Peers for the people

PARLIAMENT ANGUS MAUDE, MP

When the delaying power of the House of Lords was reduced to two years in 1911, the Parliament Act also reduced the maximum interval between general elections from seven years to five. This reflected a recognition of the fact that one of the constitutional functions of the second chamber is to check the legis- lative powers of an administration which per- sists in government, through a subservient majority in the Commons, after it has lost the confidence of the electorate.

No such compensating provision was in- cluded in the Parliament Act of 1949, which cut the Lords' delaying power to one year, and we are now faced with the prospect of two more years of effective (if that is the word) legislation by the most unpopular government of the century. To add insult to injury, the Government had the nerve to propose in the Queen's Speech a further weakening of the Lords' powers.

In effect, the peers renounced the use of their powers in 1964. The Conservative leaders were understandably nervous of provoking a showdown during the period of the knife-edge Labour majority of 1964-66; after the 1966 election they resigned themselves to the cer- tainty that any attempt to thwart the Govern- ment would result in a constitutional crisis ending in the abolition or neutralisation of the second chamber. The question now is whether their inhibitions have gone so deep as to become permanent. Can they see both the im- portance of their responsibility and the magni- tude of their opportunity?

Negotiations are taking place between the political parties about the future constitution and powers of the House of Lords. It seems unlikely that the present round of talks will prove much more fruitful than those that have gone before, since majority opinion in the Labour party is still basically hostile to the idea of a second chamber with any effective amending or delaying powers at all.

The House of Lords has been trying to reform its composition for more than sixty years. In 1907 a Select Committee recom- mended the creation of life peers and a selec- tive use of the writ of summons to hereditary peers. Resolutions to this effect were carried by the Lords in 1910, and the preamble to the 1911 Parliament Act assumed that reform of the composition of the second chamber would follow. In 1917-18 a joint conference of Lords

and Commons, under the chairmanship of Viscount Bryce, produced detailed recommen-

dations on both composition and powers, and in 1922 the Coalition government carried in the Lords resolutions laying down the com- position of a second chamber including heredi- tary, elected and nominated members (and also providing for entrenched constitutional powers).

The Coalition government fell before any action could be taken on the resolutions, Sub- sequent attempts to find an agreed formula have failed because the Labour party has never really wanted to find one.

It is possible to argue quite convincingly that no scheme for a `reformed' second chamber is likely to produce a better one than the present House of Lords; but, of course, this is not the point. Few people can believe that a second chamber which is given by the strength of its hereditary element a permanent, built-in Con- servative majority will be acceptable to the electorate in any but the most exceptional and temporary circumstances. The composition of the House has got to be changed. There is no difficulty about finding a viable formula. What can no longer be tolerated is a situation in which one party continues to thwart reform while gradually eroding the essential powers which a second chamber must have if it is to perform any useful constitutional function.

If anyone is in doubt about the need for an effective Upper House, the present parlia- mentary situation should provide all the proof he needs. The situation in the Commons is chaotic, and the Government continues to pour out legislation which is not even being properly discussed, let alone adequately amended. So long as the Labour majority in the Commons holds together, this situation looks like con- tinuing. The only constitutional safeguard which can now protect parliamentary demo- cracy from the virtual certainty of an ultimate outbreak of popular violence is for the House of Lords to do the job for which it exists.

If it fails to rise to its opportunities in this emergency, it will be difficult for anyone to take it seriously as an effective factor in the future development of the constitution. It will scarcely seem worth reforming. For there will never again—or so it is to be hoped—be a situation in which its amending and delaying powers are more badly needed or its duty to exercise them more plain. It cannot pos- sibly be accused of `thwarting the will of the people'—quite the reverse—and, if it provokes a constitutional crisis which precipitates a general election, the great majority of the country will be delighted.

However, important as it is that the Lords should act effectively in the present crisis, it is even more important that their leaders should defend and secure the powers of the Upper House for the future. It goes without' saying that to acquiesce in any further erosion of these powers would be not only a gross betrayal of trust but also totally unnecessary. If the second chamber is going to be recon- stituted on an acceptable basis, then there is actually a case for restoring some of its lost powers rather than surrendering more.

Our present experiences suggest that the delaying powers provided in the 1911 Parlia- ment Act, before they were curtailed in 1949, are by no means excessive when parliaments can last as long as five years. They should be restored to the 1911 status, which gave the Lords power to hold up legislation for two years; Bills passed by the Commons in three successive sessions became law automatically two years after they were first introduced. This provides no more than the bare minimum of safeguards against the follies of a government such as our present one. In any case, no second chamber is likely to sabotage the initial legislation of a new government with a sub- stantial majority.

The Conservative leaders should therefore refuse to settle for any powers less than those in the 1911 Act for a reconstituted Upper House. If the Labour party plays its usual game of refusing to agree to any solution which does not involve the gradual erosion of the Lord's powers to vanishing point, Mr Heath and his colleagues should announce firmly that the next Tory government will introduce early legislation to restore these powers in any case.

Indeed, they must do more than this. They must make it clear that a reconstituted Upper House is intended to play an effective part in the legislative process, and that there can be no possibility of future left-wing governments altering the constitution whenever it suits their short-term needs. This means that the powers of the Upper House must be entrenched.

The Coalition government proposed in 1922 that no Bill designed to alter the composition or powers of a reformed House of Lords should be subject to the provisions of the 1911 Parliament Act. This would have meant that the powers of the Lords could not be tampered with unless the Lords themselves agreed to the change. This would no doubt be an ade- quate safeguard, provided that the constitution of the reformed Upper House were such as to insure that its political complexion did not automatically change in exact proportion to changes of majorities in the Commons. It might be better to provide that the constitution and powers of the second chamber could be altered only by a two thirds majority of both Houses of Parliament. At all events, some entrench- ment of its powers is now absolutely essential if parliamentary democracy is to be preserved and legislation is to be adequately considered. If it be objected that this involves the prin- ciple of a 'written constitution,' and that this is alien to the British tradition, it must be answered that there are indications that some elements of an entrenched constitution are becoming every year more necessary if our freedom is to be preserved and good govern- ment insured. Whatever may have been true in the past, it is no longer true that the 'unwritten' British constitution insures to us greater freedom than do the formal constitu- tions of, say, the United States or Australia. The checks and balances are being steadily rendered weaker, if not inoperative; and the most obvious instance is that of the powers of the second chamber.

This is one essential safeguard that we cannot afford to surrender. The time to defend and preserve it is now, and the duty of the Conservative leaders to fight boldly for it is clear.