This chapter describes Parliament as a law maker—what had to be done to turn a proposal into a law. It begins with the Commons, and particularly with the relation between the Commons and the government. It was trite law throughout our period that Parliament’s sovereignty gave its laws a finality no other rule-making possessed, and trite politics that the Commons was the primary initiating chamber. Well before 1914 the government came to possess a near monopoly of access to this legislative machinery, which was different from the near veto power it possessed in 1820. This section accordingly traces the decline of the private member and the decline of the Lords. It describes how far the important category of local and private legislation also fell under executive control, which was partly a function of increased control over the Commons, partly of increased control over local government authorities, who were the prime sponsors of this form of legislation.

Judges merit scarcely a footnote. Uniformly they considered statutes only the object of interpretation. Questions of validity of public general legislation simply did not arise; there is nothing to record. Very occasionally they arose for local and private legislation, but when they did judges likewise confined their role to interpretation. Early in our period some judges thought their interpretive role different for local and private legislation, as will be seen, but the mood did not last. Looking back in 1893 Bowen LJ ridiculed his predecessors for that pretension; statutes were statutes, even if some were better written than others.¹

Broadly speaking, there were two long-term transitions, the first beginning long before our period starts and the second ending after it finishes. In the first the government, once the king’s, though living in dialogue with the Commons, became instead wholly dependent upon the Commons for its continued existence. From the late eighteenth century onwards royal patronage, which had sustained governments by providing reliable supporters in the Commons, was removed by a series of financial and administrative reforms designed to reduce the costs of government, hence to meet public criticism and remove pressure for (p.302) franchise reform. George IV, as regent and as king, sought less control over the personnel of government and its measures than his father had done. Bullied by Wellington, his political impotence was demonstrated by his failure to prevent Catholic emancipation in 1829. The king’s influence over his government further diminished with the return of the Whigs in 1830, and with the manner of the passing of the Reform Act 1832, when William IV was manoeuvred into promising a far larger creation of peers to swamp the Lords than he wished. The king’s dismissal of his government in 1834 rebounded upon him when he failed to find an alternative. Such a demonstration of plenary prerogative power was never attempted again. His choice of pretext—that he thought the Whigs too weak in the Commons to merit their office—only emphasized where real power lay.

Party made this independence from the monarch possible, and it is conceivable that with the weakening of party identification in the mid-century stronger royal control might have returned.² But the two most likely actors, Peel and Prince Albert, died young, and by the time Victoria emerged from her seclusion her influence was limited to the occasional veto of reprobates or radicals as ministers, an imperious barrage of correspondence to her advisors, and (that power beloved of Conservatives and constitutional lawyers) the ability sometimes to select a prime minister from among the leadership of the majority party when the party itself had not clearly identified its man. So the period between the two Reform Acts 1832 and 1867 has been labelled a period of ‘parliamentary government’, recognizing that governments were usually made, ended, and replaced by the Commons.³ Defeat in the Lords could only weaken, not destroy, and even the results of elections were not clear until a motion of confidence made in the Commons interpreted the verdict.

In the second transition liberalism transformed into democracy. Where once a government had been chosen and sustained by the Commons it became instead the current embodiment of the people’s will, the winner of a plebiscitary general election, sustained by that vote until, usually, the electorate voted the rival party into office in its place. Parties acquired an existence extraneous to Westminster. The Commons became more sharply divided, the majority representing the electoral mandate of a party to govern. The second Reform Act marked the beginning, the third in 1884 the decisive turn, when traditional parliamentary seats were converted from dual- into single-member constituencies containing a roughly equal number of voters, a move justified by democracy but devised by Lord Salisbury to save the countryside and perhaps the suburbs for (p.303) the Conservatives. Control of small constituencies by individual landowners, which had been reduced but by no means abolished by the 1832 Act, disappeared with the second Reform Act. Open voting was replaced by the secret ballot in 1872, not least in an attempt to stop employers from seizing the directing interest that landowners had vacated.

After 1884 about two-thirds of men in England and Wales could vote, fewer in Scotland or Ireland, which they could exercise only on a ‘first past the post, winner takes all’ basis that perpetuated and reinforced a two-party system. It was an incomplete parliamentary democracy for men, not even the beginnings of one for women. Moreover, its nature was contested between the parties, because the Conservatives had permanent control of the Lords. When the Conservatives held office the Lords was somnolent, virtually otiose save for providing comfortable berths for senior ministers. The country then experienced a form of party government. But the Liberals in office were allowed no such latitude, for then the Conservatives insisted that the Lords had a referendal function, justifying rejection of Liberal measures they deemed not to have been fairly put to and endorsed by the electorate. From this collision there could have emerged a reconstituted Lords or a regular use of the referendum, either of which would have required something like a Constitution Act to spell out the ramifications. Instead the crisis produced the Parliament Act 1911, which reduced the Lords’ powers and produced party government in its modern form.

1. The Commons as a Legislative Assembly

In a history of nineteenth-century law, legislation naturally takes centre stage, and with it the perception that Parliament’s importance was as sovereign legislator. Equally, the focus is mostly on the Commons, for by the mid-century the Lords was willing to acknowledge what had been true for a long time, that it was a reviewing rather than an initiating chamber.⁴ But the Commons had not evolved to give legislation primacy. Bagehot ranked the Commons’ legislative function in the 1860s as only third in importance behind its elective function in giving its confidence to Her Majesty’s Government and its educative function in shaping the nation’s political consciousness.⁵ As Peter Fraser has written, through into the mid-century the Commons was ‘still thought of as the “grand inquest of the nation”, where independently of parties or of ministers all aspects of the (p.304) nation’s life were represented and all its needs that admitted of a political remedy were resolved’.⁶ It was a debating chamber premised upon the value of informed opinion, its procedures egalitarian to the point that until 1835 ministers had no formal priority in arranging its business. Its character as a chamber oppositional to the king, manifested in the slogan ‘grievances before supply’, gave it internal procedures that encouraged spontaneity at the expense of the orderly processing of official business.

