The House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL] is a private member’s bill introduced by Lord Grocott (Labour) on 7 June 2021. The second reading debate is due to take place on 3 December 2021.

Lord Grocott moved similar private member’s bills in the 2016–17, 2017–19, and 2019–21 parliamentary sessions. The most recent of these did not progress past second reading in the House of Lords, as its committee stage was not scheduled by the end of that session.

The present bill contains one substantive clause, which would prevent any future vacancy among hereditary members of the House being filled via the current system of by-elections. Instead, such vacancies would lapse, and the departing hereditary member would not be replaced.

The provisions in the bill would apply to all the hereditary peerages in the House, except for the Earl Marshall and the Lord Great Chamberlain. These positions are hereditary, yet vacancies are not filled through by-elections.

Speaking to the purpose of his bill, Lord Grocott said:

The 1999 House of Lords Act which removed most of the hereditary peers from the House, retained 92 as a temporary expedient pending a comprehensive reform of the Lords. 22 years have now passed since the original act during which time 44 new hereditary peers have arrived by a system of by-elections to replace colleagues who have died or retired. In these elections only people who inherited titles can stand and for the most part only hereditary peers can vote. All 92 hereditaries in the House are men. These by-elections are an embarrassment. My simple two clause bill will hurt no-one, cost nothing, and bring this whole discredited system to an end.

Hereditary peerages and the Weatherill amendment

The House of Lords Bill 1998–99 sought to abolish the right of all hereditary peers to sit and vote in the House of Lords. During consideration of the bill in the House of Lords, Lord Weatherill, then Convenor of the Crossbench Peers, moved an amendment to allow 92 hereditary peers to remain Members of the House. Although the ‘Weatherill amendment’, as it became known, derives its name from the peer who moved it, it should be noted that the origins of the amendment lie in negotiations involving a range of individuals across the political spectrum. The amendment was agreed by both Houses and became part of the House of Lords Act 1999. In response to concerns about maintaining the number of hereditary peers, should the second stage of Lords reform be delayed, a separate government amendment was moved during consideration of the bill to allow any vacancies arising on the death of an excepted hereditary peer to be filled through by-elections. The amendment was agreed at third reading without division.

Consequently, the House of Lords Act 1999 not only removed the right of individuals to be members of the House of Lords by virtue of a hereditary peerage, with the exception of the 92 detailed above, it provided for the standing orders of the House to make provision for any vacancies amongst the 90 excepted hereditary peers to be filled via a by-election. The act provides for by-elections for 90 hereditary members rather than 92. This is because the two remaining seats are held by posts that are not subject to by-elections. The first is the office of Lord Great Chamberlain, vested jointly in the Cholmondeley, Ancaster, and Carrington families. It rotates between them in successive reigns. Similarly, the office of Earl Marshal is also hereditary, and has been held by the Duke of Norfolk since 1677 and is not subject to by-elections.

In conjunction with the passage of the House of Lords Act 1999, new standing orders in the House of Lords were agreed in July 1999, following the House of Lords Procedure Committee recommendations. The first set of elections took place in October and November 1999. In accordance with standing order 9, and in line with the Weatherill amendment, the excepted hereditary peers consisted of the following categories:

  • 2 peers elected by the Labour hereditary peers.
  • 42 peers elected by the Conservative hereditary peers.
  • 3 peers elected by the Liberal Democrat hereditary peers.
  • 28 peers elected by the Crossbench hereditary peers.
  • 15 peers, elected by the whole House, from among those ready to serve as deputy speakers or in any other office as the House may require.

Lord Weatherill explained the reasoning behind these figures when he moved his amendment during committee stage of the passage of the House of Lords Bill:

We believed it would be appropriate if the hereditary peers of each of the main political parties, and of the crossbenchers, were able to elect a proportion of their number who would continue to sit. The proportion is fixed at 10 percent of the whole. That seemed appropriate given that by no means all hereditary peers attend the chamber on a regular basis […]

Some hereditary peers serve the chamber as deputy speakers or chairmen. At present the number of hereditary peers who are deputy speakers is 15. We believe therefore that that would be an appropriate number to add to the 75 […] With the Earl Marshal and the Lord Great Chamberlain added the number becomes 92.

