The Vicar Who Claimed A Seat In The Commons

On November 30, 1965, a Church of England vicar named Christopher Wansey tried to enter the chamber of the House of Commons. Although he wasn’t an MP,[1] he was a proctor for the Diocese of Chelmsford in the Convocation of Canterbury, and he argued that this entitled him to a seat in the lower house of Parliament as part of the ‘Commons Spiritual.’ But what’s the story behind this curious incident?

Wansey’s foray into Parliament was a very dignified affair. Dressed in his proctor’s robes, he attempted to enter the Commons chamber from the Central Lobby, but he was immediately stopped by the policemen on duty. The vicar announced that he was “one of the reverend members for Chelmsford in Her Majesty’s Convocation with authority to sit in the House of Commons,” to which one of the policeman responded with a simple “no, sir.[2]” Wansey asked if he was being resisted, and when the policeman responded in the affirmative, the vicar turned around and left. As he departed, Wansey told onlookers that he had been “resisted in the pursuit of the Queen’s business and a constitutional issue has been raised between Church and state.[3]” The whole episode lasted a mere twenty seconds.

Wansey came to Parliament to make a point. He was unhappy with the Prime Minister’s role in the selection of Church of England bishops. In a letter to the Speaker, the vicar argued that, since Parliament was no longer a Christian body, there was nothing to prevent a non-Anglican (or even a non-Christian) from becoming Prime Minister. Because the Prime Minister advises the Sovereign on episcopal appointments, this raised the prospect of the Church’s leaders being chosen by someone with no allegiance to the Church of England or even Christianity.[4]

Wansey’s abortive attempt to enter the Commons exploited a grey area in the British constitution. Like the bishops, representatives of the lower clergy had been summoned to national assembles throughout the thirteenth century, and when Edward I asked the common folk to send representatives to Parliament in 1295, he required the lower clergy to attend as well. He ordered bishops to bring their cathedral deans[5] and archdeacons with them to Parliament, while their cathedral chapters and diocesan clergy were to be represented by elected proctors (the chapter would send one proctor, while the diocesan clergy would send two). These directions were embodied in the praemunientes clause in the bishops’ writs of summons.

The King expected the clergy to obey his summons to Parliament throughout the first four decades of the fourteenth century, but the praemunientes clause was no longer enforced after 1340.[6] There were several reasons for this. The representatives of the lower clergy could also grant money to the Crown through the Convocations of Canterbury and York, so their attendance at Parliament was not strictly necessary (Parliament was still primarily a tax-levying body at this point).[7] This was also the time when Parliament began to claim judicial powers, and it is possible that the clergy were reluctant to sit in a secular court.[8] In addition, the clergy from the Province of York may have preferred attending Convocation because it let them avoid the long journey to Westminster.

Although it was once assumed that the lower clergy weren’t summoned to Parliament at all after 1340, recent research has shown otherwise. Documents from the National Archives reveal that the clergy continued to be summoned for a further two-hundred years (the Chapters of Wells and Lincoln elected proctors for Parliament as late as 1536),[9] though their attendance was strictly voluntary. Alas, gaps in the source material make it difficult to understand clerical proctors’ day-to-day role in Parliament.[10] Interestingly, when Parliament was considering the Prayer Book Measure in 1927, the Speaker of the Commons was asked if clerical proctors from Convocation still had the right to sit alongside MPs. His only response was to say that the Commons Chamber was crowded enough as it was, so the addition of anyone else would require even more people to be excluded![11]

Despite the diminished role of the Commons Spiritual in Parliament after 1340, Parliament and the Convocations remained linked. In addition to the praemunientes clause mentioned earlier, constitutional convention dictated that the Convocations had to be summoned and dissolved alongside Parliament. By the twentieth century, this connection had become inconvenient to the Church, as it meant the Convocations’ work could be disrupted by a snap General Election (as with Parliament, a dissolution of Convocation caused all pending business to lapse). These links would be severed a few years after Wansey’s protest. The Church of England Convocations Act 1966 allowed the Sovereign to summon and dissolve the Convocations independently of Parliament, while The Crown Office (Writs of Summons) Rules 1969 finally removed the praemunientes clause from the bishops’ writs of summons.

NOTES

[1] Indeed, at that time, ministers of religion were specifically barred from becoming MPs. This prohibition was finally removed by the House of Commons (Removal of Clergy Disqualification) Act 2001.

[2] “Claim to Seat in Commons Fails,” The Times (London, England), December 1, 1965.

[3] Ibid.

[4] “Commons Seat Claimed by Proctor,” The Times (London, England), November 30, 1965. While a Prime Minister who is a Roman Catholic or a Jew is legally prohibited from advising the Sovereign on ecclesiastical matters (see section 18 of the Roman Catholic Relief Act 1829 and section 4 of the Jews Relief Act 1858), a Prime Minister who happens to be Muslim, Buddhist, Hindu, or atheist would be free to offer advice on ecclesiastical matters.

