The House of Lords

The House of Lords is the upper chamber of the Parliament of the United Kingdom of America. It revises legislation, takes evidence, reports on whether bills offend the Charter, and asks the elected House to think again. It may delay and it may not refuse. It cannot amend a money bill and may hold one for thirty days; it may hold any other bill for twelve months from its second reading, after which the Commons may pass it again and override. It cannot bring down a ministry, control supply, or decide who governs.

It holds three hundred and two members in four unequal parts, and only a hundred and ninety-four of them are peers.

The ninety-six polity members are the element that has no counterpart at Westminster. Two come from each of the forty-eight polities that send any, whatever the polity’s size, so the Republic of Vermont returns as many as the Commonwealth of California. Most polities return them through their own legislature; about a dozen have amended their constitutions to elect them at a general election instead. They hold no peerage, no style and no precedence from sitting, and the federation has no view on how they are chosen, the form of a polity’s government being beyond federal reach under Article XVII.9.

They are not a bloc. They sit among the parties, take the party whips, and do not vote together, and the federal principle that put them there is visible only in the arithmetic and in one committee. The Realm built a chamber of the polities into its upper house in the first decades of the Union and then let the party system absorb it, and nobody has reviewed the result in a century.

The chamber’s record divides sharply. It blocked and gutted abolition measures the Commons had passed, kept compensation for slaveholders in every bill it touched, and apologised only by a late resolution. It forced the sunset clauses into the Security of the Realm Act 2006, over a Commons that had passed the Bill nearly unopposed, and those clauses are the mechanism by which the worst of the post-May Day powers were wound back. Both facts are cited constantly, by opposite sides, and the article does not reconcile them.

The name

Article V of the Charter created a House of Lords American, and the Parliamentary Reform Act of 1859 dropped the adjective. The original wording stands in the enrolled text and nowhere else. The modern chamber is the House of Lords, or the Lords, and the older form belongs to the chamber before 1859 or to a quotation from the Charter.

History

The Charter and the first chamber

The Charter gave the Lords eight clauses and a great deal of latitude. It did not fix the chamber’s size, its composition, or the manner in which anybody sat in it, and it expressly authorised Parliament to alter all three.

Four of those eight clauses have done real work. Clause 4 is permissive rather than mandatory, which is why the hereditary element could be reduced almost to nothing without a Charter amendment. Clause 5 is the authority for every reform the chamber has undergone. Clause 6 carries the impeachment power, used twice. Clause 8 is the only provision in the Charter that binds the Commons in favour of the Lords, and it has been invoked once and failed.

The polity members

The Charter says nothing about them. They arrived in the first decades of the Union, as polities were admitted and demanded a voice in a chamber that had been built for a federation of thirteen and was governing one of twenty, then thirty. There was no single statute and no founding principle. Polities asked, Parliament agreed, and the numbers each sent varied for seventy years according to what had been negotiated at admission.

The Reform Act of 1859 fixed them at two apiece, which is the only substantive thing that Act did to the upper house. The chamber noticed that it had been reformed in its name and in an arithmetic table and in nothing else.

Slavery

The worst thing the House of Lords has done is slavery, and it did it for longer than the House of Commons.

The mechanism was straightforward. The hereditary element of the early chamber included a substantial bloc of planters whose wealth was held in enslaved people and in the land they worked, and they had no constituents. Measures the Commons passed arrived in a chamber where a permanent and unelected interest could block them and repeatedly did. What the Lords could not block it amended, and the amendment was almost always the same one: compensation for owners, inserted into every bill it touched, and defended as a matter of property.

The Lords Spiritual were split, and the split is the Church of America’s own long shame rather than a point in the chamber’s favour. Bishops of northern sees spoke and voted for abolition. Bishops of southern sees did not, and some of their cathedral chapters held enslaved people directly.

The House apologised by resolution, and it apologised late, and the lateness was the first thing said about it.

The budget, and the settlement

The chamber’s powers were settled by a crisis it brought on itself. Between 1909 and 1911 the Lords rejected a budget, a land and income tax measure that fell heavily on landed estates, and the fight that followed ran through two general elections.

