Injunction (see hc 365, 1986–7). In Rivlin V. Bilankin (1953) a libellous

letter about a private matter was posted in a letter-box within the

precincts. It was held in a short unreasoned judgement that the letter

was not protected by privilege.

The main area of doubt concerns things said or written by MPs

outside the House as part of their duties on behalf of their con-

stituents, for example, a letter complaining to the Secretary of State

about a National Health hospital. In the case of Strauss (1958), the

House of Commons by a tiny majority (218–213) rejected a recom-

mendation by the Committee of Privileges that such letters should be

protected by parliamentary privilege. Strauss concerned a complaint

about the activities of the London Electricity Board. This was not a

central government department so the minister to whom Strauss wrote

was not directly responsible to Parliament for its day-to-day activities.

It is not clear what the reasons for the Commons resolutions were, and

226 General Principles of Constitutional and Administrative Law

the vote may have been on party lines. The Strauss view certainly

seems narrow and artificial and in later reports the Committee of

Privileges has recommended that Strauss be overturned. This has not

been implemented. On the basis of Strauss a letter from an MP is

privileged only if it is to do with a matter currently being debated

in the House or is the subject of an official parliamentary question.

In 1967 a Select Committee on Parliamentary Privilege (1967–8; HC

34) recommended that privilege be widened to include all official

communications by an MP but the recent Nichols Committee favoured

the narrow view.

(3) ‘Impeached or questioned ’: Parliament takes the view that it is

contempt even to commence legal proceedings by serving a writ upon

an MP in respect of a matter which Parliament considers to be

privileged. This is a direct challenge to the courts, since if this view is

right then the courts have no power to decide the limits of parlia-

mentary privilege. We shall discuss this later. The rule in Pepper v. Hart

(1993) which in certain circumstances allows the courts to use state-

ments made in Parliament to help them interpret statutes, supports a

narrow interpretation of Art. 9. In Pepper v. Hart the House of Lords

took the view that the purpose of Art. 9 was only to prevent MPs

from being penalised for what they said in the House (see Prebble v.

Television New Zealand (1993)).

(4) ‘Out of Parliament’: Article 9 prevents interference with the

freedom for speech of MPs by any outside body. Legal actions, bribes

and threats are the most obvious illustrations (below), but other kinds

of pressure also constitute contempt. This could include, for example,

publishing MPs’ home telephone numbers (Daily Graphic Case (1956)),

accusing MPs of drunkenness (Duffy’s case (1964–5)), or even making

press allegations of conflict of interest by MPs (Junor’s Case (1957)).

However, Art. 9 has not been used against media criticism of political

speeches by MPs. Nor does Art. 9 prevent courts or other bodies from

looking into matters which are also before Parliament provided that the

parliamentary processes or things said in them are not criticised (see

Hamilton v. Al Fayed (1999)). The Human Rights Act 1998 might also

restrain an expansive interpretation of Art. 9. Although an action could

not be brought against Parliament itself, the court is required to

interpret all legislation including Art. 9, ‘if it is possible to do so’, in a

way that conforms to the rights set out in the Act one of which is

freedom of expression (s. 3).

Independently of the Bill of Rights an MP performing his official

duties inside or outside the House is protected by qualified privilege (for

example, Beach v. Freeson (1972); complaint to Lord Chancellor about

227

Parliament

solicitors). This may include media interviews (Church of Scientology

of California v. Johnson-Smith (1972)) but does not apply to party

political activities such as election campaigns. Qualified privilege which

is an aspect of the general law does not ensure that MPs are entirely free

from outside interference. Qualified privilege covers only statements

made in good faith and applies only to defamation, whereas full or

‘absolute’ parliamentary privilege covers every kind of legal action.

Also qualified privilege is a defence to an action so that the MP must

subject himself to the burden of legal proceedings. Even if he eventually

wins, the expense and uncertainty of litigation may discourage an MP

from speaking freely. It is apparently a contempt of Parliament even to

begin legal proceedings against an MP in respect of a matter protected

by full parliamentary privilege.

None of this affects limitations placed upon members’ freedom of

speech by Parliament itself, for example, by rules of procedure, or by

party discipline. Indeed, these restrictions are themselves immune from

control by the courts because of the ‘exclusive cognisance’ privilege

(above). The Speaker who presides over the House of Commons has a

duty to control procedure impartially. Internal rules exist to prevent

MPs misusing their privilege of freedom of speech, for example, by

attacking people who cannot answer back, or by commenting upon

pending legal proceedings. For example, ‘the invidious use of a person’s

name in a question should be resorted to only if to do so is strictly

necessary to render the question intelligible and the protection of par-

liamentary privilege should be used only as a last resort’, and ‘in a way

that does not damage the good name of the House’ (See HC Deb. vol.

