No end to hereditary peer by-elections in the House of Lords?

downloadThe House of Lords is not entirely unelected; July saw two new peers appointed following elections involving a very small, select group of electors. In this post, former Clerk of the Parliaments David Beamish discusses the process by which hereditary peers can be elected to the Lords, how the system came to exist, and the continuing efforts to remove the remaining hereditaries altogether. 

It was announced on 18 July that Lord Bethell had been elected to fill a vacancy among the 90 elected hereditary peers in the House of Lords – the 34th such vacancy to be filled by means of a by-election. The vacancy arose from the retirement of the Conservative peer Lord Glentoran (the House’s only Winter Olympic gold medallist) on 1 June. These by-elections are conducted using the alternative vote system and, despite there being 11 candidates, Lord Bethell did not need any transfers of votes, receiving 26 of the 43 first-preference votes cast by Conservative hereditary peers.

This was the second by-election this month: on 4 July the Earl of Devon was elected to fill a Crossbench place vacated by the retirement of Earl Baldwin of Bewdley, grandson of Stanley Baldwin and a tireless campaigner against water fluoridation. The Earl of Devon received 7 of the 26 first-preference votes of Crossbench hereditary peers and it took five transfers of votes for him to be elected.

Viscount Mountgarret was a candidate in both by-elections, receiving no votes in either. His optimism when deciding to stand the second time might have been fuelled by the success of the Earl of Oxford and Asquith, who was elected by the whole House in 2014 and sits as a Liberal Democrat, having previously been an unsuccessful candidate in a Crossbench by-election in 2011 and in Conservative by-elections in 2011 and 2013.

At least one more by-election is in prospect: Lord Northbourne, a Crossbench hereditary peer, has given notice that he will retire on 4 September.

Where do by-elections come from? The House of Lords Act 1999

The present arrangements whereby 92 hereditary peers sit in the House of Lords derive from the House of Lords Act 1999, which removed most of the 750 hereditary peers but provided, under the so-called ‘Weatherill amendment’, for two office-holders (the Earl Marshal and the Lord Great Chamberlain) and 90 elected hereditary peers to continue as members. The 90 comprised 15 peers willing to serve as deputy speakers or committee chairs, elected by the whole House, and 75 peers representing 10 per cent of the hereditary peers in each party or group: 42 Conservatives, 28 Crossbenchers, 3 Liberal Democrats and 2 Labour peers; they were elected by the hereditary peers in their respective groups.

The provision for by-elections to fill vacancies among the 90 was introduced by an amendment moved by the then Lord Chancellor, Lord Irvine of Lairg, at the third reading of the House of Lords Bill in 1999. He explained:

‘My Lords, this is the amendment which we heralded at Report stage when we said that we were prepared to accept by-elections as the mechanism for filling vacancies among excepted Peers in the unlikely event that the transitional House lasts beyond the end of the first Session of the next Parliament. Time and again we have emphasised that the Bill itself is a transitional measure providing for a transitional House. That is why we have always believed that the so-called ‘fastest loser’ system, provided for in the first Standing Order under Clause 2 and agreed by your Lordships’ House on 26th July, remains the most sensible and the most flexible way of filling vacancies for the entire duration of the transitional House.

The transitional House will be of short duration, but let us proceed on the hypothetical assumptions that it might last for more than two or three years and that the ‘fastest loser’ system might have outworn its effectiveness by that time. That being so, our amendment provides that after such time any vacancy due to the health of an elected excepted Peer should be filled by means of a by-election.’

The fact that the ‘transitional House’ is still in existence nearly 19 years later demonstrates the difficulty of getting majority agreement to any particular version of a second stage of House of Lords reform, a topic discussed in a Constitution Unit blog post by Pete Dorey earlier this month.

Between 1999 and 2002 two Crossbench vacancies were filled by runners-up in the 1999 elections, but since 2003 vacancies among the 90 – including, since 2014, 10 vacancies caused by retirements – have been filled by means of a by-election, with five different electorates varying in size from three – the remaining Labour elected hereditary peers, including two of the 15 elected by the whole House in 1999 – to the whole House. To be a candidate one must of course be a hereditary peer, and initially several of the successful candidates were former members excluded in 1999.

The quaintness of the continuation of these by-elections is perhaps accentuated by the news reported on 16 July that five eldest daughters of peers are to bring a case to the European Court of Human Rights challenging the fact that nearly all hereditary titles can pass only to male heirs, and so they cannot stand for election to the House of Lords. On that point it is interesting to note that, while the succession to the Crown was altered in 2015, the dukedom of Sussex conferred on Prince Harry can pass only to ‘the heirs male of his body lawfully begotten’.

Previous efforts at reform

Unsurprisingly there have been several attempts to bring the system of by-elections to an end. In the 2009–10 session the Constitutional Reform and Governance Bill provided for the ending of by-elections, but that provision was one of several removed before Royal Assent in the ‘wash-up’ when the 2010 general election was announced.