[5] Priors of monastic cathedrals were also expected to attend in person.

[6] Phil Bradford and Alison K. McHardy, eds., Proctors for Parliament: Clergy, Community and Politics c. 1248-1539, vol. 1 c. 1248-1377, (Woodbridge: The Boydell Press, 2017), XLV-XLVI.

[7] The clergy taxed themselves in Convocation until 1664 when the Archbishop of Canterbury waived that privilege through a gentleman’s agreement with the Lord Chancellor.

[8] Bradford and McHardy, XLVII.

[9] Bradford and McHardy, L.

[10] For a brief discussion of these limitations, see Bradford and McHardy, L-LII.

[11] Arthur Smethurst, Convocation of Canterbury: What It Is; What It Does; How It Works (London: Society for Promoting Christian Knowledge, 1949), 12. Unfortunately, Smethurst doesn’t provide any context for this anecdote. I haven’t found it in Hansard, but it’s possible that the question was asked outside the Chamber (e.g., in private correspondence with the Speaker).

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Peerages And Gender

The Government revealed today that it has no plans to create gender-neutral peerage titles for non-binary individuals.

As part of a wider question about the impact of the Gender Recognition Act 2004 on appointments to the House of Lords, Green Party peer Baroness Jones of Moulsecoomb asked what titles would be given to non-binary individuals. The Cabinet Office spokesman in the Lords, Lord Young of Cookham, replied that

The style and titles of a peerage are determined by letters patent. Although based on traditional forms, these are adapted to reflect the individual circumstances of the person on whom the peerage is conferred.

The Government does not have any plans to introduce gender neutral titles for peers or members of the House of Lords at the present time.

Lord Young’s answer glosses over several problems with the status quo. For example, he says that the Letters Patent are “adapted to reflect the individual circumstances.” It’s true that prospective peers do have some input into their titles. The most common example of this is probably the territorial designation. All life peerages are nominally linked to a geographic location (e.g., Baroness Jones is “Baroness Jones of Moulsecoomb, of Moulsecoomb in the County of Essex[1]”), and people are generally free to choose whichever place they wish.[2] But as far as I’m aware, a person can’t choose whether

house_of_lords_2011

Photo courtesy of Wikimedia Commons. Contains public sector information licensed under the Open Government Licence v3.0.

they become a baron or a baroness. If they have already changed their gender under the Gender Recognition Act before the peerage is conferred, they will presumably receive the title appropriate to their current gender. But if they change their gender after they receive a peerage, their title will not change accordingly–once conferred, a peerage title can only be altered by Act of Parliament.[3]

Furthermore, it’s unlikely that the Crown could unilaterally create a new, gender-neutral title at the behest of a non-binary individual. Because life peerages confer seats in the House of Lords, any attempt to create a gender-neutral title would probably have to be authorized by Act of Parliament. In the nineteenth century, the Lords Committee for Privileges held that the life peerage given to Sir James Parke didn’t allow him to sit in the House since the Crown couldn’t unilaterally alter the composition of Parliament.[4] Later, life peerages would be authorized by statute.[5]

Ultimately, unless the law is changed, transpeople and non-binary people face the prospect of being stuck with inappropriate titles.

Although British law has become more LGBTQ-friendly in recent years, successive governments have failed to update the law governing peerages and other titles accordingly. For example, when the Justices of the Supreme Court received new courtesy titles in 2010, LGBTQ activists expressed some dismay that the rules governing these titles discriminated against justices in same-sex unions. While the wife of a male justice receives the courtesy title of ‘Lady,’ no equivalent provision is made for the husbands of male justices or the wives of female justices (the husbands of female justices are out of luck, too). While this approach is consistent with tradition, one could argue that the Government should have taken a more forward-thinking approach in 2010.

Instead of ignoring the issue, the Government should arguably work to find a way to make titles, including peerages, as LGBTQ-friendly as possible. This will require some creativity, but it is achievable. This certainly isn’t a life- or death-issue, but the Government can’t simply relegate it to the ‘Too Difficult’ bin forever.

NOTES

[1] There are actually two components to a title. There’s the nomen dignitatis (in this case, “Baroness Jones of Moulsecoomb”) and the territorial designation (“of Moulsecoomb in the County of Essex”). Generally speaking, the territorial designation is only used in the Letters Patent creating the peerage. But because each peerage title must be unique, a peer with a common surname will often include the territorial designation within the nomen dignitatis (e.g., Baroness Jones of Moulsecoomb, Lord Young of Cookham) to create a distinct title.