94 col. 26, 17 March 1986; Leopold, 1986, PL 368).

10.4.4 Standards of conduct in the Commons

The protection of parliamentary privilege entails the risk that an MP

might abuse his or her privilege for personal gain. The traditional role

of an MP is to be an independent representative of his or her con-

stituents and to speak in Parliament in furtherance of the general public

interest, thus reflecting Rousseau’s ideal of the general will. An MP is

not bound to follow the views of his or her constituents but is suppose

to exercise judgement as to the interests of the public as a whole.

Several factors may threaten the independence of an MP.

First and foremost there are party loyalties. Secondly many MPs are

sponsored by outside bodies including trade unions and business

interests, who may contribute towards their election expenses, research

and administration costs and to local constituency expenses. Some

228 General Principles of Constitutional and Administrative Law

MPs accept employment as paid or unpaid ‘consultants’ to businesses,

and interest groups such as the Police Federation, or hold company

directorships. MPs are also frequently offered ‘hospitality’, or gifts, or

invited on expenses-paid ‘fact-finding’ trips. There are also ‘all-party’

subject groups of MPs which involve relationships with outside bodies

(see HC 408, 1984–5). Except in the case of a private bill a member is

free to vote on a matter in which he has a personal interest.

The position is particularly difficult where an MP acts as a paid

adviser to an interest group such as a trade union or a drugs company,

and is dismissed for not advocating the employer’s interests in Parlia-

ment. This happened in the Brown Case in 1947 – an MP sponsored by

a trade union. The Committee of Privileges voted that a contract could

not require an MP to support or represent his sponsor’s interests in

Parliament, nor could the sponsor punish the MP for not doing so.

However, it was not contempt to dismiss a consultant if, for whatever

reason, the employer or sponsor was unhappy with his services. This

somewhat evasive compromise does not seem to take the matter much

further. It would be a contempt to threaten to dismiss an MP unless he

took a certain line in Parliament, but not, apparently, to dismiss him

after the event. Arguably, pressures from local constituency parties

would also be contemptuous.

It is often said that sponsorships and consultancies enable MPs to

keep in touch with informed opinion outside Westminster and to

develop specialised knowledge. They also enable MPs without private

means to supplement their parliamentary salaries. The process of enac-

ting legislation is also helped by consultation with interested parties.

There is much ‘lobbying’ of civil servants, and it is desirable that this

should be counterbalanced by MPs having their own access to outside

interests. There is an increasing tendency for MPs to be career politi-

cians for all their working lives, thus narrowing their perspective. On

the other hand, there is a danger that an MP might cease to be indepen-

dent and become a hired hand, paid to advocate his patron’s cause. MPs

might also spend time on activities such as sitting in company board-

rooms which may generate little understanding of social problems and

where the time would be better spent helping their constituents.

Several resolutions and reports of the House have declared that

certain kinds of external influence are contempts of Parliament. The

basic distinction seems to be between promoting a specific matter which

is forbidden and acting as a consultant generally which is acceptable.

A Resolution of 1695 stated that paying a member to promote any

matter in Parliament is a ‘high crime’, and one of 1858 makes it

improper for an MP to promote any matter for money, even if the

229

Parliament

money goes to some worthy cause such as a charity. A Resolution

of 1969 made a further distinction between ‘advocacy for a fee’ and

‘the advancing of argument based on specialist knowledge’ the latter

being acceptable, even if the MP is paid by his source of knowledge.

In 1974 it was resolved that MPs should disclose any relevant finan-

cial interests in debates, committees and communication with min-

isters and civil servants.

In its latest Code of Conduct and Guidelines the House accepted the

Nolan Committee’s ‘Seven Principles of Public Life’ (see p. 82). The

House resolved to ban the advocacy or initiation of any matter in

Parliament, or urging others to do so for payment or reward of any

kind of direct or indirect including payments to a member’s family

(see HC 637 (1994–5), HC 816 (1994–5), HC 688 (1995–6), HC Deb.

Vol. 263, col. 1674, HC Deb. Vol. 265, col. 604, 661, HC Deb. Vol. 282,

col. 392, 1995–6).

There are also criminal offences involving members of public bodies.

Corruption is a common law offence and there are also statutory

offences under the Public Bodies (Corrupt Practices) Act 1889 and the

Prevention of Corruption Act 1916, s. 4 (2). These offences seem wide

enough to include cases where MPs are offered bribes (but see Royal

Commission on Standards of Conduct in Public Life (1976 Cmnd.