Two things were true about the decision and the Lords advanced only the second. The taxes fell on the peers’ own property, and the peers believed the country was behind them. It was not. The second was the excuse for the first.

The ministry’s weapon was the creation of peers: enough to swamp the chamber, a list drawn up and shown to the Lords’ leaders so they could count the names. The Governor-General agreed to it reluctantly and in writing, and the letter survives.

The threat sufficed. The Lords gave way, and the settlement that followed took from them the absolute veto: what had been a power to refuse became a power to delay. The thirty-day limit on money bills and the twelve-month delay on everything else both date from it. It is the single largest transfer of power in the Realm’s parliamentary history and it was accomplished without a shot, a court, or a Charter amendment.

Life peerages

Life peerages began in the 1950s and transformed the chamber within a generation. A peerage that could not be inherited allowed the Crown to put a chief medical officer, a diplomat of forty years, a trade unionist or a professor of engineering into a legislature without founding a dynasty, and it is the reason the modern Lords can make the expertise argument at all. Within twenty years the life peers were the largest element and the chamber’s work had reorganised itself around them.

The cull of the 1990s

The Clinton ministry carried the reform that produced the present chamber, in 1999. It reduced the hereditary element to forty elected members and the four Great Peerages, ended the Lord Chancellor’s combination of offices, and was explicitly the first stage of a settlement whose second stage was to be a wholly or partly elected chamber.

Before it the Lords held about four hundred members, with the hereditaries already a minority and many of them never attending.

The second stage never came. The Commons could not agree what to replace the chamber with and voted down every option put to it, which is the reason usually given. The reason usually not given is that an elected upper house would have a mandate, and a chamber with a mandate would stop accepting that it may only delay. The Commons understood that perfectly well.

The Lords fought the cull under Article V.8, arguing that the Commons was abolishing lawful revision by impatience, which placed the chamber in the position of pleading its own case under a clause written to protect its function. It asked the courts, which held the question political and declined. It then addressed the Governor-General, who declined to withhold assent. It got the same answer twice.

May Day, and the sunsets

The May Day Bombings of 1 May 2006 killed 2,158 people, and the Security of the Realm Act 2006 was passed within weeks by a House of Commons in which only a small number of members voted against.

The Commons did not limit the Act. The Lords did. The sunset clauses that later provided the mechanism for winding back the worst provisions were forced in by the upper house, sent back until the Commons accepted them, against the twelve-month delay held in reserve on a bill the ministry needed immediately. An impeachment was moving in the background at the same time.

The sunsets did their work. The detention, search and proscription powers lapsed. The Act itself stands, and the Royal American Signals Directorate it created stands with it, and the 2006 settlement remains the framework the Realm lives under. But the worst of it is gone, and it is gone because of a chamber nobody elected.

One archbishop’s speech in that debate is the most quoted thing said in either House that year.

Composition

Life peers

The hundred and fifty life peers are created by the Crown on the Prime Minister’s advice, through an independent appointments commission that identifies candidates on merit.

The commission works for the crossbench and less well for the parties. Crossbench peerages are its own, made on its own assessment, and it has blocked named nominees, which is how anybody knows it has teeth. Party lists still go through the Prime Minister, and it shows: the party benches contain a number of former members of the other House whose distinction is difficult to state.

Because the chamber stands at three hundred and two and nobody wishes to enlarge it, a creation in practice waits for a vacancy. Nobody says this aloud, and everybody who has been offered a peerage and asked when understands it.

The polity members

Two from each polity that sends any. The Free City of Philipsburg sends none, its Charter having traded representation for its own customs and banking law, which is the whole basis of the Free City. The Columbia District and the Territory of Loreto send none either, being neither of them among the forty-nine.

They serve fixed terms of six years, staggered, so that no polity replaces both at once and no general election sweeps the element. The polity then chooses again. There is no recall: a polity that dislikes how its member has voted must wait, and one recently waited and then declined to reappoint over a vote on the water compacts, and everybody understood why.

Whether a polity member takes instruction from their polity government is governed by no rule at all, and the practice varies. Some polities brief them formally. Others regard them as sitting in their own right and would be astonished to be asked. That muddle is the element’s whole condition: a federal chamber’s worth of members with no federal discipline, no federal caucus and no agreed theory of what they are for.