[2] There are, however, some constraints. According to Sir Colin Cole (Garter King of Arms from 1978 to 1992), the proposed territorial designation can’t be something that would “engender criticism, lend itself to ridicule, be prone to controversy, or militate against the Crown as the fount of honour.” Ultimately, the Sovereign (advised by Garter King of Arms) decides whether a territorial designation is suitable. For more information, see Sir Colin Cole, “Introduction of peers into the House of Lords,” in The House of Lords: A thousand years of British tradition (London: The Manorial Society of Great Britain, 1994) 129-133.

[3] I’m not aware of any Acts which changed a title, though there have been Acts to vary the terms of a peerage’s descent. For example, legislation was passed to allow the Dukedom of Marlborough to pass through the female line after the first Duke’s son predeceased him.

[4] See The Wensleydale Peerage Case 5 HLC 958. Sir James subsequently received a standard hereditary peerage.

[5] The Appellate Jurisdiction Act 1876 allowed the Crown to confer life peerages on senior judges who were to carry out the judicial work of the House of Lords. Later, the Life Peerages Act 1958 allowed the Crown to confer life peerages on anyone.

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Confidence And Party Leadership

It’s been a rough few days for Theresa May. Things seemed to be looking up for her after the Cabinet agreed to support her Brexit strategy following a marathon meeting at Chequers, but her triumph was short lived. Within seventy-two hours, both the Brexit Secretary and the Foreign Secretary had resigned, leading to speculation that Conservative MPs could soon trigger a vote of no confidence in May’s leadership of the Conservative Party. However, some commentators don’t seem to realize that this is not the same as a motion of no confidence in the Government.

In contemporary British politics, the leader of the dominant party in the House of Commons becomes Prime Minister, but the question of who is to be leader is an internal party matter. Neither the Commons as a whole nor the electorate have any say on the subject. Consequently, any attempt to unseat May as Leader of the Conservative Party would be handled within the Conservative Party, according to the Conservative Party’s rules.[1] If she lost the confidence of her MPs, the party would elect a new leader, who would then become Prime Minister.[2] An early General Election would not be necessary, and the new Prime Minister could theoretically soldier on until the next scheduled poll in 2022.

A motion of no confidence in the Government, on the other hand, is a matter for the House of Commons as a whole. Since 2011, the practice has been regulated by the Fixed-term Parliaments Act. If MPs support a motion of no confidence in the Government, the parties would have fourteen days to try to form a new administration that could maintain the confidence of the House. If that didn’t happen, Parliament would be dissolved and there would be an early General Election.

Despite May’s woes, even ardent Brexiteers should probably think twice before triggering a confidence vote. A typical leadership election takes time (the 2016 Conservative leadership contest was supposed to run from June 30 to September 9), and having one now would make it incredibly difficult for the United Kingdom to agree to a Brexit deal with the European Union before the October deadline. While the last Conservative leadership election was truncated after every candidate except Theresa May dropped out of the race, it’s not clear that a consensus candidate could emerge today given the state of the party. A new Prime Minister would also come under incredible pressure to call an early General Election. As Theresa May knows all too well, elections can have unpredictable results. So while Brexiteers may not like her, letting May stay in place might well be their least-bad option.

NOTES

[1] Under the Party’s rules, a motion of no confidence must be backed by fifteen percent of Conservative MPs before it can be put to a vote. If that happens, the entire body of Conservative MPs would decide whether May stays or goes. If the vote went against her, there would then be a contest to find her successor. Conservative MPs would have to decide on two candidates to present to the full body of Conservative Party members, who would then make the final decision.

[2] To ensure continuity of government, May would likely remain in office until her successor had been chosen.

EDIT: Corrected a misstatement of the Fixed-term Parliaments Act 2011. 

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A Few Words On The Duchess Of Cambridge’s Future Title(s)

Popular coverage of the monarchy often leaves a lot to be desired, but the recent spate of articles about the Duchess of Cambridge’s future titles have been examples of online journalism at its worst. Take this headline from The Daily Express: “Kate Middleton SHOCK news: Duchess Kate to get incredible title when Charles becomes King.” The ‘incredible title’ in question is ‘Princess of Wales,’ but the notion that she will one day hold that title is about as shocking as the notion that the sun will rise.

The heir apparent to the British (and before that, the English) throne has been given the title of ‘Prince of Wales’ since the fourteenth century.[1] It’s not, strictly speaking, automatic since the title must be specially conferred by the Sovereign. For example, the Queen conferred it on Prince Charles on July 26, 1958 when he was nine years old,[2] though his formal investiture as Prince was delayed until 1969 to ensure that he could fully appreciate its significance.

Given this history, it’s virtually certain that the Duke of Cambridge will be created Prince of Wales after his father’s accession, at which point the Duchess will be styled ‘Her Royal Highness The Princess of Wales.’ Now this is equally true for the present Duchess of Cornwall, though she has chosen to use her subsidiary title out of respect for the late Diana, Princess of Wales.[3] However, this was a personal decision–it has no legal effect, and it doesn’t set any kind of binding precedent. The Duchess of Cambridge could theoretically choose to follow the Duchess of Cornwall’s lead, but it is difficult to see why she should do so. The concerns that led the Duchess of Cornwall to use a different title simply don’t apply to her stepdaughter-in-law.

