UK Constitutional Law Association

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Francis Young: “Packing” the Lords: Some Legal Reflections

The recent string of Government defeats in the House of Lords over amendments to the European Union (Withdrawal) Bill has reignited the debate over the role of the Lords in a modern democracy. The Daily Mail published a characteristically trenchant headline suggesting that we should “pull the plug” on the “traitors in ermine”.

The abolition of the House of Lords is still probably some way off, but the recent events have raised the question of what options a government has to deal with resistance by the Lords to its policies. The normal means of addressing this problem (if one sees it as a problem) is to invoke the Parliament Acts, which provide that the Commons can override the Lords by passing the same bill in two consecutive parliamentary sessions. But this remedy is not readily available in the context of the EU (Withdrawal) Bill, as the current parliamentary session will not terminate until after Brexit day has passed.

One other option that has been canvassed is that of swamping the House with several hundred new pro-Brexit peers. It would be naive to think that this possibility has not at least been discussed within the walls of 10 Downing Street. This post seeks to consider the legal aspects of such a course of action.

Historical background

It has been known for centuries that the Lords can be “packed” by the executive in order to overcome resistance on a policy issue. Three examples illustrate this.

In 1712, Queen Anne created twelve new peers to facilitate the passage of the Treaty of Utrecht, after the Harley ministry lost a division on the address of thanks over the issue. This was unprecedented, and it shocked contemporary opinion: was the House of Lords to be the creature of the court? One of the men who was originally nominated for ennoblement, Sir Miles Wharton, was so scandalised that he refused to accept his peerage. Queen Anne got her treaty through, but bad memories of the affair lingered on. Just a few years later, in 1718–19, Whig politicians led an attempt to enact a bill which would have placed severe restrictions on the Crown’s ability to create new peers.

Second, the threat of packing was necessary for the passage of the 1832 Reform Act. On the third attempt at parliamentary reform, Lord Grey’s cabinet asked William IV to create 12 or more peers in order to secure a second reading for the legislation; and the request was accepted. In fact, the Lords passed the bill on second reading, but they subsequently attempted to insert a wrecking amendment in committee. Grey went back to the King, who was reluctant to co-operate; haggling ensued over the number of new peers that would be needed. The government resigned, and the King attempted to form a new administration headed by the Duke of Wellington – a move that brought Britain about as close to revolution as it has ever been. Only then did the King give way and agree to create as many peers as necessary.

Finally, there is perhaps the best known example of a packing threat: the one that was deployed during the stand-off between the Lords and the Commons which resulted in the passage of the Parliament Act 1911. After the Liberals lost their Commons majority in the January 1910 general election, the Prime Minister, Herbert Asquith, advised the King that it might be necessary to create 500 peers in order to overcome the inbuilt Unionist majority in the Lords. George V did not refuse the request, but he did insist on a new election, which duly took place in December 1910. In the event, of course, it did not prove necessary to carry out the threat.

These examples establish two key points. First, packing the House of Lords is a real possibility for a government whose programme is being frustrated by the upper chamber. Second, it is a highly controversial enterprise. Parliament – and the media and public opinion – would apply some degree of restraint to the executive’s freedom of action in this connection. Modern conceptions of the role of the courts in a society governed by the rule of law would also seem to open up the possibility of a legal challenge, just as happened in the Miller case in relation to prerogative powers and Article 50.

Has the prerogative been displaced?

One of the few legal commentators to have spoken publicly about this issue to date is George Peretz QC. Mr Peretz notes that the Parliament Acts amount to a statutory scheme for forcing legislation onto the statute book against the will of the Lords. He suggests that this statutory scheme has displaced the royal prerogative of creating peers for that purpose, in accordance with the well known principle in Attorney-General v De Keyser’s Royal Hotel Limited [1920] AC 508. This argument is attractive and economical, as well as being consistent with the plain fact that the possibility of packing the Lords has not seriously been contemplated since the passage of the Parliament Act 1911.