Further, each parliamentary session was self-contained, consisting usually of some 125 working days or thereabouts, between February and mid-summer each year.⁷ Business not concluded when Parliament was prorogued had to be reintroduced afresh in the next session; it could not simply be resumed where it had been left off. This annual rhythm reflected and suited the Commons’ ancient role of annually voting supply to the government, reinforced by the need for annual renewal of the Mutiny Acts, but it distorted legislative possibilities. Each year bills lapsed for lack of time, others were rushed through only partly digested. Yet public general legislation became the vehicle through which politicians reacted to social and economic change, and sought to mould it. Indeed Bagehot’s careful ranking of the Commons’ functions was written explicitly to counter the common popular view that the only appropriate measure of scrutiny of the Commons’ performance each year was its legislative output for the session. In practice that meant scrutiny of the government’s performance, since legislation had become primarily government business, not wholly to the exclusion of private members’ legislation, but predominantly so. Gladstone, for example, could pillory Palmerston in 1856 for his inept legislative record by reminding his readers that as long ago as 1841 Peel had used just that yardstick when moving the downfall of Lord Melbourne’s administration: ‘those, he contended, who are unable to legislate, are disentitled to govern’.⁸

Even in the unreformed Commons governments accepted some responsibility for most legislation, for when ministers were not actually the proposers they were often active in lending support to what was notionally a private member’s bill.⁹ Sometimes that was a form of co-option. Thomas Estcourt’s Licensing Act 1828, for example, was co-sponsored by Peel and Dawson, the Financial Secretary, and had quite a different orientation from what Estcourt had first (p.305) proposed.¹⁰ Professor Jupp shows that individual enthusiasts could succeed in sponsoring significant legislation in the 1820s, through persistence in the House, building opinion there through floating bills and instituting select committees, usually in conjunction with pressure from without, taking care also to consult government and receive its advice. ‘Robert Slaney on the poor laws, Thomas Potter Macqueen on the laws of settlement, Robert Gordon on lunatic asylums and Robert Wilmot Horton on emigration are exemplars in this respect’, though not all their activity resulted in new law.¹¹ With ministries few and small, political and legislative initiative often rested with such individual members, but, even so, government advice, neutrality, and support, be it in votes or in the provision of Commons time, were often critical.¹²

In the 1820s competition for parliamentary time seems to have been manageable. A rule change in 1811 that had earmarked two days a week for ‘orders’—the progressing of business previously introduced into the House—and which should have brought greater regularity to the legislative process, seems not to have been strictly enforced, so it was common for government business to be deflected by matters of the moment.¹³ There was no crisis however; governments did not have to struggle for supply, and their ministers habitually secured some 60 or 70 Acts annually from the 70 or 80 bills they introduced, as against private members’ 15 to 20 Acts a year.¹⁴ There was time enough for everyone, even if it was disorganized.

Commentators then and now agree that the 1832 election changed the Commons. Its sessions, though longer than before, were too short to accommodate increased ministerial and private members’ ambition to legislate. Ministers’ responsibility for preparing and carrying legislation grew by degrees, wrote Earl Grey, and chiefly since the passing of the Reform Act 1832.¹⁵ But ministers could not dictate to the Commons. They had no extensive spoils system to bribe members into support, nor were there many places in government to use as rewards for faithful service. Old corruption had been dismantled. Parties were formed in Parliament, not extraneously, so party discipline could not be enforced as it would be a century later. Thus persuasion was needed for each government (p.306)measure, which very largely meant persuasion in the chamber. At the same time the chamber was the arena in which responsibility of the government to the Commons for their policies and acts of executive authority was daily manifested. So Commons’ procedures had to accommodate conflicting objectives. There was a shift of initiative towards government—associated with the increased importance of legislation—and within that a further shift to make debate more efficient so that measures could be thoroughly and fairly assessed. But it was also inherent in parliamentary government that all government’s actions and neglects were open to scrutiny, as they had always been, hence a need for considerable leeway for individuals to raise these matters. The government was responsible to the Commons in the Commons.

The basic settlement introduced in 1835 lasted until at least the 1860s, though always with encroachments from both sides, always with refinement and modification. It was that the government should have just two order days a week secured for its business, private members one order day for the progression of their bills, and the remaining two days should be notice of motion days for topical debate and the introduction of bills. The formula acknowledged the government’s duty to lead the House, while accepting that government and private members could have different agendas. It showed something of a preference for legislative proposals, though, importantly, government order days had also to be used for voting supply. The aim, however, was only that there be reasonable and predictable provision for debate. As a select committee later put it, ministers should have preference ‘not only in the introduction of their Bills but in opportunities for pressing them upon the consideration of the House’.¹⁶ Petitions, which flooded the House in an ever-rising tide, were still to be received, but after 1836 they were not to be open to impromptu debate.¹⁷

Though from 1848 there was polite interest in the French notion of clôture, nobody sought to regulate the course or duration of debate, not least because ministers did not necessarily expect all their bills to pass. But the division of time was becoming precarious. Adjournments from order days cut into notice days and, especially, it was difficult to structure notice days to cater for both the impromptu debates of important issues and the long-term, consciousness-raising motions which often bored the House inquorate. So some members used procedural opportunities on order days to divert the agenda their way, and the House (p.307) responded by removing numerous formal stages in the legislative process (for example, that a clause proposed to be added to a bill be now read), since it was on such occasions that members could raise colourable amendments designed to raise their own issues or merely to delay.¹⁸ The result, sometimes referred to as the ‘rule of progress’, aimed to confine debate on the principle of a bill to its second and third readings, detailed examination of its clauses to the committee stage, and new amendments to the report stage.

