Today the House of Lords will announce the election of a new hereditary peer. Lord (Bruce) Grocott has once again put a bill before parliament to abolish the by-elections by which departing hereditary peers are replaced, following the removal of their automatic right to a seat in parliament in 1999. As David Beamish explains, the bill is unlikely to succeed despite having a great deal of support both inside and outside of the Lords.
Following the Labour government’s reform of the House of Lords in 1999, 90 elected hereditary peers (as well as two office-holders, the Earl Marshal and Lord Great Chamberlain) remained part of the House of Lords, with – pending the promised second stage of reform – a system of by-elections to replace any who subsequently departed. The second stage did not happen and the by-elections remain as one of the strangest quirks of the UK constitution. In a 2018 blog post on the ongoing frustrations of those who sought reform to this system, I was rash enough to conclude that ‘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’. The past three years appear to have proved me wrong.
House of Lords Standing Order 9(5) requires a by-election to be held within three months of a vacancy occurring among the hereditary peers (due to a death or retirement). This was suspended after the start of the pandemic in March 2020, alongside the postponement of local authority elections, initially until September, and then to the end of that year. Following a report from the Procedure and Privileges Committee, there was then another extension of the moratorium. A further report from that committee proposed yet another ‘short further suspension, until after Easter 2021, at which point the position should be reviewed again’. Finally, following another report from the committee, by-elections restarted, with a backlog of six vacancies to be filled.
There are five different electorates for by-elections: 15 of the 90 were elected by the whole House, and all members can vote in by-elections to replace them. The other 75 were elected by hereditary peers in their respective groups: 42 Conservatives, 28 Crossbenchers, three Liberal Democrats, and two Labour. The remaining hereditary peers in those groups can vote in by-elections to replace departed colleagues. Only four separate elections were needed when the moratorium on by-elections ended, as three of the vacancies were among the Conservative peers, and all three were filled together. For the first time, the arrangements were for the ballots to be conducted ‘using electronic means’, with the option of a postal vote for members ‘who have accessibility needs which mean they cannot use the online voting system or who do not have a parliamentary email address’. The four by-elections took place in June and July 2021.
My previous blog post referred to the private member’s bill introduced by Lord (Bruce) Grocott in 2016 and to his follow-up bill in 2017. The latter progressed as far as committee stage in March 2018, but despite a second day being allowed for this stage in September 2018 this was insufficient to complete the debate on amendments, although the bill consisted of just one page and only two clauses. Lord Grocott succeeded in having the rest of the committee stage transferred from the floor of the House to Grand Committee, where the proceedings take place in a committee room, though with any member permitted to take part. This was an ingenious device for outflanking the small number of implacable opponents, as extra time could if necessary be found without disrupting other business. Unprecedentedly for a Grand Committee, those proceedings took place on a Friday, 23 November 2018, and the committee stage was completed at last, eight months after it had started. The report stage gave back to the small but determined band of opponents the opportunity to frustrate further progress; that stage was begun, but not completed, on Friday 15 March 2019, and there were no further proceedings before the session ended in October, when the bill lapsed.
Unsurprisingly, Lord Grocott has tried again in both subsequent full-length parliamentary sessions. In the 2019–21 session his House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill received a second reading on Friday 13 March 2020, perhaps an unlucky date as it made no further progress.
In the current session the bill was reintroduced again and received a second reading on Friday 3 December 2021. But no date has been scheduled for committee stage and it seems most unlikely that time will be found – there are eight private members’ bills ahead of it in the queue and currently awaiting their committee stages. While there has been no official announcement as to when the present session might end, the House agreed without debate on 11 January to modify the rules governing arrangement of business to provide more time for government business, something which happens only towards the end of a session.
The second reading debate, unsurprisingly, highlighted some of the consequences of the system of by-elections having continued for so long. Lord Grocott noted that the retirement of the Countess of Mar in May 2020 ‘marked the departure of the last remaining woman hereditary peer’. The register of peers eligible to stand in by-elections now includes only one woman (Baroness Dacre) alongside 205 men. Lord Grocott also noted that the by-election in June 2021 to fill the Labour vacancy caused by the death of Lord Rea had an electorate of only three (the one remaining peer elected by Labour hereditary peers, plus two of the fifteen elected by the whole House who take the Labour whip). Conveniently there was only one candidate, Viscount Stansgate, whose father (Tony Benn) had fought hard to disclaim his seat in the House of Lords so that he could serve as an MP. The death of another Labour hereditary peer, Viscount Simon, in August 2021, led to a by-election in which all members of the House had a vote. It resulted in the return to the House of the 83-year-old Lord Hacking, the oldest by-election victor to date (though the oldest peer elected in the original 1999 elections was Lord Strabolgi, then 85).