The weakness in the argument is that it presupposes that the mass creation of new pro-Brexit peers would have the sole purpose of facilitating the passage of the EU (Withdrawal) Bill. The Government might easily make the argument that such a course of action would also have the broader purpose of altering the long-term composition of the Lords – a purpose that has nothing to do with the Parliament Acts and therefore cannot have been displaced by them. The Lords consists predominantly of pro-EU members; but most voters are in favour of Brexit (or at least were so in June 2016). The Government might seek to argue that it is right in principle for the composition of the upper house to be changed in order to align it with the will of the people. It would be a brave judge who issued a quashing order in the face of such an argument.

It is also worth noting that, if the packing power has indeed been displaced by statute, the Lords themselves do not seem to have noticed it. Only last year, Lord Strathclyde, one of the House’s longest serving members, spoke with approval of the power:

It may happen only rarely, but to remove the ability of the Prime Minister to threaten to increase the number of Peers, could lead to an even more assertive House than we have today.

Whatever one thinks of his lordship’s views on this point, it would be surprising if he had failed to realise that the prerogative no longer existed.

Is the prerogative justiciable?

In the GCHQ case, Lord Roskill stated that “the grant of honours” still stood outside the purview of judicial review (CCSU v Minister for the Civil Service [1985] AC 374, 418). But this obiter dictum is unlikely to present much of an obstacle to a challenge to a Government attempt to pack the Lords. First, as an obiter statement, it has at its highest only persuasive rather than binding force. Second, any challenge would inevitably reach the Supreme Court, where the statement would have only the limited persuasive force of a dictum from a court of coordinate jurisdiction. It seems unlikely, moreover, that the Supreme Court would dismiss such a challenge on bare jurisdictional grounds. The trend since GCHQ has been in precisely the opposite direction. Indeed, Maurice Kay J recognised as long ago as 2002 that “the ambit of the “forbidden areas” is not immutable and… the areas identified by Lord Roskill… have been reduced.” (R (CND) v Prime Minister [2002] EWHC 2777 (Admin), [50])

Grounds of challenge

Assuming that a legal challenge to packing the Lords would overcome the GCHQ jurisdictional hurdle, what substantive grounds could be raised by the claimant?

The existence of clear historical examples of threats to pack the Lords in order to overcome policy disagreements would seem to weigh against the possibility that such a course of action would be susceptible to challenge on traditional common-law grounds. It would probably rule out any challenge based on Wednesbury unreasonableness; the consideration of irrelevant factors; or the rarely used ground of “conspicuous unfairness amounting to an abuse of power” (for a recent sighting of this doctrine, see City Shoes (Wholesale) Ltd v HMRC [2018] EWCA Civ 315). It surely cannot be irrational, irrelevant or abusive to do something which has been threatened on several well-documented occasions in the past (two of which occasions, let us remember, concerned important and salutary constitutional reforms).

Nevertheless, the Supreme Court’s judgment in the Article 50 litigation suggests that the common law recognises a distinct ground of challenge that would be relevant here:

81. It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone.

82. We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation. (R (Miller) v Secretary of State for Exiting the European Union[2017] UKSC 5)

In that case, the royal prerogative was pitted against a statute (the European Communities Act 1972). Packing the Lords would not give rise to a direct clash with a statute in the same way (in the absence of some very imaginative purposive interpretation of the Life Peerages Act 1958). But it may be observed that the Supreme Court framed the principle quoted above in a general way. The court did not confine it to circumstances where the prerogative is in direct conflict with an Act of Parliament – a point that commentators in general appear not to have picked up on.

It is strongly arguable that the act of fundamentally reconstituting the membership of a House of Parliament amounts to a “major change to UK constitutional arrangements”. If such an act cannot be brought about by “ministerial decision or ministerial action”, it follows that the Prime Minister cannot lawfully advise the Queen to pack the House of Lords with new peers. Any attempt by her to do so could be challenged in court and controlled by means of the normal remedies of judicial review.

Francis Young is a Fellow of the Royal Historical Society, the author of 12 books, and holds a PhD from the University of Cambridge.

(Suggested citation: F. Young, ‘“Packing” the Lords: Some Legal Reflections’, U.K. Const. L. Blog (16th May 2018) (available at https://ukconstitutionallaw.org/))

18 comments on “Francis Young: “Packing” the Lords: Some Legal Reflections

  1. Andrew David Thorburn
    May 16, 2018

    “The Government might easily make the argument that such a course of action would also have the broader purpose of altering the long-term composition of the Lords – a purpose that has nothing to do with the Parliament Acts and therefore cannot have been displaced by them. The Lords consists predominantly of pro-EU members; but most voters are in favour of Brexit (or at least were so in June 2016). The Government might seek to argue that it is right in principle for the composition of the upper house to be changed in order to align it with the will of the people.”