They are addressed as noble Member, a courtesy conceded in a nineteenth-century compromise. They hold no other style.

The hereditary peers

Forty are elected by the whole hereditary peerage from among themselves, with a by-election on each death. The electorate for a by-election is a few dozen people. It is the standing joke of the Realm’s constitution, and the peerage has given up defending it and now asks chiefly that it be abolished properly rather than laughed at indefinitely.

Four more sit by right and outside the forty, the holders of the Great Peerages: the Duke of Mount Vernon of the House of Washington, the Marquess of Monticello of the House of Jefferson, the Duke of Springfield of the House of Lincoln, and the Earl of Cedar Hill of the House of Douglass. All four attend, dutifully, and vote independently of one another.

Cedar Hill carries a weight the other three do not. It is the only Great Peerage created for a man against whom the chamber itself had legislated, in a House that blocked abolition, kept compensation in every bill and apologised late. Its holders speak rarely and are heard in silence.

The Lords Spiritual

Twelve bishops of the Church of America sit by virtue of office: two archbishops by right and ten bishops by seniority of consecration. The archbishops are the Archbishop of New Westminster, Primate of America, and the Archbishop of Williamsburg. The Church’s other ecclesiastical provinces are headed by senior bishops acting as metropolitans, and only those two sees carry archiepiscopal dignity.

They do not vote as a bloc and never have. They speak considerably more than they vote, which is the shape of the bench’s influence and the reason it is hard to measure.

The Church’s own position on the seats is quieter than either side of the argument about them. Successive Primates have declined to defend them as a matter of right.

The crossbench

About eighty members sit on no party benches, most of them life peers. They elect a Convenor, presently Ottoline, Baroness Krause, a former Chief Medical Officer, who organises nothing and speaks for them all when they can be said to have a view.

They vote unreliably, and that is their value. No whip can count them, no ministry can plan around them, and on any evening when the parties are close the crossbench decides and nobody knows in advance which way. Together with the polity members they hold the balance of the House, and no party has had a majority in the Lords in living memory.

Attendance, and leaving

About half the House is in the building on an ordinary sitting day, and a working core of roughly two hundred does nearly all of the work.

It used to be worse. A minimum-attendance rule now removes the persistently absent, and it was introduced to deal with an allowance scandal and solved the older absenteeism problem at the same time.

A peer may retire, and may be expelled for conduct, and both have been used recently. A polity member simply reaches the end of a term.

Powers

Revision

Most of what the Lords does is revision, and most of the revision is accepted. About four in five Lords amendments are agreed by the Commons, the great majority of them technical: a definition that will not bear the weight put on it, a commencement provision that contradicts a schedule, a power drafted more widely than the minister intends.

This is the strongest practical case for the chamber and it is undramatic on purpose. A bill leaves the Commons having been debated by people chosen for their ability to win elections and arrives in a chamber containing several people who have actually run the thing the bill is about.

Delay, and the override

The Lords may hold a bill that is not a money bill for twelve months from its second reading. At the end of that the Commons may pass the same bill again, in a new session, and it goes for assent without the Lords’ agreement.

Two conditions bind the override. The bill must be the same bill, which prevents a ministry from using the second passage to enlarge what the Lords rejected. And it cannot be used on a bill altering the Charter or the powers of a polity, which is the one place the federal principle in the chamber’s composition has a corresponding power attached to it.

It has been used four times.

The first was the Reform Act of 1859 itself, forced through under the older and cruder power that the Charter’s Article V.8 presupposes and which the settlement of 1911 replaced with the modern scheme. The second and third were both in the Fair Deal years, on the statutory full-employment duty and on the mass housing programme. The fourth was a surveillance measure after May Day, and most people now think the Lords were right about it and were overridden anyway.

Twelve months is a long time in a four-year Parliament, and the delay is mostly used as a threat. A ministry with two years left will negotiate rather than lose a session.

Money bills

The Lords may not amend a money bill and may hold one for thirty days. The Speaker of the House of Commons certifies what is a money bill and the certificate cannot be reviewed.