6524). However, the MP might be protected by Art. 9 of the Bill of

Rights from prosecution. Nevertheless in R. v. Greenaway (1998) a

Conservative MP had accepted a bribe to use his influence to help a

person acquire UK citizenship. The court held that parliamentary

privilege did not apply because the offence occurred when the bribe

was received and therefore the court did not need to investigate what

went on in Parliament itself.

MPs are required to enter information about their financial interests

in a Register of Members’ Interests, a practice which Enoch Powell

condemned as unconstitutional, claiming that an unlawful qualification

has been added for serving as an MP. The register itself has been held

(oddly) not to be protected by parliamentary privilege (Rost v. Edwards

(1990)). The categories of interest required by the register have been

strengthened in response to the Nolan Committee and include provision

of services such as consultancy, company directorships, employment

or offices, professions and trades, names of clients, financial sponsor-

ships, overseas visits as an MP, payments received from abroad, land

or property, shareholdings and ‘any interest or benefit received which

might reasonably be thought by others to influence the member’s

actions in Parliament’. As a result of the Committee on Standards

recommendation, the value of an interest must now be disclosed and in

230 General Principles of Constitutional and Administrative Law

the case of paid employment or sponsorship, the amount of time

involved. According to the register only one in five MPs is without an

external source of income, endorsing what Sedley (2001a), calls a

culture of moonlighting which would be unacceptable in any ordinary

job one can think of and affirming the legitimacy of accepting retainers

from outside interests.

Following the First Report of the Committee on Standards in

Public Life the House of Commons appointed a Parliamentary

Commissioner for Standards empowered to investigate complaints of

misuse of the Commons register and to report to Parliament (HC

Standing Orders (Public Business) (1995) No. 150). The Commissioner

can also investigate complaints by MPs and the public concerning

the Code of Conduct and give advice to MPs. Its decisions, being

subject to parliamentary privilege are not subject to judicial review

(R v. Parliamentary Commissioner for Standards (1998)). The Com-

missioner cannot investigate the interests of ministers acting as such

because the separation of powers requires their activities as ministers to

be dealt with separately. The Commissioner has limited independence.

It cannot publish its own reports and serves a fixed time renewable by

the Commons. In 2001 Elizabeth Filkin did not have her contract

renewed. She had attracted a reputation as an assiduous investigator of

potential conflicts of interests among MPs.

10.4.5 Standards in the House of Lords

There is a ‘custom’ that the House of Lords should not be subject to

formal rules regulating standards but should rely on the ‘personal

honour’ of members (see Neill, 2000b). The Lords appears to have no

disciplinary sanctions and, with the possible exception of treason a

member could not be deprived of a peerage or suspended or expelled

for misconduct. Indeed the Letters Patent issued by the Crown which

create a peerage confer a legal right to sit in the House of Lords, and

the Writ of Summons to a Parliament imposes a duty to do so.

Furthermore it is customary for membership of the House of Lords

not to be regarded as a full-time commitment and many members

notably bishops and judges have outside business and professional

interests including full-time jobs. The current proposals for reform of

the House of Lords have not decided whether the members of the

house should be paid. There is a voluntary register of interests but the

Lords have resisted a compulsory register.

The Committee on Standards (Neill, 2000b) has recommended that

there should be a House of Lords Code of Conduct and a compulsory

231

Parliament

register of members’ interests although both should be laxer than the

equivalent House of Commons arrangements. The recommendation

was founded on the belief that public confidence should be the

overriding concern and that public opinion would not look favourably

upon a voluntary register. However, there would be no obligation to

disclose the amount of payment and while disclosure of consultancies

and lobbying interests should be compulsory, disclosure of other

interests should be voluntary the test being interests which ‘members

consider may affect the public perception of the way in which a

member discharges his or her parliamentary duties’.

10.4.6 The courts and parliamentary privilege

As we have seen, the courts are not prepared to intervene in the inter-

nal affairs of the House (see p. 175). The Human Rights Act 1998

reinforces this by providing that Parliament is not a ‘public authority’

(other than the House of Lords in its judicial capacity), thereby exclud-

ing parliamentary proceedings from scrutiny (s. 6 (3)). On the other

hand, where parliamentary activity involves the rights of persons out-

side the House, the courts have claimed the power to intervene at least

to the extent of deciding whether the privilege asserted by Parlia-

ment exists.

For example, in a famous eighteenth-century controversy the courts

held that parliamentary officers have no power to deprive citizens

of voting rights (Ashby v. White (1703)) and in Stockade v. Hansard

(1839) it was held that parliamentary privilege did not protect reports

published by order of the House from being the subject of libel actions.

