled the question of the Lords’ power to delay, which highlighted divisions two decades earlier. In 1967–68, the Conservatives wanted the Lords to possess the power to delay bills for six months from the Third Reading in the Commons, which worried Labour: this delay might mean, in practice, as much as 12 months’ delay from the point of disagreement between the Houses, which would make the final session of a Parliament inoperative.49 Carrington then offered six months from the point of disagreement, stating that this was the minimum delay that the Conservatives could contemplate (although it would be difficult within the parliamentary party, he argued, to get agreement for less than nine months’ delay). He did, however, concede that the six months’ delay could operate even if the session or the Parliament had ended and without the need for the Commons to pass an identical bill – an important concession. Six months’ delay from the point of disagreement, coupled with this carry-over procedure, was eventually adopted.50 There were some echoes of 1948 – Crossman could not accept Carrington’s contention that the Lords should be able to delay a bill long enough for public opinion to form on the issue51 – but agreement was secured. A sub-committee of Shackleton, Jellicoe and Byers set to work to try and answer the outstanding points of disagreement. Janet Morgan describes that whereas the members of the full conference saw themselves as party-political representatives, the working party acted as ‘familiar colleagues, accustomed to making mutual accommodations’.52 It is arguable that, whilst the members of the sub-committee helped discussions early in 1968 and provided useful data for the legislative stages of the Parliament (No 2) Bill in 1969, they got carried away and lost touch with the political needs of the MPs on the full Inter-Party Conference.53 Notwithstanding   TNA CAB 130. MISC 172(67). IPC, 9th meeting, 26 March 1968.   TNA CAB 130. MISC 172(67). IPC, 6th meeting, 8 January 1968 49   TNA CAB 130. MISC 172(67). IPC, 4th meeting, 12 December 1967. 50   The compromise was initially proposed at the 3rd Meeting (28 November 1967), and was finalised at the 7th meeting (9 January 1968). 51   TNA CAB 130. MISC 172(67). IPC, 4th meeting, 12 December 1967. 52   Morgan (n 3) 179. 53   Morgan (n 3) 178–79. 47 48

136  The Parliament (No 2) Bill [1968–69] this, a large measure of agreement was reached and all three parties recognised that the later White Paper54 was an accurate representation of their agreement. Despite the agreement reached on most questions before the Inter-Party Conference, the main point of disagreement between the parties, at the Conference and thereafter, was the date of commencement of the Parliament (No 2) Bill: the Conservatives would not agree to the Bill coming into effect immediately upon receiving the Royal Assent, insisting that its commencement should wait until the end of the Parliament.55 Macleod argued in the late 1960s that, as a matter of constitutional propriety: ‘It would be undesirable to allow the composition of a Parliament to be modified during its lifetime.’56 However, his argument on delaying the commencement of a House of Lords measure five years earlier, in the Wedgwood Benn case, was not constitutional, but overtly political.57 He acquiesced in his colleagues’ political decision in 1963 to bring the Bill into effect straight away and could have done so again in 1968.58 The evidence suggests that, apart from the commencement provision, the Conservatives supported the conclusions of the Inter-Party Conference. Both Maudling and Macleod told the Conference that if the Conservatives were in power after the next general election, they would implement the legislation without amendment.59 But in mid-1968, there was no public pressure which Labour could use to overturn the Conservatives’ opposition on the commencement provision, as there had been when Macmillan’s Cabinet reversed its position in 1963, and the Conservatives had fashioned a lever with which to prise themselves away from the agreement. Gardiner, for the Government, insisted that there were strong reasons to resist any gap between passing reform and implementing it.60 Crossman was willing to delay commencement until the start of the next Parliamentary Session, but not the start of the next Parliament. His reasons for avoiding delay in commencement were as political as Macleod’s for promoting it. The Government was not prepared to risk its political capital on reform and then still to have its legislative programme open to attack from a Conservative-dominated House of Lords later in the Parliament. This issue threatened to impede the progress of any future bill – through the Conservatives threatening to withdraw formal support through the ‘usual channels’ – even if a broadly agreed White Paper could be published, as the Lord Chancellor hoped, by the Whitsun recess in 1968.61 The disagreements over commencement coincided with the increasing unpopularity of the Government. Labour lost three by-elections to the Conservatives on   Cabinet Office, House of Lords Reform (Cmnd 3799, 1968).   Parliamentary Archives HL/PO/CP/1/2/9. Note by David Stephens, 8 November 1968. 56   CC 42(63)1, 25 June 1963. 57   C(63)131. Cabinet: Peerage Bill . Memorandum by Macleod, 17 July 1963. 58   CC 43(63)2, 27 June 1963. 59   TNA CAB 130. MISC 172(67). IPC, 10th meeting, 2 April 1968. 60   TNA CAB 130. MISC 172(67). IPC, 10th meeting, 2 April 1968. 61   TNA CAB 130. MISC 172(67). IPC, 13th Meeting, 7 May 1968. 54 55

The Southern Rhodesia (United Nations Sanctions) Order 1968  137 28 March 1968, had a disastrous showing at the local elections and lost two more by-elections in June.62 Opinion polls confirmed the decline in the public’s support for the Government. As Janet Morgan recalls, ‘the Government’s rapid decline in the early summer of 1968 nourished feelings that Labour had lost its grip and will to govern. The Opposition in the Lords could no longer take the Government seriously’.63 The Conservatives, especially those in the House of Lords, scented political advantage from impeding the Government, and they had built up a trigger for breaking off talks: the strong disagreement over commencement calls into question Morgan’s claim that ‘at this particular point the all-party talks were progressing smoothly, and obstreperous action by Peers would jeopardize negotiations between the parties’.64

THE SOUTHERN RHODESIA (UNITED NATIONS SANCTIONS) ORDER 1968

It was, however, the Government and not the Conservatives that unilaterally broke off the Inter-Party Conference talks. The cause of this was the rejection of the Rhodesian Sanctions order by 193–184 in the House of Lords on 18 June 1968. The Order was to approve the continuance of United Nations sanctions against the regime in Southern Rhodesia.65 Until this vote, ‘the Lords had displayed great self-restraint and their Leaders had been most careful not to jeopardize the talks by any ill-considered action’.66 The possibility of defeat on this issue had been foreshadowed as early as 1966 in a Cabinet memorandum,67 and the Cabinet had generally agreed then that the power of the House of Lords over subordinate legislation should be eliminated.68 That potential threat began to become more real in early 1968. Shackleton wrote to the Prime Minister that he had received a warning, ‘in the very strictest confidence, that it was likely that the Conservatives might try to defeat the Government in the Lords’ on the sanctions issue, although he was hopeful, after discussions with Carrington, that this might be avoided.69 Carrington, in his 62   In these by-elections and two others at the same time which were not lost, the Government suffered swings against its candidates of between 15.1 per cent and 21.2 per cent. 63   Morgan (n 3) 190. 64   Morgan (n 3) 142. 65   This was an affirmative Order, requiring a positive vote by each House (cf negative Order, which passes unless it is not voted down and which may not be voted on at all). This Sanctions Order needed to be approved annually. 66   Morgan (n 3) 190. 67   C(66)87: ‘Such Orders may be of vital importance, e.g., those relating to Rhodesia or to Emergency Powers.’ 68   CC (66) 32nd conclusions, 2nd minute. This was re-affirmed by the Ministerial Committee on the Powers of the House of Lords on 27 September 1967, which concluded: ‘It was necessary in any event, to end the power of the Lords to frustrate subordinate legislation’ (CAB 130. MISC 170(67), 1st Meeting, 27 September 1967). 69   Parliamentary Archives S/309 (undated, but after Shackleton became Leader in the Lords on 16 January 1968).

138  The Parliament (No 2) Bill [1968–69] memoirs, recalled that because the sanctions had to be renewed by order each year, and since the proposals (although Government policy) had not been put to the electorate, the Salisbury–Addison Doctrine did not apply, and ‘each year, therefore, there were all the makings of a first-class parliamentary row’.70 In 1968, he was having especial trouble restraining his troops: Conservative peers were becoming restless in the face of the Government’s low popularity in the country. Morgan argues that Roy Jenkins’ implied threats in speeches on 8 and 15 June to break off negotiations on reform if peers defeated the Order stiffened the peers’ resolve against the provision.71 The vote to reject the Order did not, in the end, disrupt the sanctions,72 but it had a strong impact on Lords reform: it was the first occasion on which the Lords had seriously defied Wilson’s Government. It worried Lords reformers, to whom it seemed like a betrayal, and appeared to show a serious failure to lead on the part of Carrington, who was under pressure from his peers and from Shadow Cabinet colleagues.73 Crossman and Shackleton had hoped that the rejection of the Order might increase support within the Labour Party for Lords reform.74 As Table 6-1 shows, the vote against the Government’s Order was predominantly hereditary and Conservative. Had there been only life peers in the House of Lords, the Government might have won the vote by 129–51.75 Table 6-2 shows officials’ estimations of the outcome of the vote under a reformed House of Lords: the Government would have won 139–82. Moreover, the public reaction to the rejection of the Order strengthened the hand of Carrington within the Conservative Party against those in the Shadow Cabinet who saw no advantage in helping (and who thought it wrong to help) the Government by taking away the inbuilt Conservative advantage. However, whilst the Government thought that the Conservatives would probably agree to the resumption of talks at a later date,76

  Lord Carrington, Reflect on Things Past (London, Fontana, 1989) 204.   Morgan (n 3) 190. 72   The vote on 18 June was to re-make the Sanctions Order. As it had been originally made, the Order would remain in force until 8 July. Since the Lords passed the Order between its original rejection and 8 July, Carrington was able to claim that the Lords was merely exercising its function as a delaying chamber (rejection being the only way to delay a secondary measure). See MAJ Wheeler-Booth, ‘An Attempted Reform of the House of Lords 1964–69’ (1969) XXXVIII The Table 89. 73   cf the breakdown of the Balfour–Lansdowne relationship in 1909–11. 74   Morgan (n 3) 191. 75   It is, however, difficult to say, as the balance of life peers and their incentives for voting might have been different in a wholly nominated House. 76  In Wheeler-Booth’s private assessment, the Conservatives’ leaders (especially Carrington and Jellicoe) wanted to see enacted the agreed proposals on Lords reform, whilst remaining ‘free to criticise the Government for its handling of the affair and in particular the unilateral breaking-off of the interparty talks and refusal to go back to them’ (Parliamentary Archives HL/PO/1/477. Wheeler-Booth to Shackleton, 22 October 1968). There were ‘talks about talks’ between the Government and the Opposition in February 1969. The Opposition had indicated it they would like such talks (CC 8 (69)1, 11 February 1969). The Opposition was not interested in a compromise on the timing of the introduction of changes on composition; it was only interested in deferment of the package as a whole (CC 9(69)1, 20 February 1969). 70 71

The Southern Rhodesia (United Nations Sanctions) Order 1968  139 Table 6-1: Analysis of division in the House of Lords on Southern Rhodesia (United Nations Sanctions) Order 1968 For Government Labour Conservative Liberal Cross-bench Communist Bishops Law Lords Total Against Government Conservative Cross-bench Law Lords Total

Nominated 80 2 7 21 18 1 129

By succession 14 5 15 20 1 – – 55

Total 94 7 22 41 1 18 1 184

47 3 1 51

125 17 – 142

172 20 1 193

Source: Parliamentary Archives HL/PO/1/477/6, 18 June 1968.

Table 6-2: Imagined vote of the House of Lords on the Southern Rhodesia Order 1968 if reform along the lines of the agreed scheme had taken place Government: Labour Liberal Cross-bench (say) Bishops Conservatives TOTAL

102 13 20 2 2 139

Opposition Conservative Cross-bench TOTAL

80 2 82

Source: Parliamentary Archives HL/PO/1/477/6 (undated).

inter-party consensus on reform had become less appealing to Labour MPs. The decision to break off talks had been popular with Labour MPs, especially those who were thought to resent an agreed proposal, but in any case, opinion amongst Labour MPs had shifted decisively against agreement. In 1967, Labour MPs had been evenly divided on the desirability of reaching consensus on reform with the Conservatives; now these MPs were willing to proceed unilaterally.

140  The Parliament (No 2) Bill [1968–69]

THE WHITE PAPER AND THE DECISION TO PROCEED WITH THE BILL

Following the rejection of the Southern Rhodesia Order, there were four options on how to proceed:77 1) Revive the Ministerial Committee and Publish a White Paper. 2) Publish and present a draft of the White Paper as it stood on 18 June 1968, when the Rhodesian Sanctions Order was rejected. 3) Publish Part II (detailed proposals) of the draft on its own, with no side committed to its proposals. 4) Publish Part II with a longer, more Labour Party-slanted Part I (principles of reform). The decision taken in July 1968 was tactical. The Government ‘could not do nothing’, Shackleton urged the Cabinet, because the intention to legislate in the Queen’s Speech of 31 October 1967 had been re-iterated by the Prime Minister on 20 June 1968. ‘If they [the Government] sought to implement the proposals outlined in the White Paper’, Shackleton’s Committee reported to the Cabinet, ‘all three parties would encounter the same opposition from their backbenchers, but the proposals could be expected to go through as a broadly agreed measure.’78 If, however, the Government chose a unilateral solution, it would have to force the Bill through under the Parliament Act procedure, and in view of the feeling among the Conservative peers in favour of forcing a general election, it would have to pay a heavy price in terms of the dislocation of its legislative programme.79 Some details of the agreed proposals would be unpalatable to the Government’s supporters, although the proposals were more radical than they might have appeared on their surface. There had for a while been a real possibility that the Government would proceed with a unilateral and radical proposal on Lords’ powers – what Morgan calls the ‘counter plot’,80 which involved the Chief Whip (Silkin) and his Government Secretary – but Crossman had a row with the Prime Minister and Crossman’s preference for the White Paper proposals prevailed. A majority of the Cabinet backed the ‘substantial majority’ of the Ministerial Committee in favouring the pursuance of the White Paper proposals over a more radical solution, on the basis that the position would ‘be reviewed in the autumn and a decision taken in the light of the feeling among the Government’s supporters and the country generally’.81 The Cabinet therefore decided that, when the White Paper on Lords reform was brought forward, it would, for party-political reasons, be presented not as an agreed document (although its contents were accepted as a fair statement of the substantial agreement reached at the Inter  Parliamentary Archives HL/PO/1/477. DER Faulkner to Shackleton, 11 July 1968.   CC 36(68)5, 18 July 1968. 79   CC 36(68)5, 18 July 1968. 80   Morgan (n 3) 189–90. 81   CC 36(68)5, 18 July 1968. 77 78

The White Paper and the Decision to Proceed With the Bill  141 Party Conference) but as a statement of the Government’s proposals. This unilateral approach would enable the Government to present the proposals ‘in a way more attractive to their own supporters’.82 Shackleton thought that the other parties would still agree to cooperate if they were given advance notice of the proposals in confidence. As Shackleton wrote to his friend, Canadian Senator John J Connolly: ‘In the event it proved easier politically for the Government to bring out the [White] Paper unilaterally.’83 Both the Conservatives and the Liberals accepted that the White Paper was a correct statement of the agreement reached before the ending of the Inter-Party Conference, save for one paragraph on the remuneration of voting Peers (which the Cabinet agreed to delete before publication).84 Crossman, who had been liaising with the leaders of the Conservative and Liberal Parties, Edward Heath and Jeremy Thorpe, on the proposals,85 reported that ‘there was [a] good prospect that the proposals could be carried through virtually as an agreed measure’.86 The Conservatives, however, had two remaining reservations, which jeopardised agreement. First, they disliked the suggestion that the committee appointed to review the composition of the Lords should advise the Prime Minister on appointments. This distrust of prime ministerial patronage, and especially a distrust of the uses to which Harold Wilson might put his extensive patronage under these proposals, was not just a Conservative view: it was also held by a substantial proportion of backbench Labour MPs, and it is claimed that Attlee would not have engendered such opposition.87 Second, and more substantively, they adhered to their alreadystated view that the proposals should not take effect until the beginning of the following Parliament. The Government strongly disagreed with this point, wanting the reforms to come into effect immediately, not least so as to eliminate the Conservative majority before the Government bargained with the Lords over which bills should be enacted before a general election.88 The White Paper was debated in November and secured approval in both Houses, albeit with some dissent in the Commons – both on the Government’s own side and from the Conservative backbenches – which worried ministers.89 Nonetheless, the clear majority view of the Cabinet was to proceed with the reform bill. Those in favour were fully aware that ‘the Bill offered almost unlimited opportunities for opposition, and it had been made clear that they would be exploited to the full’ by opponents of the bill from all sides.90 Moreover, the Conservative front bench might be unable to control its backbenchers on this   CC 42(68)5, 17 October 1968.   Parliamentary Archives HL/PO/1/477. Shackleton to Connolly, 6 November 1968.   CC 45(68)2, 31 October 1968. 85   TNA PREM 13/2296. Copies of letters from Crossman to (separately) Heath and Thorpe, 25 October 1968. 86   CC 45(68)2, 31 October 1968. 87   Private information. 88   CC 45(68)2, 31 October 1968. 89   Morgan (n 3) 250. 90   CC 49(68)3, 5 December 1968. 82 83 84

142  The Parliament (No 2) Bill [1968–69] issue. Nonetheless, the Cabinet did not wish to back down in the face of the opposition of only 40 or 50 of its own supporters when the White Paper had been approved by substantial majorities in both Houses. It was reassured, in particular, by a belief that ‘the Labour abolitionists and the Conservative dissidents were unlikely to make common cause, since they objected to different parts of the Bill’.91 This, as it later transpired, was a serious miscalculation.

THE PARLIAMENT (NO 2) BILL

The proposals of the White Paper were embodied in the Parliament (No 2) Bill,92 which found space in the Government’s legislative programme alongside reform of trades unions relations (arising from the In Place of Strife White Paper) and the re-distribution of electoral constituencies. The Bill was handled by the Home Office and was therefore under the guidance in the Commons of the Home Secretary, James Callaghan, who was never keen on Lords reform. Whilst denying that the Home Office itself impeded the progress of the Bill, DER Faulkner acknowledges that: [T]he Bill was at a disadvantage in being sponsored by a department whose political head had no enthusiasm for it . . . had Richard Crossman or Lord Shackleton been at the Home Office, or perhaps even if Roy Jenkins had remained the picture could have been different.93

Crossman’s supporting role as ‘the Home Secretary’s main helper in the Commons’94 was not enough to ensure the success of the Bill. This Bill received a majority of 150 at its Second Reading in the House of Commons,95 but it ran into difficulties at its Commons Committee Stage. The prevailing myth is that an ‘unholy alliance’ between Enoch Powell on the right and Michael Foot on the left talked out the Bill,96 and by 27 February 1969, Callaghan   CC 49(68)3, 5 December 1968.   This was a ‘No 2’ Bill because a Parliament Bill had already been introduced by Lord Mitchison in the 1968–69 Session, and although Mitchison sought to withdraw his Bill, convention dictated that the Government’s Bill should be termed a ‘No 2’ Bill (TNA HO 392/66. Henderson to Wheeler-Booth, 13 November 1968). Several other proposals were also introduced in the Session, the most significant of which was Lord Alport’s Parliament (No 6) Bill, introduced after the abandonment of the Parliament (No 2) Bill and embodying the same proposals, which received a First Reading by 54 votes to 43 (the first division on a First Reading in the Lords since 1933). See Morgan (n 3) 218. 93   TNA HO 392/65. Faulkner to Janet Morgan, 13 August 1975. Faulkner was the key Home Office official working with the Parliament (No 2) Bill and had been involved in the earlier discussions on reform. 94   TNA PREM 13/2296. Note for the Record, 28 November 1968. Crossman himself had no major departmental legislation in the 1968–69 Session. 95   285–135 (For: 224 Labour, 58 Conservative, 3 Liberal. Against: 25 Labour, 105 Conservative, 3 Liberal, 1 Welsh Nationalist, 1 Scottish Nationalist), a greater majority than in the vote on the White Paper proposals in November 1968. The Government had a two-line whip, the Conservatives had a free vote and the Liberals were divided. See Wheeler-Booth (n 72) 104–05. 96   The phrase ‘unholy alliance’ was used by David Wood, ‘Fight to the Death for Bill Nobody Wants’, The Times (24 February 1969) 8. Douglas E Schoen attributes the phrase to Iain Macleod: Douglas E Schoen, Enoch Powell and the Powellites (London, Macmillan, 1977) 46. 91 92

The Parliament (No 2) Bill  143 reported to his Cabinet colleagues that ‘in the face of determined opposition from a minority of Members, the Parliament (No. 2) Bill was making only slow progress in Committee’.97 Certainly, some MPs (notably Foot, Powell and Robert Sheldon) had deployed skilful opposition to the Bill, but although Table 6-3 shows a that a few MPs accounted for a significant proportion of parliamentary time in Committee before 27 February, there had been little filibustering up to this point (save for Sheldon’s two-and-a-quarter-hour speech).98 The key problem actors, however, were not these few opponents of the Bill, but the much larger numbers of Government supporters who had failed to attend late-night sittings, meaning that there was an insufficient number to carry closure motions. This problem of getting Government backbenchers to support closure motions was augmented by two factors. First was the lack of assistance through the ‘usual channels’ from the Opposition. As the Cabinet noted: ‘The Government had made their plans on the basis that the Bill would be handled as an agreed measure.’99 But following a unilateral White Paper, and with the Government’s political stock in the country falling, the Opposition declined to support House of Lords reform. The lack of cooperation between the Government and the Opposition front benches undoubtedly impeded the Bill. However, the absence of the usual informal arrangements between the Chief Whips was not sufficient to prevent the passage of the Bill: with a Labour majority of 72 in the Commons, the lack of cooperation between the parties only made passing the Bill more difficult rather than impossible. The second problem was the state of the PLP. Morale in the PLP was very low, and the Cabinet found itself unable to re-assert its authority over its own backbenchers on any issue: this was a problem that went beyond a lack of enthusiasm for Lords reform, and Gardiner noted that ‘even those of our own Party who support the Bill are not enthusiastic enough to stay late in order to secure our majority’.100 The Bill faced, as the Cabinet noted, ‘determined opposition from only about 60 Members’101 across all parties, and a ‘small minority’ of its own backbenchers were involved.102 Under normal circumstances, despite a lack of enthusiasm for the subject matter of the Bill, the Government should have been able to whip its backbenchers.103 The ability of Foot and Powell and their colleagues to oppose the Parliament (No 2) Bill was therefore critically enhanced by the politics of Government– Opposition relations and of Cabinet–PLP relations, both of which were at an unusually low ebb, something which was enhanced by the poor showing of the   CC 10(69)2, 27 February 1969.   Parliamentary Archives HL/PO/1/477/67. Wheeler-Booth to Shackleton, 5 March 1969. 99   CC 10(69)2, 27 February 1969. 100   C(69)37, Parliament (No 2) Bill, Memorandum by Gardiner. 101   CC 10(69)2, 27 February 1969. 102   CC 11(69)1, 6 March 1969. 103   A further problem was, arguably, the intellectual underpinning of the proposals: no sign was given regarding from where the intellectual authority of a reformed House of Lords would have stemmed. 97 98

144  The Parliament (No 2) Bill [1968–69] Government in the opinion polls. Under normal circumstances, their opposition to the Bill would not have succeeded. Moreover, their ability to impede the progress of the Bill was enhanced by the lack of credible options which the Government had at its disposal in the face of this minority, but determined, obstructionism. Callaghan had persisted with arguing his view that it would be possible to carry the Bill, provided that enough time – preferably in morning sittings – was made available, ‘but undoubtedly the time required would exceed the estimate, and it was for consideration whether it was right to persist with the Bill’.104 The Cabinet therefore considered how best to prevent the further loss of parliamentary time on the Bill. Three options were available to the Government: to impose a an allocation of time motion (a ‘guillotine’); to send the Bill ‘upstairs’ to complete its Committee Stage off the floor of the Commons; or to drop the Bill. Dropping the Bill at this stage (March 1969) was seen as not a credible option, not least because ‘if they gave way in the present case the dissidents would be Table 6-3: Parliament (No 2) Bill Committee Stage: an analysis of speakers during debates on 12, 18, 19, 25 and 26 February (excluding chairman and deputy chairmen) Party

Column inches

Labour Party Conservative and Unionist Parties Others

Columns

3,508.5 2,975 294

Average column inches per speaker 476 92.3 372 37

44.4 49

Party’s percentage of total columns 54% 42% 4%

Individual speakers with over 100 column inches Labour Party M Foot R Sheldon J Callaghan E Heffer B Walden A Lewis W Hamilton W Howie TF Peart R Roebuck (R Crossman

Conservative and Unionists 724.5 721 237 225 196.5 188 144 130 122 106 58)

JE Powell Sir B Rhys Williams N Ridley J Boyd-Carpenter J Biggs-Davison H Fraser

Source: TNA PREM 13/3402.   CC 10(69)2, 27 February 1969.

104

Others 415 323.5 295.5 273 152 125

RT Paget

130

The Parliament (No 2) Bill  145 encouraged and the prospects of the Industrial Relations Bill, in particular, would be prejudiced’.105 Whilst the Cabinet made ‘no firm decisions’ in early March 1969, ‘The general feeling was that they could not afford to withdraw the Bill’.106 This view was upheld a week later. If the Bill was withdrawn, a more radical unilateral measure passed under the Parliament Acts would disrupt the busy next session (1969–70), directly and indirectly, and might in any case not be in place before the next general election.107 In these circumstances, some in the Cabinet feared that to abandon the Parliament (No 2) Bill would be to encourage the opponents of other bills, and hence that more would be lost than gained by giving up on Lords reform. ‘[T]he present feeling in the Cabinet’, the Prime Minister had noted in advance of the 6 March Cabinet, ‘was that to withdraw the Parliament Bill would give dangerous encouragement to the opponents of major Bills’, and thus ministers ‘must show a united determination to push the Bill through.’108 The key worry was that to lose the Parliament (No 2) Bill would be to encourage opponents of the Industrial Relations Bill.109 There was a need for the Government to maintain, the Cabinet thought: [A] united and determined front. There was a feeling abroad that they were half-hearted about the Bill and many of their difficulties were due to this fact. It was essential for the Government to re-establish their authority within the party; the majority of loyal Labour Members were increasingly resentful of the activities of a minority of dissidents who opposed the Government’s policies on issue after issue, and the time had come to arrest the fall in morale by strengthening discipline.110

The timetable motion (legislative guillotine) was Callaghan’s preferred course. Whereas, as Seaton and Winetrobe note, some commentators ‘seem to assume that “constitutional bills” are not, or at least should not, be subject to a guillotine’,111 later precedents show no impediment to guillotining constitutional bills.112 Callaghan insisted that there were already a number of precedents for guillotining a major constitutional initiative.113   CC 11(69)1, 6 March 1969.   CC 11(69)1, 6 March 1969.   Parliamentary Archives HL/PO/1/477/67. 108   CC 10(69)2, 27 February 1969. 109   CC 11(69)1, 6 March 1969. 110  CC 11(69)1, 6 March 1969. See also Michael Wheeler-Booth’s warning to Shackleton that: ‘The present division of responsibility between Ministers has not worked very satisfactorily. There is confusion as to who is technically in charge of the Bill and a widespread feeling in the Commons that Mr. Callaghan is not at all keen on it’ (Parliamentary Archives HL/PO/1/477/67. Wheeler-Booth to Shackleton, 5 March 1969). 111   Janet Seaton and Barry K Winetrobe, ‘The Passage of Constitutional Bills in Parliament’ (1998) 4 Journal of Legislative Studies 2, 41 (emphasis in original). 112   Rodney Brazier (Constitutional Practice 3rd edn (Oxford, Oxford University Press, 1999) 263n) notes the guillotining of the Scottish and Welsh Devolution Bills in the late 1970s (and, indeed, the guillotining of the successful Bills of 1998), adding that ‘there is now no convention that constitutional Bills will not be guillotined’. 113   CC 11(69)1, 6 March 1969. See also memorandum on allocation of time, Parliamentary Archives HL/PO/1/477. This memorandum lists resolutions from 1881 to 1959, which include the Parliament 105 106 107

146  The Parliament (No 2) Bill [1968–69] A guillotine motion was desirable to ease the passage of the Bill in the short term, but it was impracticable: even Labour MPs who supported the Bill were not willing to stay late to secure a majority.114 Moreover, the Opposition would give no support to a guillotine motion;115 indeed, it would place a three-line whip against a guillotine. Callaghan thought that a Conservative whip against a guillotine ‘would help to rally the Government’s supporters’, since there were some in the Labour Party who would support the motion in order to save the remainder of the legislative programme, notwithstanding their own opposition to the contents of the Bill.116 Moreover, a guillotine achieved against the will of the Opposition might, ministers were warned, store up future problems for the Bill by souring relations in the Lords and making it more difficult for the Conservative leadership in the Lords to ensure that its supporters let the Bill through.117 In any case, it later became clear that, in the absence of firm assurances of support from the Conservatives, a timetable motion would almost certainly be defeated.118 Despite ministers having provisionally accepted, on 4 March 1969, proposals for a guillotine,119 there was hesitation about proceeding with a guillotine ‘for political reasons’.120 The first political reason was that the Government had now quantified its hesitation of whether it would secure a guillotine. The Chief Whip, John Silkin, calculated that a timetable motion would be lost by 30 to 35 votes. Most in the Cabinet accepted this and also accepted that for the Government to lose this motion would be a major defeat.121 A principal reason why the guillotine was open to opposition was that it was seen as being neither fair nor equitable: it allocated four days to 16 clauses, a schedule, a preamble and any new clauses, whereas five days had theretofore been spent on the first three clauses alone.122 To maximise its chances of being carried, any guillotine motion would have to be personally presented by the Prime Minister as a matter of confidence. But even then, Silkin calculated, the Government would not be assured of securing the guillotine. To lose a vote on a guillotine motion would ‘be an unprecedented loss of confidence in business management; there is no known example of the Government failing to get a guillotine motion in the last Bill (later Act) of 1911. In November 2000, the House of Commons adopted programme motions (essentially guillotine motions agreed in advance through the ‘usual channels’) for all government bills: see House of Commons Information Office, Parliamentary Stages of a Government Bill , Factsheet L1, revised March 2003, 9–10. 114   C(69)37, Parliament (No 2) Bill, Memorandum by Gardiner. 115   TNA PREM 13/3402. Note of meeting (per Charles Pannell). 116   CC 11(69)1, 6 March 1969. 117   Parliamentary Archives HL/PO/1/477/67. Wheeler-Booth to Shackleton, 5 March 1969. 118   CC 12(69)1, 12 March 1969. 119   Ministers concerned with the Bill had provisionally decided on a guillotine on 4 March 1969 (Parliamentary Archives HL/PO/1/477/67. AHW to Mr JS Fiennes (Parliamentary Counsel), 4 March 1969). The guillotine comprised: (i) further days for Committee; (ii) one day for Third Reading; (iii) days to end at 11.30 pm; (iv) the Business Committee to recommend how the days were to be used; (v) provision for supplementary motions for (a) Report stage, and (b) Lords amendments. 120   Parliamentary Archives HL/PO/1/477/67. Wheeler-Booth to JS Feinnes, 6 March 1969. 121   CC 11(69)1, 6 March 1969. 122   Parliamentary Archives HL/PO/1/477/67. Wheeler-Booth to Shackleton, 5 March 1969.