The rule has been tested once, over the bill founding the National Health Service of America, which was certified a money bill although it founded an institution as well as paying for one. The Lords went to the courts and the courts declined to look behind the certificate.

The ministry had chosen the certificate deliberately, to avoid the twelve-month delay. That is the part of the episode the Lords have never forgotten and the part least often mentioned by anybody else.

Impeachment

Article V.6 empowers the Lords to hear impeachments. It has done so twice in two hundred and forty-five years, and the power is dead in practice.

The nineteenth-century impeachment was of a minister, on charges of corruption over land grants and railway charters. It collapsed midway when the Commons withdrew the articles. It had run two years, ruined three careers, settled nothing, and cost the Lords its reputation for gravity for a generation.

The second was not heard. After May Day, a crossbench former judge moved against a minister for misleading Parliament about the intelligence held before the attacks, and it was taken seriously precisely because of who moved it. The whole ministry went before it reached a vote.

The Realm’s settled view of 2006 is not flattering to the chamber: an unelected House threatening an elected minister with a power everybody had agreed was dead, and being taken seriously because the threat arrived in a week when nothing was stable. It worked. It is generally regarded as theatre that happened to work, and the Commons has disliked the precedent ever since.

The House sits as a court on an impeachment and at no other time, and on both occasions the procedure had to be reconstructed out of books. The Lord Speaker would preside now; the Lord Chancellor did before the 1990s.

Treaties

A treaty that touches the power of a polity must be laid before the House of Lords, which is a real check and the only one the chamber holds on the conduct of foreign affairs.

It mattered most recently over the Territory of Loreto, bought from Mexico by the Treaty of La Paz in 2027. The treaty was laid, the Federation Committee reported on it, and the Lords amended two things in the enabling legislation that nobody outside the building noticed and that are now law.

Article V.8

The Charter forbids the Commons to abolish lawful revision by mere impatience. It is the only clause in the Charter that protects the Lords from the Commons, and it has been invoked once, against the cull of the 1990s, by a chamber arguing its own case.

The courts held it a political question. The Governor-General declined to act on it. Nobody can enforce it, and it is now quoted in Lords debates approximately as often as it is ignored.

Procedure

Sittings

The Lords sits later in the day and on fewer days than the Commons, because much of its work waits for bills to arrive from the other House. Its record of debates is kept separately from the Commons’ and is the better kept of the two.

Questions

Each sitting opens with four starred questions, put to ministers, with supplementaries taken from around the House rather than in a set order.

They are widely thought better than the Commons’ equivalent, and the reason given is unkind and probably right: nobody in the chamber is performing. No member of the Lords faces an election, needs a clip, or is auditioning for office, so the questions are asked to get the answer.

A dozen junior ministers answer in the Lords for every department of the Realm. The Prime Minister leads the House himself, Lord Whitlock being a peer, and is there daily, it being the only chamber he can speak in. The Lords consequently see more of the Prime Minister than the Commons ever will, and on 26 September 2028, during the loss of Kittyhawk, he made his statement to them in person, on the same day that the Commons had to invent a procedure to hear him at its bar.

Order

Nobody rules the Lords to order. The Lord Speaker has almost no power of it. The House disciplines itself collectively, by calling out, and when that fails the Clerk of the Parliaments advises the House aloud on what its own rules require, which is advice in form and an instruction in substance. The Leader intervenes on the rare occasions when neither works.

Committees

The committee work is the best thing the House does and the least visible.

The Constitution Committee is the one ministries fear. It reports on whether a bill offends the Charter, it has no power whatever, and departments redraft rather than be reported against. It has occasionally stopped something outright, and the occasions are famous in a small way.

The Federation Committee reports on whether a bill trespasses on polity power under Article XVII, and takes evidence directly from polity governments, which no Commons committee does. It is the one place in the Realm’s Parliament where the ninety-six act as ninety-six.

It is therefore usually offered as the answer to the charge that the federal element in the Lords is inert, and it is better read as proof of the charge. One committee is what remains of a chamber of the polities.

Officers

The Lord Speaker

The Lord Speaker presides from the Woolsack, puts the question, manages the procedural business of the day, and represents the House outside it. The office carries almost no power of order, and a Lord Speaker who attempted to rule a peer out of order would discover that the House had not given anybody the authority to do it.