The subject-matter of these disputes is only of historical interest. Par-

liament no longer controls elections and Stockdale v. Hansard was soon

reversed by statute (Parliamentary Papers Act 1840). Nevertheless, the

general principle about the power of the courts remains valid.

Parliament has never accepted that Stockdale v. Hansard was cor-

rectly decided, and still claims to be the exclusive judge of the extent of

its own privileges (see Paty’s Case (1704)). This separation of powers

conflict between courts and Parliament is sometimes called the ‘old

duality’, reflecting the fact that the seventeenth-century revolution did

not settle the relationship between courts and Parliament. Stock-

dale v. Hansard illustrates that even the service of a writ is regarded by

Parliament as contempt, thus preventing the courts from hearing the

case at all. In The Sheriff of Middlesex Case (1840), which was a sequel

to Stockdale v. Hansard, Parliament imprisoned the two holders of the

office of Sheriff for enforcing the court’s judgement in Stockdale v.

232 General Principles of Constitutional and Administrative Law

Hansard. Not surprisingly, the Sheriffs applied to the court for release,

but the court, including Lord Denman, who had decided Stockdale v.

Hansard itself, held that it was powerless to intervene. Parliament had

the undoubted right to commit to prison for contempt and it did not

have to give reasons. Unless some improper reason was disclosed on

the face of the committal warrant, the court must assume that Par-

liament was acting lawfully, even though the judges knew otherwise.

Therefore, by relying on the Sheriff of Middlesex Case, Parliament can

arbitrarily imprison anyone it likes. Whether this principle will be taken

advantage of in modern times rests with Parliament’s, or the courts’,

political sense. The courts are unwilling to take action that might be

considered as trespassing on Parliament’s preserves. Parliament too has

shown restraint in asserting claims to privilege (for example, the Strauss

case mentioned above).

The Nichols Committee (1999) suggested the enactment of a code of

parliamentary privilege to include modest reforms largely intended to

clarify the relationship between Parliament and the courts. In addition

to the recommendations already mentioned they include the following:

. ‘Place out of Parliament’ for the purposes of Art. 9 should be

defined to include courts and tribunals empowered to take evidence

on oath but not tribunals of inquiry if both Houses so resolve.

. There should be a criminal offence of abuse of public office which

should include MPs.

. MPs should be subject to the criminal law relating to corruption.

. Members of the Lords should be compellable before Commons

committees.

. Parliament’s ‘exclusive cognisance’ should be confined to ‘activities

directly and closely related to the business of the House’.

. Contempt by non-members should be dealt with by the ordinary

courts.

. Freedom from arrest should be abolished.

Summary

10.1 The House of Lords originated as the king’s council of leading landowners of

the realm. It subsequently evolved into a lawmaking body in partnership with

the Commons. After the 1688 settlement the House of Lords was regarded as

holding the constitutional balance of power, but by the twentieth century it

had become subordinate to the elected House of Commons. The Lords were

given a new lease of life by the introduction of Life Peers in the 1960s, but the

Constitutional role of the House remains controversial. By convention and

233

Parliament

law the Lords must ultimately defer to the Commons. We mentioned the

House of Lord’s functions as a limited but relatively independent constitu-

tional check and balance.

10.2 We sketched the historical development of the House of Commons, starting

with its medieval origins in the practice of the king seeking advice from

trusted local representatives, and concluding after the First World War when

the Commons became a fully representative chamber. We emphasised the

development of the relationship between the House and the Crown, pointing

out that the executive and the party system now dominate the Commons.

10.3 There is a network of laws and conventions to ensure that Parliament meets

annually and that it can remove the government. However, the government

can dissolve Parliament subject to the possibility of the overriding powers of

the Crown, which are discussed in Chapter 11 and MPs cannot hold the gov-

ernment to account during the long periods when parliament is not sitting.

10.4 We outlined the functions of Parliament, these being not to initiate legisla-

tion but to scrutinise legislation, provide the executive with finance, hold the

executive accountable, debate matters of public concern and redress griev-

ances. We pointed out that the executive is usually too powerful and complex

for Parliament to be effective. However, at least Parliament is a public forum

in which the executive can be forced to justify its actions.

10.5 The functions of the House of Lords include:

(i) revising and delaying legislation introduced in the Commons (other

than financial legislation);

(ii) dealing with relatively uncontroversial legislation, and with business

overflowing from the Commons;

(iii) providing a forum for debate of matters of general concern;

(iv) providing a political base for government ministers who do not possess

seats in the Commons;

(v) providing a method of rewarding those deemed meritorious by the

government;

(vi) acting as a constitutional safeguard should a government attempt to

extend its own life or dismiss the judiciary;

(vii) acting as a final appellate court.

