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/))