Starmer’s ‘modernising’ of the Lords will make us a worse governed nation
The BBC’s sumptuous new drama Wolf Hall: The Mirror and the Light is both a Sunday evening delight and a reminder of the longevity of the British constitution. In the first episode, Thomas Cromwell, master fixer for Henry VIII, was rewarded with the title of Lord Privy Seal for bringing the king’s errant daughter Mary back to court.
Here we are almost 500 years on and the post bestowed upon the Putney blacksmith’s son still exists in our government. The current occupant is Baroness Smith of Basildon, the leader of the House of Lords.
Unlike many recent holders of the office, she at least sits in the Upper House. When Ernest Bevin was given the job in 1951 he commented “I am neither a Lord, nor a privy nor a seal.”
The position of Lord Keeper of the Privy Seal dates back to 1307, older than any great office of state apart from Lord Chancellor, another title that still exists.
Indeed, it was trying to get rid of the latter post that resulted in ill-conceived constitutional reforms, the consequences of which are felt to this day.
Twenty years ago, the Constitutional Reform Bill, introduced by Tony Blair’s government, sought to abolish the office of Lord Chancellor and transfer its tasks to other officials. Legislative functions would move to a speaker of the House of Lords, executive duties to the newly created Secretary of State for Constitutional Affairs and its judicial role to the Lord Chief Justice. The Law Lords were to be scrapped and a Supreme Court created.
The measure was promulgated without anyone looking too closely at the history of the role of Lord Chancellor. They might have asked the occupant at the time, Lord Irvine of Lairg, a one-time mentor to the then prime minister, but he was kept in the dark and only found out shortly before the announcement, whereupon he resigned.
It transpired that there were some 5,000 references in law to the office of Lord Chancellor that could not be unpicked from the statute so the role had to be retained albeit without its judicial functions.
Since the post could not be abolished it was bolted on to the title of the new Secretary of State for Justice, who as a result bizarrely took on the ceremonial role at the State Opening of Parliament of handing the monarch the Royal Address speech. Being able to walk backwards down the steps from the throne in the House of Lords remains an occupational advantage.
The 2005 reforms were ostensibly to create a more favourable perception of the British justice system. But it has had the opposite effect. The creation of the Supreme Court has coincided with a surge in judicial activism to the detriment of parliament, whose decisions or wishes are second-guessed and occasionally overturned.
Lord Irvine later said the prime minister had failed to grasp the constitutional significance of what was proposed, regarding it as a machinery of government issue. “He had not received any proper advice and was completely unaware that complex primary legislation was required… The whole process has been botched.”
Blair said a few years later: “I thought the traditional roles of the Lord Chancellor’s department and the Home Office arose from long-standing ways of working that didn’t fit the necessities of the modern age.”
Sir Keir Starmer is following in his predecessor’s footsteps by tinkering with the mechanisms of governance for no real reason other than they don’t look right in a modern world.
The removal of the remaining hereditary peers next summer will apparently complete the “democratisation” of the Upper House, replacing those there by dint of birth with those elevated because they donated a few bob to the governing party.
The fact that many of the hereditaries make a valuable contribution to the Lords is of no consequence. They are a throwback to another era who must be removed (and they are mostly Conservatives, so even better).
The problem is that once you start to pull at the thread of the constitutional fabric you can unravel more than you bargained for. If the hereditary principle is to be questioned why have a monarch? If the hereditaries are to go, why not bishops? Indeed an amendment to the Bill was proposed by Sir Gavin Williamson, the former Tory Cabinet minister, to eject the Lords Spiritual only for the government to whip against it.
Such a move would probably necessitate the disestablishment of the Church of England, for which a cogent argument can be made. But as with the role of the Lord Chancellor, much of our unwritten constitution is tied together in ways that are not apparent until someone tries to undo it. The role of the Anglican church is not simply to sit in the Lords wielding political power but to support the monarchy. As James I said in his tussle with the Presbyterians, “No bishop, no king.” That resulted in a Civil War, the removal of the monarchy and its eventual restoration.
Nothing so dramatic will happen now but it is an object lesson in avoiding constitutional change merely to demonstrate a commitment to modernity when what matters is good governance.
Where will Labour go with this next? The manifesto promised further reforms and many Labour MPs want to abolish the House of Lords and replace it with an elected second chamber. Judging by past attempts to overhaul the Upper House, good luck with that. Previous reforms have foundered precisely because the Commons does not want a second chamber of equal, or even greater, weight to its own.
With so much going wrong on the domestic policy front Sir Keir may see such reform as a way of showing that his government is committed to “change”. Of course, he may stop at ejecting the hereditaries, thereby satisfying his party’s appetite for constitutional vandalism and leave the rest alone.
But even if Labour goes no further, the final removal of the hereditary peers is still a significant moment, as was the break-up of the Lord Chancellor’s office, which airily swept away more than 1,000 years of history before discovering that the British constitutional dispensation is so deeply ingrained in the body politic that it is hard to change. Just ask the Lord Privy Seal.