It gets even worse. The Express claims that, when Prince William becomes king, his wife will be known as ‘Catherine, Queen Consort.’ But here they’ve misapplied the rules: a queen consort is referred to in the same manner as a queen regnant, so the Duchess of Cambridge will be known as ‘Her Majesty The Queen.’ If she survives her husband, she will be known as ‘Her Majesty Queen Catherine,’ and she would also be entitled to the courtesy title of ‘Queen Mother.’ Although the title became well established during the fifty-year tenure of Queen Elizabeth The Queen Mother, it was not used by either Queen Alexandra or Queen Mary, so its use by the Duchess of Cambridge is not guaranteed.[4]

The Express’s coverage has been picked up by other media outlets, who have often added inaccuracies of their own. For example, Harper’s Bazaar claims that the Duchess of Cambridge will be known as ‘HRH Catherine, Princess of Wales,’ but that would only be true if Prince William were to die after becoming Prince of Wales but before he ascended the throne (in the event of a divorce, she would be known as ‘Catherine, Princess of Wales’ without the HRH[5]). But the worst offender is a publication called HelloGiggles, which claims that the Duchess of Cambridge will become Princess of Wales after her Prince William ascends the throne!

While the rules governing royal titles are complex and esoteric, the fact that so many publications have purportedly provided authoritative commentary on the subject without doing basic fact-checking arguably says a lot about the nature of online journalism today…

NOTES

[1] Historically, only male heirs were made Prince of Wales, and the female equivalent only existed as a courtesy title used by their wives. King George VI considered making the then-Princess Elizabeth Princess of Wales in her own right, but this was deemed too risky since her claim to the throne would be displaced by the arrival of a younger brother. Now that succession to the Crown is governed by absolute primogeniture, there’s no reason why the eldest daughter of a future king could not be created Princess of Wales.

[2] Recorded in The Gazette (London Gazette), issue 41460, 29 July 1958.

[3] Diana went from being ‘HRH The Princess of Wales’ to ‘Diana, Princess of Wales’ as a result of her divorce from Prince Charles.

[4] She is more likely to use it if Prince George’s wife is named Catherine, as Queen Elizabeth adopted the title to distinguish herself from her daughter.

[5] See the Queen’s Letters Patent of August 21, 1996.

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Northern Ireland, Westminster, And The Question Of Abortion

Ireland’s move to broaden access to abortion has placed Theresa May in an incredibly awkward position. Currently, Northern Ireland has the most restrictive abortion laws of any jurisdiction within the United Kingdom,[1] and many have argued that the events in the Republic make the status quo in Northern Ireland untenable. But as we shall see, the issue of abortion in Northern Ireland places the Prime Minister between a rock and a hard place.

Like Scotland and Wales, Northern Ireland has its own devolved administration, and in ordinary circumstances, it would be up to the Northern Ireland Assembly to decide the law on abortion. But the region hasn’t had a working government since January 2017 when the two main parties, Sinn Fein and the Democratic Unionist Party (DUP), fell out over a renewable energy scheme. The Assembly is currently suspended, and it is unlikely to meet again unless the Nationalists and Unionists can figure out a modus vivendi.

In the absence of a working government in Northern Ireland, many have suggested that the British Parliament should fill the void and pass a new abortion law for Northern Ireland. This would be perfectly legal–unlike American states, the devolved administrations in the United Kingdom are not sovereign entities, and the British Parliament retains full legislative power over the whole of the UK. However, there is a constitutional convention that Westminster generally doesn’t make laws for Scotland, Wales, or Northern Ireland without the consent of their respective legislatures. But without a sitting Assembly, there’s no way to obtain that consent.

From a legal standpoint, the UK Parliament could pass an abortion law for Northern Ireland without the Assembly’s consent, as this is a matter of courtesy rather than an essential prerequisite. But pressing ahead with legislation would present political difficulties for the Government. Many MPs, particularly those from the Scottish Nationalist Party, would likely view it as a betrayal of devolution, while the DUP contingent would oppose it because they are a pro-life party. The DUP’s opposition would be particularly troublesome for Theresa May since she needs their votes to prop up her government. In a worst-case scenario, the DUP could bring down the government and usher a General Election.[2]

May faces a difficult balancing act. Increasing numbers of MPs, including many from  her own party, want Westminster to act, but the Prime Minister won’t want to jeopardize the support of the DUP. A recent ruling by the UK Supreme Court has ratcheted up the pressure on the Government even further since a majority of the justices stated that the current abortion regime in Northern Ireland is incompatible with human rights law. Their remarks are just obiter dicta at the moment[3] since they didn’t make a formal declaration of incompatibility,[4] but they will make it harder for the Government to duck the issue. But whatever happens, ministers are likely going to be in a for a bumpy ride.

