In the King’s Speech the new Labour government introduced 40 bills that will form the core of Westminster’s legislative business for the next year. In the House of Commons, the government possesses a 174-seat majority, all but guaranteeing the passage of its legislation. In the House of Lords, however, Labour has just a fifth of sitting peers, and 100 fewer than the Conservatives. Though reporting suggests the Prime Minister might seek to strengthen his hand in the upper house by advising the appointment of a large number of new Labour peers, the government can also rely on the Salisbury-Addison Convention (otherwise known as the Salisbury Convention) to pass the vast majority of its programme, whatever its position in the upper house.
The Salisbury-Addison Convention is an informal and uncodified rule by which the House of Lords enables the swift passage of Bills that fulfil manifesto commitments. This means that they pass the Bills at second reading, do not offer wrecking amendments (that frustrate the core purpose of the Bill or prevent its passage) and ensure that the Bills can become Acts with the minimum delay. The principle of the convention is that an unelected chamber should not seek to veto or delay a proposal that has been endorsed by the electorate.
The convention in something like its present form arises out of an understanding made in the aftermath of Labour’s election victory in 1945 between Viscount Addison – the Leader of the House of Lords – and Viscount Cranbourne (who would later inherit as 5th Marquess of Salisbury) – the leader of the Conservatives in the Lords. Though Labour had secured a huge majority in the Commons, it possessed only 16 representatives amongst the nearly 800 (almost entirely hereditary) peers. Under the provisions of the Parliament Act 1911, this meant that the Conservative majority in the Lords could theoretically delay all legislation (except Money Bills) for two years, preventing the government from enacting its manifesto commitments.
In the more democratic postwar age, the hereditary chamber’s legitimacy was waning, and the electoral mandate provided by the 1945 general election was seen to be unanswerable. Cranbourne therefore committed the Conservative peers not to oppose Bills (for example on nationalisation of industry) to which his party was opposed but which were contained in Labour’s manifesto.
The convention’s origins, however, are older than 1945 and reflect the changing attitudes to the House of Lords in British political debate over the last few hundred years. In the 1830s, the 1st Duke of Wellington argued that the Lords should consent to popular Bills passed by the House of Commons, even if peers were opposed, since to do otherwise would precipitate political unrest and calls for constitutional change. On Bills that had wide popular support, therefore, it was better for the Lords to avoid confrontation to enable them to continue their function as guardians of the constitution. For the remainder of the 19th century, politicians contested the legitimacy of the Lords and considered the practical limitations on the power of a hereditary chamber in a country experiencing a decline in the cultural authority of the nobility. This produced a growing tendency in the Lords to give second readings to Bills to which the majority of peers were opposed, though no clear rule emerged (and in some areas, such as on Irish Home Rule, the Lords continued to block legislation).
A different interpretation was put on the rights and duties of the Lords by the 3rd Marquess of Salisbury (the grandfather of the aforementioned 5th Marquess), the three-time Prime Minister and Conservative (and later Unionist) leader. Salisbury argued that the Lords was frequently better placed than the Commons to represent the ‘national will’, and that it therefore had a duty to block controversial Bills which had not been tested before the electorate. He considered that the Lords had a ‘referendal’ function, forcing governments to test the support for radical reform at the ballot box. Since the Unionists had an overwhelming permanent majority in the Lords, this acted as a convenient justification of Unionist peers’ frustration of Liberal legislation. This is in a sense the inverse of the convention as we understand it today, since it was intended as a justification for the right of the Lords to reject Bills not put before the electorate.
There has been no serious challenge to the Salisbury-Addison Convention since 1945, though its meaning has changed. For example, the initial commitment was that the main opposition party would not seek to block legislation contained in a manifesto. Today, the convention is understood to bind peers of all parties and none.
The current extent of the convention remains open to debate. The convention is generally held to apply not only to the passage of a Bill at Second Reading, but also to wrecking amendments (which seek to frustrate the central purpose of a Bill). As the fierce debates over Lords amendments to the European Union (Withdrawal) Bill in 2017 suggested, precisely what might count as a wrecking amendment (or indeed a ‘manifesto Bill’), remains open to interpretation. In reality, the lack of clarity in these definitions has been a feature rather than a flaw of the convention. It is the flexibility of the expectations, and its sensitivity to cultural expectations and public opinion, that make uncodified conventions so valuable to the pragmatic evolution of the constitution.
The 1945 understanding applied to the circumstances of a majority government that nonetheless lacked the seats in the Lords to force through its business. It was unclear what obligations might exist when the government lacks a majority.
This issue was raised after 2010 when the government legislative programme derived not from a manifesto put to the electorate, but from a post-election backroom deal between the Conservative and Liberal Democrat leaderships. A report by the House of Lords Constitution Committee in 2014 concluded that the Convention did not apply (unless the manifestos of all coalition members committed to a proposal).
A similar problem was raised again in 2017, when the minority Conservative ministry was forced to rely on a confidence and supply arrangement with the DUP to sustain the government. Baroness Evans of Bowes Park, then Leader of the House of Lords, contended that the Salisbury-Addison Convention applied to the manifesto commitments of a minority party in government and though opposition politicians questioned this claim, it was never tested. It remains an open question whether the Lords is bound to pass legislation in such circumstances, and it is not at all clear why there should be such a distinction between the manifesto commitment of a party in a minority government and that of a senior partner in a coalition.
In recent decades, the House of Lords has tended to go further than the Salisbury-Addison Convention under a general understanding that the House will not reject at Second Reading any government bill. Whether this is an expansion of the Salisbury-Addison Convention, or a supplementary convention, is a matter of taste. A report of the Joint Committee on Conventions in 2006 considered that the scope of the Salisbury-Addison Convention had expanded to cover any government Bill (and recommended that it be referred to in future as the ‘Government Bill Convention’ – a proposal which has not caught on). However, practice since 2006 suggests that Bills that enact manifesto commitments retain a legitimacy above other government Bills, and that the House of Lords will be less willing to amend the substance of such Bills.
The convention has remained a central component of British parliamentary mechanics, but its application and meaning has not been fixed and nor do they seem likely to become so. Any future elected upper house, that may represent the opinion of the nation better than the unproportional Commons, would not feel bound by a Convention established in a period when the House of Lords was a primarily hereditary chamber. Future governments, therefore, could regularly expect their manifesto commitments to be frustrated in a chamber in which they had a permanent minority. The Prime Minister has previously committed to the abolition and replacement of the Lords, though the Bills contained in the King’s Speech for the abolition of hereditary peers and the extension of provisions to increase the number of women bishops sitting as Lords Spiritual suggest that this is not likely to come any time soon.
On the other hand, the increasing reticence of the House of Lords to oppose government business may result in an increasingly irrelevant chamber that is unwilling to perform anything but a purely technical function. Politicians and the public should consider whether this is the future that we want, or if we value the Lords’ role in revising legislation in substance and offering the Commons an opportunity to think again.
Ed Selkirk Ford.
Ed Selkirk Ford is a PhD candidate and postgraduate teaching associate in history at the University of Exeter. He researches debates about parliaments and representation in Britain and British settler colonies in the late nineteenth and early twentieth centuries.
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