The Parliament (No 2) Bill  147 100 years’.123 Nevertheless, some in the Cabinet argued that for a Prime Minister to present a guillotine as a confidence motion, the Bill should be of national import­ ance – a criterion which it regarded as being fulfilled by the Industrial Relations Bill, but not by the Parliament (No 2) Bill. Second, even if a guillotine motion could be achieved and could secure the short-term fortunes of the Bill, it was not necessarily desirable in the medium term. A motion to provide for a guillotine would, Shackleton was warned, ‘provide a pretext for righteous indignation’ from those who were against the Bill, ‘which will be fully exploited’. A guillotine motion might well induce genuine filibustering in the Commons, which had so far been absent.124 For the political reasons of the likelihood of losing a guillotine motion, and the problems which even a successful guillotine motion would store up for the future, the Cabinet on 6 March reversed the initial decision to seek a timetable for the remaining stages of the Bill.125 Whilst there was no certainty of carrying a timetable motion, Silkin argued that there would be less opposition to a motion to commit the Bill to a committee away from the floor of the House.126 Taking the Bill on the floor of the House had ‘offered its opponents the opportunity to put down a very large number of amendments to it and to argue them at length and to use every procedural device to prolong the proceedings of the Bill’.127 Taking the Committee Stage of a Bill on the floor of the House could speed up the Bill’s passage and potentially avoid the Government’s defeat on amendments (since it was often easier for the whips to impose their discipline on the floor of the House than in Committee), although in doing these things, the procedure could cause other bills to be delayed. This would be the case with the Parliament (No 2) Bill, which did, in fact, cause other bills to be delayed, but without the assumed benefits. The practice of referring ‘first-class constitutional Bills’ to a Committee of the whole House dates from the immediate post-War period. Under Standing Order 46, introduced in 1907, most bills were automatically referred to standing committee, although it had ‘been the practice to retain “the great measures of the Session” on the floor of the House’.128 The use of standing committees for bills was discontinued during the Second World War, but the Attlee Government in 1945 was keen to maximise the proportion of major bills which were committed to standing committees. It proposed to the House of Commons Procedure Committee that most bills should be sent to standing committee, except for those already excepted under Standing Order 46, any bill needing to pass with great expedition and one-clause bills not requiring detailed examination. The Government of the time acknowledged, however, that: ‘An exception would have   Parliamentary Archives HL/PO/1/477/67. Wheeler-Booth to Shackleton, 5 March 1969.   Parliamentary Archives HL/PO/1/477/67. Wheeler-Booth to Shackleton, 5 March 1969. 125   CC 11(69) 1, 6 March 1969. 126   CC 11(69) 1, 6 March 1969. 127   Wheeler-Booth (n 72) 105. 128   Select Committee on Procedure First Report, HC 9 of 1945–46, appendix, government memorandum, paragraph 5. 123 124

148  The Parliament (No 2) Bill [1968–69] to be made if any Bill of first-class constitutional importance were introduced, of the order, for instance, of the Bill for the Parliament Act, 1911, or the Statute of Westminster, 1931.’129 But this exception remained one of practice, and was never enshrined in standing orders. Indeed, no reference to this procedural assumption appeared in Erskine May until 1983.130 What constitutes a bill of ‘first-class constitutional importance’ has never been satisfactorily detailed, and the definition has, over time, provided ‘considerable scope for controversy’.131 But Harold Wilson accepted privately in 1967 that his Government’s proposals for House of Lords reform were indeed of ‘first class constitutional importance’.132 To send a bill from Committee of the whole House was unusual but not unprecedented. Since most bills – including ‘first-class constitutional Bills’ – have, under standing orders, to be specifically referred to Committee of the whole House: [A] motion to transfer a Bill, which has been specially committed to a Committee of the whole House, to a standing or select committee is a most unusual occurrence. There is nothing, however, in the standing order which implicitly prohibits such a proceeding . . . Such a motion has even been made although the Bill was under consideration in Committee of the whole House.133

The proposal to take the Parliament (No 2) Bill out of Committee of the whole House was not, therefore, unprecedented. Janet Morgan wrote of sending the Parliament (No 2) Bill upstairs that: ‘One pessimist in the Whips’ Office is reported to have suggested that on this occasion convention might be broken, and the Parliament Bill sent upstairs, but the suggestion was not taken seriously.’134 However, the idea of sending the Bill upstairs was more seriously considered than Morgan believes. Silkin, the Chief Whip, had, on 27 February 1969, advised the Cabinet that ‘the Government could have no certainty of being able to carry a Timetable Motion. There would be less opposition to committing the Bill to a Committee upstairs, and this might avoid further expenditure of time on the floor of the House’.135 Callaghan, however, countered by arguing that to refer the Bill to standing committee would offer little advantage for the Government. This was for four reasons. 129   Select Committee on Procedure First Report, HC 9 of 1945–46, appendix, government memorandum, paragraph 5. 130   Sir Charles Gordon, KCB (ed) Erskine May’s treatise on the law, privileges, proceedings and usage of Parliament 20th edn (London, Butterworths, 1983) 536. 131   SA Walkland, ‘Government Legislation in the House of Commons’ in SA Walkland (ed), The House of Commons in the Twentieth Century (Oxford, Clarendon Press, 1979) 267. See, further, Barry K Winetrobe, The Commons Committee Stage of ‘Constitutional’ Bills (House of Commons Library Research Paper 97/53, 20 May 1997) 10–12. 132   TNA PREM 13/1686. Note for the Record of a discussion at 10 Downing Street, 18 September 1967. 133   Sir Barnett Cocks (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament 17th edn (London, Butterworths, 1964) 533. 134   Morgan (n 3) 212. 135   CC 10(69)2, 27 February 1969.

The Parliament (No 2) Bill  149 First, the proposal to refer the Bill to standing committee for consideration of the remaining clauses was debatable on the floor of the House. This debate would take up a considerable amount of time. Second, time would still be needed on the floor of the House of Commons for the report stage of the Bill. Third, the Government would have as much difficulty ensuring it had a majority in standing committee as it had in ensuring its motions were carried on the floor. Fourth, the Committee Stage might still not be completed early enough to enable the Bill to be sent to the House of Lords in good time, which might cause the Lords to rebel.136 Furthermore, there was no guarantee that a motion to send the Bill upstairs would be carried: the same problem which lay at the heart of the Bill’s slow progress through Committee of the whole House – the Government’s inability to motivate its own backbenchers to support the Bill – might apply to this motion too. The arguments on the question of sending the Bill upstairs were entirely about the parliamentary time which could be saved under this procedure. Arguments about the constitutional propriety of such a move, or questions about the breaking of a constitutional convention, were not advanced in the Cabinet. The Cabinet concluded that to refer the Bill upstairs would not yield a net saving of time on the floor of the House and that, because of this, ‘the best course was to continue to fight the Bill through the Committee Stage on the floor of the House’.137 The suggestion that the Bill should be taken off the floor of the House of Commons was therefore taken more seriously than Janet Morgan implies. And it is wrong to suggest, as David Wood did in The Times on 21 April 1969, that the Government’s business managers ‘handicapped themselves by making the purist judgment that a constitutional reform Bill ought not to be taken off the floor of the House [of Commons] and sent upstairs to standing committee’:138 the decision not to send the Bill off the floor of the House of Commons was not made according to a ‘purist judgment’ of constitutional principle, but according to an analysis of the costs and benefits that would result for the legislative timetable. By 12 March, it became clear, in the absence of firm assurances of support from the Conservatives, that a timetable motion would probably be defeated.139 Two options presented themselves, but were not without problems of their own. Referring the Bill to a standing committee upstairs, as discussed above, would not yield a saving of time on the floor of the House, as this measure would be debatable. And to drop the Bill in favour of a more radical measure to be driven through under the Parliament Acts would disrupt the following session. The Cabinet therefore agreed that the best course of action was to fight the Bill through Committee Stage on the floor of the House and to present a united front to the Bill’s opponents.140   CC 11(69)1, 6 March 1969.   CC 12(69)1, 12 March 1969. 138   David Wood, ‘May It Please, My Lords’, The Times (21 April 1969) 8. 139   CC 12(69)1, 12 March 1969. 140   CC 12(69)1, 12 March 1969. 136 137

150  The Parliament (No 2) Bill [1968–69] Other business also impeded the progress of the Parliament (No 2) Bill. Continuing delay in the resumption of the Committee Stage, the Cabinet was told, ‘fed the belief that the Government were weakening in their intention to secure the passage of the Bill’. Moreover, the Easter recess would provide respite for the opponents of the Bill. Nevertheless, other business prevented further discussion of the Bill in the last week of March.141 Debate on the Committee Stage resumed on 14 April.

ABANDONING THE BILL

On 17 April 1969, the Prime Minister made a statement to the House of Commons in which he announced that the Government had ‘decided not to proceed further at this time with the Parliament (No.2) Bill in order to ensure that the necessary Parliamentary time is available for priority Government legislation’, including the Industrial Relations Bill and the Merchant Shipping Bill.142 However, to conclude from this statement that the Parliament (No 2) Bill had been dropped to ensure the passage of the Industrial Relations Bill does not accurately reflect the reasoning which led the Cabinet to abandon House of Lords reform in 1969. By mid-April 1969, the Committee Stage of the Bill, held on the floor of the House of Commons, had lasted 87 hours and yet only the first five clauses of the Bill had been agreed to. Shackleton was told that ‘to complete the Bill at the present rate of progress would take twenty days – time which cannot be spared’.143 The Government’s whips were not helping the situation: on 14 April, the whips unnecessarily moved a closure motion and lost because they failed to ensure the requisite 100 Government members.144 Moreover, the proposal to delay consideration of the most controversial part of the Bill (Clause 6) had been resisted by Callaghan, the minister in charge of the Bill, in spite of the advantages that would ensue. Given the lack of enthusiasm for the reform from the front benches, there was pressure to drop the Bill.145 If, however, the Government dropped the Parliament (No 2) Bill in order to pursue the Industrial Relations Bill, it did so against advice. On 15 April, WheelerBooth advised Lord Shackleton that: ‘It would seem unlikely that such a course [dropping the Parliament (No 2) Bill] would purchase easier passage for trades union legislation.’ Wheeler-Booth therefore advocated sending the Bill ‘upstairs’ to   CC 12(69)1, 12 March 1969.   HC Deb, 17 April 1969, vol 781, c 1338. The Scotland Bill 1977–78 took 326 hours, 40 minutes and the European Communities (Amendment) Bill 1992–93 took 310 hours, 39 minutes – and yet the Parliament (No 2) Bill was dropped after only 89 hours of parliamentary time (Seaton and Winetrobe (n 111) 45–48). 143   Parliamentary Archives HL/PO/1/477. Wheeler-Booth to Shackleton, 15 April 1969. 144   A closure motion ends debate on the question in hand, but cannot be passed unless at least 100 Members vote in the division on the closure motion. cf a guillotine motion (allocation of time order), which is a motion to impose a timetable on the rest of the proceedings (for example, to impose a timetable on the standing committee stage) of a bill. 145   Parliamentary Archives HL/PO/1/477. Wheeler-Booth to Shackleton, 15 April 1969. 141 142

Abandoning the Bill  151 a standing committee, as Silkin had earlier proposed.146 To have sent a ‘constitutional’ bill to a committee off the floor of the House of Commons would, as noted above, not have been entirely unprecedented, nor constitutionally impossible. Industrial relations policy was, most certainly, in trouble. On 3 March, 53 Labour MPs abstained in a vote on the In Place of Strife White Paper on industrial relations. Indeed, the Government had problems with morale on all issues across the PLP. Barbara Castle, who was in charge of industrial relations policy and who had never liked the Parliament (No 2) Bill, wanted the Government to persist with Lords reform on the ground that a government should stick to its policies; Crossman decided to argue in favour of jettisoning the Parliament (No 2) Bill so as to throw Government’s weight behind industrial relations reform, which he opposed.147 The Cabinet hoped that dropping House of Lords reform would be popular with its party: ‘In short, the Government was hoping to make more friends than enemies. But once again its judgement was seriously in error . . . their experience with the Parliament Bill encouraged hoped that the Government might be prevented from passing an Industrial Relations Bill.’148 The warnings of the Chief Whip were realised. When Cabinet met on 16 April 1969, there was but one item on the agenda: the Parliament (No 2) Bill. The Ministerial Committee had met the previous morning and, declining to re-consider the suggestion of a standing committee, concluded that only two courses of action were left open: to re-consider the introduction of a timetable motion, which had been rejected a month earlier; or to abandon the Bill. Several issues informed the debate in the Cabinet. First, it would be difficult to secure a closure motion on the Bill. ‘Morale in the Parliamentary Labour Party (PLP) was very low, with the result that during the debate on 14th April the Government had found themselves unable to enforce the closure.’149 But Gardiner thought that, for a motion to succeed, it would have to be treated as a matter of confidence in the Government, personally presented by the Prime Minister: ‘We can see no other means by which the reform of the Lords could be secured.’150 It was generally agreed that Lords reform was not a central enough issue on which to chance the Government’s reputation. Janet Morgan highlights a meeting during the Easter recess between Roy Jenkins, Richard Crossman and Barbara Castle, at which they discussed legislative priorities: They agreed that, as part of the package abandoning the 1968 Prices and Incomes legislation and introducing a short Industrial Relations Bill, it was inevitable that the Parliament Bill should be dropped . . . it was plausible to assume that he [the Prime   Parliamentary Archives HL/PO/1/477. Wheeler-Booth to Shackleton, 15 April 1969.   Peter Jenkins, The Battle of Downing Street (London, Knight, 1970) 86.   Jenkins (n 148) 86, 92. 149   CC 18(69),16 April 1969. 150   C(69)37. Parliament (No 2) Bill: Memorandum by the Lord Chancellor (Lord Gardiner), 15 April 1969. 146 147 148

152  The Parliament (No 2) Bill [1968–69] Minister] is not only agreed that the Parliament Bill should be jettisoned as soon as possible, but that he realised that the Conservatives could usefully be blamed for breaking of the cooperative agreement. The loss of the Parliament Bill was therefore considered as a necessary corollary of the industrial relations ‘package’.151

However, the minutes of the Cabinet discussion two days later record a different story: [T]here was general agreement that the Government’s inability to make progress with the Bill was the result of the general malaise in the PLP rather than the provisions of the Bill itself and that there was an urgent need to restore the Government’s authority in the Party . . . there was doubt whether the appropriate issue on which to take a stand was the Parliament (No.2) Bill or the Industrial Relations Bill. (Emphasis added)152

The Industrial Relations Bill was a better prospect on which to stake the Prime Minister’s authority with the Labour backbench MPs, but it would be wrong to say that House of Lords reform was sacrificed to save industrial relations legislation. Indeed, the Ministerial Committee warned the Cabinet that: ‘The Industrial Relations Bill will be equally unwelcome to our supporters.’153 The Parliament (No 2) Bill was not, in the Cabinet’s view, ‘the right issue on which to base the attempt to restore the Government’s authority in the Party and that without doing so they could not force the Bill through’.154 Nevertheless, to abandon the Parliament (No 2) Bill would be to betray loyalists. Abandoning the Bill might also risk encouraging peers to oppose remaining legislation: there was considerable annoyance amongst members of the upper House about how the Bill had been handled in the House of Commons. The balance of opinion in the Cabinet on 16 April 1969 was therefore ‘clearly in favour of not proceeding with the Bill’, although the possibility of a bill in the next session which dealt with only the powers of the Lords should be left open.155 The Bill was dropped in an attempt to clear time for other bills and because there was no realistic hope of securing the Bill. There was, however, no guarantee – indeed, no strong likelihood – that the dropping of the Parliament Bill would secure other legislation; it would merely create a little more parliamentary time in which to discuss the other bills.156 In his statement to the PLP on Thursday 17 April 1969, the Prime Minister emphasised the need for unity amongst them. In doing so, he was acting on the deliberations of the Cabinet the previous day, in which the view was expressed that the Government could not rely on the support of the NEC in disciplining recalcitrant members of the PLP until Government–NEC relations could be improved.   Morgan (n 3) 216–17   CC 18(69), 16 April 1969. 153   C(69)37, Parliament (No 2) Bill: Memorandum by the Lord Chancellor (Lord Gardiner), 15 April 1969. 154   CC 18(69), 16 April 1969. 155   CC 18(69), 16 April 1969. 156   CC 18(69), 16 April 1969. 151 152

1970  153

1970

For Shackleton, the failure of the Parliament (No 2) Bill was ‘so maddening that I am still too angry to feel sad. But it is, of course, a tragedy’.157 And it was a tragedy that continued to be felt. In an answer to Lord Bethell two months before the 1970 general election, Shackleton wrote that the Government stood by the 1968 White Paper, but that it had no immediate plans for the implementation of the scheme.158 But there was no discussion of House of Lords reform in the Cabinet after 16 April 1969. The Government headed into the 1970 general election with the manifesto statement that: ‘We cannot accept the situation in which the House of Lords can nullify important decisions of the House of Commons and, with its delaying powers, veto measures in the last year before an election. Proposals to secure reform will therefore be brought forward.’159 But that these powers remained was because of the Labour Party’s own inability to act. As Butler and Pinto-Duschinsky recalled at the time: ‘Three years and two months after his victory in the 1966 election, Mr. Wilson had an unenviable record of disaster.’160

CONCLUSION

House of Lords reform in 1964–70 was beset by a number of difficulties caused by institutional constraints, enhanced by the interplay of these constraints with problems of contemporary politics. In government between 1964 and 1966, Labour found no opportunity to discuss Lords reform. In 1966, with a set of ministers in the Commons and Lords keen on securing reform, the future of the House of Lords made the Cabinet’s agenda. But the Cabinet’s initially firm resolution to adopt a two-stage reform process weakened under the realisation that the composition of the House of Lords was critically important to securing other legislative objectives, and it became split on whether to adopt a one-stage or a two-stage proposal. The Government, unlike previous Labour leaderships in both government and opposition, felt impelled to hold an inter-party conference to facilitate consensus and that such a conference might help secure reform. Unlike its predecessor in 1948, the 1967–68 Inter-Party Conference achieved genuine progress: the parties significantly departed from their initial bargaining positions, most notably in the Conservatives’ acceptance of the upper House having the power to impose six months’ delay on House of Commons Bills, and the abandonment of their insistence of speaking rights being hereditary. The more informal operating practices of the working party, and the close personal relationships between its members,   Parliamentary Archives HL/PO/1/608. Shackleton to Cmdr Henry Burrows, 1 May 1969.   Parliamentary Archives S/309. 16 April 1970. 159   Labour Party, Now Britain’s Strong – Let’s Make It Great To Live In (1970); Craig (n 6) 359. 160   Butler and Pinto-Duschinsky (n 38) 45. 157 158

154  The Parliament (No 2) Bill [1968–69] achieved a great degree of convergence, although this convergence went further than party politics would permit. Moreover, whilst contributing to agreement, the Inter-Party Conference in the end contributed to the failure of reform by delaying the Government’s Bill for nine months, and by constraining the Government’s options of how to proceed. Whilst the upper House’s rejection of the Southern Rhodesia Order was import­ ant in providing a break-point for the Inter-Party Conference, there is some evid­ ence that the Conference had already reached its limit, and there is no guarantee that further negotiations would have resulted in enhanced agreement. Moreover, there is no guarantee that further agreement would have resulted in a successful reform programme: the White Paper proposals were agreed, but still the Opposition declined to cooperate. When the Bill ran into trouble in the House of Commons, the institutional procedures of Parliament were not sufficient to cause the abandonment of the Bill. The Government was less procedurally constrained than many thought at the time, and all of the obstructions could have been overcome with more enthusiastic support from those Labour MPs who were not opposed to the Bill. In the end, however, neither historical nor institutional factors were critical in ending Lords reform attempts by the Wilson Governments of 1964–70: reform was a casualty of contemporary political pressures. The unpopularity of the Labour Party in the country, exacerbated by a series of political and economic troubles, from the devaluation crisis in 1967 through to industrial relations policy problems in 1969, caused the PLP to lose faith in its leadership and the Opposition to scent political advantage, resulting in its withdrawal of cooperation with the Government. It was thus the ‘general malaise’ in which the PLP found itself that holds the key to the failure of House of Lords reform in the late 1960s. Several other issues – including inter-party electoral politics, ministerial divisions, parliamentary rules, the skill of backbenchers and a desire to seek compromise – were individually important in contributing to the failure of reform, but none of these could have triumphed without the malaise exacerbating their impact. The Labour Government, having been slow to move on reform in 1964–67, in the end achieved no reform at all, and the House of Lords, save for a substantial increase in its appointed membership, was essentially the same in 1970 as it had been in 1964.

EPILOGUE: HOUSE OF LORDS REFORM, 1970–74

In early 1971, the Earl Jellicoe, Lord Privy Seal and Leader of the House of Lords, convened a committee of Conservative peers161 under the chairmanship of Lord 161   TNA LCO 2/8131. The membership was: Lord Brooke of Cumnor (Chairman), Viscount Amory, Viscount Colville of Culross, Lord Mancroft, Lord Molson, Baroness Northchurch, Lord Nugent of Guildford, Lord St Helens, Lord Sandys and Lord Tweedsmuir. Lord Alport was initially a member, but he resigned for business reasons on 24 November 1971. The 4th Viscount Colville of Culross sat as a

Epilogue: House of Lords Reform, 1970–74  155 Brooke of Cumnor to discuss House of Lords reform. Its terms of reference were: ‘To consider how the functions and composition of the House of Lords as an integral party [sic] of Parliament might be improved, bearing in mind any valid criticisms directed against the 1968 proposals.’162 The Committee reported at Easter 1972. Jellicoe, who had been a member of the Inter-Party Conference and a key player in its detailed negotiations, had established the Committee because he was worried that the Conservative Party might not have ‘a viable or constructive policy on the House of Lords in the event of their winning the next election’.163 He hoped that the Brooke Committee would create a policy on Lords reform which he could pigeonhole until an apposite moment. ‘He feared that if the Conservatives did not reform the House in the next Parliament, the Labour Party would, in a more drastic manner, whenever they assumed office again.’164 The 1968 White Paper had been accepted at the time by both the Labour and Conservative leaderships as being a fair statement of the agreement that they had reached. The Brooke Committee quickly concluded that: ‘In principle, it is desirable that any scheme of reform should commend itself to reasonable men of all parties. This suggested to us that nothing very different from the 1968 scheme was likely to meet with a general approval’ (emphasis added).165 The Committee’s primary concern was the function of the House, from which point its composition could be considered. On delaying power, the Committee deviated from the conclusions of the Inter-Party Conference of six months’ delay from the point of disagreement between the Houses, preferring the formula of nine calendar months from the date of the Third Reading in the House of Commons.166 The controversial Redistribution of Seats (No 2) Act 1970 and the Industrial Relations Act 1972 would have varied in receiving the Royal Assent by no more than one month under the Committee’s plan than under the Inter-Party Conference plan. But the Committee thought that nine months’ delay from Third Reading was a simpler formula for the general public to understand; though it would not break off future inter-party negotiations in the name of this delay period, it was the crucial point of disagreement. The ability of the House of Lords to safeguard a ‘Bill of a constitutional character’ should not, the Committee recommended, be extended beyond the prevailing power to prevent the extension of the life of a Parliament beyond five years: ‘the Conservative peer in the 1970s, and was a Minister of State at the Home Office 1972–74. He later transferred to the cross-benches, becoming an elected hereditary peer in 2000. 162   TNA LCO 2/8131. 163   TNA LCO 2/8131. JM Davies, Note of a meeting on the Brooke Report on Lords Reform, 2 May 1972. 164   TNA LCO 2/8131. JM Davies, Note of a meeting on the Brooke Report on Lords Reform, 2 May 1972. 165   TNA LCO 2/8131. 166   Nine months’ delay from Third Reading was discussed in the 1948 Party Leaders’ Conference. It would delay a substantial bill, which took several months to pass through the Lords, by a couple of months.

156  The Parliament (No 2) Bill [1968–69] advantage gained by any such change would be more than offset by the possible harm it might do to relations between the two Houses’.167 However, the Committee did propose closing the loophole by which a future government could strip the House of Lords of its power over the length of a Parliament. The Committee’s consideration of the Lords’ powers on statutory instrument was overtaken by the two Houses deciding in 1971 to set up a Joint Committee on the procedure and practice of both Houses with regard to delegated legislation. The ability of the Lords to contribute to pre-legislative scrutiny was doubted by the Committee, but it expressed great interest in the idea of Lords’ select committees to enquire into the post-legislative operation of particular bills, such as the Criminal Justice Act 1967, and also felt that select committees could be used to follow up on issues raised in debate. Regarding composition, the Committee agreed that ‘the House should include the widest possible cross-section of responsible opinion and experience’, some taking the party whip and some non-aligned, such that ‘a systematic endeavour should be put in hand to ensure that no important topic will come up in the House of Lords without there being members of the House well fitted to make an informed and authoritative contribution to the discussion of it’.168 A necessary part of achieving that point would be to have peers with knowledge of the nations and regions of the UK.169 The Committee also agreed ‘that any scheme of reform, to be acceptable, must bring to an end the present situation in which one party can rely on a large and seemingly permanent majority giving the others no chance in ordinary divisions when the Whips are on’.170 It could not countenance the creation of 200 Labour peers, nor did it like the idea of terminating the right to sit of most peers by succession. The Committee was therefore ‘driven back’ to the idea of forcing these hereditary peers to continue as speaking peers only. Membership of the House without a right to vote would be tolerable because of the proportion of debates in the Lords which end without a vote.171 Some members of the Committee wished the heirs of these peers to inherit the right to speak in the House. This point had been put to the Inter-Party Conference by Carrington, for the Conservatives, in 1967–68; he had agreed that speaking rights should not be hereditary. Likewise, the majority of the Brooke Committee considered ‘that a reform of the House in which heredity continued to confer the right to a seat in Parliament would not be acceptable to the British public in this modern age’.172 It would, moreover, be opposed by the Labour and Liberal Parties as a perpetuation of privilege, ‘and we all consider that it would be a great advantage, if not a necessity, in any scheme of Lords reform that in its main features it should attract all-party support’.173   TNA LCO 2/8131.   TNA LCO 2/8131, para 21. 169   TNA LCO 2/8131, para 33. 170   TNA LCO 2/8131, para 22. 171   TNA LCO 2/8131, paras 23–24. 172   TNA LCO 2/8131, paras 25–27. 173   TNA LCO 2/8131, paras 25–27. 167 168

Epilogue: House of Lords Reform, 1970–74  157 The Committee rejected an entirely elected upper House: ‘It would entail denying even to peers of first creation a seat in the House of Lords. Over and above that, it would set up a rival elected Chamber, and we cannot believe that the House of Commons would ever tolerate this.’174 Furthermore, the Committee considered that ‘any form of election would affect the usefulness of the House’ because the ability of ‘all its members to speak with complete freedom whatever they are minded to say’ without consideration of the electoral consequences of the ‘voicing of unpopular or heretical views’ was a valued quality of the present House.175 Therefore, the Committee came to the unanimous conclusion that elections to the House of Commons should not ‘be complicated or overlaid by parallel election to the House of Lords, in which the whole electorate took part’.176 The Committee therefore rejected any election of members of the second chamber, even an elected component. Lord Hailsham of St Marylebone, the Lord Chancellor, killed the Brooke Report stone dead. ‘Whilst as one would expect it is intelligent, wise, and enlightened’, he told Lord Jellicoe, ‘I am fundamentally opposed to it.’177 Hailsham’s arguments included that the House of Lords was working well and that reform benefited neither party nor country, and a tirade against the worth of nominated members and a nominated chamber. ‘We shall one day come to an elective senate based on regionalism. But we are not there yet, not nearly there.’178 Carrington shared the view of Hailsham that a Conservative government could not reform the House of Lords: only a Labour government could do so (an opinion which flew in the face of the 1958 and 1963 Acts). The all-party proposals of 1968–69 were dead by 1972. Any re-organisation of the House on a regional basis would have to await the report of the Kilbrandon Commission.179 But notwithstanding this, the leading Conservative peers presumed that a future Labour government ‘would either abolish the House altogether or remove the hereditary element’.180 Carrington also came to share Hailsham’s view that ‘it was difficult to tinker with the Lords – the attempt to replace a brick could bring the whole wall down; only fundamental change would work’.181 The modest proposals of the Brooke Committee on Lords reform never reached the Cabinet in the 1970–74 Parliament. Jellicoe himself admitted ‘that the Committee had produced no fundamental new proposals’,182 but, now in government, both   TNA LCO 2/8131, para 28.   TNA LCO 2/8131, para 30. 176   TNA LCO 2/8131, para 31. 177   TNA LCO 2/8131. Hailsham of St Marylebone to Jellicoe, 14 April 1972. 178   TNA LCO 2/8131. Hailsham of St Marylebone to Jellicoe, 14 April 1972. 179   Royal Commission on the Constitution, 1969–73 (Kilbrandon Commission) (Cmnd 5460). This Commission made only three references to the House of Lords, in which it dismissed the idea of the House of Lords being constituted on a regional basis (para 1073). 180   TNA LCO 2/8131. JM Davies, Note of a meeting on the Brooke Report on Lords Reform, 2 May 1972. 181   Carrington (n 70) 213. 182   TNA LCO 2/8131. JM Davies, Note of a meeting on the Brooke Report on Lords Reform, 2 May 1972. 174 175

158  The Parliament (No 2) Bill [1968–69] Hailsham and Carrington seemed to favour doing nothing and risking a future Labour administration abolishing the Lords, rather than embrace creative reform. Hailsham’s objections stemmed partly from a practical interest to see other policy areas advanced, partly from an acceptance of the status quo and partly because of a preference of heredity to nomination as the basis for membership of the House. But the plans had already been smothered at birth, and Jellicoe’s pigeonhole remained inaccessible. After Jellicoe resigned following a scandal in 1973, Lord Windlesham made no movement towards House of Lords reform ahead of the general election of February 1974.

AFTER 1974

A Conservative Party committee under Lord Home of the Hirsel produced proposals for Lords reform in 1978,183 but the Conservative Governments of Margaret Thatcher184 and John Major185 produced no official proposals for Lords reform. The idea of reform did not go completely into abeyance, however. As WheelerBooth recalls: A third indirect outcome of the failure of the Parliament (No.2) Bill to pass the Commons was that the leadership in the Lords turned its attentions to the reform of the functions and procedures of the House . . . the party leadership in the Lords, which had been identified with the reform proposals of 1967–69, decided to make the best of the situation by procedural innovation and by developing the expert functions of the House.186

This emerging role as a specialist revising chamber, especially with regard to scrutiny of the European Community after 1973, enhanced by the increasing numbers of life peers active in the House, had to suffice until further reform was proposed in 1997.

183   Report of the Review Committee on the Second Chamber (London, Conservative Political Centre, 1978). 184   There had been a flurry of activity on Lords reform in the early 1980s: Mrs Thatcher began ‘to toy with the idea of shoring up the House of Lords’ (Parliamentary Archives HL/PO/1/608/20. Janet Morgan to the Earl Jellicoe, 22 January 1981). But the prospect of progress fell away after the removal of the Baroness Young as Leader of the House of Lords later in 1981, and Whitelaw and Wakeham, as successive Leaders, both declined to consider opening up the reform question. 185   Viscount Cranborne (Lord Privy Seal and Leader of the House of Lords, 1994–97) was very keen on pursuing the question of Lords reform, and he was personally influential on John Major, but after Black Wednesday on 16 September 1992, Lords reform was a non-starter. 186   Michael Wheeler-Booth, ‘The House of Lords’ in Robert Blackburn, Andrew Kennon and Sir Michael Wheeler-Booth (eds), Griffith and Ryle on Parliament: Functions, Practice, and Procedures 2nd edn (London, Sweet & Maxwell, 2003) 644. On the House of Lords from 1970 to 1997, see, inter alia, Wheeler-Booth (n 72) 642–54; Nicholas DJ Baldwin, ‘The House of Lords and the Labour Government 1974–79’ (1995) 1 Journal of Legislative Studies 218; Donald Shell, ‘The House of Lords and the Thatcher Government’ (1985) 38 Parliamentary Affairs 16; Andrew Adonis, ‘The House of Lords in the 1980s’ (1988) 41(3) Parliamentary Affairs 380.

7 Stage One of Two?: The House of Lords Act 1999 This problem is so old that we need not feel ashamed if we proceed by stages and solve only part of it at the first attempt – and this may be the politically wise course . . . [reform] in two separate stages – and in two separate Bills in order to avoid any conjunction in opposition forces Lord Woolton, 19531 It would, however, be essential to avoid giving peers by succession a right to elect voting members from their number. Ministerial Committee on the Reform of the House of Lords, 19672

A

T ITS CONFERENCE on 5 October 1977, the Labour Party resolved by a majority of six million votes to abolish the House of Lords.3 Whereas Labour’s general election manifestos in 1974 had made more references to landlords than to Lords of Parliament,4 its 1979 manifesto declared that: No one can defend on any democratic grounds the House of Lords and the power and influence it exercises in our constitution. We propose, therefore, in the next Parliament, to abolish the delaying power and legislative veto of the House of Lords.5

1  TNA CAB 21/3721. ‘House of Lords Reform: Suggestion for Two Bills’, memorandum to the Cabinet Committee on House of Lords Reform by the Chancellor of the Duchy of Lancaster (Lord Woolton), May 1953. 2   CC 59(67)1, 12 October 1967. 3   Labour had set up a Machinery of Government Study Group of its National Executive Committee in March 1976, which reported ‘considerable problems’ if the House of Lords was to be abolished. See TE Lamport, ‘Reform of the House of Lords in British Politics 1970–1992’ (PhD thesis, Queen Mary, University of London, 2005), 61ff. 4   No mention was made of the reform of the House of Lords’ powers or composition in either the February or the October manifesto in 1974. 5   Labour Party, The Labour Way is the Better Way (1979). Iain Dale, Labour Party General Election Manifestos, 1900–1997 (London, Routledge, 2000) 230–31. Callaghan was, however, invited by his advisors to consider, in the event of a hung parliament resulting from the 1979 general election, a House of Lords elected by proportional representation as one of two bases of coalition discussions with the Liberals (the other was concession on pay policy): Bodleian Libraries, MS Callaghan Box 112, Roger Carroll to Prime Minister, 2 May 1979.

160  The House of Lords Act 1999 Labour’s 1983 manifesto was more direct and concise, pledging to: ‘Take action to abolish the undemocratic House of Lords as quickly as possible and, as an interim measure, introduce a Bill in the first session of parliament to remove its legislative powers – with the exception of those which relate to the life of a parliament.’6 However, the replacement in 1983 as party leader of the ardent unicameralist Michael Foot with Neil Kinnock started a process which would lead to Labour embracing bicameralism. Under Neil Kinnock’s leadership, the Labour Party’s opposition to bicameralism in general and the House of Lords in particular began to decelerate and then to reverse.