NOTES

[1] The procedure is only available in cases where the woman’s life is at risk or there is a risk of permanent and serious damage to her mental or physical health.

[2] Though this could easily prove catastrophic for them, as it could bring about a Labour government under Jeremy Corbyn, and Corbyn is no friend to Unionists.

[3] The underlying case was dismissed on technical grounds.

[4] Unlike the American Supreme Court, the British Supreme Court cannot strike down legislation. They can, however, declare that it is incompatible with the Human Rights Act. In essence, they are highlighting a problem and asking Parliament to fix it.

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Meghan Markle And The Law Of Arms

The fact that the Duchess of Sussex’s father, Thomas Markle, hasn’t been given a coat of arms has caused a bit of controversy in the tabloid press. The Duchess’s estranged half-sister, Samantha Markle, claims that it is a “huge insult” that her father wasn’t given a coat of arms when the Duchess of Cambridge’s father was. But in reality, there is nothing untoward about this.

Despite what Ms. Markle seems to think, the Royal Family don’t decide whether a private individual should receive a coat of arms.[1] The grants are made in the Queen’s name by the heralds of the College of Arms (for people in England, Wales, and Northern Ireland) or the Court of the Lord Lyon King of Arms (for people in Scotland).[2] Furthermore, arms can only be granted to British citizens, though Americans can receive ‘honorary arms’ if they can prove descent from a British subject. Either way, it’s an expensive proposition: a grant of arms to a private individual costs £6,075 (or a little over $8,000).

Under the law of arms, a man’s arms can be borne by all of his legitimate children, so if Mr. Markle had obtained a coat of arms, the Duchess of Sussex would have been able to use it as well.[3] While the Duchess of Cambridge uses her father’s arms, the heraldic authorities may have felt that this arrangement would be problematic for the Duchess of Sussex since her father’s arms would only be honorary.

Instead, the Duchess has been granted her own coat of arms. Honestly, this seems like the best course of action. The Markles don’t live in the United Kingdom, so it’s hard to see how they would benefit from having an official grant of arms. British heraldic law has no standing in America, so from a legal standpoint, a grant from the College of Arms has no more validity than a certificate of arms bought from a kiosk at the mall.

NOTES

[1] The Queen does approve coats of arms granted to members of the Royal Family, but her involvement there is the exception rather than the rule.

[2] The College of Arms also serves other Commonwealth countries that do not have their own heraldic authorities.

[3] However, a daughter cannot pass her father’s arms onto her children unless a) she has no brothers or b) all of her brothers have died without surviving issue.

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The House Of Lords Is Finally Shrinking…Hooray!

Theresa May’s decision to create thirteen new peers has provoked some caustic commentary in the British press. Even the conservative Daily Telegraph couldn’t resist running a snarky piece predicting that the House could grow to 1,000 members by 2031.

There’s just one problem: at the moment, the upper house is actually shrinking. As the Lord Speaker, Lord Fowler, has observed, thirty-five peers have left the House since the beginning of the present Parliament. Even with these latest appointments, the House is still getting smaller.

The Lord Speaker says that the Prime Minister has “committed herself to restraint when making new appointments to the House of Lords,” and last week’s announcement suggests that she intends to keep her promise. Hopefully, this is a portent of things to come–if the House of Lords is going to survive, prime ministers must resist the temptation to hand out peerages like Halloween candy.

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Brexit, The House of Lords, And The Salisbury-Addison Convention

After a tumultuous twenty days of scrutiny, the House of Lords finally passed the European Union (Withdrawal) Bill last week. It now returns to the House of Commons, where MPs will have to decide whether to accept or reject the peers’ amendments. The upper house’s handling of the bill has generated considerable controversy among Brexiteers, and like the High Court judges who ruled against the Government on the Article 50 case, the Lords have been branded ‘enemies of the people.’ But these attacks are motivated by political animus rather than sound constitutional objections.

Peers made a number of significant changes to the EU (Withdrawal) Bill as it went through its parliamentary stages, including measures to:

  • give Parliament a ‘meaningful’ vote on the outcome of Brexit negotiations;
  • rein-in ministers’ use of ‘Henry VIII’ clauses;
  • preserve the EU Charter of Fundamental Rights in retained EU law; and
  • keep the United Kingdom in the EU customs union.

There is nothing inherently wrong with peers amending legislation. They are, after all, a revising chamber, and they are there to improve the quality of legislation. But many Brexiteers argue that the House went too far with its amendments and ended up violating the Salisbury-Addison Convention.

