Even at the dawn of the 19th century, the House of Lords was a peculiar institution. While Europe had been ravaged by revolutions pursuing popular government, the Lords’ authority still hearkened back to the divine right of kings. The Upper House of Parliament numbered 400 peers, the majority of who took their seats by virtue of birth, and the rest by virtue of political or royal patronage. Perhaps it was the chaos and terror of the French Revolution that dissuaded British radicals from pursuing the same path as their Gallic cousins, or a long-inculcated sense of deference had taught the lower echelons of British society that being high-born imbued you with certain privileges, privileges that included, for some first born sons, the right to have a say in the governing of the nation.
Regardless of the reason, while the rest of the world continued to struggle with what it meant to be a democracy, the House of Lords remained a constitutional anomaly. But as with much of the British constitution, it was an anomaly that mostly worked. Like members of the House of Lords also sitting as the final court of appeal, or the scratch of the monarch’s signature being needed to enact laws approved by Parliament, it was something that shouldn’t have worked in a modern democracy, but somehow did.
But even for Britain, which can lay reasonable claim to being the most politically pragmatic nation on the planet, permitting an entire part of the legislature to govern by birthright in the 21st century was an anomaly too far. Allowing a hereditary monarch to have a ceremonial role in governing was one thing, but the aristocracy’s legislative power needed to be checked in order for the broad character of Britain’s constitutional model to survive. Such checks first emerged informally, with the Salisbury Convention arising after the Lords blocked the Liberals’ budget in 1909, establishing that the Lords would not interfere with bills that pursued manifesto pledges and matters of the purse, and then formally, with the Parliament Acts of 1911 and 1949 allowing the House of Commons to circumvent the Lords, provided they were willing- and able- to wait for a year for the legislation to pass.
It is this requirement – that any legislation lacking the consent of the Lords can only be enacted after a year of passivity – that will foil the government’s Internal Markets Bill. This week, the Lords guillotined the most offensive elements from the bill, with Ken Clarke and Michael Howard, an unlikely partnership if ever there was one, joining another 42 Conservative Lords in defying the party whip and voting with the opposition. With the end of the Brexit transition period rapidly approaching, the government cannot afford to sit on its hands for a year, but must instead forge another path.
Such paths may, however, be fewer than Johnson would have hoped, with his government having to rewrite its message of congratulations to America’s president-elect, ineptly leaving traces of their more substantive tribute celebrating Trump’s re-election in their congratulatory post to Joe Biden and the Vice President-Elect, Kamala Harris. Given Biden will be occupying the Oval Office from January, the British government can no longer hope for a sympathetic hearing from America, with Trump’s sporadic outbursts of support for Brexit supplanted by Biden’s consistent concern for the Irish peace process and the unity of Western Europe. Retreat on the IMB may now be better part of valour.
Even if Johnson does excise the more alarming provisions of the IMB, including those that breach the Good Friday Agreement, he will need to discover a hitherto untapped vein of charm to win round the Biden White House, which is not only sceptical of Brexit, but of his government’s ties to Steve Bannon, the far-right Rasputin who holds much of the responsibility for elevating Trump to power. In these circumstances, the tweets from Lord Kilclooney, the former Ulster Unionist MP and now cross-bench peer, were doubtless greeted with expletives from Downing Street. Rather than saying nothing, or congratulating Biden and Harris on their victory, Kilclooney inexplicably described Harris, who has Black and Indian ancestry, as ‘the Indian’ in a tweet asking about the transfer of power from the President to the Vice President – before being forced to apologise (see below).
Whilst Biden is proud to be Irish and Harris is rightly proud of her Indian background I certainly withdraw my reference to her as an Indian as it seems to have upset some people. I did not know her name and identified her with the term Indian. Most people understood.Racist NO.
— Lord John Kilclooney (@KilclooneyJohn) November 9, 2020
Fortunately for the government, Lord Kilclooney is enough of a non-entity that his comments can be brushed under the carpet, or dismissed as the ramblings of a lord who has long since faded into obsolescence. What is more interesting here is what he shows us about the House of Lords today. After the Lords had their power fettered in the first half of the 20th century, there were few meaningful moves towards further reform until Blair entered office with vast constitutional ambitions. By the mid 1990s, the House of Lords had burgeoned from the 400 peers of the 1800s to over 1600, making it the largest secondary legislature in the world. The overwhelming majority of these peers claimed their seats as a birthright, and it was these peers that Blair targeted, abolishing all but 92 of the hereditary seats.
This may have mostly solved the issue of aristocratic rule, but it has done little to make the lords a more democratically legitimate institution. Elevation to the Lords now depends upon political patronage, with the prime minister almost solely responsible for deciding who deserves to don the ermine of the upper house, given the limited capacity of the House of Lords Appointments Commission to block prime ministerial nominations. This makes the Lords vulnerable to accusations of venality, with appointments made not on the basis of merit and service to the nation, but on the basis of political calculation. Johnson may have provided the most candid demonstration of how the Lords can be used to partisan ends, but prime ministers from across the political spectrum have been tainted by some of their nominees, as in Blair’s cash for honours scandal in the early 2000s.
Nor is there a meaningful way for members of the Lords to be delicately shuffled out of post. Until recently, even a criminal conviction and prison sentence was not enough to remove a lord permanently, with Conrad Black, the convicted (and since pardoned) fraudster, notoriously able to return to the Lords after serving his sentence. In theory, the House of Lords Act 2015 resolves this by giving peers the capacity to suspend or remove peers, but such sanctions have been few and far between. Unlike with the Supreme Court, for example, there is no retirement age for their lordships, nor any maximum period of tenure.
According to Walter Bagehot, the constitutional theorist, the House of Lords is part of the ‘dignified’ apparatus of the British constitution, there to ‘excite and preserve the reverence of the population’. While there are many members of the Lords that do fulfil this criterion, there are too many that do not. Regardless of whether they actively participate in the governing of the nation, or use the Lords as a well-funded and resourced retirement home, more should be done to ensure that the Lords is made up of those that can offer a real contribution to government, rather than being made up of ‘corpses in a charnel house’, as one member described the Victorian House of Lords- forgotten politicos who had once paced the corridors of Whitehall, but now faded away on the red benches.
The obvious solution is to make it an elected body, but that would only create its own set of problems, whether setting the Lords up as a direct competitor to the Commons, or diminishing the erudition, talent and breadth of expertise of the Lords’. Instead, it should be depoliticised, with appointments taken out of the hands of the prime minister and put in the hands of an independent commission. The appointments process for the judiciary provides a more interesting example. It maintains a role for the government, with the Lord Chancellor given a say on judicial nominations and the prime minister retaining ultimate approval, but prevents the Lords from being so easily degraded by political exigencies- an ease which was made abundantly clear by Johnson’s nominations this summer.
As it is, the House of Lords is still one of the most respected revising chambers in the world. But this week has shown its membership at its best and its worst, demonstrating how their Lordships can be effective scrutinisers of legislation and hold the government to account, but also showing how some wearing the ermine are too prone to expressing regressive views, intentionally or not, that have no place in a 21st century democracy. Ensuring that the former are kept in the Palace of Westminster and that the latter are delicately extracted would be a challenging endeavour, but taking it out of the hands of the political cabal in Downing Street and into the hands of an independent body would be a good place to start.