Because of the control over the Commons exercised by the executive, a

second chamber is desirable but there is no agreement as to how the

hereditary element in the Lords should be replaced. At present the House of

Lords is accountable to no one.

The rules of procedure and of party discipline in the House of Lords are

more relaxed than is the case with the Commons.

10.6 We examined Parliament’s power to protect itself against interference from

without and within through the law of parliamentary privilege and its powers

to punish for contempt. Parliament can enforce its own privileges free from

interference by the ordinary courts.

10.7 We discussed the parliamentary privileges, based on the separation of

powers of exclusive control over its own procedures and freedom of speech

drawing attention to its possible limits in terms of what counts as par-

liamentary proceedings and to the separate matter of qualified privilege in

the law of defamation.

10.8 We discussed the safeguards against conflicts of interest by MPs including

the Register of Interests and the Parliamentary Commissioner for Standards.

234 General Principles of Constitutional and Administrative Law

We referred to the difficulty of distinguishing between lobbying on behalf of

an interest and using specialist knowledge to present a case in the public

interest.

10.9 We discussed the relationship between the courts and parliamentary privil-

ege drawing attention to the unresolved conflict as to who decides whether a

claimed privilege exists. This conflict may depend on the extent of Parlia-

ment’s power to commit for contempt.

Further Reading

Dickson, B. and Carmichael, P. (eds) (1999) The House of Lords: Its Parliamentary

and Judicial Roles.

Lock, Joint Committee on Parliamentary Privilege HC 2/4–I (1999) Parliamentary

Privilege and the Courts [1985] PL 64.

Munro, Studies in Constitutional Law Ch. 7.

Norton, Does Parliament Matter?

Oliver, D. and Drewry, G. (eds) The Law and Parliament.

Shell, D. The House of Lords (3rd edn).

Weston, C. C. (1965) English Constitutional Theory and the House of Lords.

Archer, P. (2000) ‘The House of Lords, past, present and future’, 70 Political Quart-

erly 396.

Riddall, P. (2000) ‘The second chamber: in search of a complementary role’, 70 Politi-

cal Quarterly 404.

Exercises

10.1 ‘The House of Commons is essentially a method of choosing a government.

It has no other effective constitutional role.’ Discuss.

10.2 ‘Parliament is not really a lawmaker but is nevertheless separate from the

executive.’ Discuss.

10.3 What is the constitutional justification for the House of Lords?

10.4 ‘It is not unduly idealistic to regard the integrity of Members’ judgement,

however constrained it may be by the party system, and the devotion of their

time to the job to which they have been elected, as fundamental values worth

not only protecting but insisted on’ (Sedley). Discuss in relation to the out-

side interests of MPs and peers.

10.5 To what extent can the courts rule on matters related to parliamentary

privilege?

10.6 In what circumstances is an MP immune from legal action in respect of

things he says or writes?

10.7 Outline the arguments for and against (i) abolishing the convention that

ministers must be members of Parliament; (ii) introducing fixed-term

parliaments. To what extent are these two proposals interrelated?

10.8 How are MPs’ conflicts of interest policed and how satisfactory are the

current arrangements?

235

Parliament

10.9 Rat, a member of Parliament, is employed on a salary by the Institute of Top

Executives, a right-wing pressure group, to represent the Institute in Parlia-

ment. During a debate, Rat makes a speech calling for higher taxation of

executives’ salaries, and accusing various members of the Institute of tax

evasion. He later circulates copies of this speech to members of his local

constituency party.

Dog, the Chairman of the Institute, who is one of those accused of tax

evasion, seeks your advice as to whether the Institute can dismiss Rat as its

parliamentary representative, and as to whether he should bring a libel

action against Rat. Advise Dog.

10.10 George is a member of Parliament. A constituent sends George a letter

accusing the management of a local nuclear power station of negligence in

relation to safety standards. George, who is employed as a consultant by a

company involved in the nuclear power industry, passes on the letter to the

minister responsible. The manager of the power station hears about the

letter and issues writs for libel against (i) the constituent, and (ii) George.

The manager also alleges that George has taken bribes to ask questions

in the House slanted towards the interests of a rival power company.

Discuss the relevance of these events to parliamentary privilege.