By-election process

The Companion to the Standing Orders explains that, as currently constituted, the by-election process rules are as follows:

Under SO [standing order] 10, any vacancy due to the death, retirement or exclusion of one of the 90 is filled by holding a by-election. By-elections are conducted in accordance with arrangements made by the Clerk of the Parliaments and take place within three months of a vacancy occurring. If the vacancy is among the 75, only the excepted hereditary peers (including those elected among the 15) in the relevant party or Crossbench grouping are entitled to vote. If the vacancy is among the 15, the whole House is entitled to vote.

The Clerk of the Parliaments maintains a register of hereditary peers who wish to stand in any by-election under SO 10. Any hereditary peer other than a peer of Ireland is entitled to be included in the register. Under SO 11, any hereditary peer not previously in receipt of a writ of summons who wishes to be included in the register petitions the House and any such petition is referred to the Lord Chancellor to consider and report upon whether such peer has established the right to be included in the register.

According to the Register of Hereditary Peers, there are currently 203 hereditary peers who have declared a wish to stand as candidates in hereditary by-elections. Voting takes place using the alternative vote system. Prior to a by-election the Clerk of the Parliaments provides notices and lists of candidates, which provide more information about the timetable and conduct of the election, and eligible candidates and voters. Following an election, the Clerk of the Parliaments produces a note of the results.

Suspension of by-elections in 2020 and 2021

On 23 March 2020, the House of Lords agreed a motion to suspend the standing order requiring that a hereditary by-election be held within three months of a vacancy occurring. This was one of several measures recommended by the House of Lords Procedure and Privileges Committee in response to the Covid-19 pandemic.

This suspension was extended several times by various motions in the House until 26 April 2021, when the Procedure and Privileges Committee announced that hereditary by-elections would resume and also announced by-elections would be held electronically.

Four vacancies occurred during the period in which by-elections were suspended.

These were:

  • The Earl of Selborne (Non-affiliated), who retired on 26 March 2020. The Earl of Selborne had been a Conservative member prior to becoming non-affiliated.
  • The Countess of Mar (Crossbench), who retired on 1 May 2020.
  • Lord Rea (Labour), who died on 1 June 2020.
  • Lord Elton (Conservative), who retired 29 October 2020.

A further member, Lord Denham (Conservative), retired on the same day the resumption of by‑elections was announced.

Resumption of by-elections

Following the end of their suspension, the first by-elections took place on 14 June 2021. Conservative hereditary peers voted to replace the Earl of Selborne and Lords Denham and Selsdon. Lord Selsdon ceased to be a member on 11 May 2021 following his non-attendance during the 2019–21 session. Lord Sandhurst (Conservative), the Earl of Leicester (Conservative) and Lord Altrincham (Conservative) were elected.

The following by-elections have since taken place in 2021:

Consideration of the previous version of the bill: The House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill 2019–21

Lord Grocott’s previous bill was given a second reading in the House of Lords on 13 March 2020. Introducing the bill, Lord Grocott noted the previous attempts to legislate in this area, which he contended had fallen as a result of filibustering on behalf of those who objected to its provisions:

My Lords, this is the third time in four years that I have introduced a bill to end the hereditary Peers by-elections. […] On all the previous occasions, I have seen this bill filibustered by a tiny number of members of this House. I persist in trying to get it passed, knowing that there is overwhelming support in all parts of the chamber—Labour, Liberal Democrat, Conservative and Crossbench—for getting it on to the statute book.

Lord Grocott further pointed out what he described as a lack of scrutiny of the results and diversity of those seeking election:

The votes for each candidate are not announced by the returning officer and the winning candidate does not have the chance to thank his supporters. I think we all know why: the more light that shines on this system, the more ludicrous it is shown to be. I make no apology for saying, yet again, that in order to be a candidate for these by-elections, you have to be a hereditary Peer who has notified the Clerk of the Parliaments of your interest in standing for any vacancy that might arise. There are 216 names on the current register of hereditary Peers; 215 of them are men. It has been said so often that it loses its impact, but I will say it again: 215 of the 216 are men. Anyone opposing my bill today needs to explain to the House why he or she thinks that is acceptable in the 21st century.

