From Notting Hill Editions
The House of Lords has been weak for half a millennium, writes Benedict King. New reforms would give it a taste of the glory days of medieval independence.
Reforming the House of Lords is back in the headlines again and, as in the mid-1600s, the 1830s, the 1910s, the 2000, it's running into trouble.
The Liberals, in the person of Nick Clegg, are championing a radical reform, advocating a 300-strong senate of elected, full-time politicians. The Tories want to dish their Liberal partners and keep things much closer to how they are now, with a bigger chamber and more appointed experts. The Tories are not particularly enamoured of current arrangements - the more romantic would probably prefer to see the hereditaries restored to their ancient privileges. Their attitude is like that of Lord Eldon, the Lord Chancellor in the 1820s: "Reform! Reform! Aren't things bad enough already!"
Plus ça change. Defining the purpose, composition and powers of the House of Lords has been a knotty political problem for the past 500 years. Many of our current arrangements have a longer pedigree than might be imagined. We tend to think of the present house, dominated by life peers, as an unprecedented break with the past. In fact it is only a break with the comparatively recent past. There have always been life peers, in the form of bishops and, before the Reformation, there were a number of abbots and priors, as well. On occasion these clerical life peers constituted the preponderant block in the house. Only 34 hereditary peers attended Henry VII's first parliament in 1485, but there were 48 life peers, 21 bishops and 27 abbots and priors.
Moreover, the exclusion of blocks of hereditary peers from the Lords has been going on for centuries. Irish hereditary peers have always been excluded and Scottish peers, after the act of Union, had to vote for a handful of their number to represent them at Westminster. Until the 1960s, no woman who was a peeress in her own right (and most of the peerages that descend to women are old ones) was allowed to sit in the Lords. he late Baroness de Ros (1933-1983) was the first female holder of her peerage - the oldest barony in England - in 800 years to take her seat in the House. There's nothing new about our current, messy arrangements.
What about the purpose of the Lords? Nick Clegg's Tory opponents don't want a fully elected house, as they feel this will exclude a lot of the varied experience and talent that has been a traditional feature and strength of the upper house. It is true that outside interests have always been an important qualification for being a peer, but the type of outside interests deemed appropriate and the reasons for needing them have changed dramatically.
Before the 15th century, the king summoned certain great landowners to sit as peers in specific parliaments. Being summoned to a parliament was what created the peerage - a writ in summons - but the reason you got one was because you were obviously already qualified. Your outside interests - essentially land management and fighting - did not help you to offer informed and expert opinions, like our modern appointed peers with their technocratic experience.
In the Middle Ages, most non-clerical peers would have been more or less illiterate - none of the barons who forced King John to sign Magna Carta could write their names. What their outside interests gave these dunderheaded lords was power independent of the crown. That's what made them the King's natural counsellors. They weren't scared of him.
It was the Reformation that started the constitutional rot. After that, deciding who should be a peer became far more complicated and their creation, through letters patent, far more formalised under crown control. The composition of the House of Lords became politically contested and its membership cowed because there was a battle over whether religion should be a qualification, as well as social prominence.
Henry VIII and Edward VI created loyal Protestant peers and Mary, in return, loyal Catholics. Elizabeth was notoriously mean about creating any peers (and got rid of England's only dukedom by executing her cousin, Norfolk) but she and all the other Tudors could change the entire bench of bishops to suit their confessional bias. The easy assumptions of the Middle Ages were never recovered. Sectarian strife allowed the crown to manipulate the composition of the House of Lords in an arbitrary fashion; and it has continued to do this ever since.
Things got even more compromised under the Stuarts. The arrival of James I was welcomed, for securing the Protestant succession. But, while the House of Commons was dutifully Protestant, members of the Lords did not have to take an oath of Protestant allegiance and plenty remained Catholic. When Charles I came to the throne and started to appoint High Church bishops that the hotter Protestants in the Commons felt were seeking to introduce Catholicism through the back door, the problem turned into a full-blown constitutional crisis that led to civil war.
The decades of the Civil War and the Commonwealth proved that, even though sectarian politics had compromised the role and natural composition of the Lords, nothing else seemed to work either. After the execution of the King in 1649, the House of Lords was abolished. Some peers, like the Earls of Salisbury and Pembroke, (and the liberal peer, Lord Thurso, in the current parliament) went and sat in the House of Commons once they lost their seat in the Lords. Later, Cromwell tried to create a second chamber of sorts, which also failed, its members attracting much ridicule for their lowly social origins and backgrounds in trade.
In 1660, to the great delight of many, the King was restored along with the old House of Lords. Needless to say, what hadn't worked in the reign of Charles I didn't work in those of his sons, and all the old anxieties about "Popish Lords" resurfaced again. With the accession of the Catholic James II, constitutional arrangements broke down completely again and Protestants of all classes united to give him the boot.
From James's departure there was a general agreement, constitutionally enshrined, that anyone who helped to run the country - the King, the Lords, the Commons, JPs, army officers - had to be Protestants; even though this meant excluding some of the greatest magnates in the country, including England's premier duke (Norfolk - the dukedom was restored in 1660 along with the King) and its premier Earl, Shrewsbury, from taking their seats in the Lords.