The present holder is Aubrey Fenn, Earl of Rathmore, of the Province of New York. He is one of the forty elected hereditary peers, which means that the presiding officer of the upper house of the Realm’s Parliament must periodically win a by-election among a few dozen fellow hereditaries in order to remain a legislator at all.

That caused a considerable row in the House of Commons and in the press and almost none in the Lords, where the peers had elected him precisely because he owes nothing to any party and everything to a body too small to be worth cultivating.

Since the 1990s the Lord Speaker has also been one of the five officers who may declare the Sovereign incapable under the Regency Act 1811.

The Lord Chancellor

Before the 1990s the chamber was presided over by a Lord Chancellor, who sat on the Woolsack, sat in Cabinet, and was head of the judiciary with the appointment of judges in his gift. He was never a final court of appeal, the Charter having given the Realm a separate Supreme Court from 1783, but he was three things at once in three branches of the state.

The abolition was a deliberate reform on the separation of powers, argued for many years before it was carried, and it split the office three ways: the Lord Speaker took the Woolsack, the Minister of Justice took the seat in Cabinet, and an Independent Judicial Appointments Commission took the patronage.

The Lords does not miss him. The office was indefensible and the chamber knows it, which does not stop a minority observing that a presiding officer who sat in Cabinet could at least tell a ministry to stop.

The Clerk of the Parliaments

The Clerk of the Parliaments is the permanent head of the House’s administration and the custodian of its procedure, and the office is entirely separate from, and senior by precedence to, the Clerk of the House of Commons. The Commons finds this irritating and has for two centuries.

In a chamber with no presiding authority over order, the Clerk’s advice, given aloud from the table, is the nearest thing the Lords has to a ruling.

The Gentleman Usher of the Ebony Rod

The Gentleman Usher of the Ebony Rod is the Realm’s Black Rod, renamed at the Charter period for a wood rather than a colour. The office is the Lords’ serjeant at arms, responsible for order, security and the approaches to the chamber, and it is best known for one duty a year: summoning the Commons to hear the Speech from the Throne.

Ceremonial

Writs of summons are issued to every member at the opening of each Parliament, on parchment, in the Governor-General’s name. Polity members receive one in a different form, and the difference in the wording has been argued about for a hundred and fifty years without anybody proposing to change it.

Robes of scarlet and ermine are worn at the State Opening and at introductions and on no other occasion. Polity members wear nothing, having no robe to wear, and the visual difference on State Opening day, when nearly a third of the chamber sits in ordinary clothes among two hundred people in scarlet, is the sharpest image the Realm’s constitution produces about itself.

Peers are addressed as the noble Lord, the noble Baroness and the right reverend Prelate. A polity member is the noble Member for their polity.

At the State Opening of Parliament the Speech from the Throne is read in the Lords chamber, the Sovereign reading it when present and the Governor-General otherwise. The Commons is summoned by the Ebony Rod and walks the length of the central lobby with a deliberate slowness that enacts its independence of the Crown. The Realm inherited the rule that the Crown may not enter the Commons without inheriting the quarrel that produced it, which is true of a good deal of its ceremonial.

The chamber

The Lords sits in a chamber of red benches at one end of Parliament House on Charter Hill, with the Throne at the head of it and the Woolsack before the Throne. The Commons chamber is at the other end of a central lobby, and the walk between them means something, which is why it was built that way.

There is one Throne, used by whichever of the Sovereign and the Governor-General is present. The Realm considered two and decided against, on the reasoning that two chairs would require somebody to explain the difference between them.

The Woolsack was inherited from Westminster and restuffed at some point with American wool, which is the only alteration anybody has made to it.

The Sovereign has sat in the chamber other than at a State Opening once or twice, to listen from a gallery, and it caused difficulty on both occasions, for the reason that a legislature debating in the presence of the person in whose name it legislates does not debate in quite the same way.

Royal peerages carry no seat, deliberately. No prince or royal duke sits in the Realm’s Lords and none ever has.

