Friday, 15 July 2011

The primacy of the Commons over the Lords - Part 1

The Commons is the dominant chamber of Parliament, though the House of Lords is conventionally referred to as the "upper house" (and Halsbury's Laws politely calls it the "senior" house).  How did the predominance of the Commons originate?

The primacy of the House of Commons in the post-Cromwellian age goes back to resolutions passed in 1671 and 1678 that asserted the supremacy of the Commons in financial matters.

In 1700, the Commons wished to pass a particular bill, and combined it with a finance bill in order to require the Lords to pass it - a practice known as "tacking".  The Lords initially resisted, and then gave way.  As Macaulay put it in his History of England:
It was evident that on that question the Lords could not hope to have the country with them, and that, if a general election took place while that question was unsettled, the new House of Commons would be even more mutinous and impracticable than the present House.
Something similar happened during the lead-up to the signing of the 1713 Treaty of Utrecht.  Queen Anne was persuaded to create 12 new Tory-leaning peers during the winter of 1711-1712 in order to ensure that the unpopular treaty would be approved by Parliament.  A few years later, in 1719, an attempt to prevent this kind of flooding of the Lords by fixing the size of the chamber's membership failed to make it onto the statute book.

By 1713, then, three principles had been established:

1.  The House of Lords could be forced to act against its will, both in financial matters and in other matters.

2.  The House could be forced to act in accordance with the will of the House of Commons, and of the people.

3.  One means of forcing it to act was through flooding the House with new peers.

These principles were reaffirmed in the controversy over the enactment of the 1832 Reform Act.  The Lords abandoned its resistance to the will of the Commons in the face of a threat to create sufficient new Whig peers to force the passage of a reform bill.  There was considerable popular anger at the Lords' intransigence, and this seems to have been a key factor in persuading the Tory statesman the Duke of Wellington in acquiescing in the bill.  Wellington adopted a similar stance over Catholic emancipation and the repeal of the Corn Laws.  In the last-mentioned case, a revealing anecdote is told about him:
"Bad opinion of the bill, my lord!" he said to a Protectionist peer; "you can't have a worse opinion of it than I have; but it was recommended from the throne, it has passed the Commons by a large majority, and we must all vote for it. The Queen's government must be supported."  (T.Archer, Our Sovereign Lady: Queen Victoria (1887), 2.183)
Assuming that this quotation is authentic, Wellington was probably not articulating a general principle that the Lords was required to defer to the Commons and to the Government in all circumstances.  He was, however, clearly accepting that the Lords' parliamentary role was in some sense a subordinate one.