    In 2015 Queen’s Speech the ’15 year rule’ was declared arbitrary by Her Majesty. The Queen is the embodiment of the people ‘the people spoke’…… but that arbitrary rule was still used.

    How come the will of the people did not have it’s way in the particular case? Should we be worried about the composition of the civil service, as one commentator implied on the BBC News the other week, they were about the Windrush scandal?

  2. Javan Herberg
    May 16, 2018

    The “rarely used” ground of conspicuous unfairness will be a whole lot rarer after the judgment of the Supreme Court handed down (coincidentally) on the same day as you posted – see R (Gallaher) v. CMA, 16 May 2018.

    • Francis Young
      May 17, 2018

      Indeed! I think of it as being bad timing by their lordships rather than by me.

  3. Sean Feeney
    May 16, 2018

    One doesn’t have to look far in paragraphs 81 and 82 of the Supreme Court’s judgment in Miller to see that these paragraphs demand to be read contextually because of scrupulous judicial adverbial signalling. Although one does have to look a little further than the selective quotations given by Francis Young (without marks of elision). The first word of paragraph 81 suffices! “Accordingly”, Young’s argument that paragraphs 81 and 82 support ” a distinct ground of challenge” is fallacious.

    • Francis Young
      May 17, 2018

      You have me bang to rights on the absence of ellipses, which was a formatting issue for which I am solely responsible.

      As to the question of context, let me quote some of what I think is the relevant context from para. 81:

      “It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone. All the more so when the source in question was brought into existence by Parliament through primary legislation, which gave that source an overriding supremacy in the hierarchy of domestic law sources.”

      I agree that adverbial signalling is important, and here the key adverbial phrase is “All the more so”. If the Government’s proposed use of the prerogative was “[a]ll the more” unacceptable because it effected a major constitutional change contrary to primary legislation, it presumably follows that it would still have been unacceptable if the executive had proposed to change the constitution unilaterally where no primary legislation was in play.

      I would concede that paragraph 82 ties the principle more closely to the existence of the 1972 Act, but I’m still not convinced that the principle is necessarily restricted in this way. After all, there is a bigger picture here. If an officious bystander had buttonholed Lady Hale or Lord Sumption on their way out of Middlesex Guildhall on that bright cold day in January last year and asked them whether the Government is barred as a general principle from changing the British constitution by ministerial fiat, we cannot be sure what their response would have been; but “oh, of course!” is certainly one plausible option.

      • Andrew David Thorburn
        May 17, 2018

        Hang about, if we use the old thought provoker – “The Minister ordered the murder of all blue eyed babies.” I would only be looking at the civil servants who become the tools of bad law. There is the ‘good law initiative’ (Hayley Rogers, Office of the Parliamentary Counsel – Scratching my head over how to interest civil servants in a training course on the legislative process, I hit on the idea of creating a board game that would lead players through the process, from initial ministerial bright idea to fully implemented Act of Parliament.)

        There has to be situations were some government lawyer says “I canny do it Captain, I will break my professional standards. I need legal clarification before I can put that to paper.” After all we do expect professional people, who get paid to do that job, to ask the right questions.

  4. Sean Feeney
    May 17, 2018

    The context is set by the heading and particularly the question in the subheading under which paragraphs 81 and 82 occur. Miller was a case about whether a prerogative power did or did not exist and is, accordingly, distinguishable from a hypothetical abuse of an extant power of decision by the sovereign hypothetically tainted by the advice of her ministers. See the distinguishing of the FBU case by one of the dissenting justices. And the last sentence of paragraph 82 states constitutional principle was being applied to the particular, which in my view is the precise opposite of the claim in your post!