This Salisbury-Addison Convention (also known as the Salisbury Doctrine) was a gentlemen’s agreement struck in 1945 between the Labour Leader of the House of Lords, Viscount Addison, and the Conservative Leader of the Opposition, Viscount Cranborne (later the Marquess of Salisbury). At the time, the Tories had an enormous majority in the Lords, and they could easily obstruct Labour’s legislative program.[1] Although the Labour Government would ultimately prevail thanks to the Parliament Act 1911, peers could still delay non-financial bills for up to two years (this period was later reduced to one year by the Parliament Act 1949). Naturally, Labour was keen to avoid these scorched-earth tactics, so Lord Addison and Lord Cranborne struck a deal whereby the Tories agreed that they wouldn’t obstruct the Government’s legislative program.

As Viscount Cranborne noted during the debate on the King’s Speech:

Whatever our personal views, we should frankly recognize that these proposals were put before the country at the recent General Election and that the people of this country, with full knowledge of these proposals, returned the Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals. I believe that it would be constitutionally wrong, when the country has so recently expressed its view, for this House to oppose proposals which have been definitely put before the electorate.[2]

But the Convention also prohibited wrecking amendments, as well. As Tory peer Lord Carrington noted in his memoirs:

The Lords should, if they saw fit, amend, but should not destroy or alter beyond recognition, any Bill on which the country had, by implication, given its verdict. The Lords, in other words, should not frustrate the will of the people.[3]

What began as a gentlemen’s agreement between the Tory and Labour leaders in 1945 is now arguably a constitutional convention (however, the Liberal Democrats deny that it applies to them since they were not a party to the original agreement). But while the Convention seems clear-cut at first, the devil is in the details. What constitutes a manifesto bill? Which amendments would destroy a bill or alter it beyond recognition? The answers to these questions will always be highly subjective.

The debate over the Iron and Steel Bill of 1948-49 illustrates the difficulties that arise when one tries to translate the Salisbury-Addison Convention from theory into practice. Labour’s 1945 manifesto promised to nationalize the iron and steel industries, but Tory peers argued that the Iron and Steel Bill went beyond the Government’s manifesto commitment since it would nationalize companies that had nothing to do with the manufacture of steel.[4] Furthermore, the Marquess of Salisbury noted that, while Labour won the largest number of votes in 1945, their manifesto was not backed by an overall majority of voters.[5] Despite Tory concerns over the bill, they did not attempt to block it outright. Instead, they passed amendments that sought to delay nationalization from taking effect until after the next General Election, which would give the British people a chance to weigh-in on the Government’s proposals. In the end, ministers accepted the principle behind the peers’ amendments, and the bill became law.

Brexiteers may not like what the Lords have done to the EU (Withdrawal) Bill, but it’s a stretch to accuse peers of constitutional malfeasance. They didn’t reject the bill outright, and their amendments did not destroy the bill or alter it beyond all recognition. Britain can still leave the EU, even with peers’ amendments. It may not be the type of Brexit that Jacob Rees-Mogg and company would like to see, but they are not the sole arbiters of what Brexit should be. That is a question for Parliament, not a cabal of MPs.

If peers insist on their amendments after MPs have rejected them, then it would be fair to speak of a breach of the Salisbury-Addison Convention. But at this point, all the Lords have done is ask MPs to think again, and there is nothing unconstitutional about that.

NOTES

[1] The House of Lords at this time was dominated by hereditary peers.

[2] HL Debates, 16 August 1945, col. 47.

[3] Lord Carrington, Reflections on Things Past: The Memoirs of Lord Carrington (London: Collins, 1988), 78.

[4] See the remarks of Viscount Swinton, HL Debates, 24 May 1949, col. 994.

[5] HL Debates, 29 June 1949, cols. 551-552.

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A Quick Guide To The British Peerage

The news that the Queen has made Prince Harry Duke of Sussex has led numerous American media outlets to try to explain the peerage to their audiences. Alas, their reporters often seem to struggle with the subject, so I thought I’d step up to the plate and provide a quick guide for anyone perplexed by what is admittedly a rather byzantine system. This post will focus on the British peerage–while Scotland, England, and Ireland each had their own separate peerages, they are now defunct.

There are five ranks within the peerage. From highest to lowest, they are: duke, marquess, earl, viscount, and baron. Despite these gradations, all peers are considered equal to one another, from the highest duke to the lowliest baron. However, baronets, knights/dames, and Lords of the Manor are not considered peers at all.

Historically, the right to attend Parliament has been the defining privilege of the British peerage. Initially, this was restricted to feudal barons,[1] but by the thirteenth century, kings had begun summoning men to Parliament regardless of their landholdings. This eventually led to the development of purely titular dignities divorced from land tenure.[2]

By the fifteenth century, the peerage had assumed its familiar five-rank structure. It had also become a hereditary institution, which meant monarchs had less control over the composition of the House of Lords. Most peerages went to the peer’s eldest son since primogeniture was the norm,[3] but unlike Continental systems of nobility, the children of British hereditary peers are not peers themselves. This can get very confusing since many of these children bear courtesy titles. For example, the Duke of Norfolk’s eldest son is customarily styled ‘Earl of Arundel,’ but he’s still not a peer.