10.11 Bulldog, MP, asks Fox, the Minister of Health, in the House of Commons, a

question in which he strongly criticises the manner in which the National

Health Board deals with the problem of ‘lengthy waiting lists for hospital

treatment and allocation of hospital beds’.

Bulldog, in a later letter to Fox, makes further and more serious alle-

gations concerning the conduct of the National Health Board (NHB).

The solicitor to the NHB advises the Board that Bulldog’s letter is defama-

tory. Acting on this advice, the NHB issues a writ for libel against Bulldog

while Parliament is in session.

Contending that this is a matter of parliamentary privilege over which

the court has no jurisdiction, Bulldog refuses to enter an appearance or to

defend the action.

Meanwhile the House of Commons resolves that any judge, counsel or

party who takes part in such proceeding will be guilty of contempt.

Discuss the position of Bulldog and any possible action that may be taken

against (i) the members of the National Health Board, and (ii) any solicitor or

counsel who proceeds with the libel action against Bulldog.

11 The Composition of Parliament

and Parliamentary Elections

11.1 The House of Lords

Almost anyone can be a member of the House of Lords. Aliens (Act of

Settlement 1701 s. 3), persons under 21 (SO no. 2), undischarged bank-

rupts (Insolvency Act 1986 s. 427 (1)) and persons convicted of treason

until their sentence is served (Forfeiture Act 1870 s. 2) cannot sit in the

House of Lords. Members can apparently be removed only by statute.

There is no legal limit on the size of the House of Lords. Before the

House of Lords Act 1999 there were about 1,349 members making

the House of Lords the largest legislative chamber in the world. The

1999 Act reduced this to 695 by ejecting 654 of the 746 hereditary

peers. The numbers will remain similar if the current proposals for

reform (below) take effect. This makes the House of Lords one of the

largest second chambers in the world, eclipsed, according to Kellner

(Evening Standard, 8 Nov. 2001), only by Kazakhastan and Burkino

Faso. By contrast Germany’s Bundesrat has 69 members and the US

Senate 100. In Europe, Italy, with 326 comes nearest to the UK. Small

upper chambers could be justified on the basis that, having more limited

powers than the lower house, they can be more cohesive and more

focused (Russell, 2000). A large body is, however, a useful source of

patronage for those desperate for personal recognition.

The dominant feature of the House of Lords is that none of its

members are elected all being chosen by the executive in one form

or another. Protocol 3 of the ECHR requires states to hold free

elections to the legislature. In Mathieu-Mohin v. Belgium (1987), the

ECHR held that this requires at least one chamber to be elected.

However, one of the judges went further and stated that the elected

element must comprise a majority of the legislature and the non-

elected element must not have greater powers than the elected element.

The present House of Lords seems to violate the majority requirement

there being currently 659 members of the House of Commons. The

reformed House may at least comply since it is proposed that 20% will

be elected.

The membership of the House of Lords comprises the following.

236

237

The Composition of Parliament and Parliamentary Elections

11.1.1 The Lords Spiritual: church and state

The Lords Spiritual comprise the archbishops of Canterbury and York,

the bishops of London, Durham and Winchester, and 21 other dio-

cesan bishops of the Church of England, these being the senior in order

of appointment. Bishops are appointed by the Queen on the advice of

the prime minister, the practice being that he chooses one from a list of

nominations provided by the church authorities. The bishops vacate

their seats in the Lords on ceasing to hold office. They are not peers

and can vote in parliamentary elections. Dignitaries from other faiths

can be appointed to the House of Lords as ordinary peers.

The presence of Church of England bishops in the House of Lords

is a manifestation of the principle that the Church of England is

the ‘established church’ and an integral part of the state machinery.

The Queen is the head of the Church. Given that the Church of

England may be a less significant social and moral force in the UK

than other religions such as Islam and Roman Catholicism, this privil-

eged position seems difficult to justify. It is sometimes defended on

the basis that the Church of England provides spiritual facilities open

to everyone.

11.1.2 Hereditary peers

Until the House of Lords Act 1999, the hereditary peers formed a

majority of the House of Lords, thereby biasing it in favour of con-

servative interests and being difficult to justify on the basis of demo-

cratic principles. Hereditary peers are persons on whom, or on whose

ancestors, the monarch latterly on the advice of the prime minister has

conferred various ranks, namely dukes, duchesses, marquises, earls,

viscounts and barons, specifying that the peerages can be inherited by

the peer’s descendants. No reason need be given for the conferring of a

peerage and it is unlikely that the conferring of honours or titles by the

Crown is subject to judicial review. Allegations are made from time to

time that peerages are used to bribe supporters or to get rid of dead

wood in the House of Commons or even sold to wealthy businessmen.

