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Corridor or cul de sac ? The House of Lords as a corridor of power

Kenneth O. Morgan
p. 225-244

Résumé

Les théoriciens de la constitution britannique, Bagehot et Dicey, se sont-ils trompés en diagnostiquant un déclin de la chambre des pairs ? Un survol de l’histoire de la vénérable chambre au XIXe et XXe siècles sert de toile de fond à une évaluation de l’évolution de la place, du recrutement et de la fonction de cette assemblée. Reste-t-elle surannée ou a-t-elle encore une raison d’être au vu des réformes constitutionnelles entreprises depuis le milieu des années quatre-vingt-dix ? Libre et légitime, ou ossifiée et sous influence, la chambre des Lords d’aujourd’hui a-t-elle encore une place ?

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Texte intégral

Outdated institution?

1Walter Bagehot had no doubt about when the House of Lords ceased to be a significant corridor of power. It was with the passage of the Reform Act in 1832, forced through a recalcitrant and reactionary upper house by the Grey government and its House of Commons majority. They were much assisted by King William IV, who was compelled by the Whig government to create sufficient peers to ensure the Bill’s passage. After that, in Bagehot’s view, given in his famous essay on The British Constitution in 1867, written just before the passage of a second, far more democratic Reform Act, the House of Lords changed fundamentally and lost its essential power. It ceased being a ‘Chamber of Directors’, orchestrating the Commons through the peers’ control of constituencies, especially ‘rotten’ and other boroughs, and became instead merely a ‘revising and suspending house’, casting an eye over legislation that came from the Commons but hardly ever challenging it outright. The Lords, thought Bagehot, could have been more effective and vigorous even after 1832 : he actually proposed life peerages. But the Lords were too dilatory, timid and plain stupid to exercise even such influence as they might possess. They had become, along with the monarchy, one of the ‘dignified’ appendages of the British constitution, doomed for ever to be subordinate to the elected House of Commons, always to be marginalized, always second best.

2Historians now believe that Bagehot underestimated the weakness and relative unimportance of the House of Lords after the 1832 Reform Act. Of course, everybody agrees that things were very different in the seven centuries before that. Since parliament came into being in the thirteenth century, the House of Lords had exercised formidable political, constitutional and above all social power. The Civil Wars in the seventeenth century confirmed the ultimate supremacy of the Commons as elected voice of the people. The constitutional settlement after 1688 was to show that governments could not exist without a majority in the Commons, and that over finance the power of the lower house was supreme with grievances having to be dealt with before supply was provided. Nevertheless, the Lords remained a mighty force. In the era of Whig supremacy under the Hanoverians in the eighteenth century, beloved by the historian Sir Lewis Namier, the House of Lords remained a major power-house of influence. Great patrons and landowners like the Dukes of Newcastle, Bedford, Grafton, Portland or Devonshire, Earl Russell or the Marquis of Halifax, politically triumphant under the constitutional settlement of 1689 and afterwards, were at the very nerve-centre of political life. In the decades leading up to the passage of the 1832 Reform Act, a sequence of prime ministers sat in the House of Lords, including the longest-serving of them all, Lord Liverpool (1812 – 27). There was also the iconic Duke of Wellington (1828 – 30) who conducted a stubborn defence against the parliamentary reformers in 1832 as his troops had once again done against the assaults of Napoleon’s Old Guard at Waterloo in 1815, although this time without success.

3Modern historians and a contemporary commentator like Bagehot would be in agreement here. They would agree also that the Act of 1832 was obviously a huge defeat for the Lords and their influence, from which they never recovered. So it was, indirectly, for the Crown, the Church of England and other vested interests in the face of the rising democracy of the industrial age. However, historians also tend to feel that the Lords, consisting wholly of hereditary peers and a rump of equally unelected bishops and judges, was by no means as timid and useless as Bagehot argued for the post-1832 era. Politics in Britain after 1832 were almost as undemocratic as before. Many leading politicians, including several prime ministers, held office from the upper house, notably the premiers, Lord Melbourne (1835 – 41), Lord Derby on three shortish occasions, Disraeli as Lord Beaconsfield for the latter part of his major premiership (1876 - 80) and Lord Rosebery (1894 – 5). The most spectacular was Robert Gascoyne-Cecil, third Marquess of Salisbury, direct heir of the key adviser of Queen Elizabeth I, a massive landowner and political patron, baying at the dangers of democracy from his Jacobean mansion in Hatfield House in Hertfordshire. He served as prime minister for no less than fourteen years (1885, 1886 – 92 and 1895 – 1902), a period as long as that that occupied by Gladstone himself. At the dawn of the twentieth century, the Unionist (i.e. Conservative) government of Salisbury had both the prime minister and the Foreign Secretary (Lansdowne) in the House of Lords and thus free from direct daily contact with MPs.