TURNING THE TIDE OF CONSTITUTIONAL REFORM

‘In the 1980s’, noted Miles Taylor, ‘Labour’s constitutional agenda gathered cobwebs. What reforms were proposed in the Thatcher years smacked of a marginalised party shut out from the corridors of power.’7 Two policy initiatives arose after Labour’s defeat at the 1987 general election: while Margaret Thatcher embarked, as Martin Linton and Patrick Wintour put it, ‘on her tenth parliamentary session of absolute power’,8 Charter 88, on 29 November 1988, launched its campaign for comprehensive constitutional reform, and the Labour Party itself launched a wide-ranging ‘policy review for the 1990s’, the report of which, Meet the Challenge, Make the Change, was published in 1989.9 Charter 88’s critique of the British constitution arose from dissatisfaction on the political left, especially from journalists attached to New Statesman & Society, with the balance of power under the constitution. The Labour Party’s ‘Aims and Values’ document of 1987, which was drafted by Neil Kinnock and Roy Hattersley, Leader and Deputy Leader of the Opposition respectively – and the general election manifesto10 of the same year – had been silent on constitutional reform. Hattersley, and his predecessor as Shadow Home Secretary Gerald Kaufman, were known to be unenthusiastic about Charter 88’s principal demand of a codified and entrenched constitution.11 Yet Charter 88 had planted the seeds of constitutional reform in the Labour Party, and the enthusiasm of Labour intellectuals to put their weight behind the Charter 88 reform agenda just one year later forced the end of their Party’s silence on constitutional reform. Their cry for constitutional reform was, as Bernard Crick argued, not ‘just a reaction to

  Labour Party, The New Hope for Britain (1983); Dale (n 5) 275.   Miles Taylor, ‘Labour and the Constitution’ in Duncan Taylor, Pat Thane and Nick Tiratsoo (eds), Labour’s First Century (Cambridge, Cambridge University Press, 2000) 172. 8  Martin Linton and Patrick Wintour, ‘A People’s Bill of Reform Fare: A New Campaign for Constitutional and Electoral Reform is Launched’, The Guardian (30 November 1988). 9   Labour Party, Meet the Challenge, Make the Change: A New Agenda for Britain. Final Report of Labour’s Policy Review for the 1990s (London, Labour Party, 1989). 10   Labour Party, Britain Will Win with Labour (1987); Dale (n 5) 305. 11   Linton and Wintour (n 8). 6 7

Turning the Tide of Constitutional Reform  161 Thatcherism’, it was ‘rethinking (unofficially) the implications of a genuinely democratic society’.12 The 1987 manifesto silence represented the bottoming-out of Labour Party opposition to the existence of an upper chamber. Officially breaking its silence on House of Lords reform in its 1989 policy document Meet the Challenge, Make the Change: A New Agenda for Britain, the Labour Party deserted the previous abolitionist policy towards the House of Lords and turned that policy into one of reform rather than simply abolition: ‘We propose the abolition of the House of Lords and its replacement with an elected second chamber with a specific and precisely defined constitutional role.’13 The language of this policy review was of abolition, but the detail promised reform. Labour envisaged this new second chamber as playing an essential role in extending powers from the centre of the state to the nations and regions of the UK, ensuring fundamental rights, and properly scrutinising UK and EU legislation. Members of the second chamber would, Labour proposed, be elected on a different basis from members of the House of Commons to ‘particularly reflect the interests and aspirations of the regions and nations of Britain’, although the members would explicitly not be delegates from the regional assemblies that Labour also advocated. Furthermore, and quite radically, Labour proposed that ministers would not sit in a second chamber and that bills would not be introduced there. ‘It will retain powers to delay legislation but for most bills its powers of delay will be restricted to only allow one opportunity for revision before final consideration by the House of Commons . . . It will possess the power to delay [the] repeal of legislation affecting fundamental rights for the whole life of a Parliament.’14 The Appellate Committee of the House of Lords would ‘continue to function as a supreme court’, but with its members appointed by a committee responsible to a Minister for Legal Administration.15 Reform of the House of Lords, combined with devolution to Scotland, Wales and 10 elected English regional assemblies had become, in the words of Bernard Crick: ‘The key to Labour’s constitutional reform.’16 Support for constitutional reform widened throughout the early 1990s. By mid-1990, the Labour Party’s emerging support for constitutional reform, including House of Lords reform, had been backed by four unions.17 The public was in favour too. In 1991, a poll of British voters conducted by MORI for the Joseph Rowntree Trust showed that over half of respondents supported significant constitutional reforms18 and that 40 per cent were in favour of an elected second 12   Bernard Crick, ‘A Reform Too Far for Kinnock; Labour’s Approach to Constitutional Change’, The Times (17 May 1989). 13   Labour Party (n 9), 55. 14   Labour Party (n 9) 55–56. 15   Labour Party (n 9) 56. 16   See Crick (n 12). 17   Nicholas Wood, ‘PR Tide “is Running Our Way”’, The Times (11 July 1990). 18   Melissa Benn, ‘Education: Calls for a Change in Government – Pressure Groups and Political Parties are Calling for Changes to the United Kingdom’s “Unwritten Constitution”’, The Guardian (24 September 1991).

162  The House of Lords Act 1999 chamber with only 29 per cent against. A similar survey in 1995 found that twice as many voters were in favour of an elected second chamber than were against it.19 By 1992, Labour was looking electable again and in its manifesto, it embraced a package of reforms, including ‘those leading to the replacement of the House of Lords with a new elected Second Chamber which will have the power to delay, for the lifetime of a Parliament, change to designated legislation reducing individual or constitutional rights’.20

JOHN SMITH’S LEADERSHIP

The proposal for a two-stage policy for reforming the House of Lords, with the first stage being to end the right of peers by succession to sit and vote in the House, was considered by the Labour Party under John Smith’s leadership in March 1994.21 But support for a two-stage approach to reforming the Lords was not universal within the Party.22 At the time of John Smith’s sudden death on 12 May 1994, House of Lords reform was merely ‘on the agenda’ and the Party’s commitment to Lords reform was not as strong as to other constitutional reforms in which John Smith had taken a personal interest, such as freedom of information, a bill of rights and the devolution of power to Scotland and Wales.23

TONY BLAIR AND HOUSE OF LORDS REFORM

In his first speech as Party Leader to a Labour Party Conference on 4 October 1994, Tony Blair spoke of the need for constitutional reform, including the reform of the House of Lords,24 a commitment re-affirmed later that year by Jack Straw, the Shadow Home Secretary: ‘One measure which a Blair government will take very swiftly . . . is the removal of the right of hereditary peers to sit and vote in the House of Lords.’25 The Liberal Democrats decided to cooperate with ‘New’ Labour on con­ stitutional reform, a topic in which they had a long-standing interest. They had   Malcolm Dickson, ‘Putting the House in Order’, Herald (Glasgow) (9 February 1996) 15.   Labour Party, It’s Time to Get Britain Working Again (1992). Dale (n 5) 339. Fourteen years later, this proposal – for the House of Lords to be able to delay certain categories of legislation until a general election – was again being considered: Peter Riddell, ‘A Deal on the Lords that Rival Parties Could Hardly Reject’, The Times (7 April 2006), 28. 21   Patrick Wintour, ‘Labour Will Unseat Hereditary Peers; Smith Backs Two-Stage Reform of Lords But Would Not Go Directly for All-Elected Chamber’, The Guardian (3 March 1994), 8. 22   Wintour (n 21) 8. 23   Tessa Blackstone, ‘Party has Built a Bedrock of Policies’, The Observer (15 May 1994) 27. Labour Party Policy Commission, A New Agenda for Democracy: Labour’s Proposals for Constitutional Reform, National Executive Committee Statement to 1993 Labour Party Conference (1993). 24   This speech is, however, better remembered for the unanticipated commitment to change Clause IV of the Party’s constitution. See Anthony Seldon et al, Blair (London, Free Press, 2004) 216–28. 25   Quoted in Michael Prescott, ‘Labour to Strip Queen of Political Power and Slim Down Monarchy’, The Times (4 December 1994). 19 20

Post-Election 1997  163 abandoned equidistance from the Conservative and Labour Parties following the May 1995 local elections, preferring ‘to promote a new style of politics . . . a more co-operative approach’.26 Over the following two and a half years, a committee of senior Labour and Liberal Democrat politicians, under the supervision of Robin Cook and Robert Maclennan, conducted negotiations on constitutional reform.27 The negotiations were a genuine attempt to fashion a consensus on how to proceed with constitutional reform and were, unusually, ‘not the product of necessity but of choice’.28 In their report, published on 5 March 1997, the Cook–Maclennan committee advocated wide-ranging constitutional reform encompassing electoral reform, devolution, ending the rights of hereditary peers to speak and vote in the House of Lords, human rights, freedom of information, greater scrutiny for quangos, a Civil Service Act and modernisation for the House of Commons. On the House of Lords, the parties stated that: There is an urgent need for radical reform of the Lords. Its current composition is indefensible, in particular the fact that the majority of its members are entitled to take part in the legislative process on a hereditary basis.29

The parties agreed a proposal for a two-stage reform of the House of Lords, with stage one excluding hereditary peers from the House and stage two encompassing a wider-ranging, long-term settlement. This settlement, which would be determined by a Joint Committee of both Houses, would result in a House in which party strengths would reflect the parties’ support in general elections, no political party sought to have a majority, the cross-benchers had around one-fifth of seats and some hereditary peers had been made life peers so that they could continue to sit and vote in the House. The Cook–Maclennan proposals formed the basis of the two Parties’ election manifestos later in 1997.

POST-ELECTION 1997

The Labour Party won the 1997 general election with the largest majority ever achieved. Some compared the landslide with that of Asquith’s Liberals in 1906.30 Certainly, the Conservatives in May 1997 were as crushed and demoralised as they had been when Balfour lost that general election. But in terms of relations with the Lords, the first Blair Government would better be compared with Attlee’s administration: worried, on the whole unnecessarily, about the threat of the 26   Letter from Paddy Ashdown abandoning equidistance, in Paddy Ashdown, The Ashdown Diaries Volume 1: 1988–1997 (London, Penguin, 2001) 596–97. 27   The Conservatives did not share the enthusiasm of the other parties for constitutional reform and were not involved in these discussions. 28   Hugo Young, ‘Commentary: At Last a Big Idea for a New Britain’, The Guardian (6 March 1997), 15. 29   Report of the Joint Consultative Committee (London, Labour Party, 1997) 16–17. Quoted in House of Commons Library Research Paper 98/85. 30   Andrew Adonis, ‘For New Labour Read New Liberals’, The Observer (8 September 1996) 27.

164  The House of Lords Act 1999 House of Lords and keen to score a pre-emptive strike. Labour’s manifesto in 1997 had stated: A modern House of Lords The House of Lords must be reformed. As an initial, self-contained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute. This will be the first stage in a process of reform to make the House of Lords more democratic and representative. The legislative powers of the House of Lords will remain unaltered. The system of appointment of life peers to the House of Lords will be reviewed. Our objective will be to ensure that over time party appointees as life peers more accurately reflect the proportion of votes cast at the previous general election. We are committed to maintaining an independent cross-bench presence of life peers. No one political party should seek a majority in the House of Lords. A committee of both Houses of Parliament will be appointed to undertake a wideranging review of possible further change and then to bring forward proposals for reform. We have no plans to replace the monarchy.31

Unlike in 1945, however, and unlike 1964 – but like 1966 – Labour had an unconditional promise to make a first strike for House of Lords reform. Unlike all previous Labour administrations, New Labour sought first to amend the composition of the Lords, eliminating the right of hereditary peers to sit and vote and therefore moving to end the Conservative predominance in the House, before later considering the powers of the House and, indeed, a longer-term settlement. The House of Lords in 1997 was, however, greatly different from the House that had last faced a Labour government 18 years earlier: it had almost twice as many women members and had modified its working practices and transformed its capacity to scrutinise both government and EU legislation, and had proved itself to be substantially more assertive than in the ‘big sleep’ of 1914–69.32

PRIORITIES FOR THE FIRST SESSION

‘Commitments [by the Labour Party] to reform the House of Lords’, The Times had editorialised in 1990, ‘tend to disappear into the mist soon after election.’33 The new Government’s commitments to constitutional reform were many. The Cook–Maclennan Report had committed the future government ‘to act quickly on devolution: both parties would support legislation to establish the Scottish parliament within the first Session of Parliament after the general election’.34   Labour Party, New Labour Because Britain Deserves Better (1997).   See Sir Michael Wheeler-Booth, ‘The House of Lords’ in Robert Blackburn, Andrew Kennon and Sir Michael Wheeler-Booth, Griffith and Ryle on Parliament: Functions, Practice and Procedures 2nd edn (London, Sweet & Maxwell, 2003) 642–55. 33   ‘Labour’s Sales Pitch’, The Times (25 May 1990). 34  Quoted by Anthony Bevins, ‘Lib-Lab Pledge to Overhaul the Constitution’, The Independent (6 March 1997) 6. 31 32

Priorities for the First Session  165 Devolution was Labour’s strongest desire for constitutional reform and required an extensive commitment of time: a White Paper, legislation to set up the promised referendums, the referendums themselves and then further legislation would all be needed. Starting the new Parliament by initiating proposals for devolution, rather than pursuing the relatively simple stage one of Lords reform as the Government’s first priority of constitutional reform, made immediate political and legislative sense. Inside the Government, even the keenest advocates of Lords reform accepted that it was right to tackle devolution first.35 Lord Richard, Leader of the House of Lords and an enthusiastic supporter of Lords reform, claimed later that: ‘Lords reform is the most important item in Labour’s constitutional reform programme, apart possibly from devolution to Scotland.’ 36 There was, however, no pre-election rank-ordering of priorities for constitutional reform other than devolution.37 Apart from the Cook–Maclennan Report and Labour’s manifesto commitment to a two-stage reform, very little strategy preceded moves towards House of Lords reform in 1997–99. In Opposition before 1997, there had been no real discussion on Lords reform outside of the Cook– Maclennan committee, and certainly not in the Shadow Cabinet.38 Half-hearted moves were made towards proportional representation, with the appointment of an Independent Commission under Lord Jenkins of Hillhead. Giving effect to the European Convention on Human Rights in UK law would require a long leadtime, following consultation and legislation, in order to be implemented; moreover, this reform had the personal, driving commitment of the Lord Chancellor, Lord Irvine of Lairg. Introducing proportional representation for the 1999 elections to the European Parliament had been a personal promise made by Tony Blair to Paddy Ashdown,39 and had to come next, lest it not be implemented in time for quinquennial elections. Tony Blair was completely ignorant of the Lords and was baffled by its workings.40 House of Lords reform had no coherent mass popular support amongst the electorate or sufficient champions within the Cabinet: it therefore had to wait until the Second Session of the 1997 Parliament. With such a strongly worded commitment to reform a very clearly defined aspect of Parliament, Labour’s unwillingness to act quickly to eliminate a potential obstacle to its legislative objectives41 might be questioned. Indeed, some   Private information.   Ivor Richard and Damien Welfare, Unfinished Business: Reforming the House of Lords (London, Vintage, 1999) 200–01. 37   Young (n 28) 15. 38   Private information. 39   And a proposal from the Labour Party’s Plant Report of 19 May 1993, which Tony Blair had supported in his speech at the Labour Party Conference on 30 September 1993. See David Butler and Martin Westlake, British Politics and European Elections 1999 (Basingstoke, Macmillan, 2000) 30. 40   Private information. Some of this bafflement was dispelled by the consummate political operator, Lord Carter (Government Chief Whip in the House of Lords, 1997–2002), who was the first Lords Chief Whip ever regularly to attend the Cabinet. 41   Meg Russell, ‘Reform of the Lords: A View from the Outside’ in Nicholas DJ Baldwin (ed), Parliament in the 21st Century (London, Politicos, 2005) 393. 35 36

166  The House of Lords Act 1999 observers, such as Sir Michael Wheeler-Booth, have argued that delaying Lords reform until the Second Session of the 1997 Parliament was critical in impeding the passage of reform: In the heady days of May–July 1997, a short Bill to eject the hereditary peers might have passed both Houses without the prolonged debate and inter-party haggling that in the event accompanied the passage of the House of Lords Bill in the following session, 1998–99. In the interim, the opposition had time to recover its will to oppose, and to think of ways of doing so.42

It is difficult to share Sir Michael’s optimism, either about the willingness of the Government to tackle the House of Lords’ question or for the Conservatives slowly to recover their morale. Legislating for Lords reform would not have been nearly as simple as handing the control of interest rates over to the Bank of England,43 and some of the same objections to the House of Lords Bill (especially the creation of an all-appointed House and a desire for some indication towards stage two) would have still applied a year earlier. Indeed, some, including Tony Blair, thought that in the aftermath of the general election Lords reform could so be messy that it might even take up to two full Sessions to get House of Lords reform through: I have suddenly discovered there is a very good reason why the House of Lords has never been reformed. They seem able to pass down some genetic aptitude to be stupid on most occasions, but extremely cunning when it comes to their own survival. I will have to revise my idea about inherited ability!44

Labour did not wish to become distracted from its much more salient political objectives of securing devolution and human rights reforms. Despite the intellectual case for correcting the legislative process first, the Lords were unlikely to oppose a government with such a large Commons majority, so recently conferred, and this influence over the Lords was thought likely to last long enough to get stage one of Lords reform through in the Second Session.45

THE CABINET COMMITTEE

Labour’s commitment to Lords reform did not disappear with the decision to defer legislation for 18 months. Planning for Lords reform in 1997–2001 under   Wheeler-Booth (n 32) 655–56.   cf the ‘abolition’ of the position of Lord Chancellor, which the Prime Minister had hoped to do by re-shuffle: see Andrew Le Sueur, ‘The Government’s (Surprisingly Quick) Next Steps in Constitutional Law’ [2003] PL 368. 44   Tony Blair to Paddy Ashdown, 23 July 1997: Paddy Ashdown, The Ashdown Diaries Volume 2: 1997–1999 (London, Penguin, 2002). Blair had earlier told Ashdown that he was worried that the Lords would fight to the death over reform: 3 June 1997. 45   To put forward a bill in the Second Session is notably earlier than Attlee’s Government was ready to act in the 1945–51 Parliament and earlier than Wilson’s Government would have been ready to act in the 1966–70 Parliament had it not chosen to enter into an Inter-Party Conference, and notwithstanding the two years’ lost opportunity for planning Lords reform in the 1964–66 Parliament. 42 43

The Cabinet Committee  167 the direction of the Leaders of the two Houses and administered by the Cabinet Office46 began as soon as the constitutional reform sub-committee had cleared itself of devolution. Less than halfway through the unusually long 1997–98 Session,47 in January 1998, the Government charged a Cabinet sub-committee under Lord Irvine to consider Lords reform.48 In parallel with the Cabinet Committee’s deliberations, two sets of negotiations were occurring. The Joint Consultative Committee between the Government and the Liberal Democrats met six times across the First Session. Some on this Committee questioned whether full House of Lords reform could happen before the mooted reforms to the electoral system for the House of Commons, because any change to proportional representation for the Commons could affect the balance of power with the upper House. In October 1998, it was suggested that referendums on the Commons’ electoral system and full-scale reform could be combined.49 But electoral reform was in the long grass and the Joint Consultative Committee had little impact on the Cabinet’s planning for stage one of Lords reform. In addition, there were meetings between the Government and the Opposition. The quadrilaterals, comprising Richard and Carter with Viscount Cranborne and Lord Strathclyde – Leader of the House of Lords, Lords Government Chief Whip and their two shadows – met twice. Little was achieved. Further meetings between Richard and Cranborne showed only early shoots of progress that were not certain to blossom.50 These negotiations between Richard and Cranborne were to achieve little. But other Government–Opposition bilaterals – begun when Irvine went to talk to Cranborne without consulting Richard (who, as Leader of the House of Lords, was nominally in charge of Lords reform) – were to change the course of reform significantly. There was no prior agreement within the Cabinet on the detail, content, or timing of stage two.51 Richard was very keen on planning for stage two of reform. 46   After the 2001 general election, responsibility for Lords reform moved to the Lord Chancellor and his department, and remained there when the Lord Chancellor’s Department was changed into the Department for Constitutional Affairs in June 2003. cf Lords reform under the Wilson Governments in the 1960s, in which the Lord President (Crossman) made much of the running with proposals and negotiations, but the bill, when it came, was handed to the Home Secretary, not least because it was thought that a ministry with significant administrative resources would be needed in order successfully to pilot the bill through Parliament. 47   Because of the timing of the May 1997 general election, the First Session of the new Parliament lasted for 18 months, from 7 May 1997 until 19 November 1998. 48   The members of this Ministerial Sub-Committee (CRP(HL)), were: Lord Irvine of Lairg (Lord Chancellor, Chairman), Jack Straw MP (Home Secretary), Ann Taylor MP (Lord President of the Council and Leader of the Commons), Lord Richard (Lord Privy Seal and Leader of the House of Lords), Peter Mandelson MP (Minister without Portfolio) and Nick Brown MP (Government Chief Whip in the Commons). Lord Carter (Government Chief Whip in the Lords) was closely involved in discussions. 49   Ashdown (n 44), 4 October 1998. 50  Emma Crewe, Lords of Parliament: Manners, Rituals and Politics (Manchester, Manchester University Press, 2005) 47. Michael Cockerell, ‘The Politics of Second Chamber Reform: A Case Study of the House of Lords and the Passage of the House of Lords Act 1999’ (2001) 7(1) Journal of Legislative Studies 119, 120–21. 51   Private information.

168  The House of Lords Act 1999 Others in the Cabinet did not share his enthusiasm, being unwilling to muddy the constitutional debate with ideas about how stage two would proceed without having first secured stage one. A month after the Cabinet sub-committee first met, some reformers hoped that the Prime Minister might accept a two-thirds-elected chamber; others on this sub-committee (for example, Peter Mandelson, Jack Straw and Nick Brown) pressed for a nominated House.52 Some suspected that Richard had an agenda for turning stage one into a combined reform – which was not true – or, at least, that talking about stage two too early would delay its passage in the hope of a one-stage solution. But in any case, Richard was too keen for the liking of the Prime Minister or his advisers, when he looked towards a predominantly elected chamber after stage two.53 By mid-1998, some in the Government thought that the Lords reform question had stalled and that insufficient progress was being made. In July 1998, Richard was replaced as Leader of the House of Lords by Baroness Jay of Paddington, whose father, as Home Secretary in the late 1960s, had been the minister responsible for the beleaguered Parliament (No 2) Bill. It was an attempt to re-energise the debate on Lords reform and to secure a cleanly-executed stage one. The sacking of Richard did not, in the end, greatly alter the passage of Lords reform, but it did eliminate further discussion of stage two before the completion of stage one and the possibility of a one-stage combined reform.54 The sacking of Richard also enabled Irvine to push forward, unfettered, in his negotiations with Cranborne. Negotiations between Richard and Cranborne had continued, in parallel to the Cabinet sub-committee’s deliberations, from January to April 1998, but they had achieved little, starting to merge consideration of stages one and two, and hence being at risk of making insufficient progress towards agreeing on stage one. Blair began to be irritated by their lack of progress.55 Irvine thence obtained the Prime Minister’s permission to talk to Cranborne on Privy Council terms ‘to thrash out a more modest agreement on reform, focusing on Stage One (execution) only’.56 These talks between Irvine and Cranborne began at the end of June 1998 in a house in Lord North Street, Westminster, and continued for several months. Irvine reported the progress of discussions to the Prime Minister, who in turn sought the advice of Alastair Campbell, the Prime Minister’s Official Spokesman.57

52   It was also thought that Pat McFadden, then a policy advisor to Tony Blair on constitutional reform, was a supporter of an entirely nominated House of Lords and was a key influence on the Prime Minister’s thinking. See Janet Jones, Labour of Love: The ‘Partly-Political’ Diary of a Cabinet Minister’s Wife (London, Politicos, 1999), quoted in John Morrison, Reforming Britain: New Labour, New Constitution? (London, Pearson Education, 2001) 162. 53   On the advocacy of stage two reform by Richard and by his Special Adviser Damien Welfare, see Richard and Welfare (n 36) 171–97. 54   Private information. 55   Private information. 56   Crewe (n 50) 47. 57   Crewe (n 50) 49.

The Queen’s Speech 1998  169

THE QUEEN’S SPEECH 1998

The Government stated in the Queen’s Speech on 24 November 1998 its intention that Session to legislate to end the sitting and voting rights of hereditary peers, and promised a White Paper and a Royal Commission to investigate further issues relating to reform. The House of Lords had a ‘take note’ debate on the principle of this proposal in October 1998. The debate, observed Emma Crewe, shed little light on the issues in hand or on the positions of peers: The serious arguments had all been put two centuries earlier by Edmund Burke and Thomas Paine [1790 and 1791 respectively]; but the debate did serve as a reminder that no two peers agree on how the House should be constituted, so abolishing hereditaries before replacing them at least had the advantage of pragmatism.58

This pragmatism would create some measure of equality of the representation of the two main political parties in the House of Lords, but it would also create an entirely nominated House. With the manifesto making no promise of further reform, the prospect of an entirely nominated upper House left the Government open to attack from those who wanted to leave the Government some incentive to ensure that comprehensive reform did, in fact, occur.

THE WEATHERILL AMENDMENT: ORIGINS

The Cranborne–Irvine talks bore fruit in the closing months of 1998, as the Cabinet Office was preparing the House of Lords Bill for later in the same Session. The deal that they negotiated was that 9259 hereditary peers should remain temporarily as members of the Lords, and would be removed only when stage two of reform was forthcoming. It was an interesting position for a government to take, 58   Crewe (n 50) 48. Paine’s words from his Rights of Man (‘The idea of hereditary legislators is as inconsistent as that of hereditary judges, as hereditary juries; and as absurd as an hereditary mathematician, or an hereditary wise man; as absurd as an hereditary Poet Laureate’) were quoted in the Government’s White Paper Modernising Parliament: Reforming the House of Lords (Cm 4183, 1998) ch 5. In the take note debate on the White Paper, Lord Chalfont quoted Burke’s earlier words (Reflections on the Revolution in France, 1970) as a riposte to Paine’s sentiment: ‘People will not look forward to posterity who never look backward to their ancestors’ (HL Deb, 23 February 1999, vol 597, c 944). 59  A total of 75 hereditaries (10 per cent of the hereditary peers then members of the House of Lords), elected in proportion to their party groupings (2 Labour, 3 Liberal Democrats, 28 crossbenchers, 42 Conservatives) by hereditary peers who were members of those party groupings. In addition, 15 hereditary peers were to remain to help the House as office-holders (Deputy Speakers and Chairmen of Committees, for example) and were to be elected by all members of the House voting as a whole. And the Lord Great Chamberlain and Earl Marshal, who have ceremonial duties, were to be allowed to stay in the House, ex officio. The position of the Great Officers of State as members of a reformed House of Lords was proposed by Lords’ Clerks in 1969 (see, for example, correspondence between Perceval, Henderson, Sainty and Stephens at HL/PO/CP/1/2/21). The ‘Great Officers of State’ include the senior Royal Household Officers (the Lord Steward, the Lord Chamberlain and the Master of the Horse) and hereditary or semi-hereditary officers (the Earl Marshal and the Lord Great Chamberlain).

170  The House of Lords Act 1999 especially when that government had no firm views on Lords reform and was open to the possibility that stage one might become an ongoing solution.60 The continued presence in the upper House of these hereditary peers – anathema to the Government’s stated policy – would act, as Cranborne later put it, ‘to try to pour some sand into the Government’s shoe’,61 reminding it of its unfinished reform. The deal could not have come about without three critical factors. First, the fear – arguably irrational – on the part of some Government ministers that objections to the temporary creation of a wholly appointed House of Lords and the possibility that this transitional House might remain ad infinitum would provide the House of Lords with enough justification to delay not only the House of Lords Bill but also other legislation. The Cook–Maclennan Report of March 1997 had advocated conferring life peerages on those hereditary peers who played an active part in the House. Cranborne wanted these peers to remain in right of their hereditary status in order to remind the Government that reform was incomplete. The decision to accept Cranborne’s proposals62 for the temporary retention of some hereditary peers was very much informed by Cranborne’s threat to damage the Government’s programme.63 Cranborne knew that the hereditary peers could not be saved en masse: Cranborne bluffed. Using his only trump, the Conservative preponderance in the Lords, he threatened the government’s whole legislative programme unless compromise was agreed. The Conservative leadership publicly pretended they were losing control of their backbenchers. (emphasis added)64

Cranborne’s plan was therefore to ratchet up pressure on the Government to make it believe that the Conservative peers could harm its legislative programme. In the end, Cranborne was so successful that even his own peers believed that they could do so, which in turn made Cranborne want to hold back on his rhetoric, lest it come true. But he was also successful enough to ensure that experienced political campaigners in the Cabinet took seriously his threats to ‘wreak “Somme and Passchendaele” on the Government’s programme’.65 Second, the willingness of the Prime Minister to circumvent the minister in charge of the Bill and to conduct negotiations directly with Cranborne was import­ant. Cranborne’s obstructionist rhetoric induced Irvine, with the blessing

  Private information.   HL Deb, 22 June 1999, vol 602, c 789. As it transpired, the real ‘sand in the Government’s shoe’ was not the retention of hereditary peers under the Weatherill Amendment, but the perpetuation of that retention through an amendment relating to by-elections. 62   Some have suggested that, civil servants having drafted proposals to keep 100 hereditary peers in the House temporarily, Irvine simply informed Cranborne of the amendment proposal – ‘this is what we are going to do. What do you think?’ (private information). But all other evidence points to Cranborne proposing the idea and negotiating the figure with Irvine. 63   Private information. 64   Crewe (n 50) 46. 65   Crewe (n 50) 47. 60 61

The Weatherill Amendment: Origins  171 of the Prime Minister, to approach Cranborne and seek negotiations.66 Irvine initially made an offer to Cranborne that 15 hereditaries could remain in the House of Lords until stage two. Cranborne said that this was unacceptable: he wanted 100 asked for 150. Blair permitted Irvine to offer 50. In the end they got stuck on 75 peers – 10 per cent of the hereditaries – for some time, until Cranborne and Strathclyde came up with the idea of allowing 15 Chairmen and Deputy Chairmen of Committees to remain,67 plus the Lord Great Chamberlain and the Earl Marshal. That made 92. The third critical factor was what some might term ‘the staying power of the Cecils’. It was the ability of Cranborne to bring to fruition the first two of these reasons by calling the bluff of the Government, and also to defy the will of his Party Leader and the Shadow Cabinet in order to impose his compromise solution on his Party’s leaders in the House of Commons. Like his grandfather, Cranborne enjoyed being at the heart of Lords reform negotiations and, like his grandfather, he was keen to keep a selection of hereditary peers in the House, which might last in perpetuity barring a complete change to elected membership.68 William Hague, the Conservative Party Leader, was minded to accept the Cranborne–Irvine deal, but he insisted that any deal should be backed by the Shadow Cabinet. Cranborne was worried about the Shadow Cabinet leaking, which would have destroyed the deal, and so a constitutional affairs sub-committee of non-leakers was established.69 However, although the Conservative Party Leader favoured the deal initially, defeating the Government in the House of 66   Some, including senior ministers, were led to believe that the amendment had been the brainchild of the Earl of Carnarvon, a cross-bench peer and the Queen’s horseracing manager (James Landale and Philip Webster, ‘How Cranborne’s Deal to Save Peers Came Unstuck’, The Times (3 December 1998)). Carnarvon had, in 1995, led a group of cross-bench peers in a study of the Lords and how reform might proceed. But rather than approving elected hereditaries, Carnarvon et al specifically argued against such a scheme (Lord Carnarvon et al, Second Chamber: Some Remarks on Reforming the House of Lords (1995)):

It has also been suggested that, to preserve continuity with the past, the hereditary peers might elect a small number of their order to the reformed House. The precedents of the systems of representative Scottish and Irish peers are sometimes quoted. There are strong arguments against such a scheme as being both unsound in principle and impractical. Either the hereditary scheme is discredited, or it is not. If it is, there is no reason why the hereditary peers should be treated as a separate order for the purpose of electing some of their number to Parliament . . . This would hardly be satisfactory, especially for the Cross Bench peers. The idea of retaining a selection of hereditary peers had been an oft-present idea during previous reform attempts. It had, in the post-War era, made it to the Cabinet’s agenda in 1953 and 1967. Before 1964, variants of this scheme were frequently advanced by the Fifth Marquess of Salisbury. It was likely that this latest attempt was the brainchild of Cranborne alone. In the end, cross-benchers (all but a handful of whom had not been consulted about the Weatherill Amendment) resented a Government amendment being associated with them, and a conscious effort was made to brand the initiative ‘Weatherill’ rather than ‘cross-bench’ (private information). 67   Cockerell (n 50) 123–24. Peers on both sides had worried about who would carry out the work in the transitional House if all of the hardest-working hereditaries were to be excluded. This was a recurring fear of reformers across the century. 68   cf the attempts in the Cabinet Committee in the 1950s to keep up to 250 hereditary peers in a reformed House of Lords of 400 members. 69   Private information.