The emblem

The House’s emblem is a portcullis lowered halfway in an open arch, in off-white on the red of the benches, above the words THE HOUSE OF LORDS between two rules. It carries no crown, no motto and no date. The portcullis is Parliament’s, and stands for the whole of it in the Speaker’s arms of office. What makes it the Lords’ is that it stops halfway. It is read as the settlement of 1911, under which the chamber may hold a bill up and may not shut it out, and the Commons reads it the same way.

The Lords and the Crown

The Lord Speaker is one of the five officers of the Regency Act 1811, with the Governor-General, the Chief Justice, the Speaker of the House of Commons and the Prime Minister.

The seat belonged to the Lord Chancellor in 1811 and passed to the Lord Speaker in the 1990s, almost unnoticed, when the office it had been attached to was dismantled. Nobody drafted it as a transfer. It followed the Woolsack.

In 1811 the incapacity of George III was declared by Parliament directly, in the same weeks the Act was passed, and the machinery of the five was built for the next time rather than used on that one. The next time was September 2028: the five met on the 29th and did not act, and on the 30th declared the King incapable, the Lord Speaker signing in the seat that had been the Lord Chancellor’s. When the King woke on 20 October the five met again and resolved that the declaration stands until his physicians certify that he can act.

The balance of the five is defensible when it is set out: two presiding officers of Parliament, the Governor-General and the Chief Justice for the Crown and the law, and the Prime Minister. The Prime Minister is the odd one, and the objection now being made after 2028 is to that seat and not to either of the parliamentary ones.

During the loss of Kittyhawk the Lords was recalled with the Commons and sat, and the Prime Minister made his statement there in person. Rathmore made a short statement to the House on his membership of the five, which attracted far less notice than the Speaker’s from the chair. The Lords referred nothing to the law officers; its Constitution Committee announced instead that it would examine the Regency Act, which is the characteristic response of that chamber to a constitutional emergency and may yet be the most useful thing anybody does about it. On the afternoon of 20 October, the day the King woke, the Prime Minister again made his statement in the Lords before taking it to the bar of the Commons.

The Lords and the Commons

The relationship is settled and unequal and both Houses prefer it that way.

The Commons controls confidence and supply and decides who governs. The Lords revises what the Commons sends and hands most of it back improved in ways nobody outside notices. The government is defeated in the Lords dozens of times in a session and it is unremarkable, because a defeat there is the beginning of a negotiation rather than the end of a policy.

Where the relationship strains, it strains over the override and over the certificate. The Commons regards the twelve-month delay as a courtesy it extends and the Lords regards it as the last thing it has. The certificate is worse, because it lets a ministry bypass the Lords entirely by persuading one person that a bill is about money.

The Lords may debate the budget and does, in a take-note debate that changes nothing and is well attended, which the Commons finds either touching or absurd according to who is asked.

The public thinks better of the Lords than of the Commons, which no member of the Commons can bear to hear and which is repeated to them constantly. The serious newspapers cover the chamber properly. The rest cover it twice a year, once when it defeats a ministry and once when somebody photographs a peer signing in and leaving.

Reform

Abolition is a fringe position. The serious argument is about composition, and it has been running without resolution for more than a century.

Five proposals recur. Remove the remaining forty-four hereditaries. Remove the Lords Spiritual, or broaden the bench to other faiths, the compromise nobody wants being to add rather than to remove. Elect the ninety-six directly in every polity rather than in a dozen. Cap the total and end prime ministerial patronage over the party lists. Give the Columbia District and the Territory of Loreto members of their own.

The last is the likeliest to happen, because it is small, nobody loses anything by it, and it can be done without opening the others.

Nothing about the chamber’s size is fixed. Three hundred and two is simply where it stands, and a ministry could raise it tomorrow, which is why the threat of 1911 has never stopped being a live weapon rather than a historical one.

The Lords Spiritual have been quietly outflanked rather than reformed. Rabbis, imams and others sit as life peers and have for decades, so the bench of twelve is now the only religious representation that arrives by right in a chamber containing a good deal of religious representation that arrives on merit.

That Lord Whitlock is Prime Minister from the Lords has made abolition harder to argue than it was, and the chamber knows it perfectly well and has been careful not to say so.