By 1861 the House usually conceded government a third order day in mid-session, giving it theoretical control of about half the Commons’ time.¹⁹ Importantly, however, order days used for seeking supply were apt to be diverted into a miscellany of member-initiated debates, because the House could not bring itself to abandon the ancient maxim of ‘grievances before supply’. The symbolism was heavy, but the political point simple: notice days were often of strictly minority interest, so members’ issues were much better raised when ministers had to listen. So in the early part of the session, when it was imperative to pass military estimates to enable the renewal of the Mutiny Acts, a great part of what was nominally government time was effectively ceded to members. Little legislation could get under way until after Easter, which often left too little time for it to pass through both Houses before the session ended. Within the logic of mid-century parliamentary government, solutions were necessarily compromises: in 1861 the government’s third order day became permanent, but was always to be a supply day so as to leave members their opportunities. The government was also allowed a reversionary interest in the Tuesday motion day, should motions not exhaust the time, a base from which there was much future expansion. By 1861, then, government may have acquired more of the Commons’ time, but the ethos was still one of sharing with members, whose claims were not strenuously denied.

More radical procedural changes were rejected because they would upset the constitutional balance. The first, raised in 1848 and revived in 1861 and 1869, was to allow bills that had passed their Commons stages to carry over in the Lords next session.²⁰ This drew arcane objections that such an incursion into the effect of prorogation would impinge upon Crown prerogatives, and there were some practical difficulties with extending the time it took to pass a bill. But the House rejected it principally because it might strengthen the power of the Lords, who, (p.308) rather than feeling obliged to pass an unpalatable bill under pressure of time, might now shelve it for a session.²¹ The second radical proposal was to shift part of a bill’s progress out of the chamber to morning sittings before committees, several of which could sit contemporaneously. The thoroughgoing version of this proposal, from Erskine May in 1854, was that a bill’s early stages should henceforward be taken in one of six grand committees, bills being grouped by subject area so as to attract specialist members.²² Milder versions of the idea were developed too, but fear of government manipulation, compounded by the severe difficulty of finding an appropriate way of selecting committee members, saw even those rejected in 1854, 1861, and 1871.²³ To allow government to by-pass the chamber would diminish the influence of minorities unacceptably.

After the second Reform Act the tone of debate began to change. Disraeli’s convention-breaking resignation on defeat in the 1868 election without waiting for an adverse vote in the Commons, coupled with the emergence of both Conservative and Liberal parties as centralized and autonomous bodies, not dependent on the shifting allegiance of parliamentary adherents, signalled an impending transfer of authority. Responsibility to the electorate gradually replaced responsibility to the Commons as the central facet of a government’s existence. The two-party system strengthened. As both parties came to seek election on the basis of their legislative proposals, and as the franchise expanded again, it became plausible to assert that the Commons’ duty was primarily to pass government legislation, not just to consider it. Government should not only have the lion’s share of parliamentary time for its business, but should also be able to curtail debate to bring questions to the vote. The transition was not complete until after the third Reform Act, and its logic was still being worked out at the end of our period, but even in 1872 one iconoclastic Liberal minister could reject values such as ‘grievances before supply’ as ‘obsolete words and fine phrases’, and another could twice propose that the Commons should adopt theclôture to reduce time-wasting discussion.²⁴

Likewise, short-term party advantage began to colour debate on procedural change. Both parties in the 1870s sought to make the motion that the House move (p.309) into a committee to discuss supply purely formal, to prevent members seizing the moment to raise their own issues, but each denounced the other’s proposal, similar though they were.²⁵ And though both parties were enormously relieved when Speaker Brand unilaterally took a closure power to end Irish members’ obstruction in 1881, Gladstone’s consequent new general rules, which needed 19 days of debate to pass, were treated as a party measure, not the basis for a lasting settlement.²⁶ In turn the Conservatives’ remodelling of Brand’s closure rule to reduce safeguards for minorities and vest its control more completely in the majority of the House took 14 days to pass, and their invention of the ‘guillotine’, an enhanced closure rule forcing a vote on all outstanding questions and amendments, drew vehement predictions of the day when such tools would rebound against them.²⁷ ‘You think yourselves safe in the protection of the House of Lords’, one Irish member warned the Conservatives presciently as they introduced the guillotine, ‘but it is just possible that at a future time you may not have a House of Lords to protect you.’²⁸ Such was the pattern, with innovations introduced to curb Irish obstruction later turned to more ordinary party purposes and tightened to make majority control more effective.²⁹

These changes did not yet eclipse the public role of the private member. Though the number of private members’ bills passing into law fluctuated considerably from year to year depending on political circumstance, the five-year running average was very steady at about 21 from the 1868/9 session through to 1894.³⁰ Professor Jupp’s exemplars of the 1820s had their counterparts in the 1870s: A. J. Mundella, for example, sometime Chartist, later an ‘advanced’ employer and factory owner.³¹ He co-sponsored the Wages Attachment Abolition Act in 1870, and saw the bill he unsuccessfully introduced in 1869 be partially (and unsatisfactorily) taken up by the Liberal government as the Trade Union Act and the Criminal Law Amendment Act in 1871. In 1872 and 1873 he introduced bills to render the latter judge-proof, leading to the Conservatives’ Conspiracy and Protection of Property Act and Employers and Workmen Act of 1875. In 1876 he successfully sponsored a bill to amend the Trade Union Act. In all this he was acting for the Trades Union Congress. It in turn supported his own campaign for (p.310) extension of the Factory Acts, the main vehicle for which was the Factory Acts Reform Association. This campaign saw one of Mundella’s bills incorporated into the Liberals’ Factory and Workshop Act 1871, and another into the Conservatives’ Factory Act 1874. In addition, in 1872 he successfully sponsored an arbitration bill for the TUC, which it had got from the county court judge and pioneer of industrial arbitration, Rupert Kettle. At the urging of his constituency’s borough council he co-sponsored the Borough Fund Act 1872, which, catching just the right moment to win government support, enabled local authorities to charge the costs of applying for local Acts on to the rates, greatly expanding their ability to acquire and run public utilities. From 1877 to 1879 he introduced bills to abolish the property qualification for membership of school boards and town councils, unsuccessful each time, but enacted in very much the same form by the Conservatives in 1880. Much later, spurred again by constituency interests, he introduced a merchandise marks bill, which became part of the government’s 1887 Act. And finally he piloted into legislation the Prevention of Cruelty to, and Better Protection of, Children Act 1889, which combined enforcement powers useful for the swiftly rising NSPCC and regulation of the employment of street children and child theatrical performers.