4There was no prime minister in the Lords after Salisbury. In 1923 the fact that Lord Curzon was a peer was a major factor in ruling him out of being Conservative prime minister after Andrew Bonar Law, and Stanley Baldwin went to No. 10 Downing Street instead. Even more in the supreme crisis of May 1940, Lord Halifax was rejected by the Labour Party as a possible prime minister, though in any case they and others saw in the great commoner Winston Churchill the qualities needed to win the war, while Halifax was also deeply distrusted as a man engaged in the betrayals at Munich (as they were now seen) along with Neville Chamberlain, Edouard Daladier and Georges Bonnet. To become prime minister in October 1963, the fourteenth earl of Home had to give up his peerage (as was now constitutionally and legally possible) and fight a by-election before going to No. 10 rechristened as Sir Alec Douglas-Home MP. A prime minister in the House of Lords was totally unthinkable now.

5However, there were other indicators that being in the House of Lords by no means relegated politicians to political oblivion. For instance, other key posts in governments, usually Conservative governments, also went as a matter of course to peers. Lloyd George’s last foreign secretary in 1919 – 22, was a Conservative peer, George Curzon, although it might well have suited the wily Welshman’s purposes to have him buried in an unelected house for which he had personally no respect and which he himself discredited still further by the blatant sale of peerages. Attlee’s great reforming Labour Cabinet of 1945 – 51 included several veteran members of the Lords - Addison, Stansgate (father of Tony Benn), Jowitt, Pethick-Lawrence, Listowel and others. The Lord Chancellor, the head of the judiciary as he was until 2006, was necessarily a member of the House, and combined in his own person the legislative, executive and judicial role, all three arms of Montesquieu’s mixed constitution. The Law Lords, in a way that continental observers and commentators always found hard to understand, were, as the supreme court of the land, essentially a committee of the Lords, a key component of the legislature. Without the House of Lords in existence, this curious but long-lasting anomaly could not happen.

6Just as the presence of leading peers in the government gave the Lords an enduring importance as a corridor and forum of power long after Bagehot published wrote his famous essay in 1867, so too their potential powers were far greater than he suggested. Even at the time he wrote, Anthony Trollope’s political novels indicated that a great Whig patriarch like the Duke of Omnium could be a crucial political player and influence in the era of Disraeli and Gladstone, the supposed heyday of the new democratic party politics. The potential power emerged most clearly with the great political transformation created by the split in the Liberal Party over Irish Home Rule in 1886. Until then the Conservative and Liberal parties had both maintained a strong, and not unequal representation in the upper house. But the Liberal schism over Ireland meant that nearly all the Whig peers and their families (people like the Dukes of Westminster, Argyll and Devonshire) moved over to the Conservative party. As a result, from 1886 the party composition of the Lords was overwhelmingly Conservative (or Unionist, to use the new nomenclature). Furthermore, as the late Gladstonian Liberal Party moved to the left, more emphatically so with the influence of younger radicals like Lloyd George after 1900, the Lords became active and aggressive in resisting Liberal majorities in the House of Commons in a way Bagehot could never have visualized. The Campbell-Bannerman and Asquith governments of 1906 – 14 were plagued by the blocking power of a Tory-led and seemingly die-hard House of Lords throughout its course.

7Finally in 1911 the House of Commons got its way in the crisis provoked by the Lords rejection of Lloyd George’s ‘People’s Budget’ of 1909 with its new taxes on land and on the rich more generally. Since then, the powers of the Lords have been hugely diminished. The Commons alone has primacy over finance bills (assuming that the Speaker of the Commons certifies that a bill is indeed a money bill), while the Lords can delay a measure passed by the Commons for only three sessions or two years. This last power could still seriously embarrass a government. On the eve of war in 1914, the Lords had yet to pass bills granting Ireland home rule or disestablishing and disendowing the Church in Wales. These issues were still unresolved after two years and more of conflict between the two houses (and near civil war in Ireland). Other government measures were therefore on hold. Nevertheless, the Parliament Act of 1911 was a massive landmark in underwriting the supremacy of the Commons. This was reinforced in 1949 when Attlee’s Labour government halved the period of delay from two years to one, a situation that still prevails today.

8Since 1949 the subordinate role of the House of Lords has been obvious. It has become more and more marginalized. It can still be a nuisance with its powers of delay, invariably exercised when a Labour government is in power. The Wilson and Callaghan governments of 1974 – 9 were defeated many times in the Lords, and much difficulty was caused for ministers as a result. Even the Blair governments after 1997, with their mammoth majorities, were challenged by the Lords, notably on marginal, semi-political questions like fox-hunting, but also on more central issues including the justice system and civil liberties, and also education and health policy. But this power was exercised with care. Governments operated under the Salisbury-Addison convention worked out by the leaders of the two main parties in the Lords in 1947, which laid down that a government’s legislation would not ultimately be rejected in the Lords if it had formed a part of that government’s election manifesto. Since 1949, governments have had to exercise its powers under the Act of that year, and overrule the Lords’ veto, only three times, twice in Mrs. Thatcher’s period (notably on the trial of veteran former war criminals) and, as noted, over fox-hunting under the Blair government in 2004. The House retains its powers as a revising and amending body, exercised with care and at length in prolonged committee stages, but the supremacy of the Commons is beyond dispute. In the end-of-session ‘ping-pong’ between the two houses, the Lords always gives way.

