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'Mr Cameron's Poodle?' The House of Lords and Its Powers

28/10/2015 16:23 GMT | Updated 28/10/2016 10:12 BST

This week's defeat of the British government in the House of Lords over cuts to tax credits has highlighted just how much power remains with the unelected Lords. But while media accounts have focussed on the last two days' divisions, the bigger picture is being ignored: Since this government was elected with a majority in May, it has actually lost one in three votes in the House of Lords.

We are entering uncharted territory here, because the House of Lords has (fittingly for a chamber guided by precedent) long been so eminently predictable in so many ways. Furthermore, its composition was never in much doubt. For centuries, it enjoyed first a small-c, and then large-C, Conservative majority.

A turning point in the scale of Conservative domination of the Lords was the Liberal split over Home Rule in 1885. A mass defection of Whiggish Liberal peers meant that by the end of that year, there were over 500 Unionist peers (who eventually merged into today's Conservative Party), compared to some 100 Crossbenchers (who seldom attended), and between 30 and 40 Liberals.

This consolidated a long-term pattern of Conservative supremacy in the Lords which continued uninterrupted until 1999. When Liberal governments were elected in the nineteenth century, they could face robust opposition in the Lords and have their reforms blocked, but Conservative governments' legislation could be rubber-stamped by the Lords unamended. It was fitting, then, when in 1907 David Lloyd George memorably denounced the Lords as little more than Conservative Leader "Mr. Balfour's Poodle".

The Parliament Acts 1911 and 1949 clipped the wings of the Lords in merely giving them delaying powers, and in not allowing them to oppose finance bills; but despite the 1911 Act's introduction stating "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", this remains unfulfilled 104 years later.

The advent of the first majority Labour government, against this Conservative dominance of the Lords, was what led to the "Salisbury Convention", which states that the Lords would not try to vote down anything that had been in a government party's general election manifesto. We often forget the temporary, fleeting context in which long-lasting conventions are enacted, and the Salisbury Convention was a strong case in point. In 1945, Labour secured a landslide in the Commons. However, they had very few peers in the Lords; 16 to be precise, compared to some 500 Conservatives. Since the Labour government was amenable to abolition of the House of Lords altogether, but wanted to prioritise its domestic reform programme over triggering a 1909-style constitutional crisis, an arrangement was reached with the Conservative Leader in the Lords, the Marquess of Salisbury.

But the Salisbury Convention was only ever intended as a short-term truce between two parties, not as a blueprint to last the next seventy-plus years; and it did not foresee subsequent developments. What happens if (as in 2010-5) there is a coalition, and a government policy was in the smaller party's manifesto, but not in the larger party's? And does the Convention apply to smaller parties like the Lib Dems? The original Convention was brokered between the Labour and Conservative Parties, not the (then-small) band of Liberals in the Lords who barely added to the parliamentary arithmetic. With Lib Dem numbers now reaching 112 peers, due in part to 51 peers appointed by Nick Clegg, Lib Dems have made it increasingly clear that they do not see the Convention as applying to them - something that was illustrated on Monday's vote by the way they voted for a wrecking motion against tax credit cuts.

Tony Blair's 1999 abolition of most hereditary peers (who were overwhelmingly Conservative) constituted an attempted "power grab" in the Lords. After the removal of the hederitaries, the Conservatives were denied a majority of active peers in the Upper House for the first time in centuries. This was combined with a shameless, cumulative packing of the chamber with Labour life peers (including such subsequently-disgraced worthies as Lord Mackenzie of Framwellgate, Lord Paul, Lord Sewel, and Baroness Uddin), which meant that by 2005, for the first time in the history of the Lords, Labour became the largest party.

The Labour takeover of the Lords was stopped by two things. Firstly, there was the 2006-7 "Cash for Peerages" criminal investigation. This severely curtailed the number of new peerages Labour felt able to appoint (in stark contrast to the first three years of the Blair government), and also resulted in Tony Blair being denied a Resignation Honours list. Secondly, the result of the 2010 general election meant the Conservative-Lib Dem coalition indulged in a further wave of "tit for tat" peerage creations of their own.

So, what next? Meg Russell convincingly deconstructs some of the more lurid attention-grabbing headlines from Downing Street sources talking of either 'suspending' or 'packing' the Lords. More interesting is David Cameron's 'urgent review' into the powers of the Lords. For someone who has faced accusations of "Packing the chamber" (he has certainly appointed life peers at a faster rate than any other Prime Minister), Cameron has arguably failed to give his own party that much of an edge - his last batch of peerages created 26 new Conservatives peers to 19 for the other parties (although this was in part because a further 5 Conservative peer nominations were blocked over perceived financial improprieties).

So, what can we expect from the government? Interestingly enough, despite historic Conservative opposition to Lords reform, the 2015 Conservative Party manifesto paves the way for this:

"While we still see a strong case for introducing an elected element into our second chamber, this is not a priority in the next Parliament. We have already allowed for expulsion of members for poor conduct and will ensure the House of Lords continues to work well by addressing issues such as the size of the chamber and the retirement of peers."

Given the government's previous efforts to change the rules on boundaries and electoral registration to partisan advantage, it is all too conceivable to imagine modest changes being carried out under the banner of "Lords reform".

The Prime Minister has already indicated that he backs term limits for peers. If he is feeling particularly confident - and is prepared to use the Parliament Acts to back it up - he could introduce mandatory retirement for peers. This would effectively debar the peers appointed by previous Prime Ministers, particularly the flurry of Labour and Lib Dem peers appointed by Tony Blair in 1997-2000. If peers were barred from sitting after, say, ten years, it would mean that by the mid-point of this Parliament, the only people left sitting in the Lords aside from a smattering of hereditaries and bishops would be those nominated by the patronage of David Cameron and Gordon Brown. Should the Conservatives win the 2020 election, it would be a recipe for a return to Conservative domination of the Lords and Commons.

Of course, the review might do nothing. But this problem is not going to go away for David Cameron. In the Commons, this government faces a small, divided, emasculated Opposition. In the Lords, it has barely a third of the active peers, and a new air of confidence in Labour and Lib Dem Lords acting together could see the derailment of major aspects of policy - including, possibly, things featured in the Conservative manifesto.

The nomination of Tom Strathclyde to head up the government review of Lords' powers is significant. Strathclyde is no stranger to breaking conventions: in 1999, a few months after taking over as Conservative Leader in the Lords, Strathclyde spoke against the previous convention that the Lords would not oppose Statutory Instruments (SIs): "I declare this Convention dead." Courtesy of Strathclyde's precedent, the government was defeated over an SI on Monday. But they may have just the man to fight fire with fire.