APPENDIX 1: Historical
in the Constitution
1. The idea of "balance" in institutional
relationships has had a long history in British constitutional
theory. Mediaeval monarchs summoned the Estates of the Realm
- the Lords Spiritual and the Lords Temporal and the Commons House
- to come together in Parliament to discuss the affairs of the
Kingdom. Whilst the power of the Crown remained absolute and the
two Houses jostled for influence, the notion of a "Gothic"
balance between Kings, Lords and Commons was regarded as a beneficial
feature of constitutional arrangements.
Even during the upheavals of the seventeenth century, when both
monarchy and the House of Lords were briefly abolished, it was
deemed, by political apologists, to be important to recreate a
balance, whether that was within a republican framework (in the
case of James Harrington) or a strengthened monarchy (in the case
of Sir Robert Filmer).
2. Over the centuries the privileges of both Houses,
those rights enjoyed by each House collectively as a constituent
part of the High Court of Parliament, added to the notion that
members of each House had similar, if separate, functions to perform.
Freedom from arrest and freedom of speech were established so
that individual members of both Houses could perform their parliamentary
duties effectively. The growth of parliamentary privilege therefore
added to the notion of a shared purpose (to debate public affairs
freely) between the two Houses.
3. A significant shift towards the Commons in one
area of Parliamentary control occurred during the seventeenth
century. For a century or more the Commons had begun to regard
it as exceptional that bills granting aids and supplies should
be altered by the Lords. In 1671, the Commons asserted its sole
right to set the level of taxes voted to the Crown.
The challenge made to this financial privilege, henceforth claimed
exclusively by the Commons, was to become the catalyst for the
first major restriction on the power of the House of Lords more
than two hundred years later in the early twentieth century.
4. Nevertheless, the most important change in the
constitutional balance was brought to definition in the settlement
known as the Glorious Revolution (1689) which affected the relationship
of the two Houses to the Crown. Under its terms, Parliament as
a whole gained power at the expense of the Crown. The ancient
privileges of the Houses were now enshrined in the Bill of Rights.
Although the Crown retained considerable power, it was now no
longer unfettered nor could it act without Parliament's approval.
Henceforth the balance was to be understood as the Crown-in- Parliament
although important royal prerogatives, such as the calling and
dissolution of Parliament and the approval of administrations,
remained important methods of monarchical influence.
5. The new balance achieved by the constitutional
settlement of 1689 led to a period of relative stability in the
constitutional relations between the Crown and the two Houses,
which remained broadly co-equal except in financial matters where
the Commons maintained its priority.
Members of the government, including Prime Ministers, could be
drawn from either House.
However, as result of the development of party mandates after
the Reform Act (1832) and the extension of suffrage, the House
of Commons came increasingly to regard itself as the more legitimate
source of executive power. The Lords, for its part, challenged
that view (especially in the form of what became the Salisbury
doctrine) nor did it forbear from wholesale amendment of Commons
Bills, except those that dealt with money.
At the same time, the House of Lords was becoming more and more
the House of one party particularly after 1886 when the Liberal
Unionists joined the Conservatives; the issues of Home Rule and
Free Trade, but particularly the former (a Home Rule Bill but
was rejected by the Lords in 1893), affected the behaviour of
the Opposition in the House of Lords. Over a long and difficult
period, attempts were made by members of both Houses and eminent
political theorists to grapple with the increasing constitutional
deadlock that was developing between the Houses.
6. These political and constitutional tensions made
the traditional constitutional balance between the two Houses
more and more fragile. It was finally destroyed by the outright
opposition of the Lords to the radical programme of the Liberal
Government, elected in 1906. In particular the Lords attacked
the Liberal Government's budget of 1909.
Asquith, who had succeeded Campbell Bannerman as Prime Minister
made considerable efforts to avert what was regarded as the extreme
measure of creating a large number of peers so that the will of
the majority in the Commons could be imposed on the House of Lords.
Eventually the Government was driven to introducing the Parliament
Bill, which got through the House of Lords with a majority of
17 (131:114) after a two day debate on Commons Amendments.
7. The Parliament Act's most important provisions
(i) restrict the Lords' power to reject "money
bills" to a month;
(ii) allow a public bill introduced in the Commons
to pass into law, though not agreed by the Lords, if passed in
the Commons in three successive sessions, with not less than two
years elapsing between the second reading in the House of Commons
in the first session and the passing of the bill in the House
of Commons in the third session; and
(iii) alter the provision of the Septennial Act
1715, setting five-year Parliaments.