9The change in the composition in the Lords is also notable. All major Ministers of the Crown are necessarily invariably located in the Commons. Having a peer, Lord Carrington, owner of 800 acres of land, as Foreign Secretary in 1979 – 82 seemed quite bizarre. It meant that he could not be interrogated by MPs for policy failures before Argentina invaded the Falklands in 1982, and it has not happened again. Since the Constitution Act of 2005, with the setting up of a Supreme Court under the supervision of the Lord Chief Justice, the post of Lord Chancellor has withered away and need no longer be located in the upper house or even held by a lawyer. Indeed in 2007 the position was held by Jack Straw in the Commons, as head of the new Department of Justice. The creation of the department of Constitutional Affairs provided an umbrella for all the various arms of the constitution, judicial as well as legislative and executive, following devolution and all the other changes to the constitution put through by the Labour government after 1997. It seems unlikely that a Lord Chancellor in the House of Lords, a feature of our legal system since the reign of Edward I in the thirteenth century, memorably satirized by Gilbert and Sullivan in their light opera Iolanthe in the 1890s, will ever appear again.

Renewal or further discredit?

10The wider composition of the Lords has changed even more drastically. The introduction of life peers in the peerage bill of 1958, has led to a steady stream of new recruits from the 1960s onwards. Tony Benn’s resistance also ensured in 1963 that the eldest sons of peers could renounce their peerages and stay in the Commons if they chose. The Conservative ex-Lord Chancellor, Lord Hailsham, believed, as he wrote in his memoirs, A Sparrow’s Flight in 1990, that the prestige of the Lords had risen as a result of life peerages. ‘It enjoys today a higher reputation than at any time in its long history.’ Instead of being treated with scorn as an absurdly undemocratic gathering of unrepresentative and often absentee peers, operating as legislators because of the activities (or perhaps misdemeanours) of some remote ancestor, now the Lords included men (and increasingly women) of distinction from the law, academia, science, business, the media and many other areas. Its debates were acknowledged to be commonly of a higher level of intellectual weight and professional expertise than those in the Commons. The Lords was now essentially a forum for debate, to which the public could pay some attention. In fact, they did so less and less. Lobby correspondents, in the newspapers or broadcasting, increasingly ignored the debates in the Lords, or perhaps just considered their elderly lordships as figures of fun. In 2007 the daily newspapers virtually ignore proceedings in the Lords completely, save for comic questions on such matters as Christmas cards or conditions in the peers’ dining rooms. (It must be said that the Commons is hardly taken any more seriously by lobby journalists either, since the old-style parliamentary correspondent of the type of David Watt in the Times or Norman Shrapnel in the Guardian has given way to would-be humorists anxious for something to entertain readers with a poor attention span.) It used to be hoped that the televising of the Lords, whose debates feature at much length on the TV Parliamentary Channel, might remedy the neglect of the newspapers. But the novelty has long worn off, while the spectacle of so many empty benches during House debates is as uninspiring for viewers of those proceedings as it is for enthusiasts for debates in the Commons.

11The Blair reforms of the Lords in 1999 carried the process of changing the membership of the House much further. After long, anguished debates, the number of hereditaries was reduced from many hundreds to just 92 : they were elected from among their own number, and proved to be effective and sometimes distinguished in their work in the House. The result, many commentators felt, was to draw attention even more to the skill and distinction that the House of Lords could display, with clear benefit in assisting the process of legislation and elevating the tone of public debate. On the other hand, it also drew sharp attention to the anomaly of the 92 hereditaries that remained, along with that of the bishops of the Church of England, representing a church to which less than a tenth of the British people belonged in any meaningful sense. Some felt they might be joined by a miscellany of priests, ministers, rabbis and imams in a multicultural land. There was suggestion too that the House of Lords life peerage systems could lead to anomalies. There were detailed inquiries into the possible sale of peerages under Tony Blair between 2003 and 2005 even though police inquiries reached in 2007 a fairly predictable dead end. There was ample evidence, too, that the life peerage system could be used, and was so used, by the party whips, especially those of the governing Labour Party, not to reward distinction but to create a pool of loyalists who would troop through the lobbies of the Lords as they had once done in the Commons, without taking much part in Lords’ debates or otherwise contributing to the business of the House, other than the profits of the Bishops Bar or other watering holes in the Palace of Westminster. Of possible future peers, John Prescott may be elevated to a peerage as a reward for long service as MP and minister, but not necessarily for the intellectual or other qualities he might bring to Lords’ business. A new Appointments Commission was set up to supervise possible recruits to the Lords, but its early activities proved to be remarkably ineffective. The Lords’ membership in 2007 also included two Conservative peers, Jeffrey Archer and Conrad Black who had been convicted of perjury and fraud respectively, but their right to sit on the green benches of the Lords chamber survived.

