Constitutional Position of the Lords
Robert Skidelsky
Tuesday Club | Tuesday, March 30, 1999

The Conservative MP Andrew Tyrie wrote in The Times on 26 March that 'in the 21st century only a chamber backed by the legitimacy of the ballot box can hope to command the public consent required to fulfil a constitutional role'.
One of those well constructed sentences which public persons are wont to use, but which merit careful unpicking.
Notice first the rhetorical flourish 'in the 21st century'. In the past, perhaps, a chamber not backed by 'the legitimacy of the ballot box' might have 'commanded the requisite public consent, but not after 31 December 1999. At this moment the historical clock stops, the past is obliterated; we enter a new era at the stroke of midnight.
OK - just politician's rhetoric. Serious point. Past doesn’t suddenly stop. It's constantly being transformed into the future in ways which are partly, even largely unpredictable. Moreover, this transformation of the past into the future has been the hallmark of Britain's constitutional development. No sharp breaks -even 1649 was followed by a restoration. So why have all these laws suddenly been suspended?
Sharp break view of history associated with revolution. Certain irony in a Conservative MP demanding a constitutional revolution in the name of democracy.
But revolutions arise from a revolutionary situation. It would be hard to detect a revolutionary demand for House of Lords reform. There is no popular demand. This is to be a cool revolution, a revolution made in the study, the senior common room, or the dinner table. As such it deserves a cool argument.
'Only a chamber backed by the legitimacy of the ballot box can hope to command the public consent required to fulfil a constitutional role'.
If this means 'People will only obey laws passed by an elected chamber' it is clearly wrong. The laws passed by Parliament are a product of both Houses and no one challenges their legitimacy. (I exclude Scotland Wales from the discussion).
What Tyrie wants is bi-cameralism. The choice he writes is between 'bicameral democracy and the de facto uni-cameralism that the Lords bill will probably leave us'.
Technically any constitution which has two chambers is bicameral. We also have a working bi-cameralism in the sense that every bill has to pass both Houses.
But Tyrie and others who talk of bi-cameralism have a particular model in mind, in which the powers of the two chambers are in some sort of balance, such that if one House rejects a Bill it fails. This is true of the US constitution, though of hardly any other bicameral system. I will concede for the sake of argument that if the Upper House is to have this power in Britain, it needs to be elected.
At this point we need to ask: why is this kind of bicameral system needed? The answer that Tyrie and practically all our bi-cameralists give is that it’s needed to counter the 'elective dictatorship' of the House of Commons.
But at this point the argument dissolves into miasma. Let me quote Tyrie again: if the Lords bill is passed as now it would 'leave Parliament even more dominated by the executive, with a first chamber controlled by the government and a second chamber appointed by it'. But the reason the first chamber is controlled by the government is that we have a system which may be called 'elective party government', i.e. government which relies on a disciplined party majority to get its business through parliament.
Because the Lords are feeble the government gets its business, albeit often revised, through the Lords without needing a whipped majority. If the Lords were to be elected, members of both houses would be elected on a party ticket. How would this undermine the dictatorship of the executive, if that indeed is what we have?
I have never heard a convincing answer to this objection. Our governments are elected on manifestos which they are expected to carry out. In order to do so our constitution equips them with parliamentary majorities. If the House of Lords is elected, the government will have to ensure itself a majority there as well. In which case the Upper House, whatever its power and legitimacy will be just as impotent in practice to oppose the government's wishes. In fact, the more nearly it approaches to equality with the House of Commons in both, the more government will be driven to control its composition. Its relative illegitimacy is what makes our constitution work.
We can all conjure up electoral systems to get us out of this bind. We could elect members of the Upper House on a different franchise, we could elect them at different times, We can fiddle around with single terms. The object of all these devices is to make it more difficult for the government to get its business through; which is why a government of any party is bound to resist them, unless it has lost its marbles.
I interpret the bicameralist argument as an attempt to graft a positive reform agenda onto what is really a visceral negative feeling –which is simply that hereditary peers should be removed from Westminster, combined with the sense of frustration that they are still there only because no politically plausible reform programme can be agreed. We are trapped by our constitution, unwritten though it is. Labour’s Stage I is born of the desperate determination to spring the trap. They have never had the slightest idea of what Stage 2 is to be.
I want to say a little bit about the sources of this visceral feeling that hereditaries should be expunged from the constitution. At a recent seminar at Harvard Andrew Adonis reminded the participants that House of Lords reform was unfinished business left over from the 19th century Liberal agenda and, of course, I have to agree with him.
It reflects a particular reading of British history which ranges from the extreme to moderate left, to wit that archaic feudal residues, exercising power, fascination and influence out of all proportion to the services they render, have prevented Britain from becoming a modern or indeed successful nation. In a nutshell, Britain never experienced a proper ‘bourgeois’ revolution. It started one at the dawn of the Industrial Age; then it was aborted by the aristocratic embrace.
This view of things unites authors otherwise as diverse as Martin Wiener, Corelli Barnett, Perry Anderson, Will Hutton, David Marquand, and no doubt Andrew Adonis himself.
The image which underlies it is that of a tree being strangled by dead growths, which need to be cut away for the genius and energy of the British people to flower, for them to become truly democratic and economically dynamic. If only we could organise the modern equivalent of the voyage of the Mayflower we might have a chance of catching up.
As far as economic history is concerned, let me say that no serious practioner I know accepts this parodic view of the past. Not only has Britain been a stupendously successful nation over many hundreds of years, but even in the postwar period it has not done badly in economic terms, except for a couple of decades in the 1950s and 1960s, and then only relatively.In other words, the thesis of the aborted bourgeois revolution is largely an attempt to explain an economic dysfunction which never occurred.
Whether we would be more democratic or more egalitarian now had the Gladstonian agenda come to pass is difficult to say. Certainly the case for snuffing out the constitutional position of the aristocracy on these sorts of grounds is rather weak and will become weaker still as we move from modernism to post-modernism.
Let me conclude by saying that I don’t think reform of the House of Lords should or will go much further than Stage I as amended by Weatherall and Cranborne. This, as you can see, is both a normative judgement and a prediction.
A constitution cannot and should not be overthrown except for grave cause. There is nothing in the radical reform proposals which constitute sufficient reason.
I further believe that the Labour Government’s reforming zeal in this area will be exhausted by Stage I. Which is why I think Stage II will be cosmetic.