Once a peerage was created, its holders would enjoy a perpetual seat in Parliament, no matter how much they annoyed the king. Peerages could only be revoked by an Act of Parliament, and that rarely occurred. The fact that the each peerage created a perpetual seat in the legislature initially encouraged monarchs to be sparing with their ennoblements, but this changed under the Stuarts.

Faced with perpetual money problems, James I openly sold titles, including peerages. He ultimately created 62 peers (there were only 59 when he took the throne!). His successors were just as profligate: when the last Stuart monarch, Anne, died in 1714, there were 168 peers in the House of Lords (at one point, Anne had created 12 peers in a single day, which was more than Elizabeth I had created over the course of her forty-five-year reign!).

The succeeding dynasty, the Hanoverians, weren’t much better. George III was particularly liberal with peerages, though he was generally acting on the advice of ministers eager to win votes in the Lords. Political considerations ensured that the rate of creation remained high throughout the nineteenth and twentieth centuries.

By the 1950s, it was clear that something had to give. The House of Lords had become a dozy institution with many members who rarely bothered to show up. In a bid to reinvigorate the House, Harold Macmillan’s government introduced life peerages. This wasn’t a new concept, but until that point, life peerages had only been given to certain judges so they could take part in the House of Lords’ judicial work.

The Life Peerages Act 1958 allowed the Crown to confer baronies on individuals that would not be passed on to their descendants. It also specified that women were eligible for life peerages (female hereditary peers would have to wait until 1963 before they could sit in the Lords). Initially, hereditary peerages continued to be conferred alongside life peerages, but when Labour’s Harold Wilson came to power in 1964, he stopped the creation of hereditary peerages. Aside from a few exceptions under Margaret Thatcher,[4] only members of the Royal Family have received hereditary peerages since 1964.

Male royals usually get dukedoms when they marry,[5] but they also receive other titles as well. This ‘bundling’ isn’t unique to the Royal Family,[6] but their subsidiary titles are usually more geographically diverse than those of other hereditary peers. Their earldom typically references a Scottish city, while their barony mentions a city from Northern Ireland. This is why Prince Harry became Earl of Dumbarton and Baron Kilkeel as well as Duke of Sussex. Members of the Royal Family often use these subsidiary titles when visiting the countries in question, at least in official contexts.

However, none of this applies to female royals. They don’t receive any titular honors when they marry. Instead, their husbands are offered hereditary peerages. Perhaps the most famous example of this was when Princess Margaret’s husband, Anthony Armstrong-Jones, became Earl of Snowdon upon their marriage. This is because a husband can confer status on his wife, but a wife cannot confer status on her husband. Giving a title to the man ensures that both spouses are covered, though this tradition seems to have fallen by the wayside in recent years.[7]

Nowadays, hereditary peerages are entirely ceremonial in nature. The House of Lords Act 1999 removed most hereditary peers from Parliament, though 92 hereditary peers have remained in the House of Lords as a ‘transitional’ measure (you can read more about that here). In theory, any member of the Royal Family with a hereditary peerage could still sit in the House as one of the 92 excepted hereditary peers, but the Queen has prohibited them from doing so.[8]

While the number of new hereditary peers has declined sharply, there is an ever-increasing number of new life peers—over 270 new creations in the past eight years alone. Unlike hereditary peers, life peers still enjoy automatic seats in the House of Lords. Most are nominated by political parties to bolster their ranks in the House, but a significant minority of life peers are non-partisan appointments (e.g., former civil servants or high-profile religious figures).

The fact that peers still play an important political role has ensured that their ranks have been received regular infusions of fresh blood. The nineteenth century saw prominent industrialists and businessmen appointed to the House, while the twentieth century saw the admission of trade unionists, scientists, social justice campaigners, and a diverse range of politicians. More needs to be done in order to make the peerage truly representative of modern Britain, but the newest candidates are usually far removed from the popular image of the wealthy toff.

NOTES

[1] These were men who held lands directly from the king without any intermediate overlord. In return they were expected to provide the king with soldiers for his wars.

[2] Conversely, Scottish peerages remained tied to the land until the Union within England in the eighteenth century.

[3] The specific rules governing a title’s descent are set out in the Letters Patent which created it, and they can specify alternatives to primogeniture. For example, Earl Mountbatten of Burma had a special clause in his Letters Patent which allowed the title to pass to his eldest daughter.

[4] In 1983, Thatcher’s long-serving deputy, William Whitelaw, became Viscount Whitelaw, while the former Speaker of the Commons, George Thomas, became Viscount Tonypandy. The following year, former Prime Minister Harold Macmillan became Earl of Stockton. Neither Whitelaw nor Thomas had children, so their hereditary peerages became extinct on their deaths.