12Gordon Brown’s premiership began in June 2007 with a powerful statement on behalf of constitutional reform. Some of his proposals, relating to the powers of Parliament or the scrutiny of appointments, were precise and widely appreciated. But there was also a more general statement that the House of Lords was now an unreformed anomaly. Over the centuries, its membership had remained resolutely unelected. In 1911 Asquith, in introducing the Parliament Bill, had included a vague statement about a future policy of reforming the membership of the House and ensuring that it conformed more closely to the mood of the country. But nothing happened then, or later. The Attlee government of 1945 – 51 did nothing at all about the composition, as opposed to the powers of the House of Lords. After the introduction of life peers in 1958, they and the existing hereditaries sat by side on (potentially) far more crowded green benches. They still do, with the 92 remaining hereditaries and all the 650 or so life peers intermingled and indistinguishable.

13In June 2007, therefore, Gordon Brown, announced his intention of having a largely elected upper house (perhaps 80 per cent elected), although the existing life peers would remain, slowly weeded out by natural wastage in old age. The details of such a major reform, the proportion to be elected, the precise voting system used to elect them, the constituencies to be drawn up, their pay and terms of condition, the relationship to other constitutional changes such as devolution and so on, are at present quite unknown. This is because there is no settled consensus between the parties, and no agreed alternative to the status quo. The Labour Party is split between those who want a largely or wholly elected upper house as a matter of democratic principle, and those who fear that such a house would inevitably challenge the primacy of the House of Commons through its greater legitimacy. Still, the intention is clearly to control and weaken the House of Lords still further. It could be, perhaps, that Gordon Brown’s premiership will complete a process begun in 1911 by Asquith, which places the Lords in a clearly marginal and minor limbo of the British constitution. We would come close to having a unicameral legislature. Indeed, some speculate who precisely who would ever want to be elected to so pointless a body, unless they were motivated solely by personal pride or snobbishness at acquiring the title of Lord. But, then, that consolation could also be removed if the members of House were designated, rather like members of the Scottish Parliament or the Welsh Assembly, as simply ML, member of the Lords.

14With this steady, if remarkably prolonged, process of the diminution of power, can we conclude that the Lords is no longer an institution to be taken seriously as any kind of corridor of power? Is it now indeed largely the ceremonial or frivolous assembly that Bagehot took it to be in 1867 ? Nearly two centuries on, is Gordon Brown completing the work of disestablishing the Lords begun by the radical reformers in our industrial cities before 1832 ?

An independent chamber

15In fact, in my experience, both as a historian and as a working Labour peer since 2000, the House of Lords still plays in some respects a sufficiently important and serious role to merit consideration as a place where power is exercised or mediated within the complex processes of the British constitution. It merits inclusion, therefore, in this volume of essays.

16First of all, it is still of course an active part of the legislature. To become law, House of Commons’ bills, other than money bills which go through automatically since 1911, have to undergo passage and scrutiny in the House of Lords. This is very far from being an automatic matter, as has been seen. Indeed, there are many commentators who believe that the reform of the Lords’ composition in 1999, by giving it more legitimacy, has made it more effective and active than before as a revising and suspending house prepared to stand up to the government of the day. The power of the whips rests more lightly on the shoulders of life peers. In addition, the Labour Party can count on the support of no more than around 212 peers, as against a similar number of Tory peers, around 70 Liberal Democrats and nearly 200 cross-benchers. This means that there is no overall majority for anyone, and a good deal of room for manoeuvre during the committee stages of a bill in the Lords. Long before the Iraq war, the Lords was vigorously exercising its powers in challenging the will of the government. The Iraq war, which saw many Labour peers quite as passionately opposed to Tony Blair’s policy of alliance with the United States as were Liberal Democrat critics, accelerated that process.

17Thus a variety of authoritarian measures resulting from that war, have been strongly challenged in the Lords, as have other measures with civil liberties implications such as the proposals for ID cards or police control orders or ASBOs (anti-social behaviour orders). The House of Lords led the way in opposing the government’s Prevention of Terrorism Bill in March 2005, and proved to be far tougher in doing so than the House of Commons. There was a celebrated stand-off leading to an all-night session in which elderly peers chose to spend an uncomfortable night in the House on makeshift camp beds, sofas and the like, to force the government to compromise. In the end, the government, in the person of Charles Clarke, the then Home Secretary, did offer serious concessions including a ‘sunset’ clause to monitor the working of the act later on, and measures to ensure that there was better judicial oversight and review of the processes of detaining terrorist suspects. It was also well known that the proposals to extend the period of detention without trial to as much as 90 days had no chance of getting through the Lords : fortunately, the Commons also rebelled and the period of detention was left at 28 days. Future proposals to override traditions of habeas corpus and extend the period beyond 28 days, suggested by Gordon Brown in November 2007, are likely to find the Lords equally determined.