In the 2010–12 Session the House of Lords Reform Bill, a private member’s bill introduced by Lord Steel of Aikwood, initially provided for the ending of by-elections but, following the tabling of some 300 amendments at report stage, Lord Steel agreed to the removal of the provision (in the event, the bill completed its Lord stages but made no progress in the Commons). A similar bill two sessions later, introduced by the former Lord Speaker Baroness Hayman, became the House of Lords Reform Act 2014, and made provision for retirement from the House.

In 2012 the coalition government’s House of Lords Reform Bill, which would by stages have introduced a largely elected second chamber, was dropped after second reading in the House of Commons. In 2013 the House of Commons Political and Constitutional Reform Committee, in its report House of Lords reform: what next?, recommended the ending of by-elections, noting the ‘broad-based and significant support’ for doing so, and quoting evidence referring to the ‘embarrassment’ and perceived ‘absurdity’ of the by-elections.

In the 2015–16 session the Labour peer Lord Grocott, a former Government chief whip, introduced the House of Lords Act 1999 (Amendment) Bill, a two-clause bill to end by-elections. It reached committee stage on Friday 9 December 2016, when some 60 amendments were tabled. Only the first six amendments were debated before the proceedings were adjourned, two of them being rejected on division by 105 votes to 12 and 95 to 26. That bill made no further progress – a small number of determined hereditary peers had more or less talked it out.

The House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill

In June 2017 Lord Grocott tried again with the House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill. This time he has fared slightly better. The bill received a second reading on 8 September 2017, with the Government minister, Lord Young of Cookham, withholding judgement while the Lord Speaker’s committee on the size of the House, chaired by Lord Burns, was at work. In the event that Committee’s report – the subject of a Constitution Unit blog post from me on 1 November 2017 – made no specific recommendations about the hereditary peers. As I noted in that post: 

‘The Burns Committee has ingeniously avoided making any recommendation in relation to by-elections, while noting that the continuation of by-elections would mean that the hereditary peers would “make up a larger proportion of a smaller House, with a particularly significant impact on the Conservatives and Crossbenchers.” That fact may finally tip the balance and enable the passage of legislation to end hereditary peers’ by-elections.’

For the committee stage of Lord Grocott’s bill on 23 March another 59 amendments were tabled. In addition, at the start of proceedings a motion expressing regret ‘that the bill is proceeding notwithstanding that the recommendations set out in the report of the Lord Speaker’s committee on the size of the House have not yet been implemented’ was defeated by 129 votes to 2. The debate on that motion produced further trenchant criticism of the by-elections, described by Lord Blunkett as a ‘bizarre medieval process and by Lord Forsyth of Drumlean as ‘a process that generates ridicule and damages us.

Once the committee stage had begun, the first ten amendments were dealt with before the House adjourned. On 15 May, in response to a question from Lord Grocott, Lord Young of Cookham announced that the government ‘are prepared to allocate yet further time for the Committee stage of the Bill’, and it has just appeared on the order paper again for a second committee day on Friday 7 September.

The announcement on 18 July of Lord Bethell’s election prompted interventions in the Lords chamber from Lord Grocott, to whom the Government Chief Whip (Lord Taylor of Holbeach) responded, and from the Labour Leader in the House of Lords (Baroness Smith of Basildon), who observed:

‘My Lords, I am grateful to the noble Lord the Chief Whip for responding to my noble friend Lord Grocott. He says that this House knows the views of my noble friend. In fact, my noble friend’s view is the view of the majority of your Lordships in this House, who think that the time for these hereditary by-elections has long gone. I do not cast any aspersions on our new Member, whom we shall welcome here. The Chief Whip says that my noble friend’s Bill will come back in September but it is a Private Member’s Bill. Given the overwhelming support in your Lordships’ House, can the Government assist in ensuring that that Bill is sent to the House of Commons for them also to take a view on?’

Conclusion

The fact that the current parliamentary session is scheduled to last for two years suggests that Lord Grocott’s bill may indeed have a chance of completing its Lords stages. Its fate in the Commons would then be uncertain, though recent controversy may perhaps inhibit those MPs who are usually in the habit of blocking private members’ bills by calling ‘Object’, which results in the demise of many such pieces of legislation.

Meanwhile, The Lord Speaker’s committee on the size of the House (also known as the Burns committee) has resumed its work. According to the April/May issue of the Red Benches newsletter for members of the House of Lords, it is considering ‘how to get the system of retirement targets and appointments underway in the current Parliament’. More information from the Committee will be published ‘in due course’.

So, while other issues currently dominate the political and parliamentary agenda, there may nevertheless be some prospect of real progress in relation to both the size of the House of Lords and the ending of the hereditary peer by-elections.

About the author

David Beamish was Clerk of the Parliaments, House of Lords, from 2011 to 2017 and is a Senior Research Associate at the Constitution Unit.

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