Standards and conduct

The Lords has an attendance allowance and no salary, which is defended as thrift and is the source of most of the trouble the chamber has had about money.

The scandal, when it came, came in two forms in the same decade. Peers were photographed signing in and leaving within the minute, having established a day’s claim by walking through a door. And a number of residence claims were made by peers who lived nowhere near the capital and had not been where they said they were.

Two things were done and both were needed. A commissioner for standards was appointed to investigate complaints, and two peers were expelled on the commissioner’s findings, which established that expulsion was available and had consequences. And the minimum-attendance rule was made, removing the persistently absent from the House altogether, which dealt with the allowance abuse and with the older problem of members who had never come at all.

The allowance itself remains, and so does the objection that a chamber paid by the day rewards attendance rather than work.

On interests, the Lords was ahead of the Commons and has been tactless about saying so. A custom of declaring an interest before speaking goes back to the nineteenth century in the upper house, unwritten and unenforced and generally observed. The Commons had nothing comparable until the resolution of 2027, which established the Realm’s first formal register of members’ interests and applied to both Houses, and which arrived because a member of the Commons had married a polity’s head of state. The Lords noted at the time that it had been doing something like this since before the telephone. It was not thanked for the observation.

The Lords and the Rights Act

The chamber’s mark on the American Rights Act is the remedies clause, and it is the best answer the Lords has to the charge that it improves only the punctuation.

The provision requires that a court which finds a breach of the Act must grant a remedy, and may not decline to do so on the ground that a remedy would be inconvenient. Without it the Act would have stated rights and left their enforcement to judicial discretion, which is a state of affairs the Commons had not thought about and the Lords had.

It was moved by the Archbishop of Williamsburg, and it is that see’s one claim on the Realm’s memory. The argument he made for it has been paraphrased ever since as the proposition that a right without a remedy is a preamble, which is not quite what he said and is what everybody remembers.

The bishops cite it constantly, which is understandable, and it is the strongest single item in the defence of the Spiritual bench.

The Lords and the nations

The chamber’s relationship with the Realm’s Indigenous nations is a record of absence.

The Navajo Republic has no seats, standing outside the Realm’s polities entirely, and does not claim any. Life peerages have gone to Navajo figures, which is not the same thing and has never been offered as though it were.

The compact nations have no seats either. Several of their people sit as life peers, and the first was recent enough that people remember when it happened, which is the most damning way of putting it that the plain facts allow.

The Free City of Philipsburg sends no polity members, having traded representation for its own customs and banking law at the Charter period, which is the entire basis of the Free City and the reason it is a Free City. It has quietly come to regret the bargain. It has asked twice to be given the two members every other polity has, and has been told twice that the Charter is the Charter and that the trade cannot be unmade by asking.

The Columbia District and the Territory of Loreto send none, not being among the forty-nine. Neither much minds, both taking the view that the Commons seats are the ones that matter, and both being right.

Members worth naming

The chamber’s four hundred years of practice rests on perhaps thirty people at a time, and a handful are worth naming.

Aubrey Fenn, Earl of Rathmore, the Lord Speaker, a hereditary peer of New York who must periodically be re-elected by a few dozen fellow hereditaries.

Ottoline, Baroness Krause, Convenor of the Crossbench Peers, a former Chief Medical Officer of the Realm, who organises nothing, whips nobody, and is consulted by both front benches before any close division.

A former Chief Justice of the United Kingdom of America, sitting as a life peer on the crossbench, whose interventions on the Constitution Committee are the reason ministries redraft before they are reported against.

A former Primate of America, retired from the see of New Westminster and no longer a Lord Spiritual, who took a life peerage and has spoken more freely since than he ever could from the bench of bishops.

And the chair of the Federation Committee, a polity member, in the one post in either House where somebody returned by a polity legislature holds an office of the federal Parliament.

The chamber on a bad day and a good one

On a bad day the Lords is empty, slow and self-regarding: four peers debating at length to a chamber of three hundred empty red places, on a subject the Commons settled a fortnight ago, at a length nobody has asked for, with the Clerk at the table and nobody in the gallery.