18Other, less obviously political, measures have found the Lords in open revolt. The opposition to Fox-hunting was never overcome, since this was an issue in which the socially conservative instincts of peers, backed in some cases by a kind of principled John Stuart Mill-style libertarianism, were insuperable. Hunting with dogs has now formally been ended by law, but as a result of the use of the Parliament Act. In March 2007 the Lords acted with unusual effect in throwing out, not a bill, but a government Order for the geographical distribution of casinos, particularly in this case one to set up a super-casino in inner-city Manchester. The Lords rejected this by three votes, with complicated cross-party voting patterns, including Muslim, Catholic and nonconformist peers, the Anglican bishops and Labour peers like the present writer who felt that setting up the temptations of a super-casino in a poor working-class area of Manchester was no way to promote ‘social regeneration’. I found myself in the same lobby as people I had never voted with before, and did not know even by name. In this case, the Lords’ narrow decision was conclusive since Gordon Brown, on becoming prime minister, immediately announced, through a pre-arranged answer, that the super-casino was dead in the water. Other cases of this kind could be quoted. The political muscle of the Lords had risen from apparent oblivion – indeed, it had been alive and well all the time.

19Does this aspect qualify the Lords to be in any meaningful sense a corridor of power? In my view, it certainly does, the more so as the Lords tends to exercise this power selectively and carefully, and can in no way be equated with the die-hard, all-hereditary, overwhelmingly Tory body of pre-1911 days. While contentious bills are in Lords committee or at the report stage, there is an endless process of bargaining and discussion, mainly through front-benchers on all sides, but also involving backbench peers, especially those who are party political. The Lords, with its labyrinthine corridors, is a ready forum where pressure-groups can meet, and there is much subtle inter-action between them. I myself have been involved in meetings and manoeuvrings with pressure-groups concerned with issues such as the beating of children, opposition to cruel sports, regulation of the media, civil liberties and the views of the Bar Council, foreign-policy groups concerned with matters such as Iraq, Palestine or nuclear proliferation, trade union issues, or the particular affairs of Wales. Peers are ceaselessly lobbied, with civil liberties bodies as Liberty, Justice and Amnesty International prominent. There is also frequent pressure from religious groups on moral or educational questions. In all these cases, the Lords, and its powers of revision at Committee, Report and even Third Reading stages, is an important focus for political manoeuvre. It also, of course, inter-acts in a variety of subtle ways with groups of dissenters or others in the Commons (popularly known in the Lords’ debates as ‘down the corridor’). It should be added that the availability of the Lords as a channel of power during the process of legislative discussion can also be very useful for the government too. It can get its own measures fruitfully improved or technically amended. In any typical measure, when it comes before the Lords it may confront over 400 amendments. But that is not necessarily a comment on the peers being difficult. Over half those 400 may in fact be government amendments. That is to say, the Lords is a useful legislative corridor of power in getting the government’s work done more effectively in a way that is not always possible in the House of Commons.

20The Lords is secondly a useful corridor of power in connection with the make-up of the government. Even though Cabinet ministers in the Lords are now a small handful, with only one at the present time (Baroness Ashton, Leader of the House) still there have to be government ministers or spokesmen to get business through. They often have to put in long hours as whips as well. This means that we have accessible ministers very much at close quarters. It is difficult to convey to outsiders how extraordinarily small and intimate the House is It is easy to arrange meetings with ministers, of course, but it is not always necessary to do that since we always bump into each other by chance in the Prince’s Chamber, in corridors, in the Library or committee rooms, or of course, in the tea-rooms or bars. That immediacy makes the Lords far more useful than is commonly thought. As prime minister, Gordon Brown has found the role of ministers in the Lords unexpectedly useful since he has used it as a home for various government spokesmen brought in from outside the Labour Party such as the diplomat Malloch-Brown or the health administrator Lord Darzi. There is also Digby Jones of the Confederation of British Industry, newly christened Lord Jones of Birmingham (an entire metropolitan area not the usual little village !), apparently a Conservative but nevertheless destined to be hailed by fellow Labour peers as ‘Comrade Jones’. Having an accessible public space for building up your government in unexpected directions is one way of defining a corridor of power. The bad side, of course, as indicated above, is if this peerage or government office is in any way with financial considerations or even corruption. One former minister, the millionaire Lord Sainsbury, a man of unimpeachable honesty, was also a huge donor to party funds. This aspect emerged under Tony Blair but only with individuals like Lord Levy who worked for the government (in the Middle East in his case) in a non-executive and informal capacity. In these cases, as it happened, the police were unable to offer proper evidence of any wrong-doing, and all possible prosecutions lapsed forthwith.