He further criticised what he saw as the main arguments advanced in opposition of the bill:

The main argument—I sometimes think almost the only argument from opponents of my bill who want the by-elections to continue—is that during the discussions on the 1999 Act, the Government indicated that the 90 hereditaries would remain until there was comprehensive reform of the Lords. That argument carries no weight whatever, because of the absolutely fundamental principle of our constitution that no government can bind their successors. If governments could bind their successors, there would not be much point in holding general elections.

Another equally weak argument I have heard advanced and may hear again today is that because the hereditaries are not appointed by party leaders, they bring a uniquely independent perspective and judgment to our proceedings. Demonstrably, they do not. Apart from the crossbenchers, of course, the hereditaries are elected by the political parties and almost without exception they vote with their parties in any divisions, just like the rest of us. So here we are, 21 years after the House of Lords Act, with a so-called temporary measure still in operation, while in the meantime, 37 new hereditary peers have arrived in the House, all of them men, and the size of the House continues to grow.

Finally, Lord Grocott observed that the minister responding for the Government to his bill in the previous session, Lord Young of Cookham, while not explicitly rejecting the need for reform, had said that the timing was not right and that such measures might be better considered once the Lord Speaker’s Committee on the Size of the House had reported. Lord Grocott noted that the committee, chaired by Lord Burns, had now published its findings, and contended that his bill would be one way through which the size of the House could be reduced.

Lord Burns himself also spoke during the second reading debate. While noting that the Lord Speaker’s Committee took no official position on the bill, Lord Burns said that he personally was in favour of its provisions. No longer a government minister, Lord Young of Cookham also spoke during the second reading debate. He declared his support for the bill, stating that the arguments had been examined at length and were valid, and that there should be “no more delaying tactics”.

On the opposite side, arguing against the need for the bill, Lord Trefgarne said that such partial reform ran contrary to commitments made by Lord Irvine of Lairg, the Lord Chancellor in 1999:

[T]he essence of the case against this bill relates to the undertaking given by the noble and learned Lord, Lord Irvine of Lairg, then the Lord Chancellor, who gave a clear undertaking that the position of the 92 hereditary peers provided for in the 1999 act would remain untouched until, in his words, House of Lords reform was complete. No time limit was given to that undertaking. In 2012, as we have already heard, the coalition government introduced in the other place a comprehensive House of Lords reform bill creating a mostly elected House of Lords, which sadly never emerged.

Speaking for the Government, Earl Howe said the proposals would represent significant reform for which there was not universal support:

The proposed removal of hereditary peers through the bill, albeit over time, would constitute a major reform to the composition of the Lords as it would become a de facto appointed chamber. Furthermore, as this and previous debates have demonstrated, there is no clear consensus in favour of the bill. Those observations are by way of a preface to saying that, while we welcome discussion on matters relating to the role and functions of the House of Lords, we have reservations about the bill.

As noble Lords will be aware, there have been previous proposals to end the practice of hereditary by-elections and, indeed, to remove hereditary peers from the House altogether, since the passage of the House of Lords Act 1999. From the Wakeham commission to the numerous Labour Government white papers, and from the Constitutional Reform and Governance Act 2010 to the coalition government’s House of Lords Reform Bill, this issue has been considered and debated at great length. There have also been several efforts by noble Lords, not least the noble Lord, Lord Grocott, to end the by-elections through private member’s bills. For all the merit in debating the matter before the House today, I fear that perhaps the main thing we have learned is that opinions on this issue are divided and, judging by noble Lords’ contributions today, look likely to remain so for a while.

As such, Earl Howe reiterated that it was the Government’s perspective that any such reform should be “considered carefully, not brought forward piecemeal”.

As above, the bill passed its second reading without division, but committee stage was not scheduled before the end of the session.

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Cover image: copyright House of Lords 2019 / Photography by Roger Harris.