Why peers cannot vote at general elections

The Electoral Commission website explains that certain people cannot vote at parliamentary elections. These include “EU citizens (other than the Republic of Ireland, Cyprus and Malta) resident in the UK” and “convicted persons detained in pursuance of their sentences, excluding contempt of court (though remand prisoners, unconvicted prisoners and civil prisoners can vote if they are on the electoral register)”.^[1] At the top of that short list, however, are “members of the House of Lords”. How did that come to be?

The disenfranchisement of members of the Lords has a long history. In 1699, the House of Commons passed a resolution in reaction to the Earl of Manchester voting at an election in Malden:

Resolved, nemine contradicente, that no peer of this kingdom hath any right to give his vote in the election for any member to serve in Parliament.^[2]

The House of Commons then passed the resolution each session through a sessional order. In a debate in 1853, Lord Campbell, the lord chief justice, held, however, that the resolutions had no legal weight but merely reflected the law that “not one of their lordships who sat there by hereditary right, or by grant of the crown, had any right to interfere in any election of a representative of the people”.^[3] In 1858, he returned to the matter:

It was not by resolution of the House of Commons that peers were prevented from voting for representatives in the House of Commons, but it had been an ancient, immemorial law of England that peers sat in their own right in their own House, and had no privilege whatsoever to vote for members to sit in the other House of Parliament. Since the Reform Bill passed peers had frequently sought to register their votes for the election of members of the House of Commons; but the revising barristers [whose job it was to revise lists of electors] had invariably and most properly refused to allow them.^[4]

1. Beauchamp and Benn cases

In the 19th century the courts confirmed that peers were barred from voting at general elections. Prominent among these cases was one that concerned Earl Beauchamp.^[5] Earl Beauchamp and the Marquess of Salisbury (later to become prime minister) in a related case challenged being taken off the electoral register in their respective counties. The judgment ruled that a member of the Lords, described as a “peer of parliament”, was “incapacitated from voting at an election for members of the House of Commons; and is therefore not entitled to be placed on the register of voters”.^[6]

Subsequent cases have referred to the Beauchamp judgment. For example, in 1906 the Marquess of Bristol unsuccessfully brought a case for damages after being refused a vote for a representative of the University of Cambridge.^[7] In the Benn case in 1961—in which Tony Benn challenged the inheritance of his father’s peerage—the judgment drew upon the 1872 ruling and clarified that the ban did not just apply to members of the Lords; rather it meant “that no English peer may vote at a parliamentary election”.^[8]

The Commons’ privilege was guarded. Where a peer—whether a ‘Lord temporal’ or not—had been alleged to have voted at a parliamentary election, the House of Commons responded. For example in 1911 Mr MacVeagh (MP for South Down) alerted the House to an alleged breach of this privilege by the Earl of Roden, who was not a member of the Lords but had voted both at the January and December general elections in 1910.^[9] A subsequent report by the House of Commons Committee of Privileges found that Lord Roden had breached the privilege, though no further action was taken.^[10]

2. Consequences of Lords reforms

Amendments to the resolution were made over the following years to reflect developments. For example, an exception for peers of Ireland was introduced in 1964 following the Peerage Act 1963. The 1963 act removed the disqualification of Irish peerage holders to vote at general elections by virtue of that peerage. The disqualification had been in place because 28 Irish representative peers sat in the House of Lords. They were elected from the Irish peerage, and sat for life. The elections were ended after 1922,^[11] with the last such Irish representative peer dying in 1961.^[12] The sessional order was itself abolished in 2000 following the passage of the House of Lords Act 1999, which enabled hereditary peers removed from the House of Lords to vote.^[13] Until 1909 a related privilege was also passed by sessional order, which resolved that peers seeking to influence parliamentary elections would be infringing Commons privilege.^[14]

These developments led Halsbury’s Laws of England to note, in the context of incapacities to vote, that “at common law, a peer of parliament was […] legally incapable of voting at a parliamentary election, even though his name may have been placed upon the register without objection. This changed with the House of Lords Act”.^[15] Lord Norton of Louth observed in 2008 that the 1999 act placed the disqualification in statute for the first time:

Since 1999 (and the House of Lords Act) it is the fact of being a member of the second chamber that prevents one from voting. Hereditary peers who are excluded from membership of the House are able, under the terms of the 1999 act, to vote. Members of the Lords can vote in all other (European, local etc) elections.^[16]

In January 2011, Dr Hywel Francis, the chair of the Joint Committee on Human Rights, wrote to Nick Clegg, then deputy prime minister, about this incapacity, in particular how it related to the European Convention on Human Rights.^[17] In response Mr Clegg set out the basis on which peers are unable to vote at general elections:

Parliament consists of the three estates of the sovereign, the Lords and the Commons. The Lords sit in their own right. The Commons are elected by the remainder of the estate of commoners to represent them in Parliament. There was therefore no case for the Lords to vote to elect representatives, since they were able to sit in Parliament anyway.^[18]

Legislation passed in 2014 and 2015 affected peers’ voting rights. The House of Lords Reform Act 2014 and House of Lords (Expulsion and Suspension) Act 2015 extended the right to vote in general elections to peers who ceased to be members of the House in a way other than under the 1999 act; for example through retirement, non-attendance, conviction of a serious offence or expulsion.^[19]

Debate continues about whether ‘peers of parliament’ should be given the right to vote. In the last decade or so, private members’ bills have been tabled and debated in 2013, 2019 and 2020 to extend the vote to peers who are members of the House of Lords.^[20] These bills followed attempts throughout the 20th century to do likewise.^[21]

3. Bishops and voting

Whilst lords temporal are barred from voting, lords spiritual are not. This is because bishops are not peers of the realm. Consequently, bishops are free to vote at general elections. This right is not without controversy, however. In 1983, the then Archbishop of Canterbury, Dr Robert Runcie, revealed he had voted in the general election that year. He said he was informed that he was able to and that he had voted as a private citizen.^[22] In answer to a question in the House of Lords following this admission, Lord Elton, for the government, expressed caution about bishops exercising this right, noting that “the question of whether lords spiritual can vote at parliamentary elections has never been expressly considered by the courts”.^[23] In 2010, Lord Bach, the then justice minister, confirmed in an answer that “there is no bar to the lords spiritual voting in parliamentary elections” but said that he understood “it has long been the tradition that they do not do so”. He added, however, “there is no legal bar to the lords spiritual voting in a general election; it is very much a matter for them”.^[24]

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