Friday, 15 July 2011

The primacy of the Commons over the Lords - Part 2

Following my last post on this subject, I want to look at the way in which the Lords conceived its role in the latter part of the 19th century, with particular reference to the theories of Robert Gascoyne-Cecil, the 3rd Marquess of Salisbury.

I am indebted for much of the material in this post to a fascinating historical study prepared by the House of Lords library.

The passage of the 1832 Reform Act appears to have established the principle that the Lords was, in principle, not entitled to resist the will of the nation as a whole.  The Tory peer Lord Lyndhurst said in 1858:
I never understood, nor could such a principle be acted upon, that we were to make a firm, determined and persevering stand against the opinion of the other House of Parliament when that opinion is backed by the opinion of the people.
Walter Bagehot summarised the subordinate position of the House of Lords in The English Constitution (1867) as follows:
Since the Reform Act the House of Lords has become a revising and suspending House. It can alter Bills; it can reject Bills on which the House of Commons is not yet thoroughly in earnest – upon which the nation is not yet determined. Their veto is a sort of hypothetical veto. They say, We reject your Bill for this once or these twice, or even these thrice: but if you keep on sending it up, at least we won’t reject it. The House has ceased to be one of latent directors, and has become one of temporary and palpable alterers.
He returned to the subject in 1872, in the second edition of his work, in which he went into greater detail:
[T]he House of Lords must yield whenever the opinion of the Commons is also the opinion of the nation, and when it is clear that the nation has made up its mind. Whether or not the nation has made up its mind is a question to be decided by all the circumstances of the case, and in the common way in which all practical questions are decided. There are some people who lay down a sort of mechanical test: they say the House of Lords should be at liberty to reject a measure passed by the Commons once or more, and then, if the Commons send it up again and again, infer that the nation is determined. But no important practical question in real life can be uniformly settled by a fixed and formal rule in this way.... Undoubtedly there is a general truth in the rule. Whether a Bill has come up once only, or whether it has come up several times, is one important fact in judging whether the nation is determined to have that measure enacted; it is an indication, but it is only one of the indications. There are others equally decisive. The unanimous voice of the people may be so strong, and may be conveyed through so many organs, that it may be assumed to be lasting....

I should venture so far as to lay down for an approximate rule, that the House of Lords ought, on a first-class subject, to be slow — very slow — in rejecting a Bill passed even once by a large majority of the House of Commons. I would not of course lay this down as an unvarying rule.... But if the opinion of the nation be strong and be universal, if it be really believed by members of Parliament, as well as by those who send them to Parliament, in my judgment the Lords should yield at once, and should not resist it.
The power of the Lords was therefore not that of a powerful, independent chamber, but was rather ultimately subject to the will of the House of Commons and of the people.  We see that a distinction could be made between the will of the House of Commons and that of the people, so that the former might not necessarily be admitted as being representative of the latter.

The doctrine of popular sovereignty was accepted by Lord Salisbury when the Lords debated the Established Church (Ireland) Bill 1868, a piece of legislation which had passed the Commons and which the Lords were minded to resist:
I quite admit – everyone must admit – that when the opinion of your countrymen has declared itself, and you see that their convictions – their firm, deliberate, sustained convictions – are in favour of any course, I do not for a moment deny that it is your duty to yield.
However, Salisbury drew the distinction that we alluded to above between the will of the people and the will of the Commons.  He and other peers argued that, in fact, it was the House of Lords that was reflecting the people's will; that the bill lacked a mandate; and that the issue should be put to the electorate.  This line of argument was to become a consistent feature of Salisbury's political thought in the coming years and decades.

