Barons and By-Elections: Constitutional Change and the House of Lords

By Sebastian Bates
Sebastian Bates is a first-year law student at Keble College, Oxford University.

Toward the end of last year, the eyes of the British population were focused on Clacton, a parliamentary constituency named for the town of Clacton-on-Sea. The reason this inconspicuous municipality nestled on the coast of Essex made national and international headlines was made clear on October 13th, when the winner of the Clacton by-election, Douglas Carswell, took his seat as the United Kingdom Independence Party’s first member in the House of Commons. [1] The rise of this Eurosceptic party has shifted the UK’s politics – particularly those of the Conservative Party, which currently rules in coalition with the Liberal Democrats – significantly to the right, and its success in the Clacton by-election has many concerned.

While it is hardly surprising that another parliamentary election has largely escaped public notice, yet another one concluded in the early evening of October 22nd, when it was announced that Raymond Asquith, the great-grandson of former UK Prime Minister H.H. Asquith would be taking a recently-vacated seat in Parliament. [2] However, sixty-two-year-old Raymond Asquith will not be sitting on the green benches of the House of Commons as his ancestor did; instead, the third Earl of Asquith and Oxford, as he is formally known, will be enshrined in the red-and-gold splendour of the House of Lords.

Lord Oxford’s rise to the seat in Britain’s upper house is in fact a fascinating one, as it highlights the tide of constitutional change that has come upon the country in the past several decades. Many of these changes, such as the current constitutional framework of the House of Lords, originated in the 1997 general election. In the run-up to that election, the Labour Party produced the “New Labour” manifesto that promised to “clean up” politics and reform the unwritten British constitution. In particular, the party promised to “[e]nd the hereditary principle in the House of Lords,” reform party funding, devolve power to Scotland and Wales, legislate for elected mayors in London and elsewhere, make local government more accountable, ensure greater freedom of information, and guarantee human rights. [3]

With various levels of success, the Labour Party managed to fulfill each of these pledges. [4] However, this is not to say that their work was without flaws – the current legislative framework for the Lords is “half improvised and half compromised,” as Benjamin Franklin might have put it, [5] and the somewhat optimistically named Constitutional Reform Act 2005 has received sharp criticism. [6] Here, we shall focus only on the chief vehicle of House of Lords reform, the House of Lords Act 1999. [7]

The House of Lords Act as it was adopted consists of only six sections and two schedules. Section 1 contains the key provision enacting the Labour Party’s chief goal – it ordains that “No-one shall be a member of the House of Lords by virtue of a hereditary peerage.” [8] This disqualified, for instance, Lord Asquith’s father from taking the seat in the House of Lords that otherwise would have been his.

However, bloom goes somewhat off the rose in the next section, which provides that ninety people shall be exempt from the disqualification at any one time, and that they are to be elected according to the Standing Orders of the House of Lords. [9] These ninety are in addition to the Earl Marshal, a hereditary position held by the Duke of Norfolk, and the Lord Great Chamberlain, a hereditary Great Office of State currently shared jointly by several people and exercised by the Marquess of Cholmondeley.

In the third clause, hereditary peers (that is, holders of a title of nobility) who are not exempted by the terms above are given permission to vote for and be elected to the House of Commons. [10] (This was a particularly important provision for the Labour Party, as one of its greatest figures, Tony Benn, was briefly removed from the Commons in 1960 when he became the second Viscount Stansgate upon the death of his father. A special Act of Parliament had to be introduced in part simply to allow him to disclaim the title and resume his career.) [11]

The fourth, fifth, and sixth sections describe the schedules, transitions provisions, and the short title of the Act. If we are to understand the circumstances of Lord Oxford’s election, it is far more important to understand the Standing Orders adopted by the Lords than these. These standing orders provided that the ninety exempted peers shall be elected by all the peers who register with the Clerk of the Parliaments, the officer in charge of administering Lords’ business. [12] In addition to fifteen members to represent the whole peerage, seventy-five peers are to be elected to reflect the political make-up of the House as it was in 1999: forty-two Conservative hereditary peers, twenty-eight Cross-bench (or independent) peers, three Liberal Democrats, and two members of the Labour Party. [13]

It was thus that Lord Oxford was elected to replace Lord Methuen, a fellow Liberal Democrat, by his fellow hereditary peers registered with the Clerk. His election is not the only one that will be held this year; Viscount Allenby, who died earlier this month, must soon be replaced, as do Lords Grenfell and Cobbold, who recently resigned from the House – something only constitutionally possibly since May of this year, when the House of Lords Reform Act 2014 came into force. [14]

These elections may seem absurd – perhaps even like something out of a Gilbert and Sullivan operetta. But the individuals elected wield potent political power, and the elections they stand in reflect not only the long tradition and proud continuity of the British constitution, but also the long road that lies ahead in the path of constitutional reform.

 

[1] Anonymous, “UKIP's Douglas Carswell taking Commons seat,” BBC, accessed 22 October 2014, http://www.bbc.co.uk/news/uk-politics-29600566.
[2] Anonymous, “New hereditary peer elected to House of Lords,” BBC, accessed 23 October 2014, http://www.bbc.co.uk/news/uk-politics-29730895.
[3] The Labour Party, “New Labour, New Life for Britain,” accessed 20 October 2014, http://www.politicsresources.net/area/uk/man/lab97.htm.
[4] Colin Turpin and Adam Tomkins, British Government and the Government (Cambridge: Cambridge University Press, 2011), 25.
[5] Representative Bishop (UT), “American Renewable and Alternative Energy Trust Fund,” 153:14, 17532.
[6] Turpin and Tomkins, 26.
[7] “House of Lords Act 1999,” Text, accessed November 10, 2014, http://www.legislation.gov.uk/ukpga/1999/34/contents.
[8] House of Lords Act 1998, s 1.
[9] House of Lords Act 1998, s 2.
[10] House of Lords Act 1998, s 3.
[11] Anonymous, “Anthony Neil Wedgwood Benn – obituary,” The Telegraph, accessed 22 October 2014, http://www.telegraph.co.uk/news/obituaries/10697120/Anthony-Neil-Wedgwood-Benn-obituary.html.
[12] The Standing Orders of the House of Lords, Order 9 (5).
[13] The Standing Orders of the House of Lords, Order 9 (2).
[14] The Hansard, 13 Oct 2014: Column 1.
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