  5. Francis Young
    May 18, 2018

    Well, well….

    https://www.theguardian.com/politics/2018/may/18/pm-set-to-nominate-10-tory-peers-in-attempt-to-overcome-brexit-defeats

    It looks like the plan is only to create around 11-12 new Conservative/DUP peers, together with 3 Labour peers. The weakness in the argument that I made in this post is that altering the composition of the Lords does not necessarily equate to making a major constitutional change. It would be one thing if May was doing an Asquith and threatening to create 500 new peers – essentially, a new House of Parliament. But if the packing is done with sufficient subtlety – creating a relatively small number of pro-Government peers, offset by a few new Opposition peers – the chances of a successful legal challenge must drop to almost zero.

  6. Jim South
    May 19, 2018

    Very interesting post, and very timely, given today’s media reports of the government’s intention to create 10 new peers to overcome obstruction by the House of Lords of the government’s Brexit plans.

    There is an argument that the planned creation of new peers would not change constitutional arrangements in the UK. The Parliament Acts of 1911 and 1949 do not appear to manifest any intention to abrogate the Crown’s power to create new peers. Those Acts provide an option for the government to overcome legislative obstruction by the House of Lords. However, because of the applicable time constraints, that option simply is not available in the case of Brexit. In these circumstances, and in view of the House of Lords’ lack of democratic legitimacy, I think it’s unlikely the Supreme Court would rule that the government lacks the power to create the planned new peers.

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  8. Peter Harris
    May 24, 2018

    Re the Prerogative. Has any authority yet considered the Prerogative exercised through the equally packed Privy Council?

    Following through to a side issue, the British Overseas Territories may be considering a judicial review in loco were they to be legislated for by an Order in Council advised upon her Majesty’s pen by a totally unrepresentative and packed Privy Council, with insufficient representation from the BOTs?

    As these are self-governing territories, with an equal if not better internal system of government in relation to their size than that of the United Kingdom, has not the convention that the UK Government ministers advise her Majesty on issues relating to other territories within her realm been seriously diminished by the Chagos affair?

    Judicial review of an Order in Council, as opposed to an Order of Counsel by a Court in the BOT who refers to the Caribbean Court of Appeal on appeal, might place that creaking convention on the horns of a more modern dilemma. Particularly given the Supreme Court’s dicta in Barclays n° 2 in relation to Sark, and that the Bill which has sparked this issue off has had to refer to an Order in Council rather than an Order of Council, and that there is no International norm requiring Beneficial Ownership registers yet.
    The EU’s internal politics cannot be described as an international norm in this context, merely supra-national, and the US has not intention of following on the UK’s “spirited” insular initiatives.
    The French declared the opening up of their trust register to public scrutiny unconstitutional, so there is a long way to go yet.

  9. Sean Feeney
    May 24, 2018

    “[T]he chances of a successful legal challenge must drop to almost zero.” No, Francis! The chances of a successful challenge to the sovereign’s actual statutory decision to create a limited number of life peers (rather than a hypothetical decision to create a vast number of life peers) is precisely zero.

    • Francis Young
      May 29, 2018

      I never use terms like “precisely zero” in this kind of context.

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  12. Lord Norton
    June 1, 2018

    Two practical observations. First, since the start of 2017 the House of Lords has lost (through retirement or death) three times the number of peers newly created. The recent list could hardly be described as ‘packing the Lords’ and the net benefit to the Government is such that it is not likely to make much difference to the outcome of divisions. Second, there is a difference between the conferment of peerages and taking one’s seat in the Lords. Even if a large number of new peers was created, the rate at which new peers are introduced is such that the same problem would arise as with the provisions of the Parliament Act.

    • Francis Young
      June 7, 2018

      I agree – I would only add that (as I understand it) the rate of induction of new peers is controlled by the existing House (through its standing orders), so any Asquithian deluge could be slowed down to a trickle by their current lordships.

      The recent list would be difficult to describe as packing in any strong sense of the word, but Brexit isn’t over yet – and indeed a future Labour government might feel tempted to reach for the Asquith option if the Lords proved to be unpersuaded of the merits of Mr Corbyn’s legislative agenda.

  13. Sophie
    June 14, 2018

    Interesting post! Opposition by the House of Lords has certainly been causing some problems recently. It’s fascinating to hear about the legal implications of “packing” the House of Lords with new peers. I wonder if calls to abolish the Lords completely will continue.

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