These are all examples of successful pressure from without, where a member intimately connected with pressure groups acted as bridgehead to Parliament and as liaison with government. He lobbied and led delegations, and when he was not introducing his own bills he worked for government bills which subsumed his own, and pressed in committee for the amendment of other members’ bills.

Similarly, Russell Gurney, a Conservative and a lawyer, worked for years with, for, and through the Married Women’s Property Committee and the Social Science Association to achieve the Married Women’s Property Act 1870 and the Medical (Qualifications) Act 1876. The latter, blessed by the government, prised open the door to the medical profession for women, the former, without government support and mangled by the Lords, was merely an unsatisfactory step on the way to the Liberals’ settlement of the issue in 1882, itself a consequence of prolonged pressure from without.³²But in addition to these well-known measures Gurney in 1870 also successfully sponsored a Shipping Dues Exemption Act, a fitting subject for a Member of Parliament for Southampton, and co-sponsored the Life Assurance Companies Act. Then in 1871 he successfully promoted an Act facilitating loans to poor law boards, co-sponsored the Workshop Regulation Act, and became the latest, but not the last, private member to fail to persuade government to allow a public prosecutors bill to pass.³³ Even in 1872, when he (p.311) was heavily concerned with work outside Parliament, his name can be found as a co-sponsor of the successful Grand Juries (Middlesex) Act.

The differences between these men’s experience and that of Slaney, Macqueen, Gordon, and Horton in the 1820s are perhaps twofold, but are differences of degree only. First, for Mundella particularly, government’s own willingness to legislate on these social issues gave him greater opportunities for seeing his proposals carried into law through incorporation into government measures, to some extent counteracting the much greater competition for Commons’ time. Secondly, both men were sometimes more obviously spokesmen in a way that their predecessors were not.³⁴ The Married Women’s Property Committee and Trades Union Congress would have found other MPs if need be, though perhaps less prestigious in the TUC’s case. Nonetheless Mundella and Gurney represent a generation of members for whom legislation was still a personal activity, even if it was very clearly as a junior partner to the government.³⁵

Such activity was possible so long as members and pressure groups could rely upon parliamentary time being available year on year to maintain momentum. But on the one hand it was being reduced by the needs of the government, and on the other competition among members was increasing. In the 1820s about 50 private members’ bills were introduced each year, increasing to the mid-60s by the early 1850s, where the rate remained until after the 1868 election.³⁶ Then the rise was dramatic: 100 bills in 1872, 130s and 140s through to the 1884–5 session, higher still later.³⁷ Even in 1854 private members’ bills talked out on the days specially set aside for them were waiting a month for rescheduling.³⁸ Some extra time for private members’ bills was available late at night, but from 1872 no opposed business could be taken after a specified hour, opposition to be signalled by a mere entry on the order paper.³⁹ In 1872 Mundella’s factory bill had to wait three months for its second reading, the crucial stage for any bill; in 1888, when a very high placing in the lottery for priority had become critical, his first child cruelty (p.312) bill was one of the vast majority that did not get even that far.⁴⁰It was clear by then that private members had merely a token role in initiating legislation. The Social Science Association, which had used both routes to success, arming private members and lobbying ministries, wound itself up in 1886, since by then the only reliable route to influence was direct communication between an interest group and a ministry.⁴¹ Ministries offered expertise, legitimacy, and continuity.

In 1887 and 1888 James Bryce MP sought to persuade the Commons to restore to private members some of their former ability to introduce useful legislation independently of government, and have it passed.⁴² The demand clearly existed, as Bryce noted, but getting a private member’s bill to the starting line turned on winning a high ranking by lottery, so there was no correlation between a bill’s importance and its even being discussed. Procedural rules made private members’ bills particularly easy to block, since once stalled they were difficult to reschedule. There was pathos in Bryce’s pleading, for he set his sights low. Members, he said, might be surprised to know of ‘the great many small amendments to the law and small administrative questions affecting the social welfare of the people’ once effected by private members’ legislation, and even if a bill failed it was surely in the public interest for there to be an extended debate of some of these issues. But his only practicable suggestion was that the lottery be replaced by a popularity poll among members, the bills with greatest initial support proceeding to second reading stage. His critics quickly pointed out that that would inevitably be worked by the whips and thus effectively reduce private initiative. In 1891 the government refused to countenance even the most modest procedural change to aid private members’ bills.⁴³ Subsequent attention fell almost entirely on ways to expedite government business, and in 1914 a select committee comprising entirely private members failed to agree a solution, lapsing without reporting.⁴⁴ All this left private members’ bills at the margin of politics to be sunk or supported as ministers chose.⁴⁵ A government unable to agree upon a measure might shunt it off into the private members’ process, as prime minister Asquith famously did with women’s suffrage—hopeful that he could stifle it, or, if not, that that momentous constitutional change would not taint him personally—but such cynical or desperate uses were rare.⁴⁶

(p.313) The reason for this decline was that government control of Commons time and process tightened further in the late 1880s. During his 1868–74 ministry Gladstone had adhered still to the notion that fullness of debate was sacrosanct, compelling the Commons to sit until any hour of the morning to reach a division.⁴⁷ That value soon weakened. As W. H. Smith explained it in 1888, ministers had work to do in the mornings, as did the growing number of members who earned their living in commerce, finance, and the professions, though no doubt the increasing influence of oppositional party politics played its part too.⁴⁸ So a fixed closing time was instituted, which could be coupled with a closure motion to bring debate to a conclusion and not just an end. Government was to have freedom to stipulate the order of business in the House on days when it had priority, which in practice meant some four days out of five, since it habitually appropriated private members’ days early in the session. In addition, on all but four occasions for moving the House into committee on questions of supply there was to be no opportunity for general debate.

