For the past month the government’s Brexit bill has been back and forth both Houses of Parliament, re-awakening old debates on the roles of the Commons and Lords. Here our Director, Dr Paul Seaward, discusses a similar controversial bill 150 years ago…
Theresa May’s remarkable appearance in the House of Lords on 20 February, at the beginning of the debate on the bill triggering the Brexit process, raised eyebrows all round. A number of newspapers and others referred to it as unprecedented: May was said by some to have been the first prime minister to have sat on the steps of the throne during a debate in the Lords.
In fact, it has been pointed out by Matthew Purvis at the House of Lords Library that there are a number of precedents, including Clement Attlee in 1947, Margaret Thatcher in 1988 and David Cameron in 2013, though the latter two visits – to honour particular peers – were of small political significance. But one previous visit to the Lords by a serving prime minister took place in circumstances that have many more resonances with the debate around the Lords’ role in relation to the Article 50 bill, albeit a century and a half ago.
William Gladstone laconically recorded in his diary his visit to the House of Lords on 15 June 1869; what he did not record was that it was on the second day of the second reading debate of the Irish Church Bill, the major measure of the new liberal government elected the previous year of which he was the head. The disestablishment of the Anglican Irish Church had risen to the top of the British political agenda over the period following the Fenian rising of March 1867. The circumstances of the first half of 1868 were extraordinary. Benjamin Disraeli had replaced the ailing Lord Derby in February as prime minister of a minority conservative government. Though embattled, he managed to avoid resigning until new electoral registers could be prepared on the basis of the greatly enlarged electorate created by the Second Reform Act of 1867. The period enabled Gladstone to gather together the fissiparous liberal party to secure the passage through the Commons of the Irish Church Suspensory Bill, a measure that would pave the way to full disestablishment. During the debates in the Commons conservatives protested that so major a step could hardly be taken without the sanction of an election: Palmerston, who had led the liberal party at the last election in 1865, had, they pointed out, made no reference to the Irish Church at the time. Any decision on the issue must, they argued, be left to the new Parliament.
In the Lords, those points were reiterated in the debate (25/26 June 1868) on the bill’s second reading. Liberal spokesmen responded by insisting that if the Lords did not accept the Commons’ will – and public opinion – on such major issues, the consequences might be dire. The earl of Clarendon, for example, argued:
I think it undesirable that on the hustings men should be tempted to speak, and pledge themselves to act, against the House of Lords, as they will if you reject this measure. I am the last man to wish that the independence of this House should in any respect be abridged; but I think we might exhibit our independence by marching with and not lagging behind the House of Commons.
The peroration of the previous Prime Minister, Lord Derby, on the other hand, amounted to a passionate defence of the peers:
Your Lordships are perfectly well able to judge for yourselves what course will be most consistent with your principles, your position, and your dignity as an independent branch of the Legislature; and I do not think that your Lord ships will be affected by the declaration that by rejecting this measure you will be seeking a cause of quarrel with the other House… if you were … simply to register the opinions of the House of Commons, it would be better not to be than to exist under such a slavery.
The bill was rejected at the end of three nights’ debate, on 29 June 1868.
Parliament was dissolved in November. In the subsequent election the Irish Church was a major issue. The liberal victory was clear enough for Disraeli to take the highly unusual step of resigning the premiership before the new Parliament met. Gladstone was famously at his estate at Hawarden, chopping trees, when he heard that the Queen’s private secretary was on his way to discuss forming a new government with him: after a period of silence he pronounced that ‘My mission is to pacify Ireland’, and then resumed chopping.
A new Irish Church bill, disestablishing and disendowing the Church from 1871, was introduced into the Commons on 1 March 1869 and passed the lower House by the end of May. Gladstone was well aware of the possibilities of trouble in the Lords, though it would come not so much from the official opposition, as from the conservative backbenches. Earl Granville moved the second reading of the bill on 14 June. On the next day, 15 June, Gladstone visited the Lords. Some of the most important speeches, though, were made on the 17th, the third day of debate. One of them was Lord Derby’s, in which he spoke of the bill as a ‘revolution’, and argued that it was tantamount to a dissolution of the 1800 Union with Ireland. He muttered darkly about a renewal of rebellion in Ireland. The other was the marquess of Salisbury’s. Salisbury (who would become conservative prime minister in 1885) conceded that the election had been decisive as far as the principle of the bill was concerned. He expanded his remarks into a summary of what he regarded as the proper role of the House of Lords in the constitution more generally:
It has been represented that, in admitting it to be the duty of this House to sustain the deliberate, the sustained, the well-ascertained opinion of the nation, we thereby express our subordination to the House of Commons, and make ourselves merely an echo of the decisions of that House. In my belief no conclusion could be more absolutely inconsequential. If we do merely echo the House of Commons, the sooner we disappear the better. The object of the existence of a second House of Parliament is to supply the omissions and correct the defects which occur in the proceedings of the first. … In ninety-nine cases out of 100 the House of Commons is theoretically the representative of the nation, but is only so in theory … because in ninety-nine cases out of 100 the nation, as a whole, takes no interests in our politics, but amuses itself and pursues its usual avocations … In all these cases I make no distinction—absolutely none—between the prerogative of the House of Commons and the House of Lords. Again, there is a class of cases small in number, and varying in kind, in which the nation must be called into council and must decide the policy of the Government. It may be that the House of Commons in determining the opinion of the nation is wrong; and if there are grounds for entertaining that belief, it is always open to this House, and indeed it is the duty of this House to insist that the nation shall be consulted … But when once we have come to the conclusion from all the circumstances of the case that the House of Commons is at one with the nation, it appears to me that—save in some very exceptional cases, save in the highest cases of morality—in those cases in which a man would not set his hand to a certain proposition, though a revolution should follow from his refusal—it appears to me that the vocation of this House has passed away, that it must devolve the responsibility upon the nation, and may fairly accept the conclusion at which the nation has arrived.
It was a key formulation of what would become known as the ‘Salisbury doctrine’, the idea that the Lords’ role was that of an equal partner with the Commons, except on points where the verdict of the Commons and the verdict of the nation was clearly the same.
That view did not necessarily extend to the detail of any bill, and the devil, on the Irish Church bill, would indeed be in the detail. Gladstone would expend enormous energy over the next month or so on the struggle to prevent the Lords from unravelling the bill’s provisions line by line, and Salisbury, for one, would be much less cooperative than he had been on the principle. He put the government on notice in his speech that the debate on the detail would be the Lords’ chosen battleground, and that if Gladstone wanted ‘arrogantly’ to resist any amendments in the Commons, he thought the Lords, and the conservatives, would come out the better. Salisbury would make the allegation again, in the debate on 20 July on the Commons’ response to the Lords’ amendments:
Do not tell me it is the verdict of the nation. I will try it by a simple test. Suppose the Prime Minister had proposed that your Amendments should be accepted, would they have been refused by the House of Commons? It is not the verdict of the nation, it is not even the verdict of the House of Commons, it is the will—the arrogant will— of a single man to which you are now called upon to submit.
A later tradition recalled this as pure theatre: Gladstone standing on the steps of the throne while Salisbury denounced him and everyone turned to the prime minister to watch his reaction. That perhaps is a conflation of two different events; but it underlines the drama of a confrontation that helped to define the British constitution, and caused doctrines to be enunciated that are still key to our debates on democracy and the role of Parliament and its two Houses.