Although the Parliament Act 1911 curtailed the power
of the Lords, it did so in quite narrow circumstances - that of
a dispute between the Houses over a particular bill. By virtue
of its provision of a two-year period between a second reading
in the Commons and Royal Assent, it also meant that a Government
would only effectively use it in the first two sessions of a five-year
Parliament. It is important to understand that even when the provision
was reduced to a year in the Parliament Act, 1949, the Lords retained
considerable legislative power. Moreover, in the day-to-day workings
of the two Houses, conventions (restraining the behaviour of the
Lords in cases of contest) are as significant as the terms of
the Parliament Acts.
Attempts at Reform: 1917-1918
8. The preamble of the Parliament Act 1911 contains
the well-known words:
"and whereas it is intended to substitute
for the House of Lords as it at present exists a second chamber
constituted on a popular instead of hereditary basis, but such
substitution cannot immediately be brought into operation....".
They suggest, on the face of it, that further reform
was envisaged at that time.
9. That further reform was not embarked upon until
1917 when a conference of twenty members from both Houses was
appointed under the chairmanship of Lord Bryce, with the following
terms of reference:
"To inquire and report - (i) As to the
nature and limitations of the legislative powers to be exercised
by a reformed Second Chamber. (ii) As to the best mode of adjusting
differences between the two Houses of Parliament. (iii) As to
the changes which are desirable in order that the Second Chamber
may in future be so constituted as to exercise fairly the functions
appropriate to a Second Chamber."
Eventually the Bryce Report proposed a House of Lords,
seventy-five per cent of which was to be elected indirectly by
members of the House of Commons on a regional basis and twenty-five
per cent which would be appointed by a Joint Standing Committee
of both Houses, retaining a proportion of hereditary peers and
bishops. The Bryce proposals laid some stress on the Lords as
a revising chamber which could reconsider in details bills passed
by the Commons (particularly those introducing new principles
or legislation affecting the Constitution) or deal with non-controversial
notion of the Lords, as a revising chamber, was only taken up
seriously much later in the century.
In the event, substantial agreement on the hereditary element
could not be reached; the question of composition proved intractable.
The Conference did not agree unanimously to its Report and the
scheme was abandoned.
of 1948 and Parliament Act 1949
10. Although various schemes for reform of the House
of Lords were proposed in the interim period (both in party circles
and in Government), it was not until 1948 that the next serious
attempt was made. A conference was called to consider the Lords'
powers afresh, but there was no agreement. Instead, a Bill was
introduced under the Parliament Act 1911, the validity of which
procedure has subsequently been challenged on the grounds of vires.
The Act reduced from three years to two years the
number of sessions in which a disputed bill must be passed by
the House of Commons and from two years to one year the period
of delay from second reading in the House of Commons.
Although the Conference of 1948 reached no agreement
on powers for a reformed House, particularly in respect of its
power of delay, an agreed statement, published as a White Paper,
sets out certain significant conclusions:
(a) The second chamber should be complementary
to and not a rival to the lower House, and, with this end in view,
the reform of the House of Lords should be based on a modification
of it existing constitution as opposed to the establishment of
a second chamber of a completely new type based on some system
(b) The revised constitution of the House of
Lords should be such as to secure as far as practicable that a
permanent majority is not assured for any one political party.
(c) The present right to attend and vote based
solely on heredity should not by itself constitute a qualification
for admission to a reformed second chamber.
(d) Members of the second chamber should be styled
"Lords of Parliament" and would be appointed on grounds
of personal distinction or public service. They might be drawn
either from hereditary peers, or from commoners who would be created
(e) Women should be capable of being appointed
Lords of Parliament in like manner as men.
(f) Provision should be made for the inclusion
in the second chamber of certain descendants of the Sovereign,
certain lords spiritual and the law lords.
(g) In order that persons without private means
should not be excluded some remuneration should be payable to
members of the second chamber.
(h) Peers who were not Lords of Parliament should
be entitled to stand for election to the House of Commons, and
also to vote at elections in the same manner as other citizens.
(i) Some provision should be made for the disqualification
of a member of the second chamber who neglects, or becomes no
longer able or fitted, to perform his duties as such.
Act 1958 and Peerage Act 1963
11. The two changes which occurred in 1958 and 1963
fulfilled some of the principles advanced in 1948. The more significant
was the Life Peerages Act 1958 which introduced life peers into
the Lords. Under the Peerage Act 1963, peers by succession were
able to renounce their peerages. By that time, peers were enabled
(by Resolution of both Houses) to recover, within limits, expenses
incurred for the purposes of attendance at sittings of the House
of Lords. The Peerage Act also admitted peeresses by succession
and dealt with anomalies relating to Scottish and Irish peers.
12. In the Queen's Speech of 1968, the Labour
Government announced legislation that would reform the composition
and powers of the House of Lords.