[5] Prince Edward bucked the trend by becoming Earl of Wessex (he allegedly chose this title because he heard it in Shakespeare in Love and liked it). However, it’s been announced that he will be created Duke of Edinburgh after his father dies.

[6] For example, the Earl of Stockton (Harold Macmillan) also received the title of Viscount Macmillan of Ovenden.

[7] One could argue that it would be better to give both spouses titles of their own in order to avoid the unfortunate implications of the present system.

[8] Even before the hereditary peers lost their seats, the Royal Family’s role in the House of Lords rarely extended beyond formally taking their seats.

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Can John Bercow Survive As Speaker?

Commons Speaker John Bercow’s reputation grows more and more tattered with each passing day. First, there were the accusations of bullying from two of his former private secretaries, one of whom was allegedly treated so badly that she developed post-traumatic stress disorder. Then, the former Gentleman Usher of the Black Rod said he’d been bullied by Bercow as well. Now, there are reports that the Speaker called the Leader of the Commons, Andrea Leadsom, “a stupid woman” and “f***ing useless.”

Anyone can lose their cool in a moment of anger, but these allegations suggest that Bercow has a habit of lashing out when faced with people he finds frustrating. Such behavior is inappropriate in any walk of life, but it’s even less acceptable coming from the Speaker of the House of Commons. Bercow’s response to these accusations has been problematic as well. While he flatly denies the allegations of bullying behavior, he appears to have tacitly acknowledged making foul-mouthed remarks about Leadsom, blaming his behavior on “an unusual and controversial day” in the Commons where “strong and differing views were expressed.” But when Leadsom confronted him about the remarks, he appears to have been quite dismissive and may have even called her a liar.

I can’t say I’m surprised by these events. Bercow has always struck me as an arrogant figure. When he was first elected Speaker, he abandoned the tradition of wearing court dress beneath the gown, saying “it isn’t me.” But that was precisely the point: the old dress code de-emphasized the personality of the individual Speaker. By putting his own feelings front and center, Bercow exalted the occupant over the office. On the other hand, one of his predecessors, Lord Weatherill, once observed that “I don’t think the Speaker should be the star. Parliament should be a forum, not a stage.”

Unfortunately, Bercow has taken the speakership in the opposite direction. His chairmanship of the House’s proceedings is often showy. While he initially condemned the ‘Punch and Judy’ atmosphere that often prevails in the Commons, his shouty interventions from the Chair make him seem just as bad as everyone else (even his defenders admit that his interventions often come across as ‘egotistical showboating’). There have also been persistent accusations of bias against the Conservatives, even though Bercow was once a Tory himself.

Bercow’s time as Speaker has not been without merit, however. He is a strong advocate for backbenchers, and he is not afraid to hold ministers accountable to the House. His decision to make the Rev. Rose Hudson-Wilkin his chaplain instead of a more establishment candidate was also commendable, even if it did ruffle some feathers at the time.[1] Bercow has also pursued an ambitious modernization agenda, though the results have been mixed. His resurrection of the urgent question was praiseworthy, but he also presided over a flawed selection process that almost resulted in the appointment of a patently unsuitable candidate as Clerk of the Commons.[2]

Despite the seriousness of the charges against Bercow, it seems that a critical mass of opposition has yet to develop. His supporters argue that the allegations are just sour grapes from traditionalists unhappy with his modernization agenda and his willingness to stand up to the Government, and the Commons’ own standards committee recently blocked the Parliamentary Commissioner for Standards from investigating the accusations of bullying. But his outburst toward Andrea Leadsom could prove to be the tipping point.

It’s also possible that MPs are waiting to see if Bercow will honor his pledge to stand down after nine years in office. That anniversary will occur on June 22, and it would be easier for MPs if he left voluntarily without being pushed. But if he tries to remain in the Chair, the tide could turn against him quite quickly.

NOTES

[1] For many years, the Speaker’s chaplain was also the Rector of St. Margaret’s, Westminster (Parliament’s ‘parish church’), which meant the chaplain was effectively chosen by the Dean and Chapter of Westminster Abbey. But when the two offices fell vacant in 2010, Bercow was unhappy with the Dean and Chapter’s proposed successor, arguing that the post shouldn’t go to “another white, middle-aged man.” He ended up making Hudson-Wilkin his chaplain instead..

[2] Even though the Clerk is supposed to be the House’s principal procedural adviser, the initial choice for the job was Carol Mills, an outsider from Australia with little knowledge of British parliamentary procedure. After an outcry, her appointment was ‘paused’ and the selection process ultimately started from scratch, though she did not put herself forward for consideration a second time. Bercow later blamed everyone but himself for the fiasco.

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