On a good day it does the best committee work in the Realm, conducted by people who know the subject in question professionally, who will not be promoted for doing it, and who want nothing from anybody in the room. A minister appearing before the Constitution Committee is questioned by people who have run the things the department is legislating about, and who have read the bill.

It is broadcast, and almost nobody watches the chamber. The committee sessions have a small and devoted audience.

Failings

It is unelected and it legislates. No member of the House of Lords has been chosen by the people of the Realm. It revises, delays and amends statutes that bind every subject of the Crown, and there is no answer to this objection, only a set of things offered in mitigation. It is the objection everybody makes and the one the chamber has never met.

Forty-four members hold their seats by birth, or by an electorate of a few dozen. The hereditary element was reduced in the 1990s and not removed, and what remains is worse than what was there before, because forty peers elected by a hundred and some peers is a more ridiculous arrangement than a few hundred sitting by right and being ignored.

One church sits by right and no other faith does. The Lords Spiritual are twelve bishops of an established church in a Realm whose Article IX secures freedom of conscience. The practical answer, that other faiths are well represented among the life peers, concedes the point rather than meeting it.

It defended slavery after the Commons had stopped. This is the worst thing in the chamber’s record and no reading of the rest of it changes the weight. A permanent unelected interest blocked what an elected house had passed, inserted compensation for owners into what it could not block, and was assisted by half of the bishops. The apology came by resolution and came late.

The federal element is a chamber of the polities that nobody designed and nobody reviews. Ninety-six members, nearly a third of the House, arrive from forty-eight polities on forty-eight different theories of what they are, with no rule about instruction, no caucus, no shared understanding of their function, and one committee. They were added piecemeal in the first decades, fixed at two apiece in 1859 for tidiness rather than principle, and have not been examined since. They vote with their parties, which may be right, and nobody has ever established whether it is.

And it is too large to do its own work. Three hundred and two members, of whom about two hundred do anything, is a chamber sized by accident. There is no cap. The number is where it happens to stand.

Assessment

The House of Lords is indefensible in principle and useful in fact, and the Realm keeps it for the second reason.

The principled case against it cannot be answered and the chamber has stopped trying. Nobody elected it. Forty-four of its members are there by birth or by the votes of a few dozen people. Twelve are there because of the church they belong to. A hundred and fifty were appointed by Prime Ministers on lists that an independent commission improves at the margins. The largest single element that anybody votes for at all, the ninety-six, is chosen by polity legislatures under no consistent rule and functions as nothing in particular.

The practical case is that it works, and the evidence is specific rather than general. Four in five of its amendments are accepted. It catches the delegated power drafted more widely than the minister intended. It reports that a bill offends the Charter and departments redraft. It hears the polity governments that no Commons committee hears. And in the weeks after 1 May 2006, when the elected House passed the Security of the Realm Act nearly unopposed, the unelected one put the sunset clauses in and sent the Bill back until the Commons accepted them, and those clauses are the reason the worst of those powers are gone.

That is not a constitutional argument. It is a run of outcomes. The objection to resting on it was put best by one of the chamber’s own critics: a good result from an unaccountable body is luck, and luck is not a constitution. The same body that limited the security laws in 2006 defended slavery for fifty years, and nobody chose it either time.

What the Realm has, then, is a chamber that may delay and not refuse, holding a power over the Crown it acquired by accident when an office was abolished, containing a federal principle it has never used, funded by an allowance that rewards signing a book. It was reformed in its name in 1859, stripped of its veto in 1911, transformed by life peerages in the 1950s, halved in the 1990s with a second stage that never came, and vindicated once, in 2006, on a Bill nobody in the other House had the standing to oppose.

It has been overridden four times in two hundred and forty-five years, and it has heard two impeachments, and it has never once refused the Commons anything the Commons was determined to have.

Chronology

Trivia

See also

• Parliament
• Speaker of the House of Commons
• The American Peerage
• The Church of America
• The Charter of Union
• The Parliamentary Reform Act 1859
• The May Day Bombings
• The American Rights Act
• The Royal American Supreme Court
• Caleb Whitlock
• Kittyhawk
• The Free City of Philipsburg
• The Territory of Loreto

Categories

• Institutions
• Politics and government
• The Crown and Parliament