That left just one general area of Commons activity to be brought under government control. Members could still propose amendments in committees of supply, which they used to introduce debate on the conduct and policies of departments listed in the estimates. Consequently the civil service estimates, which had taken 16 days in 1869, and a mere 13 in 1875, took 31 in 1887 as other opportunities for members had been removed.⁴⁹ A select committee, however, was inclined to agree that ‘review of the administration of the country…is extremely valuable. It may be indulged in to an inordinate degree in respect of certain parts of that administration, but it is one of the prime functions of Parliament.’⁵⁰ It would be neither feasible nor desirable to shift that type of discussion out of the chamber and into a sub-committee, as had been proposed. Supply days had thus taken on their essential modern character as Opposition days for criticizing government policy. From 1896, however, they were limited to 20 days per session, to prevent their undue encroachment on government time. Government now had virtually complete control of the timetable. Balfour’s well-known ‘parliamentary railway time-table’ in 1902, which sought to micro-manage the chamber in the government’s interest, merely confirmed that fact.⁵¹

Yet still, it seemed, there was insufficient time. ‘Every year the machine breaks down, and its failure is confessed’, wrote Sir Courtney Ilbert, parliamentary (p.314) draftsman and clerk of the House of Commons.⁵² One casualty was departmental and other uncontentious legislative business, which was often squeezed out. Any legislation, controversial or mundane, was liable to be passed in a state its sponsors knew to be imperfect, time necessary for tabling and discussing amendments being unavailable.⁵³ In 1888, Ilbert recounted later, the leaders of both parties agreed to suppress the question whether the Local Government Bill permitted women to become county councillors, because the obscurity of the drafting was spotted so late that to table a clarification would have cost three days in a very hot July, risking the bill.⁵⁴ Thirty-eight days out from the end of the session there were 33 government bills pending.⁵⁵ The Conservatives responded by reviving the proposal for breaking the annual cycle for legislation, allowing partially progressed measures to be resumed in the following session.⁵⁶ Liberal fear of the Lords was too strong, however, and too well founded for that to be acceptable.

Instead stages of some public legislative business were moved out of the chamber.⁵⁷ Gladstone had made a stuttering start in 1882, without great enthusiasm from anyone else. In 1888, however, that significant step was made permanent, with bills deemed uncontroversial being sent upstairs to a committee after their second reading, instead of taking the committee stage in the House. Selection of suitable bills was cautious to start with, but by the early 1900s, when party solidarity in the chamber had become overwhelming, there was less compunction about sending even substantial party measures to such a standing committee. After its landslide victory in the 1906 election the Liberal government decided to make that the normal course for all but the most controversial bills, forcing its reconstitution of standing committees through by guillotine in 1907, and arming their chairmen with powers of closure. Money bills were excluded from this new streamlining, but when, in 1909, Conservative opposition threatened to submerge the finance bill in an ocean of amendments, the logic of party government produced yet a further means of closure: the ‘kangaroo’, which enabled the majority to empower the Chairman of Ways and Means to choose which amendments should proceed. There was Conservative outrage, of course, but (p.315) it was followed in 1919 by Conservative refinement of the device.⁵⁸ Democracy, even incomplete democracy, meant election of a party government. Law had to be processed through the chamber, with greater or lesser difficulty, but it was not made there.

2. The House of Lords

Throughout our period the Lords operated in two distinct modes. There was an excited mode, when the peers and their ladies would flock to town for some controversial matter, and a normal mode with low attendances and lower participation. Suitably, the historian of Wellington’s ministry adopts a half-measure for assessing the Lords: it sat for about half the time the Commons did, the proportion of participant members was about half that of the Commons, and what he counts as an active debater or active committee member requires only half in the Lords what it does in the Commons.⁵⁹ Anecdotes about the desultory conduct of Lords’ business were commonplace from at least the mid-century onwards. The normal daily attendance in the 1850s was about 75, from a House of some 400, representing a pool of some 100 fairly frequent attenders and about the same number of casuals, and it was much the same in the quiet years of Balfour’s government in the early twentieth century, when the House numbered some 600.⁶⁰ Fewer spoke in the chamber, in quiet years about a fifth of total membership or less, but nearly a third when controversial business such as Catholic relief in 1829 or the Liberals’ legislative programme in 1906 stirred their lordships’ imagination.⁶¹ Then the numbers voting would also increase dramatically. Three-quarters cast a vote on the Catholic Relief bill in 1829, three times the usual figure, and 425 voted in 1909 in the division that rejected Lloyd George’s budget.⁶²

In 1909 all those 425 would have attended too, but until 1868 it was possible for peers to vote by proxy in some divisions. Wellington, as prime minister from 1828 to 1830, mustered between 51 and 72 proxies, depending upon the issue, and there were occasions in the 1830s and 1840s when over 100 peers voted by proxy.⁶³ The practice was dying, however; though there were 104 occasions on which proxy votes were used between 1815 and 1868, only two fell in the last decade and nine between 1849 and 1859.⁶⁴ Normally, leaving aside the great occasions and the big (p.316) divisions, the Lords’ business was conducted by a core of perhaps 40 peers, many of them ministers or former ministers, some very senior, few enough for it to be managed ad hoc, without need for the detailed Standing Orders that increasingly ruled the Commons.⁶⁵

As Bagehot put it, in the mid-century liberal constitution the position of the Lords as a legislating house was somewhat peculiar.⁶⁶ It could not originate money bills, widely defined to include any provision that imposed a pecuniary burden directly or indirectly, because the Commons would simply decline to consider them.⁶⁷ In theory that stretched as far as bills authorizing fees to be charged or salaries paid to an official. But in practice the Commons would tolerate a financial element in a Lords’ bill, but only if the Lords printed it in red ink to signify that it did not actually pass that House, but was included to indicate to the peers a clause that would later be added in the Commons. Nor could the Lords amend a money bill or a money clause in a general bill sent up from the Commons, though this prohibition was merely conventional, resting on long acquiescence. It too was subject to tolerance by the Commons if it thought the Lords’ amendment was merely trying to help—which the Commons would acknowledge by solemnly making a special entry in its Journal. Beyond that it was all a matter of practice and political expediency, for the Lords’ powers were otherwise the same as the Commons’.