172  The House of Lords Act 1999 Lords on the European Parliamentary Elections Bill70 had given the Shadow Cabinet a taste for guerrilla warfare. The Shadow Cabinet sub-committee, as Cranborne hoped, leaked nothing, but, against Cranborne’s wishes, it rejected the deal – on two separate occasions.71 Cranborne was undeterred. He continued secretly negotiating, without Hague’s permission. Paddy Ashdown recalled a meeting with Tony Blair, on 1 December 1998, at which he was told about the Cranborne deal: TB: Cranborne is so fed up with Hague that he is prepared to put his duties as a ‘shop steward’ for the hereditary peers above those as leader of the Conservatives in the Lords. And he wants to go down in the history books as the person who came up with the compromise that enabled the modernization of the House of Lords (like his great ancestor Salisbury).72

In this determination to continue to be the ‘shop steward’ of the hereditary peers and concluding negotiations, Cranborne was defying the decision of his Shadow Cabinet colleagues. When, on Wednesday 2 December, Cranborne became aware that Hague knew about the Government’s concession on the 92 hereditary peers and planned to taunt the Prime Minister with the fact at Prime Minister’s Questions later that morning,73 he acted quickly to ensure the integrity of the deal, warning Irvine and Jay.74 The deal was to be saved by presenting it as a non-party measure: By now Baroness Jay had approached new players to take the Cranborne–Irvine deal forward. The former Commons speaker Lord Weatherill led the crossbench, or independent, group of peers, the second largest in the Lords. Lord Weatherill had been working on his own formula, and now agreed to propose in his own name an amendment to the abolition Bill that would reprieve the 92 hereditary peers.75

The Cranborne–Irvine deal was therefore proposed as an amendment to the House of Lords Bill put forward under the auspices of the cross-benchers. Crewe describes how the events unfolded. At 3.30 pm that day, Cranborne addressed a meeting of the Association of Conservative Peers (ACP), the body incorporating all members of the House of Lords who take the Conservative Whip, on the subject of the deal. Hague stormed into the meeting, but Baroness Young, in the Chair, forced the Party Leader to await his turn to speak; by the time he addressed the meeting, Cranborne had already convinced his peers to accept the deal: ‘by the time he [Hague] spoke, he need not have bothered’.76 Having bounced the Shadow Cabinet into accepting the proposals as a fait accompli, Cranborne was sacked as Shadow Leader of the House, but Hague’s choice of successor, Strathclyde, 70   On the passage of this bill, see Richard and Welfare (n 36) 73–84; Butler and Westlake (n 39) 31–35. 71   Private information. 72   Ashdown (n 44), 1 December 1998. 73   HC Deb, 2 December 1998, vol 321 cc 874–77. 74   Crewe (n 50) 49. 75   Cockerell (n 50) 126. 76   Crewe (n 50) 50.

The House of Lords Bill  173 accepted the job only on the condition that the Cranborne–Irvine deal became party policy.77 Cranborne had won. The formal Weatherill Amendment was therefore made public in early January – more than a month before the House of Lords Bill had been introduced to Parliament. Nevertheless, although the amendment could have been incorporated into the drafting of the Bill prior to its introduction, the deal was held back to become a Lords’ amendment in order to maximise its effect in quelling dissent in the upper House: if the Houses disagreed so strongly that the Parliament Acts procedure would need to be employed, the Bill would become law in the form with which it left the Commons – ie, without the Weatherill Amendment. This was a good tactic, but it did show that the Government did not trust the peers to stand by the agreement to let the Bill through – which had been the basic reciprocation for the Amendment being accepted by the Government. And it showed that the Government did not trust the Conservative leadership to be able to restrain its peers and to deliver the proposals.

THE HOUSE OF LORDS BILL

The House of Lords Bill was a very short Bill, which sought to achieve two ends: first, to end the right of hereditary peers to sit and vote by right of their hereditary peerage in the House of Lords; and, second, to overturn common law restrictions on those hereditary peers who would no longer have a seat in the House of Lords, in order that they could vote in parliamentary elections, and stand for election to, and sit in, the House of Commons without the need to renounce their titles under the Peerage Act 1963. Included in these provisions was the ending of the right to sit and vote in the House of Lords of the four hereditary peers of first creation.78   Landale and Webster (n 66).   In April 1999, Jay announced that nothing would prevent a hereditary peer accepting a life peerage and that life peerages had been offered to the four hereditary peers of first creation (HL Deb, 20 April 1999, vol 509, c 1114). On 2 November, Jay announced that 10 hereditary peers would be given life peerages and would therefore remain members of the House in addition to the proposed elected here­ ditary peers. See Andrew Parker, ‘Labour Criticised over New Life Peers’, Financial Times (3 November 1999). The criticism was from the Liberal Democrats, who objected to the non-first-creation peers being included in addition to the 92 elected hereditaries. The former Leaders of the Lords who received life peerages were: Lord Shepherd (Labour, d 2001); Earl Jellicoe (d 2007), Lord Windlesham (d 2010), Lord Carrington, Lord Belstead (d 2005) and Lord Cranborne (all Conservative). The hereditary peers of first creation to remain were: the Earl of Snowdon (cr 1961 following his marriage to Princess Margaret), the Lord Aldington (former Conservative MP, cr 1962, d 2000) and Lord Erroll of Hale (former Conservative MP, cr 1964, d 2000). The Earl of Longford (cr Baron Pakenham 1945, succeeded as Earl of Longford and sat as Baron Silchester from 1962, d 2001) was both a hereditary peer of first creation and a former (Labour) leader of the House of Lords. In previous discussions on reform, successive governments had treated hereditary peers of first creation as having been appointed to the House of Lords on their own merit, as were life peers, and did not therefore seek to eject them alongside those who had inherited their right to sit in the Lords. The Peerage Act 1963 also put these peers in a different category from those who had inherited their peerages, and the Cabinet decided not to let hereditary peers of first creation renounce their titles under this Act (see ch 5). Why the Blair Government decided to break the precedents of reform and treat these peers of first creation as being the same as hereditary peers by succession is unclear. 77 78

174  The House of Lords Act 1999 The Bill was introduced into the House of Commons to ensure that the Parliament Acts could be used, if necessary, to put the Bill on the Statute Book in the face of opposition from peers. Committee Stage in the Commons was held on the floor of the House, in common with many other major measures since 1945.79 The Bill passed through the Commons without incident and without amendment.

The Passage of the Bill in the House of Lords The House of Lords Bill reached the upper House at the end of March. The Second Reading of the Bill ‘was almost certainly the longest debate on one Bill ever held in the House of Lords’.80 Each of the two days of debate wound up only at 3 am; 180 peers spoke. The Salisbury–Addison Doctrine was applied and so no movement was made to oppose the Second Reading of this manifesto-foreshadowed Bill. Apart from the long Second Reading, opposition to the Bill from backbench peers was slight. Cranborne’s deal obliged the Conservatives to deliver the Bill, but their threats to delay were, in the hands of some backbenchers, beginning to look ominously true. Strathclyde managed to placate his troops through defeating the Government on an adjournment, which did not affect the course of the Bill, but which produced mock-indignation in Carter.81 During the passage of the Bill, the Ditchers were small in number. To defeat the Bill would have been possible only if they had been able to alter public opinion. Otherwise, the Ditchers felt sure that Labour would have held a snap general election on the issue of peers versus people, an election which Labour would certainly have won by a huge margin. Amendments tabled numbered 120 after some others had been withdrawn: only the Weatherill Amendment, and a consequent provision for by-elections to replace the peers who had been excepted under Weatherill, were accepted by both the Commons and the Lords.82

BY-ELECTIONS FOR HEREDITARY PEERS

The Government had conceded the inclusion of the Weatherill Amendment in order to ensure that the House of Lords Bill and the other measures of its legislative programme in 1998–99 were not wrecked by the peers. The Weatherill Amendment had not provided for by-elections, to replace any of the 90 elected hereditary peers who died. However, in June 1998, Strathclyde, Leader of the 79   The practice of diverging from sending a bill upstairs for committee if it was a constitutional bill dates back to 1945, but did not appear in Erskine May until the 1983 edition. On the Commons Committee Stage of the previous attempt at Lords reform, see ch 7. 80   Sir Michael Davies, ‘House of Lords Reform: Hereditary Peers’ (1999) 67 The Table 68, 70. 81   For a full discussion of the amendments, see: Crewe (n 50) 54–57. 82  At Third Reading in the Lords, the Government saved time by letting through Conservative amendments that would, in any case, be reversed by the Commons at a later date.

By-Elections for Hereditary Peers  175 Conservative Party in the Lords, announced that he wanted three further amendments, concerning: 1) replacing deceased elected hereditary peers through by-elections; 2) the creation of a Statutory Appointments Commission; 3) the validity of the writ of summons. The Lord Chancellor initially argued against placing a procedure for by-elections on the face of the Bill.83 The Government insisted that, since the retention of the hereditary peers was a temporary measure, in the event of an elected hereditary peer dying, the runner-up should replace him or her.84 But later the Government accepted an amendment on by-elections, which was passed on 26 October.85 The Conservatives wanted by-elections to replace deceased peers because they were concerned that, if stage two was not forthcoming, the number of hereditaries would dwindle over time, and the reminder that Lords reform had yet to be completed would decrease in force. It was also more sand in the shoe. Such byelections could not be provided for by standing orders alone: they would require legislative authority.86 The Opposition therefore proposed an amendment to allow for by-elections to fill vacancies amongst the ranks of the elected hereditary peers, after the end of the first session of the following Parliament (which would allow for by-elections to be introduced in 2003 at the very latest). Surprisingly, the Government agreed to a by-election procedure and an amendment was brought forward at Report Stage in the Lords.87 Crewe recalls: At Report Stage, extraordinarily, the Lord Chancellor, under pressure from Lord Strathclyde, but against the wishes of others in government, reversed this. To secure Conservative cooperation in other legislation, or, according to some, because he was not bothered either way, he conceded that by-elections for replacement hereditaries could take place after the first Session of the next Parliament (until then, runners-up would do). This meant a permanent hereditary presence until further reform was introduced.88

The decision of the Government to agree to by-elections arguably contravened the Labour manifesto pledge to rid the House of Lords of hereditary peers to a greater extent than had the Weatherill Agreement, for by-elections ensured that the hereditary element could remain on an ongoing basis if reform was not forthcoming. Moreover, although ministers had announced publicly their commitment to stage   HL Deb, 25 May 1999, vol 601, c 904.   Crewe ((n 50) 56n) notes that this system, which was recommended by a Labour member, is used to replace members of the Labour Party’s NEC. However, there was no guarantee that the runners-up would be younger or in better health than those they were to replace, nor was it certain for how long the runner-up system could be sustained. 85   HL Deb, 26 October 1999, vol 606, c 169. 86   Davies (n 80) 70. 87   Davies, (n 80) 71. Under the by-election procedure, the electorate were the excepted peers (ie, elected hereditary members of the House) of the party grouping concerned; any hereditary peer who was not otherwise a member of either House and who identified with the party grouping concerned could stand in a by-election. 88   Crewe (n 50) 56–57. 83 84

176  The House of Lords Act 1999 two, privately stage two was not certain to happen, and Labour’s 1997 manifesto had always been clear that the completion of stage one did not rely on the likelihood of the completion of stage two of reform. To concede this amendment was strictly unnecessary to secure the cooperation of Opposition peers, since this had been secured by the Weatherill Amendment itself. There is some evidence to support Crewe’s argument that ministers thought that by-elections were a non-issue because they were sure that stage two would be forthcoming before by-elections came into force.89 But, even so, the Government could have avoided the concession if it had stood its ground. On his other two demands, Strathclyde was unsuccessful. Despite Jay’s strong statement that the House of Lords Bill was designed as a self-contained measure to exclude hereditary peers and that it was not within the scope of the Bill to look towards further reform,90 at Report Stage in the Lords, an amendment was passed by 231 votes to 189 to make the proposed Appointments Commission a statutory body.91 The Commons reversed this vote by 35 to 133,92 and the Lords conceded. Jay had argued that the amendment, whilst not objectionable in its aims, would inhibit the smooth establishment of the Appointments Commission.93 A nonstatutory Appointments Commission began work in May 2000.94 The question of the validity of the writ of summons was one of five procedural grounds on which peers opposed details of the Bill’s content. First, they sought, unsuccessfully, to argue that the Bill was a hybrid (ie, that it was partly a private bill and partly a public bill in nature, owing to it affecting one part of the House differently from another). Second, the possibility of the application of the Parliament Acts to a bill which altered the composition of the Lords was raised. Third, some argued that it was wrong to take the Second Reading of an important constitutional measure in Holy Week. Fourth, whether the Bill contravened the Acts of Union, because the Scottish peers were being ejected from the House, was questioned.95 Finally, some sought to argue that a writ of summons was for a Parliament and could not be negated, once issued, before it expired on dis­ solution. These fourth and fifth objections were considered serious – had they been upheld, they could have killed the implementation of the Bill – and were passed to the Committee for Privileges for further consideration. On 20 October, the Committee for Privileges dismissed the objections and the Bill was cleared to   Private information.   HL Deb, 13 May 1999, vol 600, c 1308. 91   HL Deb, 22 June 1999, vol 602, c 823. 92   HC Deb, 10 November 1999, vol 337, c 1238. 93   HL Deb, 22 June 1999, vol 602, c 845. 94   See House of Commons Research Paper 01/77, 16–22. The Appointments Commission was established as a non-departmental public body and comprised seven members: three members selected to represent the main political parties and four independent members (the chair was to be one of these independent members). The Royal Commission on the Reform of the House of Lords proposed in January 2000 a statutory, independent Appointments Commission and was formulating its policy on this in mid-1999, during the period that the House of Lords Bill was before Parliament. 95   HL Deb, 27 July 1999, vol 604, cc 1422–33. 89 90

Conclusion: The House of Lords Act  177 proceed.96 In the end, all the procedural arguments failed. As the Clerk of the Parliaments noted: ‘Most of these were self-evidently wrong.’97

CONCLUSION

The House of Lords Bill received the Royal Assent and came into effect on 11 November 1999, the last day of the 1998–99 Session. It was held back until the very end of the Session, in order, for as long as possible, to hold against the upper chamber the threat of removing the Weatherill Amendment. There had been some disagreement between Government ministers over the timing of the Bill. Jay had wanted to get the Bill passed in July. Others argued for making it the last piece of legislation of the Session in order to keep the threat of removing the Weatherill Amendment hanging over the Conservative peers. ‘Damocles won.’98 The House of Lords Act in its final form was, argued Emma Crewe, ‘a fudge and a disappointment’.99 Responding to a charge of not fulfilling the manifesto commitment, Irvine replied: ‘But that is self evident, we did not deliver on our manifesto commitment. We delivered nine tenths of our manifesto commitment with the whole of our legislative programme unscathed.’100 The Government began the 1997 Parliament with a bold manifesto commitment to end the hereditary peerage as a route to membership of the House of Lords, but at the beginning of the Second Session of that Parliament, and on the eve of introducing legislation to fulfil its manifesto pledge, the nerve of the Prime Minister and Lord Chancellor failed, and they agreed to let 92 hereditary peers remain in the House until stage two of reform. In theory, the Act removed 90 per cent of the hereditary membership of the House of Lords. ‘In practice, it only halved the active hereditary peerage’,101 though it also greatly curtailed the potential for backwoodsmen to overturn the will of the active House. It is too harsh, however, to criticise the Government for not having legislated sooner for Lords reform. There was no great ‘window of opportunity’ for Lords reform in May 1997, because it was squeezed off the agenda by devolution and human rights legislation. The Government’s commitments to devolution were much stronger than to Lords reform and the process of legislating for devolution was more involved; it therefore needed to be started immediately. Human rights also required a long lead-time and had to be begun early to ensure implementation at the time of devolution in Scotland, and comfortably before the general election in the remainder of the UK. But in waiting 18 months before beginning Lords reform, the Government did not copy the mistakes of its predecessors: it   HL 106, 1998–99 (on the writ of summons); HL 108, 1998–99 (on the Acts of Union).   Davies (n 80) 69.   Crewe (n 50) 56. 99   Crewe (n 50) 42. 100   Quoted by Cockerell (n 50) 132–33. 101   Russell (n 41) 395. 96 97 98

178  The House of Lords Act 1999 ensured that planning was in place and that driving commitment was shown from the leadership of the Party. The credibility of Cranborne’s threats of legislative disruption can rightly be questioned.102 In retrospect, it is difficult for a dispassionate observer to know why the Government chose to seek compromise on the House of Lords Bill with Cranborne. The ejection of the hereditary peers from the Lords was a clear-cut manifesto commitment and the Government was still popular in the country: even though the hereditary peers had nothing to lose by opposing the Bill to the end, they had nothing to gain either and nor would they gain any support for the Conservative Party by so opposing the Government. Nevertheless, the view was held, independently, at the time of the Bill by two highly experienced parliamentarians – Lord Carter (Government Chief Whip) and Sir Michael Davies (Clerk of the Parliaments) – that the Bill would not have got through the Lords within the 1998–99 Session without the Weatherill Amendment and the subsequent promise elicited by Cranborne from his Conservative peers in the House that they would, in return for the amendment, allow the Bill to pass. The Government’s leadership knew that the possibilities for the Conservatives disrupting Government business in the Lords were considerable: there were, for example, no guillotines in the Lords and no Government majority. But, notwithstanding this, there was no reason to make a further concession on by-elections, except for a view on the part of ministers that such a concession was unimportant – a view that has turned out to be very inaccurate. The ‘peace dividend’ for the Government was, generally, not to have its programme disrupted during the 1998–99 Session. Specifically, Carter and Strathclyde agreed that the price exacted by the Government’s acceptance of the Weatherill Amendment, beyond securing the House of Lords Bill itself, was to get the Food Standards Bill through the Lords without any problems.103 Even the Government’s leading parliamentary tacticians were worried about getting business through the Lords in the short term: that was what the Weatherill Amendment was all about. The House of Lords Act was a disappointment both to those who opposed the hereditary peerage on principle and to those who sought comprehensive reform of the House of Lords: it neither achieved the former nor ensured the latter. It should have been a relatively unimportant Act, a transitory measure. But it lasted through 11 more years of Labour Governments, during which time the House of Lords felt emboldened by having shed its hereditary and Conservative preponderance and having gained a legitimacy through expertise and the knowledge the a Government had to negotiate its business through a House in which no party had a majority. The House of Lords, thus strengthened, began to challenge the Government and the House of Commons more than ever before.104   See Wheeler-Booth (n 32) 654–56.   Crewe (n 50) 64.   See Meg Russell and Maria Sciara, ‘Why Does the Government Get Defeated in the House of Lords?: The Lords, the Party System and British Politics’ (2007) 2 British Politics (2007) 299–322; Meg Russell, ‘A Stronger Second Chamber? Assessing the Impact of House of Lords Reform in 1999 and the Lessons for Bicameralism’ (2010) 58 Political Studies 866. 102 103 104

8 The Long Stage Two: The Wakeham Commission and Beyond From the day of our first meeting, we were all conscious that every previous set of proposals for reforming the House of Lords had, as the Americans say, bombed. We knew that ours might bomb, too . . . Anthony King1 A Chamber that could provide an effective check on the executive and the House of Commons would have to have the ‘spunk’ to use its powers effectively. The current one did not. The interim House might not do so either. A directly elected element in the Chamber would be essential if it was to have that ‘spunk’. Lord Hurd of Westwell2

THE ROYAL COMMISSION ON THE REFORM OF THE HOUSE OF LORDS

S

TAGE ONE OF House of Lords reform appeared to be relatively simple: it required a short Act of Parliament to remove the hereditary peers from the House of Lords, though this proved more difficult to achieve in practice. The infinitely more complex question was how to proceed with stage two in a way that would lead to a timely and realistic set of proposals. A Joint Committee of both Houses to take forward thoroughgoing reform had been foreshadowed in Labour’s 1997 manifesto, but the Cabinet felt in the late 1990s that the reform of Parliament should not be something that Parliament should carve up as part of an internal conversation. Moreover, despite its huge Commons majority and the removal of most hereditary peers from the Lords, Labour would not have had a controlling majority on the Joint Committee and might find it difficult to steer its discussions. Therefore, in April 1998, Lord Richard managed to gain acceptance amongst his Cabinet colleagues for his preference for a Royal Commission over a Joint Committee. When he was succeeded as Leader of the House of Lords by Baroness Jay in July of that year, the Royal Commission remained a likely prospect. There had been no active discussion either before or after the House of Lords 1  Anthony King, ‘Serving on the Wakeham Commission: Some Personal Reflections’ (2000) 37 Representation 125, 127. 2   Parliamentary Archives WHE/1/1/16/ RCRHL (99), 12th Meeting, 14 October 1999.

180  The Wakeham Commission and Beyond Act 1999 of having a Party Leaders’ Conference on reform along the lines either of the 1948 or the 1968 Conferences: the prevailing opinion of the party leaders was that a wider consultation was appropriate. Civil servants were therefore tasked to set up a Royal Commission – a device which, in recent years, had rarely been used for any topic – in preference, and possibly as a prelude, to the promised Joint Committee. The Government viewed the Royal Commission as a genuine attempt to conduct an umbrella survey of the issues surrounding stage two of Lords reform and to secure a sound basis for progress. The Royal Commission was therefore tasked ‘to undertake a wide-ranging review’3 of the issues surrounding stage two of reform. Members of the Commission were briefed that, although several of the issues before it were technical, ‘the issues covered by the terms of reference have major political and constitutional significance. The history of previous attempts at reform of the House of Lords this century suggests that technical factors come a poor second to political considerations’.4 There had been much scepticism in late 1998 that a Royal Commission would be created as a way of deferring serious decision-making about stage two of reform, but Baroness Jay had insisted that: ‘The Royal Commission is not a delaying tactic but it is right that there should be wider debate and further analysis before the long term is settled.’5

Operation of the Royal Commission The Royal Commission, under the chairmanship of Lord Wakeham, began its work on 1 March 1999, when the House of Lords Bill was only in its early parliamentary stages. The Royal Commission was established so early in the life of the Bill not least so as to placate those opponents of the Bill who said that there would be no stage two. Wakeham had, unsolicited, offered help to Number 10 in negotiating an interparty agreement on Lords reform even before the Royal Commission had been mooted. Wakeham’s reputation as a fixer was high in the minds of Cabinet ministers in promoting his appointment as Chairman: he had been Leader of both Houses and had a feeling for the workings of each and it was thought that if anyone had a chance of forging agreement on reform, then it would be Wakeham. Moreover, the Prime Minister thought that Wakeham shared his preference for having appointed, rather than elected, members for the reformed second chamber, and this was confirmed before offering Wakeham the chairmanship. Appointing a senior Conservative politician as Chairman, the Government hoped, would bind the Conservative Party into the process. Gerald Kaufman MP was selected as a senior Labour figure who might ‘sell’ the outcome to his colleagues on the Government’s backbenches, and it is perhaps significant that his appointment was announced at   HL Deb, 14 October 1998, vol 593, c 926.   TNA CAB 180 RCRHL(99)1, Note by the Secretary (David Hill), 24 February 1999. 5   HL Deb, 14 October 1998, vol 593, c 926. 3 4

The Royal Commission on the Reform of the House of Lords  181 the same time as that of the Chairman.6 Indeed, Kaufman evolved into a de facto deputy chairman. Wakeham accepted the chairmanship of the Royal Commission on the conditions that the Government gave him an absolutely free hand to formulate a credible set of agreed proposals7 and that the members of the Commission would be selected so as to facilitate that.8 The Royal Commission worked swiftly and showed none of the delays of earlier reform attempts. At its first meeting, the Commission members underlined a collective commitment to making an important contribution to the resolution of a long-standing issue. They committed themselves to producing a report which was both intellectually coherent and politically realistic. The members of the Commission sought from the outset to create an agreed, achievable set of proposals.9 Its Report10 was signed off at its meeting on 16 December in the same year, just a few weeks after the House of Lords Act reached the Statute Book, and only nine-and-a-half months after its first meeting. The Royal Commission’s speed of operation was highlighted by some at the time as a reason for it producing an unsatisfactory set of recommendations,11 but as Sir Michael Wheeler-Booth, a member of the Commission, later observed: ‘Whether additional time would have yielded significantly better argued recommendations is arguable.’12 Its conclusions were, indeed, produced much more quickly than those of some Cabinetlevel discussions on the question of Lords reform, but it took only one month longer to reach its agreement than the 1967–68 Inter-Party Conference had required. The tight timetable for the Royal Commission meant that it had to conduct much of its work to short deadlines and in parallel. For example, the Commission’s timetable forced it to start hearing oral evidence before all the written evidence 6   20 January 1999. Other members were announced on 8 February 1999. Kaufman was the only MP amongst the Commission’s membership; two former Conservative MPs, Wakeham and Lord Hurd of Westwell, were also members. 7   This was made explicit in pre-appointment negotiations and was stated publicly by both Wakeham and Kaufman at a press conference on 24 March 1999, at which the Commission’s consultation paper was launched. 8   The Commission’s members were: Lord Wakeham (Chairman); Gerald Kaufman MP, Baroness Dean of Thornton-le-Fylde, Lord Hurd of Westwell, Lord Butler of Brockwell (the former Cabinet Secretary), the Rt Revd Richard Harries (the Bishop of Oxford), Sir Michael Wheeler-Booth (the former Clerk to the Parliaments), Kenneth Munro, Professor Anthony King and Professor Dawn Oliver. Its Secretary was David Hill, who had spent most of his career in the Northern Ireland Office and was known as ‘the wordsmith from Northern Ireland’: Michael Wheeler-Booth, ‘The House of Lords’ in Robert Blackburn and Andrew Kennon (eds), Parliament: Functions, Practice and Procedures 2nd edn (London, Sweet & Maxwell, 2003) 658. 9   Parliamentary Archives WHE/1/1/15. RCRHL (99), 1st Meeting, 1 March 1999. 10   A House for the Future (Cm 4534, 20 January 2000). 11   For example, the Constitution Unit, which had been closely involved with drafting papers for the Commission, said on the publication of the Commission’s Report that: ‘The Wakeham Commission had a large and complex remit, and was given very little time to report. Especially given the speed of other constitutional changes, it is no surprise that the Commission was unable to come up with a fully satisfactory blueprint’ (Constitution Unit, Commentary on the Wakeham Report on the Reform of the House of Lords, 2000, 1). 12   Wheeler-Booth (n 8) 658.

182  The Wakeham Commission and Beyond had been received.13 The Commission embarked on a series of public hearings across the UK from mid-May to late July. These public hearings were not meant to be a large and unsystematic means of gaining the views of the people; rather, they were designed to expose members of the Commission to a wide range of arguments. They achieved this aim, and in doing so provided team-building opportunities for the members of the Commission and allowed them to explore issues and arguments without committing themselves to a particular line of enquiry. The hearings also promoted awareness of the Commission’s work and the issues which might later arise in its report, and provided a defence against any potential claim that a body which was set up to broaden ownership of Lords reform had failed to do so. However, the public hearings added to the Commission’s work few, if any, useful suggestions.14 Notwithstanding its short reporting deadline, the Commission decided at its first meeting on 1 March not to have discussion of substantive issues for the first third of its lifetime. This approach, similar to that often adopted by select committees in Parliament, meant that members of the Commission had time to consider the principal written submissions, and form a view on the role and functions of the second chamber, before getting to the detail of composition. Decisions could not, however, be postponed indefinitely and provisional decisions were made before the oral evidence was concluded, while drafting happened in parallel with decision-making later in the year. Many tasks which might logically have taken place in series therefore had to happen simultaneously. The Commission published a consultation paper on 24 March. This consultation paper included a checklist of criteria for a reformed House of Lords, which stood unchallenged as the basis of reform and were eventually incorporated into the final Report. These criteria, in line with the Commission’s terms of reference, discussed the role, function and powers of the upper House, before moving on to the composition of the House. This was a logical order for discussing options as part of a pragmatic approach to reform. The Commission followed this order in its deliberations, structuring its work so that members first of all formed their collective position on the roles, powers and functions of a reformed second chamber. These things having been agreed in principle, the Commission’s discussions then switched to look at the characteristics which the House required, and thereby the composition of the second chamber which was most suited to producing a House which possessed those characteristics.

13   The initial deadline for written evidence was 30 April, with a final deadline of 30 June, by which time more than 1,200 submissions had been received. By the end of October, 1,700 written submissions had been made to the Commission, in addition to the substantial amount of advice which had been solicited from the Constitution Unit and others. 14   Private information.

The Royal Commission on the Reform of the House of Lords  183 Policy on Roles, Powers and Functions The Commission met on 17 June for its first formal and substantive discussion of the roles, powers and functions of the second chamber. At this meeting, it reached preliminary and provisional agreement on a number of issues.15 The overall role of the second chamber, including the balance between the Government and opposition parties, and the balance between the two Houses of Parliament, was agreed: the second chamber should complement the House of Commons in holding the executive to account and should retain distinguished members who could force the Government to think again. The second chamber should have members drawn from all nations and regions, but should not have a primary function of representing regions: members should be chosen by the regions and not for the regions. The Commission was happy with its proposals on the role of the second chamber with regard to the scrutiny of EU business, the need to enhance scrutiny of secondary legislation and the desirability of retaining ministers in the second chamber. The Parliament Acts, it was agreed, should be entrenched, but otherwise not amended; the work of the second chamber as constitutional watchdog should be achieved by procedural rather than formal means, not least because of the difficulty under the constitution of defining ‘constitutional measures’. Members of the Commission supported an evolutionary approach towards the judicial functions of the second chamber (and therefore towards the position of the Lord Chancellor and the role of the Law Lords): the Commission had not been empowered to recommend the creation of a Supreme Court, but in any case it was felt that the need for one had not conclusively been made out. The principal issue which was not concluded at this meeting was that of the Lords Spiritual: the majority of the Commission favoured retention of the role of the Church of England and its ex officio representation,16 not least to avoid opening a Pandora’s Box of complexity that distracted from other issues. However, not all accepted these political realities at this stage and some continued to argue in principle against representation of organised religion being a function of a second chamber. The Commission ‘cleared the decks’ of most of the remaining issues of roles, powers and functions at a meeting on 9 September, before settling down to the long-awaited preliminary discussions on composition at a two-day meeting held 15   Parliamentary Archives WHE/1/1/13. Commission Meeting on 17 June: Provisional Conclusions and Action Points, note by DJR Hill, 2 July 1999. 16   The Bishop of Oxford had produced a paper for the Commission in which he argued for organised religion continuing to have a place in a reformed second chamber. His case was that there should be 26 appointees on behalf of organised religion and that 16 of these seats should be for bishops of the Church of England. His calculation was made on the basis that 21 of 26 religious seats should be for England, and the Church of England, with 25 million baptised members, represented nearly 80 per cent of the total Christian church membership in England. The paper became the basis of the Commission’s chapter on the representation of organised religion, albeit with some careful re-drafting. Parliamentary Archives WHE/1/1/13, ‘The Place of Organised Religion: A Paper by the Bishop of Oxford’, circulated 3 September 1999.