Peers of the UK derive their titles from grants made after the Acts of

Union with Scotland and Ireland. Peers of England were created

before the union with Scotland in 1706 and peers of Great Britain were

created between 1707 and the union with Ireland in 1801. Scottish

peerages are those created before 1707 (Peerage Act 1963 s. 4). Irish

peers as such cannot sit in the Lords but can be elected to the

238 General Principles of Constitutional and Administrative Law

Commons (Earl of Antrim’s Petition (1967)). A peeress in her own

right can sit in the House of Lords but only since the Peerage Act 1963.

At common law a peer cannot surrender his or her peerage

(Re Parliamentary Election for Bristol South East (1964)). However,

under the Peerage Act 1963 an hereditary peerage can be disclaimed

for life. The peerage must be disclaimed within 12 months of succeed-

ing to it (one month if the new peer is a member of Parliament) or

within 12 months of coming of age. The succession to the peerage is

not affected. A peer who disclaims his or her title cannot again become

a hereditary peer but could be appointed a life peer.

The government is currently proposing to reform the composition

of the House of Lords although the details and timing of this are

far from clear (below). As an initial measure the House of Lords Act

1999 provides that no one shall be a member of the House of Lords by

virtue of a hereditary peerage. This is subject to an exception, nego-

tiated to prevent the peers from rejecting the Act. Under the excep-

tion the House elects 90 peers together with the Earl Marshall and the

Lord Chamberlain who are royal officials. The elected peers comprise

75 peers elected on the basis of party balance (currently 42 conserva-

tives, 28 cross-benchers without party membership, 3 Liberal Demo-

crats and 2 Labour), together with 15 elected as deputy speakers and

committee chairs. The elected peers sit for life. Peers who are not

members of the House of Lords can stand for and vote in elections to

the House of Commons. Apart from this rump of hereditary peers most

of the other members of the House of Lords are effectively appointed

by the executive.

11.1.3 Life peers

Life peers are appointed by the Crown on the advice of the prime

minister, with the rank of baron. Originally life peers could not sit in

the House of Lords, but under the Life Peerages Act 1958, enacted

in order to regenerate the House of Lords, they can now do so. Life

peerages are intended to enable hand-picked people to play a part in

public life without having to be elected and also as a way of counter-

ing the apparent conservative bias represented by the hereditary peers.

In practice a radical element has not emerged. Life peerages are often

bestowed on retired public officials who have served loyally or on

retired members of the House of Commons, particularly those who

have held high government office. They are used more as a reward for

past services, or as a device for ridding the Commons of unwanted

239

The Composition of Parliament and Parliamentary Elections

members than as means of infusing the House with new blood. Occa-

sionally a life peerage is created for a person such as a businessman

who has performed party political services or whom the prime minister

wishes to appoint as a minister. This may cause political problems

arising out of a lack of perceived legitimacy. There are currently about

470 life peers in the House of Lords. A life peerage can be terminated

only by statute.

It is uncertain whether in an extreme case, where for example a

prime minister attempts to flood the Lords with his or her cronies,

the monarch could reject the prime minister’s advice. Where a prime

minister seeks to act undemocratically it is arguable that the monarch

has a duty to act as the ultimate constitutional check. On two impor-

tant occasions the monarch reluctantly agreed to appoint sufficient

peers to secure a government majority. These were the Reform Act

1832 which extended the parliamentary franchise, and the Parliament

Act 1911 which reduced the powers of the House of Lords. In both

cases the House of Lords was threatening to obstruct the Commons.

In the case of the 1911 Act, George V agreed to appoint the peers only

if the government’s policy was submitted to a general election.

Pending reform of the House of Lords the prime minister’s

conventional power to appoint life peers is subject to a non-statutory

House of Lords Appointments Commission. Appointed by the House

(see Hansard (HL) 4 May 2000 Col. 181w), the commission vets all

proposals for appointment as a life peer and also administers a new

process for non-party political appointments (the so-called ‘people’s

peers’). However, its decisions are no more than advisory. The com-

mission comprises a cross-bench peer as Chair, together with three

peers nominated by the main parties and three ‘independent’ persons.

Its terms of reference embody the Nolan principles of impartiality,

integrity and objectivity. Any British or Irish citizen over 21 can apply

for appointment to the House of Lords. The criteria for appointment

are a record of ‘significant achievement’, ‘independence of political

parties’ and ‘an ability to contribute to the work of the House’ (see

http//www.houseoflordsappointmentscommission.gov.uk).