A government’s major legislation would nearly always be started in the Commons, but ‘law reform [and] minor social questions’ might as well start in the Lords, and in the mid-century many did.⁶⁸ The 1857 Divorce and Matrimonial Causes bill began in the Lords, for example, as did its precursor a year earlier. Over the course of the four sessions from 1852–3 to 1856 the Lords sent down 104 bills to the Commons, resulting in 74 such useful, but undoubtedly minor, measures as the Common Law Procedure Act and the Bills of Sale Registration Act of 1854, the Purchasers’ Protection against Judgments Act of 1855, and the Mercantile Law Amendment Act of 1856. During the same period the Commons sent up to the Lords over four times as many bills as it received in return.⁶⁹

That average of about 25 bills a year successfully introduced into the Lords remained reasonably steady through to 1900, once Provisional Order Confirmation bills and similar ‘supplementary’ bills are excluded. It fluctuated, of course: there were 35 in the 1890–1 session, only 14 in 1895, but in most years government (p.317) put 14 or 15 of its bills through the Lords, and other peers successfully introduced 10 or 11. Nor did the subject matter change. Bills affecting the legal system—courts pre-eminently, but matters such as bail and evidence also—tended to start in the Lords, reflecting the Lord Chancellor’s position, minor measures affecting land or the Church, remedial bills retrospectively legitimizing marriages overseas, minor bills affecting colonial legislatures, or treaties with foreign powers, some law reform bills, often affecting commercial law, property, or lunacy, all these were the Lords’ staple.

What did change was the success rate of Lords’ bills in the Commons. During the 1870s about 80 per cent of government bills first passing the Lords went on to pass the Commons, but that rate fell during the Conservative administration of 1886 to 1892, and after 1896 barely half completed their legislative journey. Casualties would sit out a year or two and try again. Non-government measures fared even worse. During Gladstone’s first ministry just over 60 per cent of bills successfully introduced into the Lords by peers outside the ministry also passed the Commons; by the end of the century less than 20 per cent did, and in the decade from 1903 there were only three years when the Commons passed any at all. Congestion in the Commons was no doubt the main reason, but in consequence there was no prospect of building up the Lords as an originating chamber even if governments had wanted to.⁷⁰ The Lords survived as a ‘checking—not an originating chamber’, Salisbury told Chamberlain when the latter wanted to revive its fortunes by having it launch a programme of social reforms and capture the working class from Gladstonian liberalism.⁷¹

Analysts from the brash colonialist Edward Gibbon Wakefield in the 1840s, to Bagehot in the 1860s and the Bryce Conference in 1917, agreed that the Lords had a revising role, distinct, Bagehot and the Conference said, from its (temporary) legislative veto.⁷² ‘Revision’ was not a term of art. At one extreme some amendments merely filled in blanks left by the Commons, at the other revision shaded into rejection. Sometimes a bill would be extensively rewritten, especially if it were a private member’s bill, sometimes to the very edge of disavowal by its originators, as with Gladstone’s Compulsory Abolition of Church Rates bill 1868 or the Married Women’s Property bill of 1870. In between the extremes lay a wide range of bills commonly designated ‘of secondary importance’, where careful attention might improve the intended purpose. But revision was not a differentiated (p.318) function that the Lords sought to develop, more just a consequence of being second in line. There was no attempt to institute a semi-professional scrutinizing role over public bills parallel to the Chairman of Committees’ oversight of private bill legislation, where, aided by permanent counsel, he held autocratic sway over a bill’s content. Nor in practice was there much time for systematic revision, since most bills tended to reach the Lords in a flood in the last few weeks of a session. At the end of the century, sittings before the last couple of months of a session were usually finished in 20 minutes.⁷³The Commons, Liberals especially, saw no value in increasing the Lords’ usefulness, as their rejection of proposals to carry unfinished business over from one session to the next shows.

So constructive engagement with Commons bills was necessarily rather modest. The Journals of the House of Commons show that from 1852/3 to 1857, and excluding money bills from the count, about a third of the Commons’ bills passing into law had had Lords’ amendments accepted by the Commons. In the 1870s the Lords offered amendments to about half the Commons bills, money bills again excluded, the vast majority being accepted by the Commons, and in the 1880s the figure varied from about a third to about a half. But although many bills were amended in the Lords, this is not to say that many were amended by the Lords. The major political bills included, for example, the various Irish land and church bills and the University Test bill. But Lord Salisbury, surveying the Lords’ contribution to legislation in the 1887 session, considering bills originating in the Lords as well as bills sent from below, pointed out that in a year when 73 bills had been enacted, only two were of that high political nature.⁷⁴ Of the remainder, no fewer than 53 had passed through the Lords with no discussion whatsoever. Only a minister had spoken to them. Seven had been discussed by two members other than the minister, and a further three by one member and the minister. Eight others were bills that the Lords constitutionally could not amend. That, indeed, had been the pattern for a very long time.

Salisbury therefore supported a proposal, which he later credited to Lord Herschell, that the Lords institute standing committees for the systematic revision of these many bills of secondary importance.⁷⁵ But the experiment rapidly petered out, despite Herschell’s opinion that during their first two years the two standing committees had significantly improved legislative quality.⁷⁶ The role, such as it was, did not match peers’ interests or aptitudes. As one of them observed, government bills got government drafting and inter-departmental (p.319) scrutiny anyway, a point perhaps remembered by Herschell when he drew particular attention to private members’ bills, which often had to pass the Commons without a single word of discussion if they were to pass at all.⁷⁷ His ambition was only the lawyer’s modest hope of avoiding litigation by improving bills’ technical quality, their clarity, and consistency. So the role of such standing committees reduced to acting as long-stop for government and as lawyerly scrutineer of the thin flow of private members’ bills. As Herschell himself noted, a sub-committee of the Lord Chancellor and a couple of peers knowledgeable about the subject-matter would sometimes be more suitable anyway, a step which could be arranged informally without need for an apparatus of standing committees. So the experiment faded away, as did all other proposals to revitalize the Lords during the late 1880s and 1890s, leaving peers to propose amendments in the chamber itself, if they felt so moved, and if they did not think that approaching the minister informally would get the result sought.