184  The Wakeham Commission and Beyond at Leeds Castle on 22–23 September, which aired a wide range of issues and required members for the first time to formally set out where they stood on composition.17 In early September, the Commission agreed its stance on the revision of primary legislation, the scrutiny of secondary legislation and treaties, and the continuing validity of the underlying principle of the Salisbury Convention (as the Salisbury–Addison Doctrine had come to be known). The residual non-composition issues were finalised at a meeting on 6 October. The Commission agreed that amending the Parliament Acts, beyond entrenching them against further amendment without the second chamber’s consent, was not desirable. It also agreed principles on human rights, and – with limited but vigorous, dissent – on whether the representation of religious faiths should be a function of the second chamber.18

Policy on Composition: Elected and Appointed Members Having discussed the composition of a reformed second chamber informally throughout its evidence-gathering sessions, the Commission conducted initial discussions on composition in July, and more substantively in late September, taking broad options and bringing them into focus. However, it reserved the detailed and important discussions on composition for the autumn, having made its decisions about the roles, powers and functions of the second chamber. Composition proved a much more difficult issue on which to reconcile the views of members of the Commission than had been the roles, powers and functions. Indeed, having proceeded consensually for seven months, at the meeting on 6 October – the first at which decision-making on composition held centre stage – disagreement seemed so great that the secretariat subsequently drew up not only ways of reconciling composition, but also for the first time a paper that contemplated options for a reporting disagreements.19 By mid-October, the ‘central outstanding issue’ was composition20 and the Chairman reminded the Commission   Parliamentary Archives WHE/1/1/13. RCRHL (99), 10th Meeting, 22 and 23 September 1999.   Professor Oliver remained ‘wholly opposed to any proposal for ex officio representation of organised religion’, preferring membership of the second chamber through election or appointment on personal qualities: it would be for the Appointments Commission to seek a range of moral, spiritual and ethical expertise. Professor King ‘was also uneasy about elevating religious and faith groups beyond others in society’ and allowing one group not only permanent representation but also the choice over its own mode of selecting its nominees. ‘However, the overall view of the remaining members of the Commission was that, while the Church of England remained the established church, there was a strong case for retaining the relatively low number of seats assigned to its bishops.’ Parliamentary Archives WHE/1/1/13. RCRHL (99), 11th Meeting, 6 October 1999. 19   A paper on composition was circulated just two days later, seeking to clarify the issues in dispute. Parliamentary Archives WHE/1/4/6. ‘Composition’, memo to Members of the Commission from Lord Wakeham, 8 October 1999. Parliamentary Archives WHE/1/4/6. ‘Recording Disagreement’, memo to Members of the Commission from DJR Hill, 14 October 1999 20   Parliamentary Archives WHE/1/1/16. Memo from David Hill to Members of the Commission re Meeting on 14 October, 11 October 1999. 17 18

The Royal Commission on the Reform of the House of Lords  185 on 14 October that if it did not quickly reach agreement on composition, then the 31 December deadline would be missed.21 The main area of disagreement was election. There was considerable difficulty in reconciling those who were strongly in favour of a substantial elected component of a future second chamber with those who were staunchly against direct election. A substantial proportion of the written evidence submitted to the Commission, including that from the two main opposition parties, supported some elected element for a reformed upper House. This view found resonance amongst many members of the Commission itself, two of whom – Lord Hurd and Professor Oliver – had already been on the record as supporting a substantial elected element.22 Kaufman, on the other hand, was staunchly against direct election, not least because of a concern that election to the second chamber would become a staging post for those seeking to unseat a member of the House of Commons;23 he was also opposed to appointment through patronage.24 There was some support amongst those whose instinct was for appointment for a suggestion by Professor King that members of the second chamber should be indirectly elected.25 There was considerable movement of opinion during the discussions about the optimal length of appointment of members of the second chamber. Whilst some members of the Commission favoured the independence of action that life membership granted, it came to be acknowledged that the public would not accept life membership for elected members and that the terms of engagement for elected and appointed members ought to be the same.26 Moreover, life appointment would make it difficult for the Appointments Commission to make appointments that sought to adjust the political membership of the second chamber towards the balance of the parties at the previous general election. Life membership was abandoned as an idea by the end of October, when the Commission agreed on the   Parliamentary Archives WHE/1/1/16. RCRHL (99), 12th Meeting, 14 October 1999.   Lord Hurd had been a signatory of the Conservative Party’s Mackay Commission, which had supported a significant directly elected component of the House of Lords; Professor Oliver had in 1997 been a member of the Labour–Liberal Democrat Cook–Maclennan Joint Consultative Committee on Constitutional Reform, which had urged the creation of a democratic and representative second chamber. 23  This was labelled by some colleagues ‘the Manchester Gorton Question’, after the name of Mr Kaufman’s own parliamentary constituency. 24   Parliamentary Archives WHE/1/1/16. RCRHL (99), 12th Meeting, 14 October 1999. He viewed heredity and patronage as the two unacceptable bases of the current House of Lords; the former was being dealt with by the House of Lords Bill. 25   Referring to these diametrically opposed prior positions of Commission members regarding elected members of the upper House, Wakeham later said: ‘We did not reach our consensus easily, I can tell you. One of my noble friends who was on the commission told me privately when we started, “I have already been party to a published document that said that there had to be an elected element in any reform of the House of Lords”. One very distinguished Labour Member of Parliament – a good many noble Lords will guess who I mean, but I shall not mention his name – came to me to say, “If the commission so much as discusses elected Members, I will not attend any more of the meetings”. I persuaded them both to stay. They both signed the report, and we got consensus.’ HL Deb, 10 May 2012, vol 737, c 49. 26   The ridicule to which the two-tier membership proposals were subjected in the late 1960s was in the Commission’s mind. Parliamentary Archives WHE/1/1/16/ RCRHL (99), 12th Meeting, 14 October 1999. 21 22

186  The Wakeham Commission and Beyond significant point that membership of the second chamber should be tied to three electoral cycles.27 However, there were substantial areas of agreement at the 14 October meeting on the Appointments Commission, on the length of appointment of new members and on the position of current life peers in a reformed second chamber. The Appointments Commission should be entirely independent of the Government; it should be required to ensure that at least 30 per cent of appointed members were women and that ethnic minorities were represented. Agreement on severing the link between the peerage and membership of the second chamber was relatively easy to reach. However, the Commission had to grapple with the question of what to do with the existing life peers: ‘The current life peers had a legitimate expectation that their membership of the Second Chamber would be precisely that.’28 There were two solutions to this, quite apart from encouraging retirement or resignation from the House on the part of existing life peers. The first was that the parties should be encouraged to appoint their nominated members of the second chamber from amongst the ranks of existing life peers. This would encourage continuity of expertise and would avoid increasing the membership of the House. The other answer to the problem of existing life members was given by some demographic modelling undertaken by the Commission: if the introduction of new members was staged over 15 years, at the end of the first 15 years, it was expected that only 45 of the existing 600 life peers would still be alive,29 and the issue was therefore not as great as had been assumed.30 This realisation helped the settlement of the issue, but, other issues having taken precedence, it was finalised only when the final version of the report was agreed in mid-December. At its meeting on 2 November, the Commission sought to move towards agreement on composition. The meeting showed that through informal discussions in the previous week, a high degree of agreement had emerged on the Commission’s overall position on composition. Members of the Commission drew towards supporting direct elections to be held at the same time as elections to the European Parliament, the system for which had recently been reformed. Only Gerald Kaufman wanted to be counted out of this proposal.31 They discussed three options for election: Professor Oliver strongly preferred electing 195 members, with one-third elected every five years. She had support from Sir Michael WheelerBooth and Lord Hurd. Others supported a total of 87, and some of these could 27   Parliamentary Archives WHE/1/1/16. RCRHL (99), 13th Meeting, 25 October 1999. The Commission, after much discussion, preferred three European Parliament electoral cycles; the Government preferred three House of Commons electoral cycles. 28   Parliamentary Archives WHE/1/1/16. RCRHL (99), 12th Meeting, 14 October 1999. 29   At this stage, it was not anticipated that the House of Lords Act would be amended to retain 92 hereditary peers, nor was it anticipated that these hereditary peers would be replaced by by-elections. 30   Private information. More problematic was the disparity between the age ranges of Labour and Conservative peers: the latter were substantially older, on average, and this had implications for the political balance of the second chamber going forward. 31   Parliamentary Archives WHE/1/1/16/ RCRHL (99), 14th Meeting, 2 November 1999.

The Royal Commission on the Reform of the House of Lords  187 accept 65 elected members. Gerald Kaufman, still opposed to direct election in principle, felt that he could stretch to supporting as many as 65 elected members ‘on an experimental basis’.32 However many were elected, it was broadly agreed that prohibiting re-election would not be accepted by the public and also that there should be a bar of five years beyond the end of a second chamber term before a member could be elected to the House of Commons – in effect, creating a 20-year prohibition on standing for the Commons. This extended prohibition went a long way towards alleviating the concerns of MPs about direct election. The presentation of the views of the Commission on elected members threatened the basis of an agreed report, but by the Commission’s 15th meeting on 18 November, it was agreed that the three options for elected members should be presented in the report with an entirely neutral gloss, save that it was acknow­ ledged that 87 elected members had the support of a substantial majority of the Commission’s membership. The unanimity of the report on composition had been retained. The only recorded split was on religious representation.

The Report and its Reception The Royal Commission published its Report on 20 January 2000.33 Its headline was a unanimous recommendation for a second chamber of about 550 members, with a ‘significant minority of elected members’:34 65, 87 or 195 members would be elected. It advocated that an independent Appointments Commission should be established and that it should make all appointments to the second chamber, not just those of independent or cross-bench members. It recommended that the Parliament Acts should be entrenched so that they could not in future be amended without the consent of the second chamber, and that the second chamber should be able to delay statutory instruments by up to three months, rather than having an absolute veto over them, but otherwise proposed no major alteration in the powers of the second chamber or the pre-eminence of the House of Commons. Media reporting of the Royal Commission’s Report was almost universally negative, though some periodicals later digested the nuances of the Report in a more measured way.35 Many politicians, likewise, criticised the Report. Journalists and politicians alike disparaged it for fudging the issues and for being too timid. However, it is important to recall, as Professor Anthony King, a Member of the Commission, later did, what the Commission’s purpose was:

  Parliamentary Archives WHE/1/1/16/ RCRHL (99), 14th Meeting, 2 November 1999.   Royal Commission on the Reform of the House of Lords, A House for the Future (Cm 4534, 2000). 34   In doing so, it emphasised that the Commission was unanimous in recommending a ‘significant minority’ of elected members, rather than highlighting the recorded differences about the proportion of elected members. 35  See Press Reaction to the Report of the Royal Commission on the Reform of the House of Lords: A House for the Future. House of Lords Library Note 2000/002. 32 33

188  The Wakeham Commission and Beyond We were not asked (pace Charter 88) to write a new constitution. Were not even asked to invent a brand new second chamber to be inserted into the existing constitution. We were asked – the task was implicit in the Commission’s formal title – to develop proposals for ‘the reform of the House of Lords’, that is, for the reform of an existing parliamentary assembly with a long history, with well-established working practices and with, not least, several hundred living members, who might be expected to have views about the proposals that the Commission came up with.36

The public criticism often failed to engage with the intention behind the Report to continue the evolution of Parliament. Moreover, the critics rarely engaged with the conundrum that even greater election would challenge the existing parliamentary settlement. However, even though it chose to advance the second chamber through evolution rather than radical re-structuring, the Commission could, had it been so minded to do so, have generated a more radical reform package – for example, by broadly applying the requirement in its terms of reference to have regard to the emerging constitutional settlement in the UK.37 The Report was, nonetheless, much bolder than its critics allowed. Indeed, in some areas, it was quietly radical. It severed the link between the peerage and the second chamber. Perhaps more importantly, it removed the power of the Prime Minister to determine the size and political complexion of the upper House.38 The Prime Minister’s power of patronage was to be further reduced by routing the confirmation of all nominated members through an independent Appointments Commission. The Report tempered these substantial innovations with respect for the prevailing constitutional settlement – retaining so firmly the pre-eminence of the House of Commons was in the interest of any party which was in government – and avoiding ruffling too many feathers, with highly contentious changes that would nevertheless not greatly impact the function of the second chamber, such as the exclusion of the Lords Spiritual or the Law Lords. The compromise of the Report was therefore to combine innovation with continuity. As the Commission’s Chairman recalled, ‘the recommendations in our report are politically realistic, workable and achievable. We were not interested in producing a report that would gather dust in a pigeon hole’.39 King regarded the idea of pursuing idealistic but unrealisable reform over pragmatic reform which had the prospect of implementation as ‘immoral’.40 The Report also gained power through its unanimity, the lack of which had undermined Lord Bryce’s Report nearly a century earlier.   King (n 1) 125.   Meg Russell and Richard Cornes, ‘The Royal Commission on Reform of the House of Lords: A House for the Future?’ (2001) 64 MLR 82, 99. However, the Commission’s view in its deliberations was that it was far too early for the implications for the new constitutional settlement to have come into focus sufficiently for it to see how to take the settlement into account: devolution was less than a year old; European Parliament elections were in the throes of being reformed; and the Human Rights Act and the Freedom of Information Act were not yet in force. 38   The Commission did not affect the Prime Minister’s power to create life peerages, but these peerages would no longer carry membership of the second chamber or the right to sit or vote there. 39   Lord Wakeham, ‘The Case for the Royal Commission’s Proposals’ (2000) 37 Representation 93, 97. 40   King (n 1) 126. 36 37

Follow-Up to the Royal Commission’s Report  189 That the Report’s recommendations were not in line with any one submission to the Commission was both a weakness and a strength. It meant that every person and group which had engaged with the Commission’s work would be disappointed to some degree. The central theme of the Report was not understood: people compared it to their idealised solution and saw its shortcomings, rather than viewing it as a practical and sensible compromise. However, in providing a compromise which was not wholly aligned with any party’s submission, it was hoped that it might engender engagement with the issues rather than an instantaneous reaction. The central compromise in the Report was that it was a compromise, not the end final solution. Wakeham worked hard throughout the life of the Commission and in the months after its Report to touch hands with key actors in the both Houses of Parliament and elsewhere in order to ensure that the Commission’s recommendations on compromise had the maximum opportunity of taking the debate forward. And to aid acceptance, several of the conclusions allowed room for review or adaptation during a 15-year period of phased implementation.

FOLLOW-UP TO THE ROYAL COMMISSION’S REPORT

The House of Lords debated the Report on 7 March 2000. In the debate, the Leader of the House, Baroness Jay, signalled strong support on the part of the Government for almost all of the Commission’s main recommendations.41 Certainly, for some time, those at the heart of Government had been resigned to conceding some elected element rather than holding out for a wholly appointed upper House. In the Lords debate, there was also substantial support from other members of the House for several specific aspects of the Commission’s Report, including the proposed creation of a Constitutional Committee of the upper House (which was later adopted, without the need for legislation) and recommendations on procedures, pay and resources. When the House of Commons debated the Royal Commission’s report on 19 June 2000,42 the Government reverted to its pre-election view that the best way forward was to establish the Joint Committee of both Houses, which had been promised in the 1997 Labour Party manifesto as the vehicle for considering stage two of reform.43 This Joint Committee would not, however, be tasked with repeating the work of the Commission; rather, it would consider the parliamentary aspects of reform. The leadership of both the Government and the Opposition were cognisant of the lesson of 1968 that a front-bench agreement on Lords reform could founder if backbenchers, especially in the Commons, were not

  See HL Deb, 7 March 2000, vol 610, cc 912 and 915.   HC Deb, 19 June 2000, vol 352, cc 48–125. 43   HC Deb, 19 June 2000, vol 352, c 55; Labour Party, New Labour Because Britain Deserves Better (1997) 32–33. 41 42

190  The Wakeham Commission and Beyond persuaded of its merits.44 Yet, despite the Government being sure that the optimal way forward was to establish a Joint Committee, this Committee did not materialise in the remainder of the 1997–2001 Parliament.45 The view of some Commission members was that the Royal Commission’s Report shaped the Lords reform debate for some time to come and that the principles remained a sound bedrock for those who were, later to grapple with the ongoing stage two of reform. As Lord Harries, a member of the Commission, observed more than a decade after the Report was published, ‘many members of the Royal Commission remained quietly confident that if there was to be any reform there would have to be a return to some of the fundamental points made in its report’.46 But the view from outside the Commission quickly came to be that elucidated by Meg Russell and Richard Cornes: ‘With the hereditary peers largely removed from the chamber, the debate has already moved on. The Commission’s report provides a starting point, but probably no more.’47 Reform, however, had not moved on: no movement towards reform occurred in the year and a half between the publication of the Commission’s Report and the 2001 general election.

2001–05: INDECISION, THEN A SURPRISING MOVE ON REFORM

Labour’s Manifesto Commitment Labour made a manifesto commitment at the 2001 general election to implement the Wakeham Commission’s recommendations in the most effective way possible and pledged its efforts 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’.48 In the Queen’s Speech following Labour’s re-election, the Government promised legislation for the second stage of Lords reform.49 However, almost immediately after the Queen’s Speech, Lord Williams of Mostyn, the new Leader of the House of Lords, indicated that the Government preferred to consult widely prior to introducing a bill on Lords reform rather than 44   This was also the advice of Lord Callaghan to the Commission. Callaghan told Lord Wakeham to work out ‘what the Commons can wear’. Parliamentary Archives WHE/1/1/13. Lord Wakeham, Gerald Kaufman, David Hill: Discussion with Lord Callaghan, 15 June 1999. 45   On 6 March 2001, a month before the expected end of the Parliament, the Government announced that it was unlikely that a Joint Committee of both Houses would be convened to consider Lords reform in the present Parliament. HC Deb, vol 364, c 200W. 46   Richard Harries, ‘The Draft Bill and the Report of the Royal Commission on the Reform of the House of Lords.’ British Politics and Policy at LSE (11 July 2011), blog entry. http://eprints.lse.ac. uk/38042/ 47   Russell and Cornes (n 37) 99. 48   Labour Party, Ambitions for Britain (2001) 35. This way forward had been agreed by the leaders of the House of Commons and House of Lords shortly before the general election. 49  ‘Following consultation, my Government will introduce legislation to implement the second phase of House of Lords reform.’ HL Deb, 20 June 2001, vol 626, c 6.

2001–05: Indecision, Then a Surprising Move on Reform  191 convening the long-promised Joint Committee of both Houses on Lords reform.50 A Cabinet sub-committee on reform met in July 2001 and produced a White Paper, The House of Lords: Completing the Reform, in November.51 This sub-­ committee highlighted a sharp divergence of views: ‘Cook wanted to be radical while Irvine was urging caution, and a wholly-appointed House.’52 The White Paper, in trying to bridge this gap, endorsed many of the Wakeham proposals, but diverged from the Royal Commission’s proposals in a number of important areas. Like Wakeham, the White Paper recommended: a predominantly nominated House with elected members from the nations and regions; a statutory Independent Appointments Commission; the severing of the peerage from membership of the House; and that the powers of the House should be broadly unchanged, with no special power to scrutinise constitutional bills. However, the Government proposed a larger House (600 members, compared with the Royal Commission’s 550), a slightly higher proportion of elected members53 and no substantive role for the Appointments Commission in the appointment of the party nominees who comprised 60 per cent of the House – something that substantially derogated from the quiet radicalism of the Wakeham Report.54 Moreover, the Government favoured shorter terms than the Royal Commission had deemed necessary55 and preferred election of the whole House at once, rather than staged elections by thirds: both of these were effects that would be likely to increase the legitimacy of the second chamber vis-a-vis the Commons, decrease independence of members and increase the role of the parties’ whips – things that Wakeham, a former Commons Chief Whip, studiously avoided. When, in January 2002, the White Paper’s proposals were debated in the Commons and Lords, they received little support. Those in the Commons who advocated further reform criticised Robin Cook for supporting proposals which fell short of his own Cook–Maclennan report of the 1990s. In the Lords debate, the perception gained ground that the Government had cherry-picked the Royal Commission’s recommendations rather than taking them as a package: the exemption from full scrutiny by the Appointments Commission of the partypolitical appointees – a majority of the House – was subject to especially strong   HL Deb, 10 July 2001, vol 626, c 69WA.   Cm 5291. 52   Anthony Seldon et al, Blair Unbound (London, Simon & Schuster, 2007) 202. 53   Robin Cook, the newly appointed Leader of the House of Commons and pursuing a ‘Crossmanite’ role as a parliamentary reformer, was a key influence in ensuring that the White Paper endorsed a slightly higher proportion of elected members than a majority of the Wakeham Commission had recommended. Robin Cook, The Point of Departure (London, Simon & Schuster, 2003) 34. 54   Baroness Dean, who was known to be in tune with the thinking of Number 10 on Lords reform, had during the Royal Commission’s meetings expressed concern about the proposed role of the Appointments Commission in vetting party-political nominees. Parliamentary Archives WHE/1/1/16/ RCRHL (99), 12th Meeting, 14 October 1999. 55  The Royal Commission had come down in favour of appointments linked to the European Parliament election cycle; Number 10 had preferred linking the second chamber’s appointments to House of Commons general elections. The White Paper left open the length of terms, but the Government later clarified that it was ‘inclined to the view that the choice lies between the shorter options’: HL Deb, 16 November 2001, vol 628, c 105W. 50 51

192  The Wakeham Commission and Beyond criticism. The White Paper satisfied few and was dead by the end of January 2002; the prospects of the Royal Commission’s Report being implemented withered alongside the White Paper.

The Public Administration Committee The consultation on the White Paper’s proposals had overwhelmingly supported a majority-elected second chamber. In the face of a lack of support for the White Paper’s proposals not only amongst the public but also within his own parliamentary party,56 Robin Cook abandoned his hopes of an early bill and called for the reformers to seek a ‘centre of gravity’ amongst the options for Lords reform.57 In February, following the debates on the White Paper in each House, the House of Commons Public Administration Select Committee published a report on Lords reform in which it suggested that the ‘centre of gravity’ lay with the proposition that 60 per cent of the upper House should be elected, with the remaining members nominated by political parties (20 per cent) and as independent nominated members (20 per cent), nominated members being appointed by the Appointments Commission.58 This Report finally spurred the Government to set up the long-awaited Joint Committee on House of Lords reform, which it mandated to consider the responses to the White Paper consultation alongside this Report, with a view to establishing a consensus on the way forward.59

The Joint Committee The Joint Committee of both Houses, chaired by Jack Cunningham MP,60 who had been a minister in the first Blair Government, was tasked to look at reform in terms of ‘the composition and powers of the Second Chamber and its role and authority

  Donald Shell, ‘The Future of the Second Chamber’ (2004) 57 Parliamentary Affairs 852.   For a detailed analysis of these reforms, see Alexandra Kelso, Parliamentary Reform at Westminster (Manchester, Manchester University Press, 2009). 58   The Second Chamber: Continuing the Reform (2001–02 Session, HC 494), 14 February 2002, para 96. 59   HC Deb, 13 May 2002, vol 385, cc 516–33. 60   Its 24 members (12 from the Lords, 12 from the Commons) were: the Rt Hon Lord Archer of Sandwell (Labour), Viscount Bledisloe (cross-bench), Lord Brooke of Alverthorpe (Labour), the Rt Hon Lord Carter (Labour), the Rt Hon Lord Forsyth of Drumlean (Conservative), Baroness Gibson of Market Rasen (Labour), Lord Goodhart (Liberal Democrat), the Rt Hon Lord Howe of Aberavon (Conservative), Lord Oakeshott of Seagrove Bay (Liberal Democrat), Baroness O’Cathain (Conservative), the Earl of Selborne (Conservative), the Rt Hon Lord Weatherill (cross-bench), Ms Janet Anderson (Labour), the Rt Hon James Arbuthnot (Conservative), Mr Chris Bryant (Labour), the Rt Hon Kenneth Clarke (Conservative), the Rt Hon Jack Cunningham (Labour), the Rt Hon William Hague (Conservative), Mr Stephen McCabe (Labour), the Rt Hon Joyce Quin (Labour), Mr Terry Rooney (Labour), Mr Clive Soley (Labour), Mr Paul Stinchcombe (Labour) and Mr Paul Tyler (Liberal Democrat). 56 57

2001–05: Indecision, Then a Surprising Move on Reform  193 within the context of Parliament as a whole’.61 In doing so, it was instructed ‘to define and present to both Houses options for composition, including a fully nominated House, and intermediate options’. Robin Cook had been invited by the Prime Minister in April 2002 to seek a way of putting alternatives on Lords reform to Parliament as a means of circumventing the lack of agreement in the Cabinet and making progress on stage two of Lords reform.62 In the Joint Committee, he had quickly found a way of Parliament presenting itself with those alternatives. The Committee reported twice. Its first report, on 11 December 2002, set out the roles, functions, powers and conventions of the current House of Lords, and concluded that ‘no new or additional powers are given to the House of Lords at this stage’, claiming to have reached a ‘broad agreement on the role, functions and powers of a reformed Second Chamber’.63 It promoted the qualities of legitimacy, representativeness, lack of party domination, independence and expertise as those which ought to be carried forward to a reformed House. On composition, it advocated a House of about 600 members, each of whom served 12-year terms, and laid out ‘an inclusive range of seven options for the composition of a reformed House of Lords’.64 These options were to be put to a free vote of each House.65 The ‘take note’ debates that followed the publication of the Joint Committee’s first Report showed little consensus amongst MPs on any of the seven composition options, though, as Kelso argues, there was greater support for a fully appointed House than had perhaps been anticipated; in the Lords ‘the vast majority of peers favoured a wholly appointed second chamber’.66 The Prime Minister at Prime Minister’s Questions shortly after the debate came out against a hybrid (partappointed, part-elected) House;67 he saw an intellectually coherent argument on each pole, but none for a fudge, and therefore indicated that it was easier to support an entirely nominated House.68 Although it was thought by some that stating this responded to rather than created shifts in opinions amongst Labour MPs,69 the switch of both Blair and Irvine from arguing for an appointed House to arguing 61   HC 1109, 2001–02, para 3. It had started work in July 2002 and was re-appointed with the same membership and terms of reference at the start of the new Session in November 2002. 62   Cook (n 53)138–39. 63   Joint Committee on House of Lords Reform, House of Lords Reform: First Report, 11 December 2002 (2002–03 Session, HL 17 and HL 171) 5. 64   Joint Committee on House of Lords Reform, House of Lords Reform: First Report, 11 December 2002 (2002–03 Session, HL 17 and HC 171). 65   Seldon attributes the idea of a free vote on the seven options as a route to unblock progress on Lords reform to Andrew Adonis. Seldon et al (n 52) 202. 66   Kelso (n 57) 172. 67   ‘Do we want an elected House, or do we want an appointed House? I personally think that a hybrid between the two is wrong and will not work. I also think that the key question on election is whether we want a revising Chamber or a rival Chamber. My view is that we want a revising Chamber, and I also believe that we should never allow the argument to gain sway that, somehow, the House of Commons is not a democratically elected body . . . It is a free vote; people can vote in whatever way they want, but I think that all Members, before they vote, should recognise that we are trying to reach a constitutional settlement – not for one Parliament, but for the long term’: HC Deb, 29 January 2003, vol 398, cc 877–78. 68   At the time of the Wakeham Report, it was thought that Blair was willing to concede some element of election and therefore would support a hybrid House. 69   Kelso (n 57) 172–73.

194  The Wakeham Commission and Beyond against a hybrid House was a sound tactic when a hybrid House was becoming a real possibility. Both Houses voted on the Joint Committee’s seven options for the composition of the House of Lords on 4 February 2003.70 As Table 8-1 shows, the House of Commons voted against all seven options, with an 80 per cent-elected upper House being defeated by the smallest margin. MPs also voted against a proposal to abolish the House of Lords entirely.71 Labour MPs were evenly divided across the options.72 The House of Lords voted three to one in favour of an all-appointed House. McLean, Spirling and Russell show that a core group of 134 MPs (including Robin Cook himself) voted against abolition, against full appointment and for the options which would have resulted in a majority-elected House: if this group had been slightly larger, at least one of the majority-elected options would have passed. It is not clear whether a majority in the Commons for any one option could have prevailed with better voting information, but there was evidence of some whipping, despite it being a free vote, and also of some confusion about the consequences of voting in different ways.73 Certainly, the Joint Committee’s rejection of the idea that MPs and peers should have had the opportunity to express preferences about each of the different options, rather than in sequence by a series of plurality votes, was a barrier to achieving support for one system on the part of the House of Commons. It was also a barrier to working out where the ‘centre of gravity’ really lay. Table 8-1: Lords and Commons votes on the Joint Committee’s seven options Fully appointed

20% elected

40% elected

50% elected

60% elected

80% elected

Fully elected

335 110

39 375

60 358

84 322

91 317

93 338

106 329

253 316

281 284

272 289

Lords For Against Commons For Against

245 323

Source: Chris Clarke and Matthew Burns, House of Lords Reform since 1997: A Chronology (House of Lords Library Note, LLN 2009/007, 31 July 2009).   HC Deb, vol 399, cc 152–243; HL Deb, vol 644, cc 115–38.   No option was presented to MPs to vote against the continuation of the House of Lords at all. An amendment was put to the first option (a wholly appointed House), which, in effect, facilitated a vote about unicameralism. By voting against this amendment, the House declined ‘to approve Option 1 as it does not accord with the principle of a unicameral Parliament’ (HC Deb, vol 399, cc 166). Although it was defeated, 172 MPs, including the Chairman of the Labour Party, John Reid MP, voted for the amendment and therefore for unicameralism. 72   Dorey shows that no fewer than 153 Labour MPs voted against any particular option and no fewer than 181 Labour MPs voted for any particular option, though he sounds a note of caution about tactical voting. Peter Dorey, ‘Stumbling Through “Stage Two”: New Labour and House of Lords Reform’ (2008) 3 British Politics 22, 34–35. 73   Iain McLean, Arthur Spirling and Meg Russell, ‘None of the Above: The UK House of Commons Votes on Reforming the House of Lords’ (2003) 74 Political Quarterly 298. 70 71

2001–05: Indecision, Then a Surprising Move on Reform  195 The reaction to the defeat of all seven options by the House of Commons was that they had ‘scuppered hopes of reform for the foreseeable future’.74 When the Joint Committee on House of Lords reform began to consider the votes of the two Houses and their implications, the presumption was that the only way forward would be to have a minimal bill, which abolished the right of the remaining 92 hereditary peers to sit and vote, and perhaps also transferred the Prime Minister’s power of appointing life peers to the Appointments Commission. This way forward, thought to be the preferred option of the Prime Minister, was vigorously opposed by the Leader of the House.75 The Joint Committee, acknowledging the lack of support in the House of Commons for any one option on the composition of the upper House, but hoping to keep momentum behind reform, made its second and final Report in May 2003.76 It sought to pass the initiative on reform back to the Government. However, the Government’s response to this second Report made it clear that the Cabinet would not support measures beyond the removal of remaining hereditary peers and the establishment of a revised Appointments Commission.77 The Joint Committee on House of Lords reform ‘thereafter slipped into oblivion’78 and the Prime Minister’s drive for reforming the Lords’ composition diminished.

The Constitutional Reform Act 2005: An Unanticipated Reform?79 One substantial reform did, however, occur in the 2001–05 Parliament; but it was not one foreshadowed by the Wakeham Commission or by earlier Government announcements. The proposal to abolish the office of Lord Chancellor, which was accompanied by proposals to remove the judges from the House of Lords and reform judicial appointments, came out of the blue and without cross-party agreement when they were announced as part of a Cabinet re-shuffle and announced on 12 June 2003.80 A few weeks after the publication of the Joint 74   Melissa Kite, Philip Webster and Greg Hurst, ‘Blair Gets His Way as MPs Reject Elected Lords’, The Times (5 February 2003), 1. 75   Shortly after this, Robin Cook resigned as Leader of the House of Commons on 17 March 2003 in protest against the Iraq War. He was replaced by John Reid, who had voted for unicameralism in the free vote in February 2003. 76   House of Lords Reform: Second Report (2002–03 Session, HL97). 77   ‘The Government is grateful to the Joint Committee for the work that they have done, and their efforts to take forward the question of House of Lords reform . . . For the time being, the Government will concentrate on making the House of Lords work as effectively as possible in fulfilment of its important role.’ House of Lords Reform: Government Reply to the Committee’s Second Report (HL 155, 2002–03, 17 July 2003), 5. 78   Kelso (n 57) 176. 79   A comprehensive and detailed account of the origins, passage through Parliament and outcomes of this Act is provided by Andrew Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’ in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009). 80   See, eg, Andrew Le Sueur, ‘New Labour’s Next (Surprisingly Quick) Steps in Constitutional Reform’ (2003) PL 368.

196  The Wakeham Commission and Beyond Committee’s second Report and the consignment of its work to oblivion by the votes in the House of Commons, a Cabinet re-shuffle was required. In this reshuffle, the Prime Minister sought to remove from the Cabinet his friend and erstwhile mentor, Lord Irvine, who had been resisting the his intention to reform aspects of the legal system. In removing Irvine, Blair sought to abolish the Lord Chancellorship and to merge and expand the department to give it a broader constitutional affairs remit. The Prime Minister’s spokesman announced: ‘As part of the continuing drive to modernise the constitution and public services . . . the post of Lord Chancellor will be abolished, putting the relationship between executive, legislature and judiciary on a modern footing.’ Furthermore, the appellate jurisdiction of the House of Lords was to be replaced by a new Supreme Court for the UK, and the system of judicial appointments in England and Wales was to be reformed.81 Although there had been academic discussion of the merits of the separation of the roles of the head of the judiciary and Cabinet minister, and some practical difficulties surrounding conflict of interest between the judicial and parliamentary roles of Law Lords which had necessitated guidance being issued, such a package of reforms had not been on the Government’s agenda. The removal of the judicial function from the second chamber had been explicitly rejected by the Royal Commission on the grounds that the case had not been made for it being a necessary or a beneficial reform,82 and the November 2001 White Paper on Lords reform had stated the Government’s commitment to maintaining judicial membership of the House of Lords, noting that ‘Law Lords represent a significant body of expertise and experience, which can benefit the House beyond the period when they can sit judicially’.83 These radical and sudden reforms were not anticipated by the Cabinet: it had not been consulted, nor had it been forewarned.84 No Cabinet sub-committee had been set up to scrutinise these proposals and no detailed analysis had been commissioned from civil servants of the impact of the proposals on existing legislative arrangements, as had been the case with the much less complex House of Lords Bill five years earlier. There had been some suggestions that the multifaceted role of the Lord Chancellor could not continue in the long term, but there was no expectation of imminent reform. The result was a hasty and under-considered proposal: with the abolition of the post of Lord Chancellor, 5,000 references to the post in statutes became inoperable and, because the Lord Chancellor was Speaker of the House of Lords, that 81  Press release, Prime Minister’s Office, ‘Modernising Government – Lord Falconer Appointed Secretary of State for Constitutional Affairs’, 12 June 2003. 82   In discussion with the then Lord Chancellor, Lord Irvine, Lord Wakeham had re-assured Lord Irvine that his position as Lord Chancellor and Speaker of the House of Lords would remain untouched by the Commission’s Report. Irvine had reported that the senior judiciary were unlikely to accept the work of Lord Chancellor being conducted by a lay, and elected, Minister of Justice. Parliamentary Archives WHE/1/1/13. ‘Lord Chancellor’s Views’, memo by DJR Hill, 13 July 1999. 83   The House of Lords – Completing the Reform (Cm 5291, 2001), para 81. 84   Kamal Ahmed, ‘Cabinet “Kept in Dark” over Law Reforms’, The Observer (15 June 2003), 1. Three former Cabinet Secretaries subsequently criticised the lack of consultation over such major plans: David Hencke, ‘Consult the Civil Service, Blair Warned’, The Guardian (20 June 2003), 12.