Referring to the suspension of by-elections during the pandemic, Lord Grocott noted: ‘I am able to report to the House that no adverse effects were reported. The House continued to function. There was no sense of loss, no petition for their resumption. The nation remained calm.’ Later speakers also noted that the suspension of by-elections had provided a useful precedent for continuing such a suspension.
Lord Grocott also presented some analysis of the 43 by-election winners to date, notably that 21 went to school at Eton. He concluded by saying that, by continuing with by-elections:
‘we make ourselves not just indefensible but plain silly – the worst criticism in any argument that I can think of. It is silly. Scrapping them would, albeit in a small way, show everyone that we can make improvements and reform ourselves. We have had seven of these wretched by-elections this year, which is more than in any previous year. So let us make our own little bit of history by putting this Bill on the statute book and making the by-election held last month the very last one of all.’
Other speakers related the continuance of by-elections to the issue of the size of the House of Lords. Earl Attlee, a Conservative elected peer, noted:
‘Conservative Prime Ministers since 2010 have been stuffing this House so full of Peers that we are now being unhelpfully compared with the Chinese National Congress, and there is little that we can do about it…. I think we should target our efforts against Prime Ministers who are ruining this House by appointing far too many Members.’
His criticism was unwarranted in relation to Theresa May, who appointed 43 life peers during over three years in office, compared to the 83 nominated by Boris Johnson since the summer of 2019.
Baroness (Dianne) Hayter of Kentish Town, until recently Deputy Leader of the Labour peers but now a backbencher, took the opportunity to lambast those who approached members during preparations for the debate to argue for hereditary peerages to descend equally to daughters as well as sons, suggesting that ‘that is no way to tackle gender inequality’.
Once again, Lord Grocott was given little comfort by the government spokesman, Lord (Nicholas) True:
‘The Government respectfully disagree with the noble Lord, Lord Grocott, that his Bill represents an incremental or piecemeal – whichever word is to your Lordships’ taste – reform to this House. Indeed, it is the opposite. The proposed removal of hereditary Peers through this Bill, albeit gradually, would constitute a significant reform to the composition of this House. It would become, as my noble friend Lord Mancroft observed, a de facto appointed Chamber – saving the presence of the right reverend Prelates [i.e. the bishops, who hold 26 seats in the Lords] … that would be a significant change.’
This was somewhat unfair to Lord Grocott, for while the word ‘piecemeal’ had been used by four speakers, and ‘incremental’ by five, he had used neither term himself, instead focusing on the absurdity of the by-elections. But it appears that it is now government policy to rely on by-elections to prevent the House from becoming an almost wholly appointed chamber – implying that, rather than bringing the chamber into ridicule, they somehow convey some form of democratic legitimacy. It is not surprising that, prior to becoming a government minister, Lord True was one of the small band who spoke against Lord Grocott’s proposed reform at second reading as well as intervening on multiple occasions at committee stage.
So those who may have hoped for some real progress on the size and composition of the House of Lords must wait at least a little longer. Meanwhile we can continue to enjoy what the Conservative life peer Lord (Patrick) Cormack described as an ‘embarrassing absurdity’. Indeed, there are two by-elections imminent: today the result will be announced of the by-election in which the Conservative hereditary peers will choose a successor to Viscount Ridley, who was himself elected only in 2013 and retired in December. That will soon be followed by another Conservative by-election to choose a successor to Lord Rotherwick, who retired on 1 February. Lord Grocott will presumably try again in the next session, but is unlikely to fare any better until there has been a change of government, or an unlikely change of government policy.
If you are interested in the issues raised by this post, numerous additional posts on hereditary peers and the impact of COVID-19 on the constitution can be found on this blog. To be notified of future blogs as they go live, sign up for updates in the left sidebar.
About the author
Sir David Beamish was Clerk of the Parliaments (i.e. most senior official in the House of Lords), from 2011 to 2017 and is a Senior Research Associate at the Constitution Unit.