The outcome was not the result of Lords’ idleness or decadence.⁷⁸ Ministers’ control of the text of their bills had tightened to the point that systematic independent scrutiny was unlikely to bring rewards commensurate with the effort. Lords’ amendments had anyway to be accepted by the Commons, which in practice meant the government, and it was rare for the Lords to persist with an amendment after the Commons had sent up its reasons for rejecting it, highly political bills aside. So significant amendment had to be proposed by government itself, with the pressure to do so being most usefully applied informally and externally. Bills were not made in the chamber. That left only the lawyers’ work of superintending the draftsman, as it were, no more an interesting role in the 1890s for a House constituted by noble blood and great wealth than it had been in 1867 when Bagehot saw a steady injection of life peerages as the Lords’ only possible salvation.⁷⁹ So far as routine legislation coming from the Commons was concerned, and that was the great bulk of it, the only use of a second chamber was to provide ministers and departments with an opportunity for last-minute corrections.

The Lords’ other role, the role that saw big attendances, long debate, public interest, and full galleries, was oppositional. The Lords possessed the power to reject Commons bills at large, restraint being purely political. Rejecting a private member’s bill, however far-reaching, was not the same as rejecting a government bill. It was disappointing for Dissenters, for example, when three times between 1858 and 1867 the Lords rejected Commons’ bills for the abolition of church rates, (p.320) but they did not say that something improper had happened or use the occasion to lobby for reform of the Lords. However, government bills from the Commons were seen by their supporters as having additional legitimacy, the more so as governments took on a greater part of the Commons legislative programme and hence a greater electoral responsibility. Further, government measures were party measures, and at least from the 1830s the Lords was as much a party assembly as the Commons. So as government responsibility for legislation increased, and as ‘the people’ became more respectable, the cry ‘the peers against the people’ became less of an obvious statement of the constitutional position of the House of Lords and more a political criticism for the Lords to sidestep wherever possible.

In the 1830s, when ‘the Lords have been bowling down Bills like ninepins’, it was only the Radicals who called for reduction of the Lords’ powers, they who felt most strongly the link between the Commons, the government, and the people.⁸⁰ The Whigs, with just 87 supporters in a House of 430, lost bills concerning the Irish Church, Irish tithes, Irish municipal corporations, Jewish civil disabilities, Dissenters’ entry to the universities, all central to their view of a reformed state, but retaliation against the powers of the landed aristocracy was not part of their creed.⁸¹ The excitement diminished after Wellington coaxed the peers away from confrontation, and he repeated the service in 1846 when he led the Lords away from denying Peel his repeal of the corn laws. That issue split the Conservative party in the Lords as in the Commons, creating a small but generally reliable majority for the ensuing governments, until, in 1860 the Lords famously rejected Gladstone’s bill to repeal the paper duties, again provoking Radical outrage. But it was well known that prime minister Palmerston himself disliked the bill, so though it was a money bill, and for all Gladstone’s bluster, Palmerston could still treat it as an individual effort by a wilful Chancellor of the Exchequer.⁸² The consequent Commons’ resolutions restating what it regarded as its privileges were anodyne and unthreatening.⁸³ Any crisis that there might have been vanished the next year, when Gladstone dramatically increased the stakes by amalgamating all his financial proposals into one bill, successfully facing down the Lords by a ploy that Erskine May, a closet Gladstonian himself, later declared perfectly constitutional because it did no more than follow a precedent set by Mr Pitt.⁸⁴

When a Conservative Lords was once again faced by a reforming Commons the political context had changed with the passage of the second Reform Act. (p.321) Opposition, while not yet ‘undemocratic’, far more clearly offended the principle of the responsibility of representative government. Two constitutional rationalizations for opposition emerged, sometimes overlapping, ultimately conflicting. One contrasted the government with its supposed Commons majority, arguing that the Commons was not really agreed to the measure, merely pressured into acquiescing, a claim made the more plausible by chronic dissension among Liberal members, coupled with autocratic and remote cabinet style. For the true will of the Commons to be heard, it should be given a further chance to consider. Rejection of the Ballot bill in 1871 followed by its acceptance in the next session illustrates the point. It is the basis of Bagehot’s distinction between ‘genuine’ and ‘fictitious’ majorities in the commons, the former to be heeded by the Lords however unpalatable, the latter open to temporary rejection while the Lords appealed from one session of Parliament to the next.⁸⁵ But Bagehot blurred his distinction, eliding a ‘genuine’ commons majority with the ‘strong’ and ‘universal’ opinion of the nation articulated independently of its representatives in Parliament.