2001–05: Indecision, Then a Surprising Move on Reform  197 House could not meet without a Lord Chancellor. Lord Falconer of Thoroton was swiftly sworn in as Lord Chancellor for an interim period, which, given the complexities of amending so many statutes, was likely to be lengthy. The absence of prior consultation with the judiciary strained relations between the Government and the judges, though a concordat drawn up with the Lord Chief Justice to agree upon the future distribution of functions to the Secretary of State for Constitutional Affairs and the Lord Chief Justice85 substantially relieved the judiciary’s concerns. The Government’s announcements had attempted to depict Irvine as the last Lord Chancellor, but it became clear that Falconer, the new Secretary of State for Constitutional Affairs, would also be the Lord Chancellor. As Le Sueur put it at the time, ‘a man who exercises all the functions of Lord Chancellor is the Lord Chancellor, even if he simultaneously holds another ministerial office’.86 The Constitutional Reform Bill was introduced into the House of Lords on 24 February 2004. Its purpose was threefold: to abolish and replace the office of Lord Chancellor; to replace the appellate jurisdiction of the House of Lords with an independent Supreme Court for the UK; and to reform judicial appointments in England and Wales with the creation of a Judicial Appointments Commission and a Supreme Court Appointments Commission. Since it began its legislative life in the House of Lords, the Parliament Acts could not be used to force it onto the Statute Book against the upper House’s wishes.87 The policy of the Bill was debated at Second Reading in the Lords on 8 March 2004. In debate, the Bill stirred up considerable emotion. Few questioned the principle of reforming judicial appointments following the publication of the concordat. However, the abolition of the position of Lord Chancellor and the creation of a Supreme Court each attracted substantial opposition. Moreover, the Bill had not been published in draft, which had been the practice for significant non-partisan bills since 1998, and there had been little opportunity for pre-­ legislative scrutiny.88 Rather than being given a Second Reading and then being committed to a Committee of the Whole House on a government motion, the Lords voted by 216 to 183 in favour of a motion from Lord Lloyd of Berwick, a retired Law Lord, to commit the Bill to a Select Committee off the floor of the House.89

85   Department for Constitutional Affairs, Constitutional Reform: The Lord Chancellor’s JudiciaryRelated Functions – Proposals, January 2004. 86   Le Sueur (n 80) 370 (emphasis in original). 87   Although it was a Bill of major constitutional significance, there would have been nothing constitutionally to prevent it being forced through under the Parliament Acts procedures had it been introduced into the Commons in the first instance. 88   The House of Commons Constitutional Affairs Select Committee had considered the issues of the Supreme Court and judicial appointments in parallel with the public consultation, in late 2003 and early 2004, and reported that the Constitutional Reform Bill would be ‘a clear candidate for examination in draft’: Judicial Appointments and a Supreme Court (Court of Final Appeal), 2003–04 Session, HC 48-I and II, para 188. 89   Only one full-time serving judge, Lord Hoffmann, voted: he supported Lord Lloyd’s amendment.

198  The Wakeham Commission and Beyond Select Committee90 The Lords, in voting to send the Bill to a Select Committee, risked delaying, or even killing, the Bill. Such committees on government bills are very rare: apart from the Hare Coursing Bill of 1975, the relevant precedents had been from the years immediately after the First World War.91 It is a very powerful committee: it has the power to report that the bill should not proceed; it considers each clause by turn and can amend any clause; and it can take evidence on any aspect of the bill. The procedure threatened to take many months. However, the unusually senior membership of the Select Committee convened to sit on the Constitutional Reform Bill (HL)92 reported in just over three months. ‘The Committee’, noted its Clerk, ‘failed to agree on certain fundamental issues.’93 The Committee’s disagreements included the proposal to abolish the Lord Chancellorship and whether that office-holder should be a lawyer sitting in the upper House (an issue which was not pressed later in the Bill’s passage) and the creation of the Supreme Court (on which the House as a whole later agreed with the Government). The Committee did, however, endorse the concordat, accepted the changes to judicial appointments and agreed with the proposed jurisdiction of the Supreme Court. Moreover, the Committee facilitated changes to reinforce judicial independence, the financial and administrative autonomy of the Supreme Court,94 the probity of the appointments process and clarity over the 90   The Select Committee’s Report is HL Paper 125-I and HL Paper 125-II Session 2003–2004. On the Select Committee procedure more generally, see Rhodri Walters, ‘A Procedural Throwback: the Select Committee on the Constitutional Reform Bill [HL]’ (2005) 73 The Table 11–19. Dr Walters was Clerk to the Select Committee, Professor Le Sueur was Specialist Adviser to the Select Committee and the present author was seconded to the House of Lords Committee Office full-time to assist the Select Committee in its work. 91   The Titles Deprivation Bill (HL) was committed to a Select Committee of the House of Lords in 1917; the Government of India Bill was committed to a Joint Select Committee in 1919. See Walters (n 90) 14. cf the more recent establishment of public bills in the House of Commons, which are now routine. In November 2006, the House of Commons standing orders were amended to create as normal practice programmed government bills, which had started their legislative journey in the House of Commons to be committed to committees which have the power to undertake detailed clause-byclause scrutiny of these bills with the power to take written and oral evidence (including from witnesses who are outside Parliament) and to amend the bills. These committees replaced Standing (Legislative) Committees. 92   There were 16 members of the Committee: Lord Richard (Chairman and former Leader of the House of Lords), Lord Falconer of Thoroton (Lord Chancellor), Lord Carter (a former Government Lords Chief Whip), Lord Elder, Baroness Gibson of Market Rasen for the Government;, Lord Carlisle of Bucklow, Lord Howe of Aberavon (a former Secretary of State and Leader of the House of Commons), Lord Kingsland (Shadow Lord Chancellor), Lord Windlesham (a former Leader of the House of Lords) and Lord Crickhowell for the Conservatives; Lord Holme of Cheltenham (Chairman of the House of Lords Constitution Committee), Lord Goodhart (a QC) and Lord Maclennan of Rogart (a former MP) for the Liberal Democrats. Viscount Bledisloe (a QC), Lord Craig of Radley (a former Chief of the Defence Staff) and Lord Lloyd of Berwick were cross-bench members. 93   Walters (n 90) 17. 94   The Appellate Committee of the House of Lords had its costs paid from the parliamentary budget, of which its running costs were only a very small part; the translation of its duties into a Supreme Court, which would be run as a non-ministerial department of the Government, led to the prospect of the President of the Supreme Court entering into budgetary negotiations with a minister in the annual spending round. The effect of this might be that the independent Supreme Court was less independent

2001–05: Indecision, Then a Surprising Move on Reform  199 jurisdictions of the Court.95 These changes facilitated the passage of the Bill onto the Statute Book.96 Passage of the Bill The Bill was re-printed with the Committee’s amendments, returned to the floor of the House of Lords on 13 July 2004, and was committed to a Committee of the Whole House. Following carry-over, the Bill completed its passage through the Lords in December 2004, having been subject to further agreed amendments, some of which arose as a result of the Select Committee’s report, and was read for a second time in the Commons on 17 January 2005. After detailed scrutiny in the Commons, including a substantial number of amendments from the Government and others, and a period of parliamentary ‘ping pong’ between the Houses (the Parliament Acts not being applicable), the Bill received the Royal Assent on 24 March 2005, shortly before Parliament was prorogued for the general election. In Professor Le Sueur’s analysis: [T]here can be no doubt that parliamentary scrutiny secured a significant substantive change to the Government’s proposals in relation to the office of Lord Chancellor. In relation to the Supreme Court proposals, however, the amendments made to the Bill were more modest. Those significant amendments that were made in relation to the Supreme Court were instigated in response to the select committee’s work.97

Amongst the most significant of these amendments were, Le Sueur notes, provisions removing the discretion of the Lord Chancellor in judicial appointments and in the approval of the Supreme Court’s rules, provisions about the running of the Supreme Court that ensured that the Court was accountable to the President of the Court and not to the Lord Chancellor, and aspects relating to the functioning of the Supreme Court with regard to the devolved regions. The Government had achieved its aim of establishing a Supreme Court and abolishing the three-inone role of the Lord Chancellor, but it had to accept a Lords amendment that retained the title of Lord Chancellor for the minister concerned, even though the requirement for the Lord Chancellor to be a member of the House of Lords had been removed. The Lords had a new Speaker, who was a servant of the House and not a senior Cabinet minister, and who would become an ambassador for the House and its work. A significant change to the House of Lords had been achieved through a sudden deus ex machina by the Prime Minister and sheer determination on the part of the resultant Lord Chancellor, but it was one of the few changes to the House of Lords which had been explicitly ruled out by the proposals which of the Government than its predecessor had been. Re-assurances that the Government would ‘ringfence’ the Court’s budget allayed the fears of some. 95   Walters (n 90) 18. 96   As did the agreement to carry the Bill over to the subsequent parliamentary session, without which agreement the whole Bill would have been lost because of the lack of time for debate following the report of the Select Committee. 97   Le Sueur (n 79) 89.

200  The Wakeham Commission and Beyond were brought forward shortly before and after the 2001 general election. The achievement of this significant change in the role and composition of the House of Lords did not help the wider issues in reform progress.

LORDS REFORM IN LABOUR’S THIRD TERM

Despite the lack of unity within the parliamentary parties on Lords reform, as demonstrated by the 2003 votes, all three parties promised reform of the House of Lords in their 2005 general election manifestos. The Conservatives stated a desire for consensus around a ‘substantially elected’ House. The Liberal Democrats condemned the Government’s partial form and argued for a ‘predominantly elected’ House. The Labour Party declared that: In our next term we will complete the reform of the House of Lords so that it is a modern and effective revising Chamber . . . In our first term, we ended the absurdity of a House of Lords dominated by hereditary Peers. Labour believes that a reformed Upper Chamber must be effective, legitimate and more representative without challenging the primacy of the House of Commons . . . As part of the process of modernisation, we will remove the remaining hereditary Peers and allow a free vote on the composition of the House.98

Labour’s manifesto also foreshadowed a codification of the conventions governing the relationships of the House of Commons and the House of Lords, following their review by a Joint Committee of both Houses. The emphasis of Labour’s intentions was on creating a revising House which challenged neither the Executive nor the House of Commons, and the tone was one of unilateral action without the need for consensus. In the first year of the 2005 Parliament, the Government indicated that it was ready to act on its intention of completing reform and signalled that, notwithstanding the undertones of its manifesto, it retained an interest in progressing Lords reform through agreement. The Lord Chancellor, Lord Falconer, stated publicly that ‘the prime minister is keen to see if there is a consensus [on Lords reform]. If a consensus can be built, then he would support it’.99 Blair tasked Jack Straw, now Lord Privy Seal and Leader of the House of Commons, with chairing the Constitutional Affairs Cabinet Committee and pursuing a reform which preserved the primacy of the Commons and, if possible, was backed by a cross-party consensus.100 By June 2006, Straw was consulting across the political parties, the cross-benchers and the bishops about Lords reform. But the dislike of some in the Government of the idea of a hybrid membership for the upper House persisted, and the need to prevent an elected House of Lords usurping the pre-eminence of   Labour Party, Britain Forward Not Back (2005) 103 and 110.   ‘All-Party Plan for Lords Reform’, BBC News Online, 26 February 2006. http://news.bbc.co.uk/1/ hi/uk_politics/4751866.stm 100   Letter to Commons leader, Jack Straw, ‘Blair’s Wish List for Ministers: Extracts from Tony Blair’s Letters Setting Out His Priorities to Four Cabinet Ministers’, The Guardian (15 May 2006). 98 99

Lords Reform in Labour’s Third Term  201 the House of Commons remained paramount.101 Consensus was impossible within the Government, let alone across the parties. Late in the third Blair Government, there were different views on the way forward on Lords reform. Gordon Brown seemed to support an elected House; Straw supported partial election and put forward several proposals for consideration. On departing the premiership, Blair was still in favour of an appointed House of Lords,102 a position that he had held throughout his premiership and which was increasingly at odds with the sentiments expressed by the House of Commons. Alongside the informal consultations on House of Lords reform which were being conducted by the Leader of the House of Commons, Jack Straw, the Joint Committee on Conventions, chaired by Lord (Jack) Cunningham of Felling, had been working on the conventions of Parliament, work which was intended to inform the White Paper and subsequent free vote foreshadowed by Mr Straw. In its report, the Joint Committee acknowledged the pre-eminence of the House of Commons (as it had been required to do), but argued strongly that the Salisbury– Addison Doctrine had changed since its inception in 1945 and especially since the removal of most hereditary peers in 1999. The Committee declined to support legislation to codify or entrench the existing conventions that regulated the effective power of the Lords against the Commons or the Government. Furthermore, it emphasised that its conclusions could only refer to the present House of Lords and that a fully reformed second chamber would evolve new conventions to govern its behaviour.103 Having announced in the Queen’s Speech at the start of the 2006–07 Session that the Government ‘will work to build a consensus on reform of the House of Lords and will bring forward proposals’,104 it seemed to accept the conclusions of the Joint Committee,105 whilst emphasising that the current de facto power of the House of Lords should not be increased by any reform – a set of statements that seemed to many to be mutually incompatible. A White Paper on Lords reform published in February 2007106 overcame the earlier reservations about a hybrid House and suggested that consensus might be possible around a half-elected, half-appointed House of about 540 members, with a significant non-party element. It committed the Government to going further than completing the removal of the remaining 92 hereditary peers and creating a House ‘fit to meet the demands and expectations of this century’.107 However, the initial proposal that the House of Commons should vote on options for reform by the alternative vote in order to avoid the problems of 2003 was swiftly abandoned.   Private information.   Or had returned to it, for he had been open to accepting an elected element at the time of the publication of the Wakeham Report. Tony Blair, A Journey (London, Hutchinson, 2010) 649–50. 103   Conventions of the UK Parliament (2005–06 Session, HL 265), 3 November 2006. 104   HL Deb, 15 November 2006, vol 687, c 3. 105   Government Response to the Joint Committee on Conventions’ Report of Session 2005–06: Conventions of the UK Parliament (Cm 6997, 13 December 2006). 106   The House of Lords: Reform (Cm 7027, 7 February 2007). 107   The House of Lords: Reform (Cm 7027, 7 February 2007) 5. 101 102

202  The Wakeham Commission and Beyond On 7 March 2007, in a series of eight votes, the Commons voted in favour of both an 80 per cent-elected House of Lords (305–267) and a fully elected House of Lords (337–224). The following week, the House of Lords voted resoundingly for a wholly appointed House (361–121) and at least as strongly against every proposal for any elected element. There were, as Dorey has shown, widely diverging voting patterns on these proposals, both within the PLP and the Cabinet itself.108 The overwhelming support for a largely elected or wholly elected second chamber surprised many observers and led to accusations of tactical voting. As the Constitution Unit noted, numerous MPs who were known to oppose elections to the second chamber voted for the options which embodied the largest proportion of elected members: ‘This was a wrecking tactic to present the government with a dilemma and to maximize conflict with the Lords.’109 The Government paused, needing to re-consider its proposal for a half-elected, half-appointed House in the face of the Commons votes and unwilling to force election on a House of Lords which was so resolutely against it. No further proposals were forthcoming for the remaining three months of the Blair premiership. 2007–2010 Lords reform was mentioned again just one week into Gordon Brown’s period as Prime Minister, when The Governance of Britain Green Paper re-asserted the Government’s commitment to House of Lords reform.110 A cross-party working group convened by Jack Straw, now Lord Chancellor and Secretary of State for Justice, worked across 2007–08 on proposals for the House of Lords. The backdrop for these discussions was not only the Commons and Lords votes on reform,

Table 8-2: Lords and Commons votes on reform options, March 2007 Bicameral Parliament

Fully appointed

Fully elected

20% elected

80% elected

40% elected

60% elected

50% elected

For

[no vote]

361

122

*

114

*

45

46

Against

[no vote]

121

326

*

336

*

393

410

For

416

196

337

*

305

*

178

155

Against

163

375

224

*

267

*

392

418

Lords

Commons

Source: Chris Clarke and Matthew Burns, House of Lords Reform since 1997: A Chronology (House of Lords, Library Note, LLN 2009/007, 31 July 2009). * Rejected without Division.   Dorey (n 72) 38–39.   Constitution Unit, Monitor, (Issue 36, May 2007). 110   The Governance of Britain (Cm 7170, 3 July 2007), 41–42. 108 109

Lords Reform in Labour’s Third Term  203 but also emerging questions about the probity of Lords appointments.111 Following these talks, the Government published a further White Paper in July 2008, which was ‘intended to generate discussion and inform debate, rather than representing a final blueprint for reform’.112 Lords reform, despite the discussions, had retreated once more to the discussion stage. Commenting on the 2008 White Paper a year after its publication, the Prime Minister said that the Government ‘will move forward with reform of the House of Lords’ by publishing in mid-2009 ‘proposals for the final stage of [the] House of Lords’.113 The subsequent Constitutional Renewal and Governance Bill 2008– 09, published in July 2009, included clauses which removed the right of hereditary peers to sit and vote in the House of Lords, disqualified peers who had been convicted of a serious criminal offence from membership of the House and allowed peers to resign or retire.114 During its passage through Parliament, clauses were added to require members of either House to pay UK income tax and making more clear the eligibility for Commonwealth citizens who were not British citizens to sit and vote in the Lords.115 The Bill received its Second Reading in the Lords, but ran out of time because of the impending general election. In the ‘wash-up’ period before Parliament was dissolved, the clause to end by-elections for hereditary peers was defeated on a Lords vote by more than two to one; provisions relating to the disqualification and resignation of members of the House of Lords were likewise lost. The Government minister Lord Bach said that ‘we want to end the farce of hereditary by-elections as soon as possible but the question is at what price. If we had insisted on that clause in this wash-up period, the price would have been no Bill . . . So one has to make a choice’.116 The issue of hereditary peers’ by-elections had been the cause of frustration and embarrassment to ministers for over a decade. However, a proposal to convert all existing hereditary members of the Lords into life members had proved insufficient to broker agreement. The Constitutional Reform and Governance Act 2010 addressed the immediate political question of the tax status of peers, but not the longer-term issues of the continuing hereditary membership or the reduction in the size of the House through the expulsion or retirement of members. Not for the first time, Lords reform had lost out when a government was forced to choose between some change and no change. The Government claimed of a lack of time and the political opportunity cost of securing the Bill, were the reasons for not pursuing reform, without fully accepting that the trade-off was mostly for the Government itself to choose. 111   House of Commons Public Administration Select Committee, Propriety and Peerages, Second Report of Session 2007–08, HC 153. 112   An Elected Second Chamber: Further Reform of the House of Lords (Cm 7438, 14 July 2008), 3. 113   HC Deb, 10 June 2009, vol 493, c 797–98. 114   Ministry of Justice, The Governance of Britain: Constitutional Renewal (Cm 7342, March 2008). 115   Since the White Paper of 2008, questions had been raised in the national press about the probity of peers in tabling amendments and the expenses claimed by members of both the Commons and the Lords. 116   HL Deb, 7 April 2010, vol 718, c 1630.

204  The Wakeham Commission and Beyond The Government had intended to publish plans for House of Lords reform, including a draft bill, shortly before the 2010 election.117 However, the plans were not, in the end, brought forward before the general election campaign began. In the middle of the campaign, a leak suggested that these plans – arguably the most fully developed government plans on Lords reform in over 40 years – included a draft bill which provided for a second chamber of 300 elected members and 12 bishops, which had the same powers as the existing House of Lords.118 Elected members, it was reported, would serve for three terms, with elections being held under a regional open-list system of proportional representation and staged at the same time as House of Commons general elections in order to minimise cost and maximise voter turnout. The 12 Lords Spiritual would have speaking rights, but would be able to vote only on Church of England legislation. The principle of composition would be that ‘no single party should dominate the second chamber and members should be able to bring independence of judgment to their work’; powers would be based on the principle that a democratic mandate was the best way to ensure that the reformed second chamber had ‘sufficient authority to hold the executive to account’.119 Importantly, the proposals included a long period of transition to this elected House, with a break-point at which the transition could stop with only 80 per cent elected members: at the beginning of the second transitional period, each House would vote on whether to finish reform with a wholly elected or 80 per cent-elected upper House.120 Yet these proposals had not been formulated in time for the end of a long Parliament and were left on the table for the election victors to consider.

2010: GENERAL ELECTION AND COALITION GOVERNMENT

Each of the Labour, Conservative, and Liberal Democrat Parties entered the general election of 2010 with promises to pursue reform of the House of Lords. Labour pledged that it would, first of all, remove the remaining hereditary peers from the House of Lords and that further stages of reform would result in at least two-thirds of the upper House being elected by 2020. Public consultation, and a referendum, would precede these further stages.121 The Conservatives promised ‘work to build a consensus for a mainly-elected second chamber to replace the current House of Lords, recognising that an efficient and effective second chamber should play an important role in our democracy and requires both legitimacy

117   Polly Curtis, ‘Labour Pledge to Replace House of Lords with Elected Chamber’, The Observer (14 March 2010). 118   ‘Jack Straw’s Leaked Plans for Lords Reform Published in Full’, The Guardian (19 April 2010). The paper noted that the active membership of the House had recently been approximately 400 peers. 119   ‘Jack Straw’s Leaked Plans for Lords Reform Published in Full’, The Guardian (19 April 2010). 120   cf the provisions of the Wakeham Commission, which also envisaged that the optimal proportion of elected members could be reviewed during its very long transitional period. 121   Labour Party, The Labour Party Manifesto 2010: A Future Fair for All (2010) 9:3.

2010: General Election and Coalition Government  205 and public confidence’.122 The Liberal Democrats vowed to: ‘Replace the House of Lords with a fully-elected second chamber with considerably fewer members than the current House.’123 However, no party gained a majority of House of Commons seats and, after some deliberation, the Conservatives and Liberal Democrats entered a coalition. The new Coalition Government early on pursued Lords reform on three fronts: the Coalition Agreement, published on 20 May 2010, promised ‘a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation’124 and that a draft bill would be prepared; the Agreement committed the Government to continue creating (net) life peers to sit and vote in the House of Lords until the complexion of the chamber had become similar to the votes cast at the general election;125 and the Government pursued plans to turn the never-very-satisfactory leave of absence system into a scheme for voluntary retirement.126 The draft bill, published a year after the Coalition Agreement was announced, was the first Government-backed attempt at legislating for Lords reform since the parliamentary votes on reform in 2003 and 2007. It outlined a House of Lords composed of 300 ‘full-time’ members, of whom 240 (80 per cent) would be elected and 60 (20 per cent) would be appointed. Elected and appointed members would serve for 15-year terms.127 One-third of the elected members would be elected every five years, under the single transferable vote electoral system. In addition, a maximum of 12 bishops of the Church of England would be able to speak and vote as members of the reformed House, and the prime minister of the day could appoint a ‘limited   Conservative Party, An Invitation to Join the Government of Britain (2010) 67.   Liberal Democrat Party, Liberal Democrat Manifesto 2010 (2010) 88.  Its membership, announced on 7 June 2010, was: Nick Clegg MP (Deputy Prime Minister (Chair)), Mark Harper MP (Minister for Political and Constitutional Reform), Sir George Young (Leader of the House of Commons), David Heath MP (Deputy Leader of the House of Commons), Hilary Benn MP (Shadow Leader of the House of Commons), Sadiq Khan MP (Shadow Secretary of State for Justice), Lord Strathclyde (Leader of the House of Lords), Lord McNally (Deputy Leader of the House of Lords) and Baroness Royall of Blaisdon (Shadow Leader of the House of Lords). 125   HM Government, The Coalition: Our Programme for Government, 20 May 2010. Following the dissolution honours of June 2005, for the first time the number of Labour members of the House of Lords was greater than the number of Conservatives. In the 13 months following the general election of 2010, 117 life peerages were created. 126   Leader’s Group on Members Leaving the House, Consultation on Members Leaving the House, Interim Report, 3 November 2010, HL Paper 48. The Group recommended a revivification of the practice of the Clerk of the Parliaments writing to those who had attended infrequently, inviting them to seek a leave of absence, and put forward options for a voluntary retirement scheme. It declined to consider compulsory retirements from the House of Lords. Leader’s Group on Members Leaving the House, Members Leaving the House, 13 January 2011, HL Paper 83, 2010–11. Membership of the Lords stood at 693 in 1999–2000 and had risen to 835 by December 2010. 127   The Wakeham Commission had proposed that 15-year fixed terms of office for elected members of the second chamber be tied to European Elections, and the Commission, and subsequently its chairman, argued strongly for a stable and long term for members of the upper House, against the then Government’s preference for linking second chamber elections to those of the House of Commons. However, the Fixed-Term Parliaments Act 2011 meant that the longer and stable terms offered by linking second chamber elections to those of the European Parliament were now available through a link to House of Commons elections. 122 123 124

206  The Wakeham Commission and Beyond number’ of people to serve as ministers in the upper House, who would be members of the Lords for the duration of their appointment only.128 The proposals – in terms of the size and shape of a reformed upper House, and its purpose – bore a remarkable similarity to those contained in the unpublished White Paper drawn up by the Labour Government a little more than a year earlier. The Joint Committee on the draft bill deliberated for nine months from the summer of 2011 until April 2012. It faced a difficult job in reconciling the views of those who valued the work of appointed members with the would-be reformers who wished to see a majority-elected upper House. The Committee, in its Report,129 argued that to do an effective job, the House should be 50 per cent larger than the Government had suggested, with 450 elected and appointed members in addition to the bishops. It was united in arguing against the Government’s assertion in the draft bill that the Commons’ primacy could be preserved by a clause in the bill. It accepted the place of Government ministers appointed as temporary members of the House and agreed that the Appointments Commission overseeing the substantive appointments should at last be placed on a statutory basis. However, on some key issues, the Committee was split. Some members held firm in their support of a wholly appointed House. Even if it came about that there would be an election, the Committee was not united behind the Government’s proposal for 80 per cent of members to be elected. Likewise, the retention of the bishops was not unanimously supported.130 Single, non-renewable terms of office also did not find complete favour with the Committee. Perhaps most significantly, the Joint Committee voted by 13 to 8 in favour of recommending that the Government should submit its decision to a referendum.131 The consensus which had eluded the Bryce Conference almost a century earlier also proved impossible for the Joint Committee. Half of the 26 members of the Joint Committee published alternative ways forward. An Alternative Report, signed by 12 members of the Joint Committee, broadly agreed with the Joint Committee’s main report, but argued vigorously that some fundamental principles of the prevailing constitutional arrangements – including the primacy of the Commons, restraint in the exercise of its powers by the Lords and the distinctive representative functions of the two Houses – could not survive if the proposals of the draft bill were implemented. They also criticised the reform on the grounds of cost.132 Many of their   HM Government, House of Lords Reform Draft Bill (Cm 8077, May 2011).   Joint Committee on the Draft House of Lords Reform Bill, First Report, Draft House of Lords Reform Bill. Session 2010–12, HL Paper 284, HC 1313, 23 April 2012. 130   However, it was accepted that in a fully elected second chamber, there would be no place for ex officio bishops (the July 2008 White Paper had come to the same conclusion). 131   Ten of those supporting a referendum were amongst the 12 signatories of the Alternative Report. The other two signatories of the Alternative Report did not vote in the Committee’s division on the referendum. 132   Alternative Report, House of Lords Reform: An Alternative Way Forward, A Report by Members of the Joint Committee of Both Houses of Parliament on the Government’s Draft House of Lords Reform Bill, April 2012. Published online at www.houseoflordsreform.com. The Alternative Report was signed by three MPs and nine peers. The procedures of the House of Lords did not permit the publication of an official minority report. 128 129

2010: General Election and Coalition Government  207 concerns were echoed in a report by Oliver Heald MP, a member of the Joint Committee, who argued the following day for indirect election to the second chamber.133 The Alternative Report foreshadowed continuing debate on Lords reform, suggesting that, in the absence of a consensus emerging within the membership of the Joint Committee, a Constitutional Convention ‘properly and fully staffed and resourced on a continuing basis until its conclusion’ should be convened.134 This statement ominously foreshadowed a long existence for the Convention and thereby a substantial delay before reform could be realised. The Report of the Joint Committee stirred up substantial opposition to Lords reform from opponents of reform from both the left and right wings of politics, as well as criticism from some who supported change.135 Despite the Prime Minister’s assertion that the reform proposals were ‘sensible, reasonable and rational’,136 reaction from Conservative MPs and activists hardened in the weeks after the Report was published. Disappointing results in the local elections in early May 2012 for each of the Coalition partners hardened the resolve of Conservative opponents of Lords reform – up to 100 Conservative backbenchers, one-third of the Parliamentary Conservative Party, were reported to be considering rebellion over Lords reform137 – whilst leaving the Liberal Democrat leader with an even greater need than before to secure some comfort from the Coalition Agreement. However, that Agreement had committed the Coalition Government ‘to bring forward proposals’ for Lords reform, not to place them on the Statute Book. Just as in previous decades, pressing electoral concerns forced some members of the Government, and many of their backbenchers, to regard economic and social policy as a priority: Lords reform threatened to block these by taking up substantial legislative time.138 The Queen’s Speech on 9 May 2012 announced that: ‘A Bill will be brought forward to reform the composition of the House of Lords.’139 However, in the debate on the Queen’s Speech, the Prime Minister said that: 133   Oliver Heald MP, An Elected Second Chamber – Building a Better House (Society of Conservative Lawyers, April 2012) 134   Alternative Report (n 132) 81. 135   In the days preceding the publication of the Report, it was suggested that a stormy meeting of the Conservative Party’s 1922 Committee had led to the threat of ministerial aides resigning rather than voting for reform on a three-line whip: Nicholas Watt and Patrick Wintour, ‘Tories Threaten Rebellion over Coalition Plans to Reform Lords’, The Guardian (20 April 2012), 4. 136   Roland Watson, ‘Lords Reform on the Ropes as Committee slams Clegg’s “Mess”’, The Times (24 April 2012), 12. 137   Roland Watson, ‘Cameron Tiptoes Back from Reform to Appease Rebels’, The Times (7 May 2012), 12–13. There were 305 Conservative MPs in April 2012. 138   As with all government bills, a Lords reform bill would be subject to a programme (timetable) motion in the Commons, which was the established norm by 2012, but which had also been the case for the Parliament Bill of 1909 in the Commons. However, the presumption was still that, as a constitutional measure, it must have its Committee Stage on the floor of the House of Commons. There was no serious public suggestion in the run-up to the Queen’s Speech at the start of the 2012–13 Session that a Lords reform bill could be sent ‘upstairs’ for its Committee Stage. Reform would also be subject to substantial opposition and delay in the House of Lords itself, which the Government feared would delay important bills – notwithstanding the experience in 1999 to the contrary. 139   HL Deb, 9 May 2012, vol 737, c 2.

208  The Wakeham Commission and Beyond [R]eforming the House of Lords is not the most important priority for the Government – that is dealing with the deficit, getting our economy moving, increasing the level of responsibility in our society and getting on the side of hard-working people. Those are the things that matter the most, but I think it is perfectly possible for Parliament to do more than two things at the same time. At the last election, all political parties put forward in their manifestos proposals for a partly, or mainly, elected House of Lords, but let me say this: this is only going to proceed if the political parties will agree to work together and take a responsible attitude towards this reform. I think it is possible, and it would be a good reform if we could achieve it; it would be better if we had a smaller House of Lords and if it had an elected element. So I ask people to work together across party lines to try to make that happen.140

Nevertheless, it was apparent that, notwithstanding their manifesto support for Lords reform, all three main parliamentary parties remained fundamentally internally divided on this issue. Although the Government re-iterated its intention to bring forward a substantive bill on Lords reform,141 it did so, Lord Strathclyde told the House of Lords, intending ‘to proceed by consensus’, which would have to be built.142 In emphasising the need to build consensus, Strathclyde had reverted to the phraseology of the Conservative Party manifesto rather than taking up the words of the Coalition Agreement. Nevertheless, Lords reform has never been a matter of all-party agreement and those successful reforms had been achieved against substantial partisan opposition. With the emphasis on requiring consensus to realise reform and the realisation that, notwithstanding the manifestos, the draft bill and the Joint Committee, that consensus still remained to be built, the result of the Queen’s Speech was that Lords reform had slipped even further away than before. The House of Lords Reform Bill [2012–13] received its Second Reading in the House of Commons on 10 July 2012 with a majority of 338. However, 91 Conservative MPs rebelled and voted against Second Reading. In the face of this opposition from its own backbenchers, and with the Opposition declaring its hand against the Programme Motion (a routine measure) the Government withdrew its timetable proposal, and the Bill’s prospects looked uncertain. On 6 August, the Deputy Prime Minister, Nick Clegg, confirmed that the Government were dropping the Bill. Comprehensive Lords reform had, once more, been defeated by the House of Commons. 140   HC Deb, 9 May 2012, vol 545, cc 22–23. A few days earlier, the Chancellor of the Exchequer had said, in an interview on BBC1, that Lords reform is ‘certainly not my priority, it is not the priority of the government . . . it is not where the efforts of the government and the executive are going to be directed’: The Andrew Marr Show, interview with George Osborne MP, Chancellor of the Exchequer, 6 May 2012. 141   Sir George Young, Leader of the House of Commons, HC Deb, 10 May 2012, vol 545, c 131. 142   Lord Strathclyde, Chancellor of the Duchy of Lancaster, HL Deb, 10 May 2012, vol 737, c 30. Strathclyde continued: ‘Any student of this subject, as I have been over the past 15 years, will know that there is no consensus in the House of Commons without that consensus being made from all three main parties. That was the point. Unless there is a majority in the House of Commons, the Bill will not get passed, and unless it is supported right across the main parties, there will not be that majority in the House of Commons.’

