In the 2021-22 session of parliament, government defeats in the House of Lords reached record levels. Sam Anderson argues that two key factors combined to drive this phenomenon. First, the Johnson government pursued a controversial legislative agenda. Second, it seemed in some cases unwilling to compromise where evidence suggests that previous governments would have done so.

There were numerous examples throughout Boris Johnson’s premiership of his government’s rocky relationship with parliament. One recent manifestation – noted elsewhere – was that there were an unprecedented 128 government defeats in the House of Lords in the 2021-22 parliamentary session. This led some government supporters to suggest that the Lords has become a ‘House of opposition’ that ‘views themselves as there to obstruct’ the government. But is this assessment fair?

The Constitution Unit’s tracking of when and on what topics governments are defeated in the House of Lords offers key insights. With data stretching back to 1999, we can compare such defeats between different governments over time. This blog uses such data to dig deeper into the 128 defeats, seeking to understand what might have caused them. First, I argue that a large number of bills covering topics that have long animated the Lords was a factor. Second, I suggest that pressures which have in the past increased the chances that the government would make some sort of concession to the Lords had less effect under Johnson.

Lords defeats over time

The Constitution Unit’s Meg Russell – who now serves as its Director – began recording defeats in 1999, when the House of Lords Act removed most hereditary peers, breaking the Conservative dominance of the chamber. Since then, no single party has had a majority in the Lords, making governments of all parties more vulnerable to defeats there than in the Commons. Votes are of course just one form of parliamentary influence, but the Lords’ ability to defeat the government has been an important source of institutional power.

Table 1 – House of Lords defeats by session

Parliamentary session	No. of government defeats in the Lords	Prime Minister
1999-00	36	Blair
2000-01	2	Blair
2001-02	56	Blair
2002-03	88	Blair
2003-04	64	Blair
2004-05	37	Blair
2005-06	62	Blair
2006-07	45	Blair
2007-08	29	Brown
2008-09	25	Brown
2009-10	14	Brown
2010-12	48	Cameron (coalition)
2012-13	25	Cameron (coalition)
2013-14	14	Cameron (coalition)
2014-15	11	Cameron (coalition)
2015-16	60	Cameron (Con. maj.)
2016-17	38	May
2017-19	62	May
2019*	1	Johnson
2019-21	114	Johnson
2021-22	128	Johnson

*There was only one vote in this short session, which lasted just 15 sitting days

Table 1 shows the extent to which the level of defeats of Johnson’s government was unparalleled in the post-reform era. The total defeats under Johnson (243) exceeded that under any of the previous three Prime Ministers: May (100), Cameron (158) and Brown (68). The 2021-22 session broke the previous record, set in the 2019-21 session, also under Johnson. The next highest sessional total, in 2002-03, was almost a third smaller. The 128 defeats of the 2021-22 session are not only a record for the post-reform era, but represent the greatest number of defeats in a single session since records began in 1974 – beating even the pre-reform high of 126 in the 1975-76 session. The 2021-22 session also saw the largest number of defeats in one day since 1999, 14 on 17 January 2022.

Substance and process drove up defeat numbers

These results lead to the question of why all of these records (and more below) were broken. The first of these, I suggest, is the controversial nature of the Johnson government’s legislation.

Table 2 breaks down the 128 defeats of 2021-22 by bill, showing that they were spread across 16 bills in total, with some attracting particularly high numbers of defeats.

Table 2 – defeats in the 2021-22 session

Bill*	No. of defeats
Nationality and Borders Bill	34
Police, Crime, Sentencing and Courts Bill	25
Environment Bill	17
Health and Care Bill	17
Skills and Post-16 Education Bill [HL]	9
Armed Forces Bill	4
Building Safety Bill	4
Judicial Review and Courts Bill	4
Telecommunications (Security) Bill	2
National Insurance Contributions Bill	2
Elections Bill	2
Leasehold Reform (Ground Rent) Bill [HL]	1
Social Security (Up-rating of Benefits) Bill	1
Dormant Assets Bill [HL]	1
Advanced Research and Invention Agency Bill	1
Dissolution and Calling of Parliament Bill	1

*There were also 3 defeats on motions to regret statutory instruments

Table 3 then shows the top 10 bills on which the government was defeated in the Lords since 1999, and again emphasises just how unusual the last three years has been. Five of these 10 bills were under the Johnson government, compared to just two each from the far longer tenures of Blair and Cameron. More remarkably, four of these record-breaking bills – the Nationality and Borders Bill, Police, Crime Sentencing and Courts Bill, Environment Bill and Health and Care Bill – came in the 2021-22 session alone. Of course, a large number of defeats overall might suggest a large number of defeats on a number of individual bills. But only one bill each appears from the 2019-21 and 2002-03 sessions, which respectively demonstrate the next highest numbers of defeats. Hence these four bills do appear particularly controversial.

Table 3 – top ten bills by number of defeats, post-1999 reforms

Bill Name	No. of Defeats	Session
Nationality and Borders Bill	34	2021-22
Police, Crime, Sentencing and Courts Bill	25	2021-22
Criminal Justice Bill	23	2002-03
Trade Bill	20	2019-21
Housing and Planning Bill	19	2015-16
Prevention of Terrorism Bill	18	2004-05
Environment Bill	17	2021-22
Health and Care Bill	17	2021-22
European Union (Withdrawal) Bill	16	2017-19
Energy Bill [HL]	16	2015-16

Previous work on the post-reform House of Lords has highlighted the importance to peers of ‘constitutional propriety’ and civil liberties, and such topics arose on a number of bills in the 2021-22 session. Three of the bills in Table 2 – the Dissolution and Calling of Parliament, Elections, and Judicial Review and Courts bills – directly addressed constitutional matters, and peers defeated the government on amendments to each.