21A third area in which the Lords’ role as a corridor of power still has some weight, even if vastly less than before 1914, is in connection with the party system. I would not want to press this too strongly : obviously the party system operates with far more impact in the Commons, and the discipline imposed there by the whips is far more formidable. Nevertheless, it cannot be said too often that the House of Lords is not just a donnish body of detached individuals discussing the eternal verities with philosophical detachment. It is also intrinsically a body governed by the dictates of party. Its main rationale is to pass, defer or amend measures proposed by the partisan government of the day. With the balancing out of party representation through life peerage appointments, party considerations loom large. This applies equally to times of Conservative government as of Labour. The great majority of peers take a party whip – over 500 in a House of close to 700. There is an organized whipping system, of most importance of course for the 212 peers who support the Labour Party at the present time. We have a roster system to ensure a quorum in debates, of importance in the summer months when the heaviest burden of new measures comes through from the Commons. And it is whipped working peers who support parties that turn up most frequently : some of the much-lauded ‘independent’ cross-party peers, including the ludicrously termed ‘people’s peers’ have a very poor voting record, either because they are not interested, or because their concerns tend to focus on one specialist area. It is party peers, appointed as working peers and told beforehand that they are expected to participate in around three quarters of the votes if possible, who provide the energy of the House of Lords, and do the hard work of attending, voting and debating. By comparison, the cross-benchers, many of whom are crypto-Tories under another name, are usually marginal. Party peers have their own internal party meetings, they have their own private sessions with, or briefings by their party leaders (ministers, of course, in the case of the Labour Party peers), and they are members of their respective parliamentary parties.

22I myself regularly attend the Monday meetings of the parliamentary Labour Party. Peers are not encouraged to speak there, though some do, but it is still a valuable occasion to listen to, and perhaps talk to, key members of the government from Gordon Brown down, to talk to Labour MPs, and to get a general sense of the mood and priorities of the party. I also attend the Welsh regional group of Labour MPs and the non-party group on higher education, as well as all-party bodies concerned with archaeology and the arts and heritage. Many Labour and other peers appear often on radio and TV (as I do, including Welsh-language broadcasting where the handful of us who speak Welsh are much in demand), or write in the weeklies or broadsheet newspapers like the Guardian or Independent on a broadly partisan basis, as I also do. The party whips’ offices are also of much importance for a working peer as a source of information or party briefings or plain propaganda, for interaction with party campaigns at by-elections or other occasions, and for gaining access to ministers or colleagues.

23I recall some of our meetings with ministers as being of importance. For instance, in 2006 ministers were anxious that the Lords should approve the Extradition Treaty arrangements with the US, especially when British businessmen connected with the Enron scandal were facing prosecution in the US. Our meeting with the minister, Baroness Scotland, was an important one that affected votes and speeches in the Lords afterwards. As a result, several of us spoke on behalf of the government in debate in November 2006 (Police and Justice Bill), and the vote for the Extradition Treaty with the US was narrowly carried - with the help of some cross-benchers too, it must be said. The ultimate effect of meetings such as this, in addition to conveying important information on both sides about the approaches adopted by ministers and the view of backbench peers, is to carry forward the purposes of the government as a partisan administration.

24Other aspects of the role of the Lords are harder to classify as corridors. They are perhaps cul de sacs or just roads to nowhere. Nevertheless, it would be widely recognised that in legal and constitutional matters, the Lords is more than just a forum for debate, a kind of political Wembley or Stade de France. The Law Lords are still located in the Palace of Westminster until the expensive new buildings to house the future Supreme Court are completed. That will come to an end, and a centuries-old process for the disposition of legal power will be transferred to the new Supreme Court, with the old Lord Chancellor disappearing into history. The experiment of having the supreme law office, the Attorney-General, Lord Goldsmith, in the House of Lords was perhaps forced on the Blair government because of the severe shortage of serious ex-lawyers on the Labour benches in the Commons. On the other hand, it made the Attorney-General inaccessible to MPs when his role in giving eventual legal sanction to the invasion of Iraq in March 2003, made this arrangement open to serious attack. Goldsmith, not himself an expert on international law, was accused of behaving as a partisan politician and Blairite crony, rather than as an objective legal adviser. His successor, Baroness Scotland, issued a consultation paper on her office (26 July 2007) proposing major limitations on her right to prosecute and suggesting that in future a lawyer from outside politics might be appointed Attorney-General instead. She could well be the last Attorney-General to sit in their lordships’s house.

25If the involvement of Goldsmith with the Iraq war somewhat tarnished the standing of peers on legal matters, on the other hand, the Lords is seen as a place where the detached discussion of legal themes can be undertaken without undue partisanship. Thus Lord Irvine, a truly great Lord Chancellor who drove through both Scottish and Welsh devolution and the historic Human Rights Act in 1998 – 9, was able to draw on much expertise within the Lords during their passage. Former law lords like Lord Lloyd of Berwick are prominent in debate. Several highly controversial civil liberties issues raised by the Blair government - the admission of immigrants and asylum-seekers and their treatment while in Britain, the role of the police and inroads into the jury system which has survived since before Magna Carta (1215), the overhaul of the criminal justice system, the handling of public disorder, the control of movement through police control orders and ASBOs and the exercise of free speech in the vicinity of the House, the potential introduction of ID cards - have all found in the Lords a peculiarly valuable place both for informed debate and for the definition of policy. Liberal Democrat lawyer peers have played a particularly significant part here : indeed two of them are now advisers to the Brown administration from outside the government, Lords Lester (constitutional affairs) and Carlile (oversight of custody and detention powers). Here is surely an area where the prestige of the Lords, and perhaps its power, has risen since the hereditary peers were sent to the dustbin of history back in 1999.