Conclusion  209 CONCLUSION

Ten years, and three White Papers, did not yield for the Labour Government any progress on stage two of House of Lords reform. During that period, control of the Lords reform agenda had shifted from the Cabinet to Parliament, and whereas in 1999 it was thought optimal to take the debate on reform outside Parliament and to entrust it to a Royal Commission with a remit to consult widely, a decade later, progress on Lords reform depended upon the views of MPs and peers, expressed through Joint Committees and free votes on options for the composition of the second chamber. The prospects of reform being achieved had receded as the means of negotiating reform had changed. The Royal Commission sought to move on reform through compromise, but the momentum of its report was not picked up by the Government, despite substantial efforts by the Commission to ensure that its proposals were viable. Quickly, the Government – unable to find common cause in a set of reforms which was quietly radical, but which seemed to lack support – moved away from the Commission’s agreed, coherent proposals. It sought instead to ask for views rather than to lead the agenda, in the process slowly ceding the initiative for Lords reform. The momentum dissipated. Just as the means of reform had changed, so had the proposals being discussed. On the Wakeham Commission, the only MP on the Commission had been the member who was most strongly opposed to any elected element in a reformed second chamber. That is not, perhaps, so surprising. Apart from a concern that an elected upper House might become a waiting-ground for would-be MPs, there was a substantial risk that an upper House with democratic legitimacy would be able to challenge the supremacy of the House of Commons – a point explicitly acknowledged when the Joint Committee on Conventions refused to bind a reformed second chamber to follow the practices and procedures of the current House of Lords and emphasised again in the report of the Joint Committee in 2012. When, in 2007, MPs voted resoundingly for a very substantial elected component of the upper House, it was not clear whether all those voting for a wholly elected upper House wished it to happen: for some, it seemed like a tactical vote to delay reform indefinitely. Across the 12 years after the House of Lords Act, an increasingly assertive House of Lords had reinforced the argument in favour of appointment and had advanced new arguments about legitimacy coming not solely from election, but also from expertise, independence and authority.143 In doing so, it highlighted the potential strength that could be wielded by a second chamber which possessed even greater legitimacy. As the Labour Government tired towards the end of its third term and other parliamentary issues took precedence, the Commons and the Lords were – ostensibly at least – at opposite poles on the core issue of the elected element of a reformed second chamber. The increasing economic troubles and political tensions at the start of the Second 143   This had started to emerge in the submissions to the Wakeham Commission in a way that had not been present in earlier discussions in the 1940s or the 1960s: Wheeler-Booth (n 8) 659.

210  The Wakeham Commission and Beyond Session of the Coalition Government further diminished the prospects of reforming the House of Lords. Reform looked as far away as ever it had done in 100 years. The core problem in achieving stage two was that the Cabinet could not come to a collective, united view on the way forward. There was no inexorable logic channelling the views of the Cabinet, or the wider parliamentary party, towards one solution to reforming composition. Had the new constitutional settlement brought about devolution all round, then a territorial basis of representation would have been created. That is the classic basis of representation for elected upper Houses. Had public opinion risen up in favour of a particular constitutional change, as it had in 1910, then the Cabinet could have acted. In the absence of these channelling forces, the views of the members of the Cabinet, just like those of Government MPs, remained diverged. Moreover, Tony Blair, Prime Minister for much of the decade following the House of Lords Act, had little energy or interest in the upper House. Where he did show leadership and determination to reform – as in the case of the Constitutional Reform Act 2005 – legislation changing fundamental aspects of the constitution was secured. Wider Lords reform required firm commitment from the top coupled with favourable political circumstances: under Blair, it lacked such support from the leadership. Under the Coalition Government, the pursuit of Lords reform as a flagship project for the Deputy Prime Minister seemed to be insufficient to overcome political circumstances. As had been the case throughout the preceding century, without both leadership and a window for change, Lords reform was doomed to fail.

9 Reasons for Reform and Non-reform When we come to discuss the future constitution of the Second Chamber, we find the ground covered by an embarrassing mass of proposals. Viscount Cave, 19251 I don’t believe, as I think I said before, that you will ever be allowed to found a strong Second Chamber. The House of Commons will never allow that, and therefore we had much better try and keep the thing which we have got, and which after all is good in itself, i.e. a Peerage of Service. John St Loe Strachey, 19172

S

ECOND CHAMBER REFORM is widely acknowledged as difficult to achieve across many countries of the world.3 In the UK, House of Lords reform has, apart from a decade from the mid-1980s, been almost continuously on the Cabinet’s agenda across the past century; observers note the ‘remarkable inertia that attenuates change’ in the House of Lords.4 Every generation of would-be reformers has inherited an embarrassing mass of proposals, to which they have usually added their own. The key features of the 12 principal reform attempts of the past century, along with the Parliament Act 1911, are brought together in Table 9-1. Even those five reform attempts since 1911 which have resulted in legislation reaching the Statute Book have not often fulfilled the objectives of all the reformers active at Cabinet level. The sense that House of Lords reform has been an ever-present issue is at risk of masking the considerable change that has happened across the century. In a century in which reform has proved elusive, many changes, both legislative and procedural, have nevertheless been achieved. The House of Lords – its activity, operation, culture and membership – has been transformed. A century after the Parliament Act reached the Statute Book, there remains a widespread feeling that reform has still to be achieved. The House of Lords remains unreformed and yet it is in every way changed. 1   TNA CP 146(25), ‘Cabinet: House of Lords Reform’, Memorandum by the Lord Chancellor, 16 March 1925. 2   Bodleian Libraries, MS Bryce 250, fol 120. J St Loe Strachey to Viscount Bryce, 26 October 1917. 3   Meg Russell and Mark Sandford ‘Why are Second Chambers so Difficult to Reform?’ (2002) 8(3) Journal of Legislative Studies 79. 4   Samuel C Patterson and Anthony Mughan, ‘Senates and the Theory of Bicameralism’ in Samuel C Patterson and Anthony Mughan (eds), Senates: Bicameralism in the Contemporary World (Columbus, Ohio State University Press, 1999) 17.

212  Reasons for Reform and Non-Reform

Parliament Act Bryce 1911 Conference 1917–18

Curzon Committee 1921–22

Long-term pressure

Antagonism of Desire for House of Lords agreed towards Liberal solution govts

Legacy of Bryce, Conservatives’ Backbench composition fear of socialism dislike on settlement both sides of status quo

Short-term ‘crisis’/ window of opportunity

1906 election landslide, (People’s Budget 1909)

Labour Party’s unicameralism

Promote change

Lords’ veto, Wartime Peers desired party balance in desire for con- more checking Commons sensus power

Unionist organi- Lords’ desire sations to carry Salisbury’s bill

Inhibit change

Conference, death of King

End of Parliament Act war/1918 elec- as Liberal ‘trotion phy’, next election

Cabinet

Cabinet Committee, abolition not an issue

Promote change

CampbellBannerman, Lloyd George, Newton, Curzon, O’Connor

Bryce

Selborne, Lloyd George

Salisbury, Selborne, Unionist backbench MPs and Peers

Salisbury, Cripps, Rankeillour, Rockley, Simon

Inhibit change

Balfour, Lansdowne

Churchilli

Some MPs, Baldwin

MacDonald, Baldwin

Turning points

Acceptance of ‘C-B’ Plan, 1910 need for Irish MPs, Swamping assurance

Agreement to Decision to differ on dis- proceed by resopute resolution lutions ended likelihood of Act

Tying reform of composition to amendment of Parliament Act

Salisbury withdrawing Bill before committee stage

External influences

Home Rule

Great War

Public opinion against

Economic trouble energised peers

Key actors

Institutional factors

Agenda-setting influences

Table 9-1: Key factors promoting and constraining Lords reform, 1911–2011

Success of Speaker’s Conference

Politics of LibCon coalition

Cave Committee 1925–27

Commons majority, franchise reform

National Govt Committee 1933–35

Reform activities of both Lab and Con

Reasons for Reform and Non-Reform  213

Parliament Act 1949

Life Peerages Peerage Act Act 1958 1963

Parliament (No 2) Bill 1968–69

House of Lords Act 1999

Wakeham Labour’s Commission ‘stage two’

Party imbal- Desire for ance, useful- agreed ‘stage two’ ness of Lordsf

Constitutional Reform Act 2005

1997 manifesto Conflict of commitment, interest in re-iterated judicial decisionmaking

General fear of Advocates of potential delay- life peerages ing power (eg Simon), backwoodsmen

Long-term campaign of Benn and Stansgate

Potential power of House of Lords, desire to improve Parliament

Iron and Steel Bill

Atrophy of Lords

Benn’s byelections, Conservative leadership

Labour’s 1966 Large majo- Need to take majority: rity: oppor- debate out of must not tunity Parliament waste chance

Parliamentary schedule, Cabinet disagreements

No Joint Inter-Party conference on Committee, Conferenceb reform constitutione proposalsa

Prime Free hand for ministerial Commission, intervention membership – talks

Leaders’ Conference, lack of obstruction by Lords

Possibility of conference, legislative pressuresg

Cabinet, peerageh

Pressure on Perceived House of Complexity of govt time, ‘cherry-pick- Lords opposi- role of Lord lack of Stage ing’ of Report tion to election Chancellor, 2 respect for role

Attlee, Morrison, Samuel

Salisbury

Benn, Home, Crossman, Richard, Hogg Longford, Carter, Shackleton, Irvine/Blair Jellicoe, Byers, Carrington

Salisburyk

Salisburyc, Macleod, RA Crossman, Labour Party Butler PLP

House of Commons, patronage system

Wakeham, Richard/Jay

Need to complete reform, remove 92 hereditary peers

Deus ex machina of Cabinet re-shuffle

Discontent at continuing presence of hereditaries

Need for perception of judicial independence

Cook, Straw

Blair, Falconer, Bingham, Woolf

Cranborned, Irvine Blair Irvine Peers (re (Irvine) White Paper)

Irvine

Delay introduc- Problems of long bill too ing Iron and many Steel Bill, decision to insist on Parliament Billj

Death of Vt Stansgate, election court

Labour by-election losses

Irvine– Agreement of Cranborne Kaufman to negotiations some elected element

House of Commons vote against seven options

Cabinet re-shuffle, concordat, Select Committee

Economic problems

Public support for Benn

Devaluation, industrial relations

Need for Media perconsultation ception of on Stage 2 timid report

Later on, parliamentary scandals

Timing of general election 2005

214  Reasons for Reform and Non-Reform Notes on Table 9-1 (a) Having no conference promoted this change and possibly made change possible at all before the 1959 election. (b) Arguably, it later inhibited reform, because the working party had gone too far for the liking of the main Conference, but it was crucial to the form of the Bill which was later carried through. (c) Salisbury is in both columns, since his zealous enthusiasm arguably promoted reform in general, but did not result in his preferred reform proposals being successful. (d) Although Cranborne arguably helped the passage of the House of Lords Bill in 1998– 99 through his agreement with Irvine, his threats of legislative disruption and his tough negotiation ensured that the change which the Government set out to achieve – the ending of all rights to sit in the Lords based on heredity – was prevented. (e) Including the rules for contesting elections and for challenging election results, which led to the Election Court seating the losing candidate at the Bristol South-East byelection. (f) Acknowledgement of the usefulness of the Lords promoting this kind of evolutionary change and guarding against abolition, a previous Labour Party policy on the House of Lords. (g) These pressures delayed the introduction of the Bill, but did not inhibit its passage. (h) Many peers were against the permanent extinguishing of peerages. Once it had been decided that the sons of peers who had disclaimed under the proposals would, on the death of their fathers, inherit the title, these objections were extinguished. This was particularly a worry of Home. (i) Churchill thought that doing nothing was the best policy. (j) In other words, the insistence that the Parliament Bill would be adopted if no crossparty consensus was reached, a decision which constrained the negotiations. (k) Inhibited reform both by controlling the behaviour of Conservative peers in the early sessions of the Parliament, thus relieving pressure for reform. The inability of the parties to compromise on powers also inhibited wider reform.

HOW AND WHY DOES HOUSE OF LORDS REFORM REACH THE CABINET’S AGENDA?

The reform attempts analysed in this book are those which gained a foothold on the Government’s agenda. The Parliament Act 1911 confirmed the right of the government, backed by a majority in the House of Commons, to legislate for Lords reform as for other areas of major constitutional reform. It also marked the point at which the government seized the policy area of Lords reform, in effect ending the possibility of a backbench scheme for reform becoming law without the consent of the government. As Ramsay MacDonald said in 1935, ‘no private member should take the initiative in dealing with the problem of the House of Lords’.5 Therefore, to make progress, a reform proposal needs the consent of the Cabinet. However, if it is to appear on the Cabinet’s agenda, House of Lords   Parliamentary Archives LH/4. P(33), 6th Meeting, Cabinet: Political Committee, 1 April 1935.

5

How Do Proposals Change When Under Consideration?  215 reform must successfully compete against all other pressing issues of public policy. Whilst it is easy to raise House of Lords reform in political debate, it is less easy to make it a credible reform attempt that reaches the Cabinet’s agenda. Notwithstanding any amount of prior planning of reform proposals, House of Lords reform requires a ‘window of opportunity’ to open up before it can make the Cabinet’s agenda. Sometimes, this can arise from outside the government, such as the opportunity provided by the actions of the House of Lords in 1906–11 or the campaigning by Tony Benn in the early 1960s. Impetus for reform of a lesser magnitude requires a champion within the Cabinet to put the issue on the agenda. So, for example, the success of the Speaker’s Conference on electoral reform inspired the Government to commission Lord Bryce to seek an answer to the second chamber question. A desire to pre-empt and control radical action by a future government was combined with backbench views channelled by Lord Salisbury to promote reform in the 1920s and 1930s. Those championing the value of an active House of Lords during the 1950s were assisted by Lord Simon’s Bill in getting onto the Cabinet’s agenda measures to prevent the Lords dying of atrophy. Richard Crossman in the 1960s and Lord Richard in the 1990s ensured that the opportunity for seeking Lords reform provided by a large Commons majority was not lost. In 2003–05 the Prime Minister’s decisive action jolted the Cabinet into pursuing reform proposals which were not visibly on the horizon. A window of opportunity, sometimes augmented by a champion in the Cabinet, is a necessary condition for Lords reform, but it is not sufficient alone.

HOW DO PROPOSALS CHANGE WHEN UNDER CONSIDERATION?

Once on a government’s agenda, proposals may change because of negotiation over policy details, because of the changing energies of a government or because of an external shock. Lord Addison, for example, championed Lords reform amongst Labour ministers before and after 1945, but though he was able to put the issue onto the Cabinet’s agenda, he was not able to persuade his Cabinet colleagues, or his party, of the merits of pursuing reform. In the end, the Cabinet fixed its focus on reducing veto limitation, mostly in a short-term desire to secure its legislation, but also because it did not share Addison’s commitment to reform. In the following two decades, Lord Salisbury, and then Richard Crossman, both went further in developing policy on Lords reform than their colleagues were, in the end, willing to accept. Too much enthusiasm from reformers, coupled with too little from others, rarely leads to reform. Changing governmental energies inhibited the cross-party proposals emerging from the Bryce Conference of 1917–18, ideas which were also hampered by a lack of complete agreement. The Wakeham Commission judiciously avoided a minority report, but although the Government was more persuaded of the merits of its proposals than were most of the media, it still lacked the unity and energy with which to pursue the proposals. In the middle of the century, it became clear that

216  The Parliament Act 1911 the Government was willing to make time for life peers, but for no more. Lords reform has rarely had electoral salience – apart from the firm backing for veto limitation in 1910 – and governments frequently find that they prefer to spend precious legislative time on political measures than on constitutional reform; they choose to spare only a limited legislative window for a short, discrete bill. The costs of achieving reform are clear and can be high; the consequent benefits are less easy to quantify.6 The conditions that make Lords reform possible also facilitate other legislative goals, which have more readily tangible benefits. External shocks applied in 1909–11, when the influential minority of the Cabinet who wished for reform over veto limitation were constrained by the loss of the Liberals’ Commons majority in January 1910; such shocks also, arguably, applied in the late 1960s, when the declining popularity of the Labour Government caused a ‘general malaise’ whose effect was much wider than Lords reform. House of Lords reform is, as Ferdinand Mount explains, a ‘secondary or consequential question’ and not a fundamental question.7 Because of this, proposals for reform often have to take second place to other issues of public policy: even when reform does reach the Cabinet’s agenda, it is at risk of being disproportionately affected by political factors, including a government’s unpopularity and by-election losses. All three effects are evident in the first Blair Government’s lack of achievement of its stated ‘stage one’ aim of excluding all hereditary peers from the House of Lords: Lord Cranborne negotiated with Lord Irvine, outwith both the Cabinet and the Shadow Cabinet; the Government had focused its constitutional reform energies elsewhere and was wary of a protracted dispute with the upper House; and the threats of revolt by the peers, despite the measure having been explicitly foreshadowed in the manifesto, shocked the Government into compromise. It is at least arguable that none of these effects needed to have influenced the Government in 1999 and therefore that the change in policy from an absolute to a partial reduction in hereditary peers was strictly unnecessary on the part of the Government.

HOW AND WHY DO PROPOSALS SUCCEED OR FAIL?

The third and final question posed in this book is why reform attempts succeeded or failed. Banting and Simeon’s observation that ‘it is easier to get a constitutional claim on the political agenda than it is to win. The predominant pattern is of frustrated demands, not wholesale renewal’8 is as true for House of Lords reform as for any area of constitutional reform. Speaking in the Second Reading debate on the Parliament (No 2) Bill in 1969, Michael Foot argued that first-class constitutional measures are resolved only by   Donald Shell, ‘The Second Chamber Question’ (1998) 4(2) Journal of Legislative Studies 17, 18.   Ferdinand Mount, The British Constitution Now (London, Heinemann, 1992) 188, quoted in Vernon Bogdanor, Power and the People: A Guide to Constitutional Reform (London, Victor Gollancz, 1997) 119. 8   Keith G Banting and Richard Simeon, ‘Introduction’ in Keith G Banting and Richard Simeon (eds), The Politics of Constitutional Change in Industrialised Nations: Redesigning the State (London, Macmillan, 1985) 25. 6

7

How and Why Do Proposals Succeed or Fail?  217 governments who know their own mind, who are determined to see through their reform proposals and who are unwilling to cede ground on the reform agenda to the opposition.9 The reform attempts analysed in this book show that Foot’s analysis is largely correct. Governments rarely ‘know their mind’ on the issue of Lords reform – or, at least, there are competing views, especially on the detail of reform, and so governments, or their parties, know that they are in several minds. A successful government must compensate for split views by, for example, deferring to the majority view within the government (as in 1911), adopting a consciously twostage approach to avoid clouding pressing issues with wider concerns (as in 1999), uniting around the shared core of acceptable proposals (as in 1958) or by pursuing a specific reform objective with gusto and not too much introspection (as in 2005). All of these reforming governments gave little ground to the opposition and, more importantly, the accommodations made by the governments on account of differing internal views ensured that they were unitedly determined to drive their proposals through Parliament.10 In 1948, the Government realised that it had gone too far in negotiations with the Opposition and averted the failure of an agreed solution by retreating to a powers-only policy which was acceptable to the PLP. By contrast, in 1968, the Government, though holding an agreed solution in its hands, did not know its own mind: it had ceded ground to the Opposition and in doing so had sacrificed intra-party agreement in the name of inter-party compromise; the champion of reform was not its pilot through Parliament; and the Government lacked both the will and the capacity to see the reforms through. The long ‘stage two’ of the Labour Government’s reform proposals, which remained unresolved after 11 years, highlighted the difficulties of a Cabinet which was not of one mind deferring to a House of Commons, which then voted against all seven options presented to it: having ceded the agenda on Lords reform, it was difficult for the Cabinet to re-assert control. It is more difficult for a government to ‘know its mind’ on House of Lords reform because it is an issue on which the electorate rarely has a strong view. Given the greater interest in Lords reform amongst parliamentarians from both Houses than within the electorate at large, backbench MPs and peers can have a significant effect on the formulation of proposals and can find that the barriers to opposing the views of their political leaders are lower on Lords reform than on other issues. ‘An influential line of theorizing’, notes Hall, ‘suggests that the bureaucracy is the principal source of policy innovation.’11 Yet in the field of House of Lords reform, it is the politicians – within the Cabinet and in Parliament 9   HC Deb, 3 February 1969, vol 777, c 85 (debate on the Second Reading of the Parliament (No 2) Bill (1968–69)). 10  Although note how, despite his determination to secure the House of Lords Act, Tony Blair remained willing to sanction negotiations which resulted in deviations from his party’s stated policy, in order to secure reform with minimal disruption. 11   Peter A Hall, Governing the Economy: the politics of state intervention in Britain and France (Oxford, Oxford University Press, 1986) 274.

218  Reasons for Reform and Non-Reform more generally – and not the bureaucrats who are the key innovators, despite the complex nature of the policies.12 The success of securing legislative change by those governments which did not cede ground to their opponents, and difficulties encountered by the reform attempts which sought to create cross-party consensus, shed a stark light on the myth of consensus. It is a commonplace of discussion on constitutional reform that House of Lords reform ought to proceed through inter-party consensus, but the reality of successful reforms is quite the reverse. Lord Bryce’s Committee of 1917–18 is held up as the classic statement of the role, powers and functions of the second chamber, but its failings are a classic statement of the difficulty of securing consensus. Proposed powers are too great or too small; compositional changes are too radical or do not confer sufficient legitimacy. There has rarely been agreement within the Cabinet about the desirability of reform; there has even more rarely been a genuine consensus on reform that could translate into a legislative majority. Seeking a perfect reform through consensus is a fast-track to inertia. Success in Lords reform requires a government to be largely united behind its policy and to drive that policy through with commitment. This is of course true of any major piece of government legislation; however, it has proved difficult to create parliamentary time and to manage debate on an issue that has low importance at the ballot box but that evokes strong opinions within parliamentarians and across party lines. Michael Foot’s list of requirements for the success of House of Lords reform proposals needs two additions. First, there must be no external impediments to reform. By this is meant, especially, the constraints of public opinion against reform (in the 1920s) or against the government as a whole (in the 1960s). These external pressures on governments can have a profound impact on the success or failure of Lords reform. Second, a proposal should be simple. The successful proposals were all narrowly defined ideas, dealing only with powers or only with composition.13 The more complex proposals of Bryce, the Wilson Governments and the Wakeham Commission left them open to attack on their detail. It is easier to unite a party behind a simple reform proposition, especially if that proposition is party political – as Daniel J Elazar has shown, ‘constitution-making is an eminently political act’.14 This requirement for a simple, uniting proposal is crucial in explaining the relative success in the achievement of non-reform and the elusiveness of true, comprehensive reform.

12   This point is not to play down the importance of civil servants and – especially – Parliamentary Clerks in the development of the proposals under discussion. 13   Even within proposals dealing with composition, reformers were unwilling to broaden proposals so that they would include changes both to the hereditary peerage and the life peers in the same bill. 14   Daniel J Elazar, ‘Constitution-making: The Pre-eminently Political Act’ in Banting and Simeon, (n 8) 232.

Conclusion  219 CONCLUSION

Every government in the past century that has been in possession of a majority in the House of Commons has had the power, if it wished to do so, to effect comprehensive and lasting reform, but a series of small non-reforms has proved easier to enact and infinitely more attractive. The principal reason for the lack of reform is that no government has been united in a commitment – whether of its own volition or of necessity – to secure reform. Reform that placed the membership of the upper House on a popular basis would take away the lack of legitimacy which, at least since the 1920s, has inhibited the Lords in using the considerable powers with which the Parliament Acts left them. Yet to cut the de jure powers of the upper House at the same time as increasing its legitimacy seems counter-intuitive. Reform therefore risks altering the balance of power between the Commons and the Lords, or between Parliament and the executive. Had there been another constitutional change that required a newly constituted upper House – such as the elected Senate following devolution that Lord Hailsham foreshadowed in 1973 – then reform would probably have been forthcoming. In the absence of this, there has been nothing to counter the unicameralist tendencies of the system of parliamentary responsible government. The Government and its supporters in 1911 favoured veto limitation over reform. In doing so, they confirmed the pre-eminence of the House of Commons over the House of Lords. Subsequent governments have been unwilling to pursue reform that would alter the constitutional settlement that was reached in 1911. The century that began with the passage of the Parliament Act ended with the three main parties declaring in their election manifestos a commitment to substituting for the House of Lords, as it was presently constituted, a second chamber constituted on a popular basis. However, parties’ statements on Lords reform, as evidenced by the Preamble to the Parliament Act 1911, are not always representative of the core opinion within that party or of the desire of the electorate at large. The other reason for the lack of reform across a century is that the series of non-reforms have met the needs of the changing constitution. Just as veto limitation met the demands of the Liberals and their supporters in 1911, so the tactical desire on the part of the Labour Cabinet in the late 1940s was pre-emptively further to restrict the Lords’ veto: the Cabinet, and especially the Labour backbenchers, wanted no more. The introduction of life peers from 1958 not only met the immediate need to revivify the upper House and enable it to conduct its business, but also, when combined with the payment of peers, made possible the transformation of the House through non-statutory self-reform from 1970 onwards. The removal of most hereditary peers in 1999 has not only led to party balance in the upper House, but has also emboldened the House and facilitated the development of the idea of legitimacy through expertise and independence. Reform would have fundamentally altered the nature and function of the upper House; a century of non-reform has, albeit with some anomalies, equipped the upper House at last to fulfil the role and functions that were laid out for it nearly 100 years before.

Further Reading An excellent and readable introduction to the long history and evolution of Parliament as a whole is given by Clyve Jones (ed), A Short History of Parliament (Woodbridge, Boydell Press, 2009). Of the many sources on the Liberal Governments of 1906–11, see, especially, Neal Blewett, The Peers, the Parties and the People: The General Elections of 1910 (London, Macmillan, 1972); Andrew Adonis, Making Aristocracy Work (Oxford, Clarendon Press, 1993); AS King, ‘Some Aspects of the History of the Liberal Party in Britain’ (DPhil thesis, University of Oxford, 1962); and Bruce K Murray, The People’s Budget 1909–10: Lloyd George and Liberal Politics (Oxford, Clarendon Press, 1980). On the Parliament Act, see Joseph Jaconelli, ‘The Parliament Bill 1910–1911: The Mechanics of Constitutional Protection’ (1991) 10 Parliamentary History 277. An extremely detailed explication of the development of proposals for veto limitation, and the constitutional conference, is given by Corrine Comstock Weston, ‘The Liberal Leadership and the Lords’ Veto, 1907–1910’ (1968) 11 Historical Journal 508. For a detailed analysis of the constitutional conference of 1910 and the Bryce Conference of 1917–18, see John D Fair, British Interparty Conferences: A Study of the Procedure of Conciliation in British Politics, 1867–1921 (Oxford, Clarendon Press, 1980). The inter-War attempts at reform are thoroughly detailed by: Neil McCrillis, ‘Taming Democracy?: The Conservative Party and House of Lords’ Reform, 1916–1929’ (1993) 12 Parliamentary History 259; Philip Williamson, ‘The Labour Party and the House of Lords, 1918–1931’ (1991) 10 Parliamentary History 317; and William Frame, ‘“Sir Stafford Cripps and His Friends”: The Socialist League, the National Government and the Reform of the House of Lords 1931–1935’ (2005) 24 Parliamentary History 316. There are few detailed studies of the Attlee Governments’ proposals, but Owen Clough, ‘The Parliament Bill 1947-48’ (1948) XVII The Table 136, outlines in detail the passage of the Bill, and the broad study of House of Lords reform across the twentieth century by Peter Dorey and Alexandra Kelso (House of Lords Reform since 1911: Must the Lords Go? (Basingstoke, Palgrave Macmillan, 2011)) examines the politics of the Attlee Governments’ attempts at Lords reform; indeed, across the century they draw more on political parties’ archives and focus more on party politics than this study has been able to do.

222  Further Reading On the Life Peerages Act, see: RW Perceval and CAAS Gordon, ‘Reform of the House of Lords and the Life Peers Bill’ (1953) XXII The Table 46; Bernard Crick ‘The Life Peerages Act’ (1957) XI Parliamentary Affairs 455; Peter Dorey, ‘Change in Order to Conserve: Explaining the Decision to Introduce the 1958 Life Peerages Act’ (2009) 28 Parliamentary History 246; and Mari Takayanagi, ‘A Changing House: The Life Peerages Act 1958’ (2008) 27 Parliamentary History 380, who has an especial focus on women and the Act. There are several excellent contemporary accounts of the passage of the Peerage Act 1963 and the political events surrounding it. The course of Mr Benn’s attempts to renounce his peerage and the proceedings in Parliament and in the Election Court are described in detail in MAJ Wheeler-Booth, ‘The Stansgate Case’ (1961) XXX The Table 23. The deliberations of the Joint Committee and the resultant debates in Parliament are recorded in John Sainty, ‘The Joint Committee on House of Lords Reform and the Peerage Bill’ (1962) XXXI The Table 13. Gordon Borrie wrote of the constitutional implications of Benn’s case in ‘The Wedgwood Benn Case’ (1961) Public Law 349. Peter Bromhead recounts the coming of the Peerage Act and its consequences in two contemporary articles: ‘Mr Wedgwood Benn, the Peerage and the Constitution’ (1960) XIV Parliamentary Affairs 493; and ‘The Peerage Act and the New Prime Minister’ (1963) XVII Parliamentary Affairs 57. On Tony Benn’s struggles, see Jad Adams Tony Benn: A Biography (London, Macmillan, 1992) and Tony Benn’s diaries, which draw upon his contemporary history interviews with David Butler: Tony Benn and Ruth Winstone, Years of Hope: Diaries, Papers and Letters 1940–62 (London, Arrow, 1995). On the Labour Governments in the 1960s, see Janet Morgan, The House of Lords and the Labour Government 1964–70 (Oxford, Clarendon Press, 1975). MAJ Wheeler-Booth provides detail from his ring-side seat in ‘An Attempted Reform of the House of Lords 1964–69’ (1969) XXXVIII The Table. The most lively and informative study not only of the passage of the House of Lords Act, but also of the House at a time of transition is: Emma Crewe, Lords of Parliament: Manners, Rituals and Politics (Manchester, Manchester University Press, 2005). Michael Cockerell, ‘The Politics of Second Chamber Reform: A Case Study of the House of Lords and the Passage of the House of Lords Act 1999’ (2001) 7 Journal of Legislative Studies 119 writes up his unrivalled documentary insights. JM Davies, ‘House of Lords Reform: Hereditary Peers’ (1999) 67 The Table 68 provides an expert insight into the Act. Amongst the contemporary analyses of the Wakeham Report, see Meg Russell and Richard Cornes, ‘The Royal Commission on Reform of the House of Lords: A House for the Future?’ (2001) 64(1) MLR 82–99. Some members of the Commission have gone on record about their experiences, including: Lord Wakeham, ‘The Case for the Royal Commission’s Proposals’ (2000) 37(2) Representation 93–97; Anthony King, ‘Serving on the Wakeham commission: Some Personal Reflections’ (2000) 37(2) Representation 125–30; and Sir Michael Wheeler-Booth, ‘The House of Lords’ in RT Blackburn, A Kennon and M Wheeler-Booth, Griffith and Ryle on Parliament: Functions, Practice and Procedures 2nd edn (London, Sweet & Maxwell, 2003)

Further Reading  223 656–62. There was much instant reaction to the report of the Royal Commission on the Reform of the House of Lords. The press reaction is well summarised in: Press Reaction to the Report of the Royal Commission on the Reform of the House of Lords: A House for the Future, House of Lords Library Note 2000/002. Many of the debates on Lords reform since 1997 are summarised in House of Lords Library Notes and in House of Commons Library Standard Notes and Research Papers, for example, Chris Clarke and Matthew Purvis, House of Lords Reform Since 1997: A Chronology, House of Lords Library Note, LLN 2010/009, 19 March 2010. On the Constitutional Reform Act 2005, the best resource is Andrew Le Sueur’s detailed chapter in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009). On the Lords Select Committee, see Rhodri Walters, ‘A Procedural Throwback: The Select Committee on the Constitutional Reform Bill [HL]’ (2005) 73 The Table 11. Lord Windlesham’s two articles, ‘The Constitutional Reform Act 2005: Ministers, Judges and Constitutional Change: Part 1’ (2005) Public Law 806 and ‘The Constitutional Reform Act 2005: The Politics of Constitutional Reform: Part 2’ (2006) Public Law 35 provide additional insights. Recent reform attempts are detailed in, amongst other places, Alexandra Kelso, Parliamentary Reform at Westminster (Manchester, Manchester University Press, 2009); M Russell, ‘Is the House of Lords Already Reformed?’ (2003) 74 Political Quarterly 311; M Russell, ‘A Stronger Second Chamber? Assessing the Impact of House of Lords Reform in 1999 and the lessons for Bicameralism’ (2010) 58 Political Studies 866; and Peter Dorey, ‘Stumbling Through “Stage Two”: New Labour and House of Lords Reform’ (2008) 3 British Politics 22.

