Some amusing news from the ermine chamber this week: 76% of peers, including 54% Lib Dem peers, would see reform of the House of Lords unconstitutional. The first thing is that the number of Lib Dem objectors, including Lord Steel, is depressingly too high: Lords reform has been Liberal and Liberal Democratic party policy since before proportional representation was added. The second thing is that this is complete bollocks.
My friend over at Legal Fiction has posted, from a legal standpoint, why this is not the case: most importantly, the use of the Parliament Acts 1911 and 1949 to override the Lords with the Hunting with Dogs Act (2004) was seen as constitutional by the Law Lords. That, and Parliament has the right to pass nearly anything it wishes (with the exception of laws that violate treaty agreements). But there is a societal aspect too.
The peers should remember why the Parliament Act was passed in the first place. A little history lesson is needed here. In 1909, the Asquith-led Liberal government tried to pass “the People’s Budget” – a kind of early New Deal for the British – but were met with a recalcitrant Lords. Asquith went the polls, was returned, and tried to pass a precursor to the Parliament Act. They refused, so he went to the polls again and campaigned with Lords reform as the primary issue. Finally, after the Lords threatened refusal once again, Asquith and the King threatened to pack the chamber with Liberal peers. And so the Parliament Act passed, containing this in the preamble:
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 be immediately brought into operation;
Plus ca change, I’m sure you’ll all agree. Since 1911, there has been an assumption that the Commons, being elected, represent the Will of the People and are allowed to pass any legislation promised in their election manifesto. This is known as the Salisbury convention, and was formulated after the Attlee government of the late 1940s were opposed by a Conservative majority; a Conservative peer felt that Labour had an explicit mandate of nationalisation and thus it would be improper for the Lords to block these bills. Still, Attlee saw it necessary to amend the 1911 Act to make it easier for the Commons to pass its legislation.
Now, this is all important: it has been law that the Lords will be elected for the past hundred years, but Governments have been historically lukewarm on the idea. Constitutional change isn’t seen as really pressing. There has been gradual reform of the chamber since, including Life Peerages and the removal of the Law Lords, a few manifesto promises on abolition, cross-party consensus on reform, and, most importantly, the Blair reforms making the chamber majority-appointed. However, appointment is not a “popular basis”, and it does stink of the “jobs for the boys” culture (look at Norman Tebbit or Peter Mandelson, two men who would never be elected to the Commons these days).
And resisting reform would instigate a fight that the Lords will not win. For a hundred years, the Commons has been Supreme. Always. And the best path to constitutional reform is a perversion of democracy. Whereas a “wrong-winner” result would spur on proportional representation, the Lords blocking reform would be seen as the government ignoring the Will of the Public, especially seeing as reform was in the manifesto of every MP returned to the Commons. This is not an exaggeration: even the Irish and Nationalist parties agree Lords reform is vitally needed. If it got to even considering using the Parliament Act, it means that the Lords will have perverted democracy, and the Unelected Lords would be finished as an institution. Given the lack of serious opposition among even Conservative MPs, it seems that it would be an easy thing to campaign on. The Lords seriously need to consider whether to pull the trigger or have someone else do it for them, because it will happen now. To block it would be to sign its own death warrant.