26The committee system of the Lords is arcane and removed from the public gaze. Nevertheless, there are both major joint committees of both Houses, and important Lords committees on their own account. In the latter category might be placed the still relatively new Lords Select Committee on the Constitution, on which I used to serve, and whose views on such issues as devolution in 2002 and especially the government’s right to declare war without parliamentary sanction had some impact on public debate, and perhaps indirectly on government policy. Commitees on European matters, on aspects of human rights or the committee on Science and Technology have all put forward important proposals which have helped to shape discussion. At the very least, these committees have fulfilled a unique role. There is nowhere else in our institutional structure where broad issues of principle and their implications for government policy can be discussed in so detached a way and at so high a level. They are not at the centre of decision-making, but they are sufficiently close to it to make a difference.

27More vaguely perhaps, the Lords could be considered as still a corridor of social and cultural power, important in the understanding of British constitutional conventions. There has been much critical analysis, notably by Hywel Williams in Britain’s Power Elites (2006), of the inter-action of a myriad of professional elites, legal, business, scientific, academic and so on. To a degree it is in the Lords where the interaction takes place. Leading figures in all of them meet there in a spirit of independent-minded engagement. In London’s clubs or Oxford’s colleges, unofficial chat may ventilate the essential themes. But it is in the Lords that discussion can produce results, at least in the sphere of public policy. This should never be exaggerated. The Lords contains, for instance, some major figures in business and banking, medicine, architecture and the arts whose very eminence means that they only rarely attend the Lords, although there are of course other ways of getting in touch with fellow peers. But it is also a forum for the public-spirited, concerned activist, even the public intellectual who wishes to get more engaged with the political process than, say, John Stuart Mill or Bagehot did a century and a half ago. If the Lords were still the reactionary body of effete landowners or wealthy capitalists it was prior to 1914, or even 1949, there would rightly be concern. On such issues of principle as capital punishment, the House of Lords was a consistent obstacle to reform : the judges there were commonly as resistant to reform as anybody (the appalling Chief Justice Goddard for instance). That no longer applies. The social conservatism of the fox hunting issue (which influenced many Labour peers as well as Tory landowners) was quite aptypical. On such contentious moral issues as stem-cell research, adoption of children by gay couples, the freedom of homosexuals from the operations of clause 28, or the protection of women’s free choice on abortion, the viewpoint of the Lords tends to be solidly on the liberal side of debate. The handful of Anglican bishops are not a major factor in debate, but they too are far from illiberal, and on the Iraq war were admirably outspoken about the government’s behaviour. If Gordon Brown were to replace the present Lords, for all the illogicalities of its membership, with uninispired party regulars conforming to the dictates of political machines and local focus groups, it might well produce a far less liberal-minded assembly – and, of course, a far more docile one.

28Ultimately, perhaps what has preserved the Lords as a corridor of influence and even power, in a number of areas, is less the range of its powers, but rather the intelligent and flexible way in which they have been used. That is for one major reason. Large numbers of peers, including the partisan ones, believe they are there to exercise independence of judgement, over and above the dictates of party whips. It could even be said that Bagehot’s famous judgement has actually been inverted in recent years. Since 1999 it could well be argued that it was the Commons which had allowed itself to become the dignified part of the constitution, browbeaten by the command structure of New Labour, and the morally legitimized if unelected Lords which had become the efficient part. This contrast has become less true since the Iraq invasion released a greater sense of independence in the Commons, or more relevantly backbench Labour MPs, and Gordon Brown’s proposed reforms might have the consequence of encouraging this more liberated attitude. They should give Commons backbenchers a stronger role in scrutinising legislation and public appointments, and determining foreign policy and going to war, comparable to the House of Representatives in the United States.

29But the peers’ sense of intellectual freedom should still be nurtured. It could even be reinforced. The main problem with the Lords today is that it is too old. In their vanity, the Lords in discussing the reform of their own House tend to boast of their own professional expertise. This is highly misleading. In many ways they are not so much a House of experts as a House of ex-experts. They have served their time and in most cases, save for some of the lawyers, their careers are over. I myself was a Vice-Chancellor of a university for seven years, but the university world, especially its funding arrangements, has changed fundamentally since I took early retirement to get back to scholarship in 1995. I am well aware of my limitations in discussing higher education now. Nevertheless, with a proper sense of their own limitations, the Lords can still combine a remarkable range of professional knowledge with a confidence in their grasp of overriding principles of governance. Other upper houses can do so, like the French Senate, and in the conventional secretive way peculiar to the unwritten, informal British constitution, the Lords do also. As a channel of power, they would be improved with more young peers, certainly with far more women and more representatives of our immigrant communities. The twenty-odd peers from ethnic minorities – most of them of immense distinction in their professions – still seem to me turned into outsiders by the conventions of the system. But then it is a very English system, with links to ancient institutions and even the British public schools. As a Welsh-speaking Welshman who did not go to a public school, I feel a little excluded too.