The 18th century was the golden age of the Protestant land-owning classes in Britain, reflected in the harmonious relationship between the Lords and Commons - where frictions between the two houses were limited, thanks to the constitutional oil of "old corruption" and the requirement that everyone who sat in Parliament be a member of the Church of England.
Many peers "owned" rotten boroughs and could therefore almost appoint their clients to the House of Commons; and the generous distribution of sinecures by the government allowed tight control of the Commons. Often the recipients of this aristocratic and governmental largesse were the idle younger brothers of the peers who sat in the Lords and dominated the cabinet. Horace Walpole, the youngest 'artistic' son of the prime minister Robert Walpole was a classic of the type, living off a raft of absurd sinecures showered on him by his father (Comptroller of the Pipe, for instance), sitting in Parliament for a Cornish constituency that he never visited, and only ever bothering to speak to defend the reputation of his father.
This cosy monopoly of office by the Anglican landowning classes came unstuck with the industrial revolution. The new commercial classes wanted a say in government and the urban poor, not to mention the Catholic Irish, desperately needed some legislative protection from exploitation.
By the late 1820s, Britain was on the brink of revolution. Parliament, with the House of Lords resisting any threat to its monopoly of political patronage, appeared captive to what, by that time, appeared a narrow economic and confessional interest. The opposition of the Lords to the Great Reform Act was overcome only by the then Liberal government threatening to create enough new Lords to overturn the Tory majority.
Ever since, the threat of a mass creation of peers has been adequate to prevent the upper house resisting the crown on its own - most famously in 1910 when Asquith forced the Parliament Act through the Lords, restricting the upper house's powers to throw out government legislation. Constitutional impotence was the price paid by the Lords for survival, into the democratic age.
How can historical precedent help us think about reforming this institution, if its chaotic institutional weakness has been one of the few constants of its long existence? What is there to be restored or salvaged?
It's true that there has been little consensus on what the House of Lords should be or what it should look like for centuries. On the other hand, there has been a very constant consensus about what an individual peer should be that has survived the vicissitudes of the past five centuries.
A peer should be independent of view, of interest and of faction and able to offer the king advice without fear or favour. Something of this idea has always survived, even though the House of Lords, for centuries, has tended to fall short of the ideal at an institutional level, falling prey to bullying by the government, or narrow religious or economic interests.
In its origin, the Lords was the King's Great Council and the governments of our era need a comparable check on their actions just as much as a medieval king did. They don't always get this impartial advice from the Commons.
The Commons can't do everything. We do not see the legitimacy of our own government purely in terms of an electoral mandate. In a parliamentary democracy, having a majority of the votes is a necessary condition, but it is not sufficient. We also expect government policy to be tested by debate, both in the press and Parliament, and changed if the argument is lost. Nor do we want to see legislation captured by narrow factional interests. It needs to reflect the public good. We need a House of Lords that makes good the shortcomings of the Commons, which is both very factional and heavily whipped, and serves to deliver these non-elective aspects of political legitimacy better.
This is what Clegg's reforms seek to do and there are sound conservative reasons for supporting them. The Tories' plans to water down Clegg's legislation will leave the Lords subject to the same eternal problems of crown patronage and interference that have so diminished it as an institution for hundreds of years. The House of Lords does not need expert members; it needs independent minds that are not scared of the government. Clegg's small house of elected, but somewhat unaccountable, peers will deliver a membership that cannot be cowed by the Crown, nor influenced unduly by the electorate, nor browbeaten by experts - more like the pre-Reformation house. This is its chief merit.
Clegg's plan to have a one-term rule on membership, lasting for 15 years, provides the perfect filter against undesirables. It would deter the young and politically ambitious. It would ensure that former MPs who went to the Lords would have nothing to gain politically once there. It would tend to ensure that the Lords remained long on experience and short on ambition. Ambitious politicians, envisaging a glittering career of office-holding, would be very reluctant to go to the Lords at all and would know that, if they went before they were 50, their Parliamentary career would be over before retirement.
Indeed, although staffed mainly by professional politicians, there would be little to be gained from serving in this new House of Lords. It would be full-time; it would be a road to nowhere politically. The only thing for the taking would be the satisfaction of a job impartially and conscientiously done or - as their Lordships' mail-clad predecessors would have understood it - honour.
The deputy prime minister has produced something at once both impeccably Liberal and deeply conservative, which would stand as a fitting constitutional monument to this coalition. But one very important, conservative change should be imposed on Clegg's bill. We don't need to call this new upper house a senate, as if it's an exotic foreign import, alien to England's native soil.
Clegg's plans will help to restore the upper house to a status and independence it has not enjoyed for 500 years and will finally prevent it, once again, from being left prostrate before the power of the Crown. Let's keep it as the House of Lords, so its members better understand the terrible weight of history on their shoulders, the heavy duty of their office and the unstained honour that should be the sole reward for their 15 years in Parliament. Honi soit qui mal y pense.