In the dark recesses of the origins of constitutional law in the United Kingdom is the principle that the Monarch is the fount of all justice in the realm. Less often remarked upon, at least in constitutional circles, is the link of the Crown to religious authority. Since Henry VIII’s secession from Papal authority, the monarch has held the position of Supreme Governor of the Church of England, an appointment binding the monarchy to Anglicanism and stressing of the established role of Christianity in UK governance. Further, the continuing presence of bishops in the House of Lords is testament to the constitutional status Anglicanism enjoys within the UK, the Crown in Parliament being joined to the Church of England through the presence of the clerics.
Yet whatever Anglicanism’s interlinking with the constitutional mechanisms of this country, it’s an open question whether a connection should exist, and whether bishops should be permitted to retain their privileges within Westminster. Many consider the supposedly theocratic connotations of bishops sitting in the Lords to be an anathema to the ideal of a secular and democratic Parliament, and the democratic society beyond it.
A British Theocracy?
In terms of composition, the number of bishops permitted to sit in the Upper House today is limited by the Bishopric of Manchester Act 1847 to 26 (around 3% of all Peers). At present there are 25 Lords Spiritual owing itself to the recent retirement of the Rt Rev Paul Butler from his position as the Bishop of Durham and the ongoing search of the Church of England for his successor. The Bishop of Durham, along with the Ecclesiastics from the four other Great Bishoprics (Canterbury, London, York, and Winchester), has the right to sit in the Upper House along with 21 more junior bishops, appointed by the Anglican Church to the remaining seats. The small number of bishops compared to the number of Peers in the House at large is enough to mitigate concerns about a significant religious bloc creating a theocratic element in the constitution, as was well put by the Economist: “theocracy in theory becomes secular democracy in practice.”
Yet, the lack of a substantial theocratic bloc within the upper chamber does not mean the work of House bishops should be left unscrutinised. Lords Spiritual, alongside their regular diocesan work, lead prayers and services in the House, while also performing functions assigned to Temporal Peers such as voting and participating in debates. There is no question, then, that religious peers possess substantial constitutional power, worthy of scrutiny, even if the collective weight of their votes is relatively small.
Gordon Brown’s Commission on the UK’s Future takes issue with these existing constitutional arrangements. The Commission’s report A New Britain, recommends the replacement of an appointed House of Lords with an elected Assembly of Nations and Regions. Were the new Labour Government to adopt such a recommendation, Spiritual Peers would face a permanent change to their constitutional position and place in the Upper House.
Removing the Lords Spiritual from the House – a Good Idea?
Changing the composition of the House of Lords is inseparable from wider questions about the function of the House, and what one seeks to achieve via any reform. As an example, if democratic legitimacy is our goal, unelected bishops sitting in the House are indeed anachronisms: bishops currently possess no democratic legitimacy or popular mandate. However, democratic legitimacy is not the only criteria by which one can judge a second chamber.
Really, we should ask how the House of Lords can best facilitate the work of the democratic Commons. The Lords as is, appointed rather than elected, here serves a critical legislative scrutiny and committee function not well-performed by the Commons, with experts representing various bodies of opinion, thought and specialisms. This collective is capable of conducting legislative review, holding a government to account through the Select Committee system and suggesting amendments to government legislation. The House, in the words of Lord McFall of Alcluith, brings to the legislative process “the fact that the life of the nation resides not only in political parties, but is expressed through organisations of many kinds. It makes the second chamber a forum for the discourse of civil society.”
When one approaches the Lords as a civil body, bringing different forms of expertise and professional opinion to the legislative and committee process, the case for the Lords Spiritual remaining as part of the House of Lords, at roughly their existing number, becomes stronger. Although the UK is a secular society, this should not be confused with the idea that Britain is an irreligious one. The latter supposition is in fact clearly untrue: 63% of people in this country claim a religious affiliation, with Anglican Christianity remaining the most popular religious strand nationwide. By virtue of this, religious institutions are at the very least still a prevalent part of society, and experts in their affairs and interests deserve seats in an expertise driven House.
The Lords Spiritual, as officers of the Church of England, can bring to bear their particular expertise. They can express the Church’s morality, shared by many within the UK, and its stance on various political issues like reproductive rights and social justice, matters on which the collective experiences of the Church have a unique bearing. To scrap the Lords Spiritual would therefore deprive the House of an important group of experts, whose political positions and institutional knowledge make a valuable contribution to Parliamentary life.
The Anglican Lords Spiritual
While, in principle, an Upper House for civil society can properly contain religious figures, our new government will face issues in reconciling the current arrangement of the Lords Spiritual with the theoretical basis of our secular state. The UK, as a secular country, is mandated to treat equally all religious denominations, with no one group being favoured over another. While this principle is most frequently applied in the context of religious freedom and human rights law, it is also pertinent here. Namely, by holding seats in the House of Lords, the Anglican Lords Spiritual possess constitutional advantages not granted to other religious denominations. This disparity is clearly not compensated for by the expertise of individual bishops, who cannot hope to act as representatives for all faiths.
The inequality also has no compelling justification. The argument that the UK maintains solely Anglican Lords Spiritual in the Upper Chamber because there are more Anglicans than Muslims, Presbyterians or Baptists is hardly convincing. Nor does this position reflect or accommodate the diversity and religious plurality of modern Britain. Surely we would all benefit from a greater range of religious expertise in our second chamber, able to bring to bear countervailing arguments and experiences to the scrutiny process?
Potential Reform
The solution to this issue is simple. Namely, Lords Spiritual of other faiths should be added to the Lords in rough proportion to the size of that demographic within the population. Considering last year’s recommendations from the Lord Speaker’s Committee on the Size of the House, inflating the raw number of Lords Spiritual with clerics of different faiths is probably not advisable, increasing the number of ecclesiastics being obstructive to the aim of achieving a 600 member, slimmed down, House of Lords.
Instead, while keeping the cap at 26 Lords Spiritual, these seats might instead be distributed in an extreme system of degressive proportionality to representatives of the different faiths. While this would necessarily reduce the number of Christian bishops sitting in the Upper House, the requirements of the Church of England as the established Church in England are served by the reservation of seats for the 5 Great Bishops. Any of the 21 seats traditionally allocated to more junior bishops might then easily be adjusted to reflect the demographic realities of the UK in a manner that would greatly bolster the proportion of seats granted to minority faith groups.
Of course, if one wished for a scrupulously neutral system of religious appointment, the reservation of seats for Church of England bishops could be done away with entirely. Yet, given that might upset the UK’s traditional constitutional arrangements and the links between Parliament, the Monarchy, and the Church of England this is not recommended here.
Concluding notes
Whatever form change of the Lords eventually takes; the Lords Spiritual are a valuable feature of the UK’s constitutional landscape which nonetheless requires urgent attention. A policy that only Anglican Bishops sit as Lords Spiritual falls short of our egalitarian country in which different religious institutions and groups are properly regarded. Yes, the Lords Spiritual must be diversified to reflect the plural faith groups within our society, but it would be a great mistake to lose them altogether.
Matthew Pearce.
Matthew Pearce holds an undergraduate degree in Law from the University of Kent. He is about to commence masters study and has an interest in constitutional law. He recently completed an internship with the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.