Defeats on the four overall most controversial bills related to these topics too. For example, a Lords defeat led the government to agree to greater external scrutiny when it used new powers under the Health and Care Bill. The government was also defeated four times (twice at report stage and twice during ping pong) on amendments to the Environment Bill. These sought respectively to ensure the independence of the new Office for Environmental Protection, and relax proposed limitations on the sanctions courts could impose on the government if it breached environmental law. Debate and defeats on the Nationality and Borders Bill were almost exclusively focused on the civil liberties and human rights of immigrants, refugees and asylum seekers.

Concerns over civil liberties during passage of the Police, Crime, Sentencing and Courts Bill were aggravated by concerns about constitutional propriety, in the shape of the parliamentary process itself. Many peers opposed the substance of a range of highly controversial provisions, including criminalising certain protest tactics and expanding stop and search powers. But it was the ‘sharp practice’ of introducing major changes at report stage in the Lords, without providing for any scrutiny by the Commons, and little-to-none by the Lords, that led to the most significant objections. Six of the 25 defeats on the bill related to these proposals, and because the government could not reintroduce the provisions during ping pong, they had to be dropped. Ministers subsequently chose to introduce a standalone bill containing the same offences in the next (i.e. current) session.

Constitutional propriety – both in terms of the substance and process of legislation – and civil liberties remain highly salient in the Lords. In the words of the Labour Shadow Leader of the House, Baroness (Angela) Smith of Basildon, pursuing ‘hugely controversial’ bills and tactics undoubtedly drove up the number of government defeats in the 2021-22 session.

Changing legislative dynamics?

Defeats alone tell us little about the ultimate influence that the Lords has over final legislative outcomes, but the Unit’s previous work has explored the link between the two. In principle, the government can usually ask members of the House of Commons to overturn Lords defeats, but it does not always choose to do so. Alternatively, the government can offer some kind of concessionary amendment, allowing MPs to compromise with the Lords’ position, or simply ask MPs to accept the will of the Lords.  From 1999-2012, only 41% of defeats were overturned on the bill’s return to the Commons without any government concession being made; in the remaining cases, the final outcome took at least some account of the Lords’ position. A key factor in determining the government’s attitude to Lords defeats has been shown to be the mood among its own backbenchers. For example, where the original amendment has been supported by government backbench peers, or moved by an independent Crossbench peer, a final outcome closer to the Lords’ position has been more likely.

Complete analysis of the final outcomes of defeats in more recent years has not yet been conducted, so direct comparisons are not possible. But some of the determining factors discussed above have, in a number of key examples in the last session, not had the effect that previous work suggests they often do. First, the support of Crossbench peers was found to be a significant factor in the likelihood of Lords success in 1999-2012, but may have been less influential in 2021-22. Two proposed changes to the refugee and asylum clauses of the Nationality and Borders Bill, arising from questions about its compliance with international law, were strongly supported by Crossbenchers. One amendment, initially moved by group convenor Lord (Igor) Judge, then taken over by Labour’s Baroness (Shami) Chakrabarti, had overwhelming support from the Crossbenches, but was outright rejected by the government three times. The other, moved by Crossbencher and former Foreign Office Permanent Secretary Lord (John) Kerr of Kinlochard, was also rejected three times. On the Elections Bill, opposition to the government’s proposal to set a ‘strategy and policy statement’ for the independent Electoral Commission was again led by Lord Judge, who was supported by 10 Conservative peers; the Commons Public Administration and Constitutional Affairs Committee (chaired by senior Conservative backbencher William Wragg), also opposed the plan. But heavy whipping in both Houses meant that there was no Conservative support for the Lords amendment in the Commons, where it was overturned, while proximity to the end of the session left the Lords little option but to back down.

Support from government backbench rebels also increased chances of success from 1999-2012, but again at key points in the 2021-22 session, the government made no concessions on topics which had significant backbench Conservative support. Conservative Baroness (Philippa) Stroud’s amendment to the Nationality and Borders Bill providing that certain asylum seekers should be permitted to work attracted multiple government rebels in both the Lords and the Commons, but was rejected by MPs on the advice of ministers. On the bill’s return to the Lords for a third time, Stroud was reportedly threatened with the removal of the whip if she supported her own amendment. Similarly, when Conservative Baroness (Julia) Cumberlege attempted to amend the Health and Care Bill to require the government to publish information on NHS staffing levels, MPs rejected three versions of the amendment, despite backbench support in both Houses.

Conclusion

There is no doubt that the scale of government defeats in the House of Lords under Boris Johnson was record-breaking. Analysis of the 2021-22 session suggests that two key factors contributed to this. First, the session was dominated by legislation that engaged issues of constitutional propriety and civil liberties with which peers have long been concerned. The way the government chose to handle some of these bills drove the number of defeats up further.

There is also some anecdotal evidence that factors which previously increased the chance of success for the Lords, such as cross-party and government backbench support, may have been less important under Johnson, with the government more willing to override such concerns. This appears to have applied at the ping pong stage, and may also have done so at the earlier stages – both of which would drive up the overall number of defeats. However to be sure, this would need more systematic analysis.

Defeats are a clear indication of conflict between the government and the Lords, and the dynamics of the 2021-22 session suggest that the record numbers were driven by less consensual working on the part of government. It will be fascinating to see if, under a new Prime Minister and Lords leader, more common ground can be found in the current session.

About the author

Sam Anderson was a Research Assistant at the Constitution Unit, and worked on the Government Defeats in the House of Lords project for the last three years.

Featured image: “House of Lords members debate EU Withdrawal Bill” (CC BY-NC 2.0) by UK Parliament.