A general election was held in late 1868.  The Liberal Government won and introduced another Irish Church Bill.  This was passed by the Commons in 1869.  Salisbury conceded that the Bill had to be let through, but reserved his position on other items of legislation:
In ninety-nine cases out of 100 the House of Commons is theoretically the representative of the nation, but it is only so in theory. The constitutional theory has no corresponding basis in fact; because in ninety-nine cases out of 100 the nation, as a whole, takes no interests in our politics, but amuses itself and pursues its usual avocations, allowing the political storm to rage without taking any interest in it. In all these cases I make no distinction – absolutely none – between the prerogative of the House of Commons and the House of Lords. Again, there is a class of cases small in number, and varying in kind, in which the nation must be called into council and must decide the policy of the Government. It may be that the House of Commons in determining the opinion of the nation is wrong; and if there are grounds for entertaining that belief, it is always open to this House, and indeed it is the duty of this House to insist that the nation shall be consulted, and that one House without the support of the nation shall not be allowed to domineer over the other….
But when once we have come to the conclusion from all the circumstances of the case that the House of Commons is at one with the nation, it appears to me that – save in some very exceptional cases, save in the highest case of morality... it appears to me that the vocation of this House has passed away, that it must devolve the responsibility upon the nation, and may fairly accept the conclusion at which the nation has arrived.
Salisbury therefore sought to reserve the right of the Lords to veto legislation, but this right operated in the broader context of a political system in which the will of the people was ultimately determinative.

In the debate on the Municipal Elections Bill 1872, Salisbury repeated his distinction between the will of the people and the will of the Commons.
[T]he country has never had a fair opportunity of considering whether it likes the Ballot or not … [I]t is... our duty to regard ourselves in this matter as agents of the Nation, and to see that the House of Commons, in thus tampering with the laws under which it was elected, has not transgressed the mandate it received.
In this case, however, the Lords let the bill through.

At his most audacious, Salisbury presented the Lords as the true and authentic voice of the people.  In November 1880, he told the Hackney Conservative Club:
The House of Lords will necessarily represent the durable and continued current of feeling and opinion in this country... if I were to try to define in a sentence the function of the House of Lords, I should say its duty was to represent the permanent, as opposed to the passing, feelings of the English nation…
Salisbury's next attempt to resist the Commons in the name of the people came over the Representation of the People Bill 1884:
In the presence of such vast proposals we appeal to the people … If it is their judgment that there should be enfranchisement without redistribution, I should be very much surprised: but I should not attempt to dispute their decision. But now that the people have in no real sense been consulted... I feel that we are bound, as guardians of their interests, to call upon the government to appeal to the people, and by the result of that appeal we will abide.
He used much the same arguments to resist the 1893 Home Rule Bill, which ended up being heavily defeated in the Lords.

In this context, the Parliament Act 1911 did not mark a particularly radical break with the past.  As we have seen, the dominance of the Commons had begun to be acknowledged in the 17th century and measures had been forced through a reluctant House of Lords since 1713.  By the late 19th century, Salisbury's defence of the Lords' prerogatives acknowledged that the will of the people was paramount, and rested on the questionable propositions that the Commons could generally not be taken to be representative of public opinion and that the Lords could credibly act in such circumstances as the guardian of the people's rights.  In this context, all that the Parliament Act 1911 did was to authorise the Commons to legislate on behalf of the people with a lesser degree of interference from the Lords - for the Lords retained a suspensive veto over non-financial legislation, which might in practice have the effect of postponing it beyond the date of the next election.  The truly significant step was not the 1911 Act itself, but the Lords' voluntary decision after 1911 to forbear from exercising their remaining powers other than in exceptional circumstances.

All the same, the Salisbury doctrine was defended to the last by the 4th Marquess of Salisbury, the son of the great statesman, who said in the debates on the 1911 Parliament Bill:
It is admitted on all hands that a House of Commons is elected without, as the phrase is, any mandate for particular measures, and yet is entitled to deal with them. I have no objection to that myself. By all means let them deal with them; but you must not say that the House of Commons in these respects represents the exact opinion of the people. It does not follow. It may be so; it may not be so. And according to our ancient Constitution the only means of preventing a miscarriage of justice in consequence of the possibility of the House of Commons legislating in conflict with the wishes of the people lay in the power of your Lordships’ House to refer such Bills to the people.