30The British constitution will be in the forefront of political contention over the next few years. Think tanks like Robert Hazell’s Constitution Unit in University College, London will be prominent in public debate. There will certainly be transformation. The balance between executive and legislature may be redressed, the civil service may regain their sense of professional independence as against government-appointed special advisers, the private citizen may have his or her legal and civil liberties better guaranteed, relations with Europe in the revised constitutional treaty of last summer may be reappraised perhaps by referendum, Scotland could conceivably leave the Union and the old United Kingdom cease to be. It is possible that in the end Britain might end up with a written constitution and a formal Bill or Declaration of Rights like the United States or France, although I would not hold my breath on this point. But, however extensive the constitutional changes that Gordon Brown’s government promotes may be, the Lords will surely retain an intermediary role. This applies whether it is largely, or even entirely elected (a change foreshadowed by Jack Straw, in a White Paper early in 2008, but likely to take a lengthy period in being implemented). Its procedure should certainly be modernized, for instance in sharpening our debates to avoid repetition or digression, but the existence of a Lords’ speaker we have ourselves elected is a portent of hope here. I would personally like to see the Speaker adopting a much more pro-active role in directing or speeding up debate. At the moment, the main force for discipline in our wordy debates is the approach of the dinner-hour. We have few important votes after 7.30 pm when most peers disappear, particularly on the Tory benches. Dinner and home comforts from the wife or solace elsewhere come first.

31One could imagine the Lords playing a more important role still some time in the future, for instance acting as the lynchpin of a federal Britain and its constituent nations, especially if Scotland ever achieves something close to full independence. It has been useful that the presiding officers of the three Celtic assemblies, the Scottish parliament (Lord Steel), the Welsh Assembly (Lord Elis-Thomas) and the Northern Irish Assembly (Lord Allardyce) all sit in the Lords, a mini-corridor of power as it were and far more useful than the dormant Council of the Isles set up after the devolution measures. If any of this happens, it will gain from the fact that, in however limited a form compared with Bagehot’s day, the Lords still is involved with the operations of power in the British system of governance. If our politics are to be even more closely meshed with the world of information technology, digital communication and media relations in an age of growing globalization, it will be all the more vital to have enduring institutions to ensure ordered processes of government.

32The House of Lords is a very strange animal: if you wanted to invent it, you would never start from here. But, like much in modern Britain, it combines the appearance of tradition – the scarlet ermine robes at the start of a new parliament the most notorious example – with a subtle awareness of new forms of power, a distinction which Bagehot was shewd enough to detect in his analysis of ‘the hidden republic’ that was Britain. Like his House of Lords in 1867, it embodies sociological, cultural and psychic forces that go far beyond the formal institutions of Westminster and Whitehall. It is a talking-shop, often futile, but one that links up with the worlds of power and patronage and party in a way that gives it credence still. It is not a very broad corridor, perhaps a labyrinth of side-passages and trap-doors, certainly not a broad boulevard, let alone an autoroute. But as long as power meanders through it, the ancient House of Lords can still offer a road ahead.

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Bibliographie

Amery, L.S., Thoughts on the Constitution, Oxford University Press, 1947.

Bagehot Walter, The British Constitution, Oxford, Oxford World Classics, (1867), 2001.

Bogdanor, Vernon (ed.), The British Constitution in the Twentieth Century, Oxford University Press, 2003.

Bromhead, P.A., The House of Lords and Contemporary Politics, Routledge and Kegan Paul, London, 1958.

Cook, Robin, The Point of Departure, Simon and Schuster, London, 2003.

Hailsham, Lord (Quintin Hogg), A Sparrow’s Flight : the Memoirs of Lord Hailsham of St. Marylebone, London, Collins, 1991.

Hazell, Robert, The House of Lords : Completing the Reform, University College of London, Constitution Unit, 2002.

Mill, J. S., Considerations on Representative Government, London, 1861.

Russell, Meg, Reforming the Lords : Lessons from Overseas, Oxford University, 2000.

Russell, Meg and Robert Hazell, Commentary on the Wakeham Report on the Reform of the House of Lords, U C London, Constitution Unit, 2000.

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Williams, Hywel, Britain’s Power Elites, Constable, London, 2006.

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Référence papier

Kenneth O. Morgan, « Corridor or cul de sac ? The House of Lords as a corridor of power », Observatoire de la société britannique, 6 | 2008, 225-244.

Référence électronique

Kenneth O. Morgan, « Corridor or cul de sac ? The House of Lords as a corridor of power », Observatoire de la société britannique [En ligne], 6 | 2008, mis en ligne le 01 février 2011, consulté le 19 août 2017. URL : http://osb.revues.org/475 ; DOI : 10.4000/osb.475

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Kenneth O. Morgan

Membre à vie de la Chambre des Lords
Fellow of the British Academy

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