The last of these criteria invites preference to be given in the manner

of a private club to those with whom the existing members feel person-

ally comfortable. Most of the life peers appointed under the new

regime have been persons of orthodox opinions prominent in public

life and likely to be personally known to members of the appointing

committee. As a result of the 1999 Act and the appointment of life

peers it seems that the political balance of the House of Lords is now

held by liberal democrats and cross-benchers (Neill, 2000b).

240 General Principles of Constitutional and Administrative Law

11.1.4 Lords of Appeal in Ordinary

These currently comprise 12 judges specifically appointed for the pur-

pose from which are drawn the highest appellate tribunal as the

Appellate Committee of the House of Lords. The same judges also sit

as members of the Judicial Committee of the Privy Council which is

strictly part of the executive. They are life peers and can sit and vote in

the House after they give up their judicial office from which they must

retire at 70 (Judicial Pensions and Retirement Act 1993). By conven-

tion the law lords do not participate in party political debate while

holding judicial office but often speak on questions of law reform.

Other peers who hold or who have held high judicial office, notably

the Lord Chancellor in defiance of the separation of powers, can also

be members of the Appellate Committee. This dual role is a violation

of the separation of powers and may also threaten the right to a fair

trial under the European Convention of Human Rights. However the

Wakeham Committee on reform of the House of Lords was con-

tent with the status quo although it failed to provide reasons for this

preference. Given the increasing importance of constitutional powers

both under the Human Rights Act and arising out of devolution there

is much to be said for the creation of a genuine supreme court such

as exists in most civilised countries (see www.ucl.ac.uk/constitution-

unit/reports).

11.1.5 Attendance in the House of Lords

Many members of the House of Lords, particularly the hereditary and

business elements, have little interest in politics and do not regularly

sit. This may introduce unpredictability. Members can claim daily

expenses for attendance and there is no guarantee that a flood of

members may not descend on the House on a particular occasion in

search of personal advantage. The influence of erratic attenders can be

decisive, as was the case in 1987 when the House was flooded with

Conservative peers to support the abolition of local taxes on landed

property in favour of a ‘poll tax’ on individual residents (subsequently

abolished). Standing Order 20 enables a peer to apply for leave of

absence. The Order requires a peer to state an affirmative intention to

attend. Peers granted leave of absence are not expected to attend for

the remainder of that Parliament, although one month’s notice can

be given of termination of leave of absence. There are, however, no

sanctions against peers who disregard the attendance rule.

241

The Composition of Parliament and Parliamentary Elections

11.2 House of Lords Reform

Attempts to reform the Lords have foundered, partly because of

disagreement as to what the role of the House should be as well as its

composition, and partly because the matter has not had high political

priority. The problem is intractable. The most obvious solution is an

elected House. In a federal system this might work well in that one

House can represent the units within the federation while the other

represents the population as a whole. In a unitary system such as that

of the UK, a wholly elected house might either duplicate or rival the

House of Commons thereby weakening the accountability or domi-

nance of the government. On the other hand an appointed Chamber

would lack public credibility and reinforce the patronage that currently

undermines the constitution. Furthermore there is no consensus as to

who should make appointments to the House and on what basis. The

hereditary element is said to have the advantage of independence but at

the price of legitimacy. An attractively democratic possibility would

be random selection from the whole adult community, as is currently

the case with jury service. However, this raises many practical and

economic problems and is probably unrealistic.

The Parliament Act 1911 began the process of reform by remov-

ing the power of the House of Lords to veto public bills introduced

in the Commons other than a bill to prolong the life of a Parliament.

The Bryce Conference of 1917–18 (Cd. 9038) attempted to tackle the

problem of the composition of the House of Lords but was unable to

agree. In 1958 the introduction of life peers reinvigorated the House

to a certain extent particularly in relation to the work of its com-

mittees, enabling the House, according to Wakeham (2000), to become

an ‘efficient’ rather than a ‘dignified’ part of the constitution. In 1968

an all-party conference proposed removed voting rights from most of

the hereditary element and introduced the concept of ‘working peers’,

mainly life peers, who would form a permanent nucleus of the House.

The bill to introduce these reforms was abandoned because of back-

bench opposition from both sides of the House.

The present Labour government is reforming the House of Lords in

two stages. Stage 1 comprised the House of Lords Act 1999 (above).

Stage 2 remains unrealised. The report of the Royal Commission on

the future of the House of Lords (Wakeham, 2000) has been broadly

accepted by the government (Hansard (HL) 7 March 2000, Col. 919),

but attracted widespread criticism for its conservatism and lack of

rigour. The members of the Commission did not include radical

opinion and looked at the House of Lords in isolation from wider