Separate the two, and we have the second, far more potent, rationalization for Lords’ obstruction: Lord Salisbury’s well known ‘mandate’ principle. This was his antidote to electoral reform: ‘the nation is our master, though the H of C is not: & [we should] yield our own opinion only when the judgement of the nation has been challenged at the polls, & decidedly expressed’.⁸⁶ The Lords could appeal from one Parliament to the next, perhaps even on each issue separately, with room for further interpretation of what should count as a decisive expression. It has been plausibly argued that Salisbury never lost sight of the political objective—that the Conservatives should win that election—hence that he chose a battle with much more discrimination than his supposed doctrine might suggest, and that if this principle did not suit him he was ready to adopt others that did.⁸⁷ Nonetheless, a constitutional gloss was thought necessary. Rejection and fundamental rewriting of Commons’ bills were not advanced just on political grounds, and versions of his mandate principle can be found from the benches of the Lords to the pages of Dicey.⁸⁸

As is well known, the Conservatives sought to defeat in the Lords measures on which the Liberals put much store, but which would not generate enough of a cry to sustain an election campaign. So the weak Liberal government of 1892–5 simply had to endure the loss of its Government of Ireland bill and the death (p.322) through mutilation of its Employers’ Liability bill and Sea Fisheries Regulation (Scotland) bill. Such was the intensity of Conservative opposition in the Lords that within two years of the Liberal landslide victory in the 1906 election ‘practically everything that could be done with the consent of the House of Lords had now been accomplished, and on all the major measures of Liberal policy—education, temperance reform, land reform, Welsh Disestablishment, Irish Home Rule—the road seemed to be hopelessly blocked’.⁸⁹ It was unblocked by the Lords’ rejection of ‘the people’s budget’ in 1909, a rejection taking the form of a denial by the old aristocracy of new liberalism’s inroads into its landed privileges in the name of social progress, but with the underlying motive of blocking a politically strategic budget in order to keep alive the Conservatives’ own strategic preference for tariff reform. Strategic to both sides, this was a measure on which an election could be fought.

In the constitutional crisis that followed, the Liberals finally opted for a simple, effective, and direct limitation upon the Lords’ powers, a radical measure first suggested in the 1830s, but one which would also have been recognized by Bagehot as an enhanced codification of his own writings on the Lords in the late 1860s and early 1870s.⁹⁰ The House of Lords was not to be abolished, but nor was its hereditary composition to be molested, which might have strengthened it. Nor were there to be joint sittings of the two Houses to break deadlocks, nor meetings of delegates from them, though the idea came close to acceptance at the inter-party constitutional conference consequent upon the death of Edward VII.⁹¹ In the 1910 election the Conservatives proposed the referendum as a means of resolving an impasse, but with their defeat the idea lapsed.

So with immense difficulty and prolonged drama the Liberals forced through the Parliament Act 1911, which reduced the Lords’ powers over ordinary legislation to a suspensory veto, and to a token delay of one month for money bills. The Liberals insisted that identification of a money bill remained within the Commons; judges must not have a role in that.⁹² According to the Speaker at the time, the narrow definition of money bills probably meant that only the 1860 precedent was reversed, not the 1909.⁹³The main provision, that a public bill (other than one to prolong Parliament’s life beyond five years) passing the Commons in the same form three times in not less than two years would become law without Lords’ approval, had enough flexibility for all ordinary cases, since (p.323) a proviso to section 2(4) allowed amendments by agreement. The Lords would most likely accept proffered amendments as the best it was likely to get. As a balance to maintain accountability, the maximum duration of a Parliament was reduced from seven years to five.

Recent assessment of the Parliament Act has focused on its cumbrous procedures and the contribution they made to a general disillusion with the parliamentary process.⁹⁴ Yet the Act undoubtedly enabled the Liberals to govern in a way they had not before. Welsh disestablishment finally passed, so too a Scottish temperance measure, which would have passed under Parliament Act procedures but which was compromised to settle it a year early. Abolition of plural voting would also have passed, had its third journey through the Commons not been suspended for the war, and, particularly, the Government of Ireland bill was enacted. With Ulster arming, the Government of Ireland Act certainly did not solve the question of Irish home rule, and it has been argued that the Parliament Act’s two-year suspensory period exacerbated the problem of finding an acceptable text.⁹⁵

Yet a slicker process would hardly have reversed the momentum of Ulster separatism, and the paradoxical view that it would have been better to have had no Parliament Act at all, because then the Unionists would have abandoned their resistance to home rule on losing the next election, grossly underestimates their growing commitment to the northern counties.⁹⁶ Similarly, to argue that the Parliament Act’s structure would give a reforming government ‘immense problems’ of ‘two years in the deep freeze’ is to exaggerate the Liberals’ difficulty in clearing off their complex and long-delayed legislative backlog.⁹⁷ While the first passage of these controversial measures through the Commons took several months, their second and third were generally much quicker, aided by procedural orders designed to protect them from amendment, drafted with all the nicety of statutes themselves.⁹⁸ Thus the Established Church (Wales) bill began its second reading on 16 June 1913, passing the Commons on 8 July, and started its third reading on 20 April 1914, passing on 19 May. Much the same is true of the Temperance (Scotland) bill and the Plural Voting bill, each of which had an arduous first passage but a brisk second. Even the second passage of the Government of Ireland bill took only a month, though the third was protracted, acrimonious, and at times disorderly.

(p.324) These Parliament Act bills were all part of the Liberals’ old agenda. The Conservatives knew better than to block the National Insurance bill 1911 and the Trade Union bill 1913, just as they had let the 1906 Trade Disputes Act pass the unreformed Lords. So it is difficult to tell for how long the Conservatives would have held to their belief that the Liberals had suspended the constitution by introducing what was tantamount to single chamber rule, and hence how often they would have held the Liberals to the full rigour of the Act. Certainly neither Liberals nor Conservatives thought the Act would be final. Its preamble implied an imminent reform and remodelling of the Lords that might include revisiting the suspensory veto, and the Liberals even began discussing the contours of Lords reform in 1912. Yet after the war, even though the political parties failed to agree upon reform of the Lords, the issue very quickly lost all its heat and the Conservatives did not bother to restore the status quo ante by repealing the Parliament Act.⁹⁹

So in the event the Parliament Act did become final, and it proved to be particularly robust. It was used only three times in its first 80 years, as all students of constitutional law know, somewhat vindicating the prediction of its immediate progenitor, Sir Henry Campbell-Bannerman, that once the Commons had power to force through their measures the Lords would nearly always yield without delay.¹⁰⁰ The Act was not entrenched, and it contained no exceptions for ‘organic’ or constitutional measures, which had been urged by Conservatives but rejected by Liberals during the 1910 constitutional conference. Thus the very next reforming government was able to use the Act to amend itself, and hence reduce the two years to one.¹⁰¹