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H)  REFERENCE WORKS Butler, D and Butler, G, Twentieth Century British Political Facts 1900–2000 (Basingstoke, Macmillan, 2000) The Complete Peerage by GEC Erskine May Oxford Dictionary of National Biography The Times Guide to the House of Commons Whitaker’s Almanack Who Was Who Who’s Who House of Commons Library Research Papers House of Lords Library Notes

Bibliography  239 I) THESES Baldwin, NDJ, ‘The Contemporary House of Lords: A Study of the Composition and Functions of the House of Lords, with Particular Reference to the Nature and Extent of its Legislative Activity, and a Review of its Position within the British Body Politic in the period 1970–85’ (PhD thesis, Exeter University, 1985) Borymchuk, O, ‘Labour and the House of Lords’ Dilemma: Constitutional Reform in PostWar Britain, 1945–51’ (DPhil thesis, University of Oxford, 2005) King, AS, ‘Some Aspects of the History of the Liberal Party in Britain’ (DPhil thesis, University of Oxford, 1962) Lamport, TE, ‘Reform of the House of Lords in British Politics 1970–1992’ (PhD thesis, Queen Mary, University of London, 2005) Ridley, J, ‘Leadership and Management in the Conservative Party in Parliament, 1906– 1914’ (DPhil thesis, University of Oxford, 1985) Sweeney, JM, ‘The House of Lords in British Politics 1830–1841’ (DPhil thesis, University of Oxford, 1973) Swenden, W, ‘Federalism and Second Chambers: Regional Representation in Parliamentary Elections’ (DPhil thesis, University of Oxford, 2000) Taylor, JJ, ‘Continuity and Change in Government-Media Relations: A Case Study Approach to the British Experience with Particular Reference to the Sterling Devaluation of 1967 and Britain’s Withdrawal from the ERM in 1992’ (DPhil thesis, University of Oxford, 2000)

Index Abolition of House of Lords  5n, 8, 11, 19, 49, 52–3, 73, 80, 92, 115, 142, 161, 194, 212, 214 Addison, Viscount    discussions with Cranborne (5th Marquess of Salisbury)  52n, 54, 72    informed about Parliament Bill  51n, 58n    Party Leaders’ Conference  64n, 69    supports reform beyond delaying power  61–3 Adonis, Andrew  9, 15, 31 Aitken, M  126 Aldington, Lord  173 Alexander of Hisborough, Viscount  117 All Party Negotiations  11–3, 76 Allowances For Members of the House of Lords  82, 88, 97n, 127, 203n Alport, Lord  142n, 154 Alternative Report on reform, 2012  206 Amery, Julian  103n Amery, Leo  103n Amory, Viscount  154 Anderson, Janet  192n Anderson, Olive  9 Appelate Jurisdiction Act 1876  10 Appelate Jurisdiction Act 1887  10 Appointments Commission  176, 191, 206 Arbuthnot, James  192n Archer of Sandwell, Lord  192n Archibald, C  126 Arnold, Lord  53n Ashdown, Paddy  166, 172 Asquith, Herbert    becomes Prime Minister 20   Budget rejection 22, 23   Cabinet Committee 1907 18    gives little guidance on reform  24–26    reluctant to support C-B Plan  19, 27    secures promise of peerage creations  28    unlikely to legislate on Bryce proposals  37–8 Astor, Viscount  105 Atrophy of House of Lords  75–6, 80, 97 Attlee Governments    achievement of reform 75    backbenchers’ views on reform  69   by-elections 58   difficulties 60    obstriction by Lords  55, 128 Attlee, Clement    against reform proposals 61–2   declines negotiations (1950s) 79–80    Iron and Steel Nationalisation  72

   Party Leaders Conference  64n, 66–9, 79   reform tactics 51    relations with Tony Benn  108–9   respect within Party 141    views on wartime proposals  54   Backwoodsmen     issues arising if they were to attend  55–6, 83, 85, 97, 118   Parliament Bill 1911 30    proposals to limit  75, 81, 88–9, 96n, 103, 128–31, 177, 213 Badeley, Sir Henry  70n Bagehot, Walter  80n Baldwin, Stanley  45–47, 50 Balfour of Burleigh, Lord  36n, 38, 40 Balfour, Arthur    Budget rejection 22, 23n    Lords power to reject bills  16    member of Constitutional Conference  27    obstruction to Parliament Bill  29    views on House of Lords  1 Banting, Keith  216 Belstead, Lord  173 Benn, Hilary  205n Benn, Michael  104 Benn, Tony  101–123   Life Peerages Bill 91   on Salisbury’s influence 92–3   peerage renounced 126    PLP opposes cross-party talks  79 Bennett, Frederic  117 Bevan, Aneurin  58 Bevin, Ernest  54 Bicameralism emerges  4–5 Biggs-Davison, J  144 Bill of Rights  162 Birkenhead, Lord (see also Smith, FE)  40n, 41–3 Birrell, Augustine  27 Bishopric of Manchester Act 1947  8 Bishops: see Lords Spiritual  Blair, Tony  162    against hybrid House of Lords  193–4   negotiations 171–2    progress on reform  166, 168    promises reform to Liberal Democrats  165   sacks Irvine 196   third term 200–1 Bledisloe, Viscount  192n, 198n Blewett, Neal  20, 23–5, 28

242 Index Bogdanor, Vernon  29n, 77n Boothby, Sir Robert  90n, 95 Borrie, Gordon  113 Boyd-Carpenter, J  144 Brazier, Rodney  145 Bridges, Sir Edward  62 Bristol South East by-election 1961  110–3, 119, 121 Bristol South East by-election 1963  112, 122 Bristol South-East by-election Election Court  101, 111–4, 122 Bromhead, Peter  102 Brook, Sir Norman  68n, 80, 82–3 Brooke of Alverthorpe, Lord  192n Brooke of Cumnor, Lord  154–5 Brown, Gordon  201, 203 Brown, Nick  168 Bryant, Chris  192 Bryce Conference  Report as classic statement 218 Bryce Conference  3–4, 35–9, 50, 125, 188, 206, 212 Bryce, Lord  11n, 36, 188 Burrows, Commander Henry  106, 131, 132n Butler of Brockwell, Lord  181n Butler, RA (RAB)   88–9, 107–9, 112–3, 116 Byers, Lord  134n, 135   Cabinet Committee    1907 17   1912 30–31   1921–22 39–42, 212   1925–27 43–45, 212   1998 166–168   2005–6 200–1 Cabinet Decision to Pursue Parliament Bill  58n Cabinet Discussions on Lords Reform 1907 16–20 Cabinet Political Committee 1933-35  47–50 Cabinet Sub-Committee 2001  191 Callaghan, James  never keen on reform  142 Callaghan, James  134n, 144, 146, 148–9, 190n Cameron, David  208 Campbell, Alastair  168 Campbell-Bannerman, Sir Henry (see also C-B Plan)  15, 17, 32   supports suspensory veto 18–20 Canterbury, Archbishop of  29, 36n Carlisle of Bucklow, Lord  198n Carnarvon, Earl of  171n Carrington, Lord (3rd Baron Carrington; 1st Marquess of Lincolnshire)  29, 35 Carrington, Lord (6th Baron)  134n, 135, 137, 156–8, 173 Carter, Lord  167, 174, 178, 192n, 198n Castle, Barbara  151 Cave, Lord  35, 43, 211 Cawdor, Lord  27

C-B Plan  15, 19–20, 22, 24–5, 27, 32 Cecil of Chelwood, Viscount  43n Chamberlain, Austen  27, 38, 40 Chamberlain, Neville  47n Charter 88  160 Chequers 133–134 Christ, George  80 Churchill, (Sir) Winston    1906–16 22, 24   1920s 40–3, 45    doing nothing the best policy  214    sympathetic to Tony Benn  98, 103, 109 Churchill, Randolph  103n Clarke, Kenneth  192n Clegg, Nick  205n, 208 Clergy Act 1642  8 Close, DH  45 Closure Motion  143, 150–1 Coal Mines Bill 1930  47 Coalition Governmet    1918–22 42, 46   2010 204–9 Coldstream, Sir George  87n Coleridge, Bernard  105 Collier, W  126 Collins, Victor  95 Colville of Culross, Viscount  117, 154 Commencement Date of Reform  119–23, 136–7 Connolly, Senator John J  141 Consensus  12–13, 64, 66, 69, 132, 188, 201 Conservative Party     fears about Labour policy  80   Mackay Commission 185n   manifesto 1924 43   manifesto 1955 76   manifesto 1959 99   manifesto 2012 204 Constitution Unit, UCL  181n, 202 Constitutional Bills - Committee Stage  144, 147–150, 174 Constitutional Conference 1910  26–28, 30 Constitutional Convention  207 Constitutional Reform Act 2005  195–200, 213 Constitutional Renewal and Governance Act 2010 203 Cook, Robin  191, 193 Cook–Maclennan Committee  163–165, 170, 185n, 191 Cornes, Richard  190 Craig of Radley, Lord  198n Cranborne, Viscount (4th Marquess of Salisbury)  52n, 54n, 55, 62 Cranborne, Viscount (5th Marquess of Salisbury)  52n, 54n, 55 Cranborne, Viscount (7th Marquess of Salisbury)     keen on reform in 1992  158n    negotiates with Government  167–74, 178

Index  243   receives life peerage 173n Crawford and Balcarres, Earl of  42n Crewe, Emma  169, 175, 177 Crewe, Lord  18–9, 24, 27n, 36n Crick, Bernard  93, 94, 104, 108, 113, 114, 160–1 Crickhowell, Lord  198n Criminal Justice Act 1967  156 Cripps, Sir Stafford  48–9, 60, 212 Crookshank, HFC  81n Crossman, Richard     and Parliament (No 2) Bill  142, 144, 151    influence on Labour manifesto  129    Inter-Party discussions  132–6, 138, 141   prospects for reform 127    relations with Tony Benn  108   supports White Paper 135 Cross-Party Discussions  67, 77–80 Cross-Party Working Group  202 Cunningham, Jack  192, 201 Cunningham, Sir Charles  87n Curzon, Lord  3, 35n, 40–2, 51, 104   Dalton, Hugh  53 Davies, Clement  64n Davies, Sir Michael  178 de Gaulle, General  133 Dean of Thornton-le-Fylde, Baroness  181n Delaying power  53, 60, 68 Derwent, Lord  117 Devolution  161, 162, 164–5 Dicey, AV  4, 15 Dilhorne, Lord  120 Doddridge, Mr Justice  103 Dorey, Peter  194n, 202 Douglas-Hamilton, J  126 Draft House of Lords Reform Bill  205 du Cann, Edward  117   Earl Beauchamp vs Overseers of Madresfield  111–2 Earl Marshal  169, 171 Earldom of Norfolk Peerage Claim [1907]  108 Economic difficulties  58, 133 Economist, The  59 Eden, (Sir) Anthony     and Life Peerages Act  80, 82–3   and Tony Benn 109    Party Leaders’ Conference 1948  66    resigns as Prime Minister  90 Education Bill 1906  16–7 EEC application  133 Elazar, Daniel  218 Elder, Lord  198n Election Court: see Bristol South-East byelection Election Court  Elections to House of Lords  185–7 Electoral redistribution  142 Elliot, Dame Katharine  95

Elliot, Walter  105 Emmet, Evelyn  117 Erroll of Hale, Lord  173 Erskine May  148 European Parliamentary Elections Bill  172 Exeter, Lord  81, 84, 132n    leave of absence scheme  81, 84   Fair, John D  27–8, 35–9 Falconer of Thoroton, Lord  197, 198n, 200 Faulkner, DER  140, 142 Fellowes, Sir Edward  91, 111 Financial legislation - House of Commons rights over 5–6 Finer, Herman  37 Fisher, HAL  40–2 Fitzroy, E  126 Fletcher, Reginald  104n Food Standards Bill  178 Foot, Michael  160, 142–4, 216–8 Forsyth of Drumlean, Lord  192n Fortescue, Lord  83 Frame, William  50 Fraser, Lieutenant-Colonel Sir Ian  95 Fraser, Sir H  126, 144 Freedom of Information (Act)  162 Future Legislation Committee  58   Gaitskell, Hugh  80, 94, 108 Gardiner, Lord  128–9, 134, 136, 143 Garter Principal King of Arms  107, 118, 121 Geddes, Sir Charles  95 General Election    1906 15–6, 51   1910 (December) 28   1910 (January) 23   1922 42   1924 43   1945 51   1970 153   1987 160   1997 163   2010 204–5 Gibson of Market Rasen, Baroness  192n, 198n Gladstone, WE  7 Gollin, Alfred  23n Goodhart, Lord  192n, 198n Governance of Britain (Green Paper) 2007  202 Government control of House of Lords reform  3, 61,130, 141, 208, 217 Government of India Act 1935  49 Government of India Bill 1919  198n Granville West, Daniel  95 Greenwood, Arthur  54 Grey, Sir Edward  24–7 Grigg, JEP  126 Guillotine 144–8 Gwyer, Maurice  39

244 Index Hague, William  171, 172, 192n Hailsham, 1st Viscount  47–9 Hailsham, 2nd Viscount (Lord Hailsham of St Marylebone)     1970s reform, and  157–8, 219    Life Peerages Act 1958  91, 93, 98    Peerage Act 1963  102, 109, 120–3, 126 Haldane, RB  24, 30 Hale, Leslie  117 Hall, Peter  217 Hamilton, W  144 Harcourt, Lewis  15 Hare Coursing Bill 1975  198 Harper, Mark  205n Harries, Rt Revd Richard  181n, 183n, 190 Hartwell, Baron  126 Hattersley, Roy  160 Headlam, Cuthbert  47 Heald, Oliver  207 Heath, David  205n Heath, Edward  134n Heffer, Eric  144 Hendricks, Sir Charles  75–76 Hereditary Peerage    drawback to ambition 103    not accepted by Labour MPs  77    renunciation  88, 91, 98, 101, 125–5 Hereditary Peeresses  41, 65, 70, 88, 91, 114–5, 118–21 Hereditary Peers    abolition 63   elections 56, 159, 170n, 174–7, 178, 186n, 203    first creation  63, 118n, 120n, 126, 157, 173    limiting numbers  64, 76, 83–5, 94   not so traditional 77    speaking rights  135, 153, 156 Hereditary Titles (Abolition) Bill  53n Heredity Anomalous  75 Hill, David  181n Hoare, Sir Samuel  43n Hogan, John  8 Holme of Cheltenham, Lord  198n Home Rule  15, 16, 18, 22–3, 27, 31, 60 Home, Sir Alec (Earl of Home)    1978 Report 158    and Life Peerages Act 1958  90–3, 98    and Peerage Act 1963  121, 123   disclaims 126    two-writ proposal  85, 89, 127 House of Commons     Committee of Privileges  106–7, 109–10, 122   historical reform 7    membership controlled by élite  6   pre-eminence 67, 200–1   resistant to reform 87 House of Commons Disqualification Act 1957 107

House of Lords    daily attendance rises 97    delaying power  51–2, 128, 155    dying of atrophy  76, 80, 82–3, 97–8, 213, 215   historical evolution 4–11   limitation of powers 53    not unreasonable to Attlee Government  55   party balance 156    power over constitutional bills  155–6    power over House of Commons  15    power over secondary legislation  129, 156   temporal peers increase 8–9 House of Lords Act 1999  173–7, 213 House of Lords Appellate Committee (see also: Law Lords)  60, 191, 195–8 House of Lords Reform    and public opinion 216   government control 214, 219    influences and key actors  212–4   on Cabinet agenda 211    window of opportunity required  215 Howe of Aberavon, Lord  192n, 198n Howie, W  144 Hurd of Westwell, Lord  179, 181n, 185, 186   In Place of Strife (1968 White Paper on Industrial Relations)  142, 151 Independent Commission on Proportional Representation (Jenkins Commission)  165 Independent Unionist Peers  40, 86, 89 Industrial Relations Act 1972  155 Industrial Relations Bill (1968–69)  145, 150, 152 Inter-Party Conference 1968  133–7, 153–5 Inter-Party Conference not considered in 1998 180 Irish MPs and the Parliament Bill 1911  23–5, 27, 32 Iron and Steel Bill (1940s)  62, 68, 71–2 Irvine of Lairg, Lord  167–73, 177, 191    against a hybrid House of Lords  193–4   Jackson and others v Her Majesty’s Attorney General  60 Jay of Paddington, Baroness  168, 172, 179, 180, 189 Jellicoe, Lord  134n, 135, 138n, 154–5, 157–8, 173 Jenkins, Roy  20, 134n, 138, 142, 151 Joint Committee on House of Lords Reform  114–9, 122–3, 192–5 Joint Committee on the Draft House of Lords Reform Bill (2011–12)  206-207 Joint Sittings  17–9, 27, 30–1, 36, 41–2 Joseph Rowntree Trust  161 Jowitt, Viscount  56, 64n, 82 Joynson-Hicks, Sir W  43 Judas Peers  29 Judge, David  73

Index  245 Kaufman, Gerald  160, 180–1, 185–7 Kelso, Alexandra  193 Khan, Sadiq  205n Kilmuir, Earl of (see also: Maxwell Fyfe, David)  89, 91, 116–7 King Edward VII  26–7 King George V  26–9 King Henry VII  5 King Henry VIII  5 King, Anthony  179, 181n, 184n, 185, 187–8 King’s Speech    1907 16–7   1908 20   1914 31   1920 40   1921 40   1922 40   1927 45   1928 45   1945 55 Kingsland, Lord  198n Kinnock, Neil  160   Labour Government    1924 43   1929–31 47   2010 204 Labour Party     1964–66 attitude to Lords  128    Aims and Values 1987  160    Benn not popular amongst colleagues  108   Conference 1918 39   Conference 1931 47   Conference 1977 159    lack of consensus in PLP  62   manifesto 1964 128–9   manifesto 1966 129   manifesto 1974 159   manifesto 1979 159   manifesto 1983 160   manifesto 1987 161   manifesto 1992 162    manifesto 1997  164, 179, 189   manifesto 2001 190   manifesto 2005 200   Modernising Parliament agenda 129    morale low in PLP  143, 151, 152, 154   National Executive Committee 152    opposition to Life Peerages Act  93    Parliamentary Labour Party (PLP)  49, 58, 61, 63, 69    policy on Lords (inter-War)  53   policy review 1989 160–1   rejects discussions 79   study group 1976 159n   supports two-stage reform 162   tactics 1947 51    unwilling to support proposals  92

Labour–Liberal Coalition Discussions 1979 159n Lambert, George  106 Lambton, Viscount  109, 126 Lansdowne, Lord  27, 29–30, 36n, 38 Lascelles, Francis  87n Latham, Charles  104n Law Lords  9–10, 37, 52, 86, 161, 183, 188 Law, Algernon  75n Le May, GHL  6 Le Sueur, Andrew  197–9 Leave of Absence  81, 84, 94–6, 103 Lees-Smith, HB  47, 53 Lewis, A  144 Lewis, T  126 Liberal Democratic Party    abandons equidistance 162–3   manifesto 2012 205    negotiations on reform  167, 173n, 200, 207 Liberal Governments 1906–16  1–2, 15–6, 31–3 Licensing Bill 1908  16 Life Peerages    81, 185–6    confererred on hereditary peers  170, 173n,   creations 97n, 127, 205    first holders under 1958 Act  95 Life Peerages Act 1958  12, 89, 94n, 95, 97, 99, 101–3, 105n, 213 Life Peerages Bill 1957–58  87–94, 219 Life Peers  9–10, 20, 45, 49, 53, 54, 61, 64, 65, 76–7, 87–94    and stage two reform  186, 188n, 195   and surrender 118, 120n   appointment reviewed 164   popular 103    would have carried Rhodesia Sanctions Order 138–9 Life Peers Bill (Lord Simon)  78–9, 81 Linlithgow, Lord  48 Linton, Martin  160 Listowel, Earl of   117 Lloyd George, David  20–1, 27, 31, 41–2, 212 Lloyd of Berwick, Lord  197, 198n, 200 Londonderry, Marquess of  47–8 Longden, Fred  117 Longford, Earl of (see also Packenham, Frank)  128, 131, 134n, 173 Lord Chancellorship  attempted abolition  196–200 Lord Great Chamberlain  169n, 171 Lord Rankeillour’s Parliament Act (amendment) Bill 1935  49 Lord Rockley’s Bill on Life Peers 1935  49 Lords of Appeal in Ordinary (see: Law Lords)  Lords Spiritual     limitation on numbers  8, 36, 41–2, 48n, 125, 183n, 204–5

246 Index Lords Spiritual (cont.):    no place in fully-elected second chamber 206n   not peers 77   not spiritual advisors 7   removal and reinstatement 8    vote for Parliament Bill 1911  29    vote for Rhodesia Sanctions Order  139    Wakeham Commission, and  183–4, 188 Loreburn, Lord  17, 36n Lushington, Stephen  9n Lyndhurst, Lord  10   MacDonald, Ramsay  43, 47–50, 52–3, 212, 214 MacKenzie, William (Baron Amulree)  53 Maclennan of Rogart, Lord  198 Macleod, Iain  81n, 119–12, 134n, 136 Macmillan, (Sir) Harold  93, 194, 1145   and Life Peers 90-92   and Tony Benn 109    inherits policy on Lords  90 Major, John  158 Makarios, Archbishop  90n Mancroft, Lord  154 Mandelson, Peter  168 Manningham-Buller, Sir Reginald  109 Marchioness of Reading, Stella  95 Mariott, JAR  36n, 75 Maudling, Reginald  134n, 136 Maxwell Fyfe, David (see also: Kilmuir, Earl of)  64n, 81n, 82n McCabe, Stephen  192n McCrillis, Neil  40, 45 McFadden, Pat  168n McLean, Iain  194 McNally, Lord  205n Merchant Shipping Bill 1968–69  150 Mikardo, Ian  57n Mitchison, Lord  117, 142n Molson, Lord  154 Montagu, V (Viscount Hinchingbrooke)  126 Morgan, Jane  72 Morgan, Janet  128, 135, 137–8, 140, 148–9, 151–2 Morgan, Kenneth O  60, 72 MORI 161 Morris–Jones, WH  66 Morrison, Herbert (Lord Morrison of Lambeth)    discussions during Attlee Governments 53, 54, 56, 58, 60, 64n, 67, 69,    and the Peerage Act 1963  117 Morton of Henryton, Lord  117 Mott-Radclyffe, Sir Charles  117 Munro, Kenneth  181n Murray, Sir George  21, 23   National Government  47–8, 53n, 212 Nationalisation 51–2, 56–60, 71–3

Newton, Lord  20, 29 Noel-Paton, Victor  95 Non-reform defined  4 Northchurch, Baroness  154 Nugent of Guildford, Lord  154   Oakeshott of Seagrove Bay, Lord  192n Obstruction by Lords  55 O’Cathain, Baroness  192n O’Connell v R  84 O’Connor, T P  23 Official Committee on Lords Reform  85–8, 91 Oliver, Dawn  181n, 184–6 Oliver, Lord  53n Ormsby-Gore, William  47n, 49 Osborne, George  208n   Packenham, Frank (see also: Longford, Earl of) 118n Paget, Reginald  105, 144 Palmerston, Lord  9 Pannell, Charles  117, 120n Parliament (No 2) Bill [1968–69]  142–52, 213, 216–7   abandoned 150–2    handling by Home Office  142   Labour supporters unenthusiastic 143   little real filibustering 143   ‘unholy alliance’ 142 Parliament (No 6) Bill [1968–69]  142n   united opposition unlikely 142 Parliament Act 1911  1–3, 49–51, 60, 66, 145n, 148, 212   as Liberal trophy 41    immediate impact  30–2, 36, 39    indended for constitutional reform  3    is veto limitation, not reform  2    Lords retain significant power  31    Preamble  2, 30, 52, 59, 219    proposals to undo  40, 42–5    use  31, 51, 56, 59, 71    use on Parliament Bill 1947  3n, 44n, 56, 59–60, Parliament Act 1949  60, 72, 76, 80, 97, 129, 213 Parliament Acts  183–4, 187, 197, 199   power remaining under 130,    use for reform  145, 149, 173–4, 176 Parliament Bill 1911  25, 28–30 Parliament Bill 1947  58n, 59–71   enactment 71n    extending scope beyond veto limitation  70    Iron and Steel Bill, and  71n   nationalisation, and 58–9   not negotiable 61    rejection by Lords at Second Reading  71   retroactive 57n Parliamentary Timetable  influence on reform  89–90, 145–51, 207

Index  247 Parmoor, Lord  47, 53 Party Leaders’ Conference 1948  62–9, 73, 75, 85–6, 98, 124n, 155n, 180 Payment of Peers  61, 65, 82, 87, 88, 96, 97n, 103, 115, 128, 219 Peart, TF  144 Peel, Viscount  43n Peerage (renunciation) Bill  113 Peerage Act 1963  118–22, 173, 213   commencement 119–22 Peerage Bill 1719  6 People’s Budget 1909  15n, 20–4, 26–8, 32, 212   Cabinet resolves acceptance 26    impact on Lords reform plans  22    not a money Bill  21   passed by Lords 26    power of Lords to reject  21   rejected 22 Pickthorn, Sir Kenneth  117 Pike, Luke Owen  105 Pollard, AF  5 Ponsonby, Arthur  47, 53, 124, 125 Powell, Enoch  109, 142–4 Privy Council  85 Programme Motion  146n, 207 Public Administration Committee 2002  192 Public Opinion  2758, 63, 161–2   Queen Anne  6 Queen’s Speech    1952 78   1956 86   1967 127n, 134, 140   1998 127n, 169   2001 190   2006 201   2012 207–8 Quin, Joyce  192n   Rankin, CWB  87n Ravensdale, Second Baroness  95 Rea, Lord  117 Redistribution of Seats (No 2) Act 1970  155 Redmayne, Martin  120 Redmond, John  23–5 Referendal Theory  7, 66, 72 Referendum to resolve disputes between Commons and Lords  17–8, 26–7 Reform abandoned (2010)  208 Reform as defined by Liberals in 1911  19 Reid, John  194n Reith, C  126 Religious representation  187 Remuneration of Peers  65, 141 Representation of the People (no. 2) Bill  47 Representative Peers  77 Rhondda, Countess  101n Rhys Williams, Sir B  144

Richard, Lord  1, 165, 167–8, 179, 198n Ridley, Jane  21, 31 Ridley, M  144 Ripon Plan  18–9 Ripon, Lord  18 Roebuck, R  144 Rooney, Terry  192n Rosebery’s Select Committee 1908  20, 27 Ross, Sir John  32 Rowlatt, Sir John  87n Royal Commission on the Reform of House of Lords (Wakeham Commission)  4, 179–89, 205n, 213   consultation 182    Government reaction to report  189    not a delaying tactic  180    preferred to Joint Committee  179   recommendations 192   report 187–189   Royall of Blaisdon, Baroness  205n Runciman, Walter  24, 48n Russell, Lord John  9n Russell, Meg  190, 194   Salisbury, 3rd Marquess  7, 66, 72 Salisbury, 4th Marquess  22n, 40, 43–5, 48, 54, 212 Salisbury, 5th Marquess (see also: Cranborne, Viscount)    against wide-ranging reform 86   Cabinet Committee 1953–55 81–5    influence on Life Peerages Bill  92–3    Life Peerages 1951–58  78–92, 94, 96, 98–9, 109, 117, 171, 213–4   opposes short bill 88–9    Parliament Bill 1947  59–60, 70–2, 75    Party Leaders’ Conference 1948  60–7, 69, 75   Peerage Act 1963 116n, 117 Salisbury, 7th Marquess (see also: Cranborne, Viscount) 96n Salisbury–Addison doctrine (‘Salisbury Convention’)  55, 129, 138, 174, 184, 201 Samuel, Herbert (1st Viscount)  24, 61, 64n, 68, 71, 82 Sanderson, A  126 Sandys, 7th Baron  154 Sandys, Duncan  81n, 82n Sankey, Viscount  48–9 Saxon Witenagemot  6–7 Scottish Peers  101 Seaton, Janet  145, 148n, 150 Second Chamber  powers of  16, 22, 26, , 36, 39–40, 43, 64–7, 76, 80, 94, 162, 178, 179, 182–6, 188, 204, 209 Selborne, 2nd Earl of  36, 40–1 Selborne, 4th Earl of  192n Selborne, Earldom of  104–5, 124

248 Index Shackleton, Baron  95, 131, 134–5, 138, 140–2, 153 Sheldon, Robert  143, 144 Shell, Donald  46 Shepherd, Lord  128, 131, 173n Silkin, A  126 Silkin, C  126 Silkin, John (1st Baron Silkin)  117, 134n, 140, 146–8 Simeon, Richard  216 Simon Commission  49 Simon, Lord (Sir John)  25n, 48n, 29, 49, 212, 215    Life Peers Bill  78–9, 213, 215    opinion on Parliament Act Preamble  2, 59–60 Simonds, Lord  81–2, 84 Sinclair, Barony of  111n Single-Chamber Government  17, 35, 67n, Smith, FB  6 Smith, John  162 Snowden, Philip  52 Snowdon, Earl of  173 Soley, Clive  192n Southern Rhodesia (United Nations Sanctions) Order 1968  137–9, 154 Speaker’s Conference on Electoral Reform  35, 38–9 Spirling, Arthur  194 St Aldwyn, Earl  117, 134n St Clair, Malcolm  101n, 111–2, 114, 119, 121–3 St Helens, Lord  154 St Loe Strachey, John  211 Standing Order 46  147 Stanley, Oliver  63–4 Stansgate Titles Deprivation Bill  106 Stansgate, 1st Viscount  102, 104 Statue of Westminster 1931  148 Sterling Crisis  60, 133n, 134n Stewart, Michael  134n Stinchcombe, Paul  192n Stopford, Sir John Sebastian Bach  95 Strathclyde, Lord  167, 171–2, 174–5, 205n, 208 Strauss, George  72 Straw, Jack  162, 168, 200–2, 204, 213 Strutt, Sir Austin  87 Supreme Court for the United Kingdon  196– 200   and Wakeham Commission 183   budgetary independence 198 Suspensory Veto  17–9, 27–8, 67 Swinton Committee  84–5, 94, Swinton, 1st Earl of  64n, 71, 78–9, 81n, 84–5, 94, 117, 120n, 121   Takayanagi, Mari  94n Tariff Reform  21 Taylor, Dr Stephen  95 Taylor, Miles  160

Teviot, Lord  64n Thatcher, Margaret  158 Thomas, JH   48n, 49 Thomson, Baron  53n Thorpe, Jeremy  134n Thrope, DR  109 Titles Deprivation Bill (HL) 1917  198n Trade Disputes Act 1906  16 Trades Unions  161 Treaty of Utrecht  6 Trend, Burke  87n, 88–9, 91, 134n Tweedsmuir, Lord  154 Twining, Sir Edward  95 Two Stage Approach to Reform  130–3, 159, 162, 163, 165–8, 170, 176, 179 Two-Writ Proposals  85, 89, 131–2 Tyler, Paul  192n   Unfinished Business  1–2, 33 Ungode-Thomas, Sir Lynn  109, 113 Unicameralism  18, 39, 47, 53, 160, 194n, 195n, 212, 219   Veto Limitation  2, 11, 13, 17–20, 24–8, 32, 49, 59–60, 62–3, 73, 215–6, 219 Votes On Reform by the Commons and Lords  194, 202, 205, 209   Wade, Donald  117 Wagner, Sir Anthony  107 Wakeham, Lord  158n, 180, 181, 185n Walden, B  144 Walker, Gordon  117 Walters, Rhodri  198n Weatherill Amendment  169-173 Weatherill, Lord  172, 192n Webb, Sidney and Beatrice   52 Wedgwood Benn, Anthony (see: Benn, Tony)  Wedgwood, Josiah  104n Welfare, Damien  1 Welsh Church Disestablishment  8, 31, 60 Wensleydale, Baron  9–10, 75, 84n, 90–1, 99 Weston, Corrine Comstock  17, 19n Wheeler-Booth, (Sir) Michael  138n, 145,m 158, 166, 181, 186, 150–1 White Paper on Lords Reform    1968 136, 140–2, 155   2001 191   2007 201   2008 203 Whitelaw, Viscount (William)  64n, 158n Whittaker, Sir Thomas  36 Wide-ranging reform proposals  45, 83, 86–7, 90, 163, 164, 180 Wilkinson, Ellen  60 Williams of Mostyn, Lord  190 Williamson, Philip  39 Wilson, Harold  134, 141, 148

Index  249 Windlesham, Lord  158, 173, 198n Winetrobe, Barry  145, 148n, 150 Wintour, Patrick  160 Wolmer, Viscount  104–5 Women  41, 65, 86, 91, 94, 98, 101, 118, 164, 186 Wood, David  142n, 149 Woolton, Lord  77, 81–3, 92, 159

Wootton, Barbara  95 World War I  30 Worsthorne, Peregrine  107 Writ of Summons  7, 9–10, 77, 84–5, 95, 96, 102, 105, 109, 111, 113, 120n, 175–6   Young, Baroness  158n, 172 Young, Sir George  205n, 208n