All-party talks were held. The Government made the following propositions,
which once again echo conclusions reached in the 1948 White Paper:
(a) in the framework of a modern parliamentary
system the second chamber has an essential role to play, complementary
to but not rivalling that of the Commons;
(b) the present composition and powers of the
House of Lords prevent it from performing that role as effectively
as it should;
(c) the reform should therefore be directed towards
promoting the more efficient working of Parliament as a whole;
(d) once the reform has been completed, the work
of the two Houses should become more closely co-ordinated and
integrated, and the functions of the House of Lords should be
The Government added that it believed any reform
should achieve the following objectives:
(a) the hereditary basis of membership should
(b) no one party should possess a permanent majority;
(c) in normal circumstances the government of
the day should be able to secure a reasonable working majority;
(d) the powers of the House of Lords to delay
public legislation should be restricted; and
(e) the Lords' absolute power to withhold consent
to subordinate legislation against the will of the Commons should
13. After all-party talks were suspended, Richard
Crossman, Leader of the House of Commons, introduced the Parliament
(No. 2) Bill which removed the right of future hereditary peers
to sit in the House of Lords, allowing those who were already
there to stay as non-voting peers. Only life peers would be entitled
to vote. It proposed a reduction of bishops from twenty-six to
sixteen. The Bill would become law, after the elapse of a certain
period, even if amended or disagreed to by the House of Lords.
In the event the Bill never reached the House of Lords - after
eight days in Committee of the Whole House and faced with opposition
from defenders of the status quo (led by Enoch Powell) and abolitionists
(led by Michael Foot), the Bill was abandoned.
of Lords Act 1999
- The present Government acted upon the Labour
manifesto commitment to reform the House of Lords and particularly
to remove the hereditary peers from its membership. This was achieved
by the House of Lords Act 1999 which extinguished the right of
hereditary peers to sit in the Lords, save for 92, 75 of whom
would be elected from their party or group, 15 elected by the
whole House (to serve as Deputy Speakers and Chairmen) and 2 ex
officio members (the Earl Marshal and the Lord Great Chamberlain).
At the same time the Government announced its intention to complete
the reform, the next stage of which would be undertaken on the
basis of recommendations from a Royal Commission, chaired by Lord
66 See J. G. A. Pocock, The Thought of James Harrington,
Cambridge, 1977, passim. Back
See M. Jack, Corruption and Progress: The Eighteenth-Century
Debate New York, 1989. Back
Erskine May, Parliamentary Practice 22nd Edition, 1997,
page 797. Back
The Commons control of taxation increased its influence over policy
significantly in times of war as highlighted in the latest work
of the History of Parliament Trust. See The House of Commons
1690-1715 (ed. E. Cruickshanks, S. Handley & D.W. Hayton),
5 vols, Cambridge, 2002. Back
H. Morrison, Parliament and Government, Oxford, 1954, page
W. Ivor Jennings, Cabinet Government, Cambridge, 1947,
pages 32ff. Back
Politicians who returned to the subject again and again included
Lord Rosebery and the Marquess of Salisbury, whilst it was also
debated by distinguished political theorists including Walter
Bagehot and John Stuart Mill, see P. Norton, The Constitution
in Flux, Oxford, 1982, page 117. Also see E. A. Smith The
House of Lords in British Politics and Society 1815-1911,
New York, 1992. Back
For a detailed account of the parliamentary debates during the
whole crisis, see R. Jenkins, Mr Balfour's Poodle, Peers v
People, London 1954. For detailed background see C. Jones
and D. L. Jones (eds) Peers, Politics and Power 1603-1911
London, 1986. Back
Three Acts passed into law without the agreement of the Lords
under the terms of the 1911 Act as originally passed, namely the
Government of Ireland Act 1914, the Welsh Church Act 1914 and
the Parliament Act 1949. Since 1949 three further Acts have been
passed in this way, namely the War Crimes Act 1991, the European
Parliamentary Elections Act 1999 and the Sexual Offences (Amendment)
Act 2000. Back
For a discussion of the Bryce proposals see K. Mackenzie, The
English Parliament, London 1965, pages 187-8. Back
These matters are fully discussed by R. Walters in 'The House
of Lords in the Twentieth Century' (to be published). Back
For an account of the Lords in this period see J. Morgan The
House of Lords and the Labour Government, Oxford, 1975. Also
see D. Shell, The House of Lords, Oxford, 1988 (2nd edition,
Hemel Hempstead, 1992). Back
There is considerable current literature on reform including I.
Richard & D. Welfare, Unfinished Business: Reforming The
House of Lords, London (1999); A. Mitchell, Farewell My
Lords, London, 1999, and M. Russell, Reforming the House
of Lords, Oxford, 2000. Back