Broken record: What do House of Lords defeats say about the UK Government?

In 2008, the then-London mayor Boris Johnson announced in his typical ebullient style that “ping pong is coming home”.

He had been in the role for just over 100 days and was speaking in Beijing to mark the handover of the Olympic flag, in preparation for London 2012. “Ping pong was invented on the dining tables of England in the 19th century and it was called wiff waff,” he explained in an oratory that grabbed the global headlines.

Giving that speech 14 years ago, surrounded by Chinese officials, Johnson can have had no idea about just how close to home it would be for him. Because the legislative back-and-forth between the House of Commons and the Lords known as ‘parliamentary ping pong’ has become a marker of this parliamentary session amidst record defeats for the government in the upper chamber.

Not since the recession-riven mid-1970s have figures got so remotely close to the 129 losses recorded in 2021-22. Back then, Labour’s Wilson and Callaghan administrations endured 126 defeats, but those governments didn’t have the 75-strong parliamentary majority that Johnson now enjoys.

After 10 years of ennoblements by Conservative prime ministers and Johnson’s decisive victory in the snap 2019 general election, there was an assumption that the political balance within the Lords had tipped in the PM’s favour. The Conservatives are the largest group in the upper chamber (numbering almost 260 to Labour’s 170 and 80 for the Lib Dems) and, with another 40 non-affiliated peers sponsored by Johnson, there is also the chance of ‘outside’ help.

But that’s not been the case, with peers voting against key government policies on a raft of occasions and sending legilsation bouncing between the chambers. In the Nationality and Borders Bill, one clause was defeated by 204 votes to 126. In January, there were 14 defeats to the Police, Crime and Sentencing Bill in a single day. However, the government has pressed on with its legislative agenda nonetheless, reversing decisions taken in the Lords when the bills have passed back to the Commons.

The Lords has not yet forced Johnson’s government to withdraw an entire bill, as happened to Tony Blair, but, speaking to Times Radio in October, ex-No 10 director of legislative affairs Nikki da Costa called the Lords “a house of opposition”, stating that this is “shaping how this prime minister views the Lords”. Meanwhile, long-serving Conservative MP Philip Dunne told The House that peers had “overreached themselves” and trade policy minister Penny Mordaunt stated that any attempts by the second house to block legislation “shouldn’t happen”.

Often, these disagreements are presented as the non-elected house blocking the parliament of the people. “There’s a double-standard from the government,” says Jeremy Purvis, the former Lib Dem MSP now formally known as Lord Purvis of Tweed. “When they are frustrated they want to blame the institution, but they have been happy to use patronage to pack the benches with all of their appointees.”

However, he notes that “there is never a minister that shows the level of antipathy against the Lords that they may present via their press offices when there’s a defeat”.

Dr Mark Shephard of the University of Strathclyde describes the relationship between the government and the upper chamber as “fractious”. The Lords he says, is currently an “irritant” to the government, which lacks the voting power to ensure smooth passage of its legislation through the house. But, he argues, it’s wrong to use the number of government defeats, or the number of times these have been overridden, as a measure of the chamber’s impact. “The Lords is there to check that the law passed for by the government isn’t messed-up, it’s there to check for bad legislation. That’s something all parliaments could do with.

“But the Lords can block something, then it often goes back to the Commons and because that has superior power and the government has a majority, it is passed. However, it is complicated to measure impact and who is doing what. The Lords can raise flags in the media and set the agenda. It can use informal power and back channels and its select committees produce reports. It might be that the government is taking action in a certain direction because of that work done by the Lords. And there are different rationales for taking action; it might be that inflicting a defeat is about getting ministers to admit mistakes or promise to do something different in the future, so that it can look like a minister is doing something, but it is really because of something presented by a member of the House of Lords.”

In a recent paper for the UK in a Changing Europe think tank, politics professor and peer Lord Norton argued that the challenge for the House of Lords is to “craft a more muscular system of parliamentary scrutiny”. “The government has been challenged for acquiring major powers with limited parliamentary scrutiny and utilising its parliamentary majority to push against other organs of the state,” he said, highlighting reports by two committees that “warn of attempts by recent governments to adopt procedures designed to bypass parliament, with a growing trend to employ skeleton bills and a lack of effective parliamentary scrutiny of the extensive use of delegated legislation”.

The use of such skeleton, or framework, bills, which sketch out principles and leave the detail for later, is linked to broader concerns about the material presented for review. With the Police, Crime, Courts and Sentencing Bill, new inclusions, such as criminal offences, were introduced at the report stage in the Lords, bypassing initial scrutiny by MPs. Such concerns are not limited to the Lords; in the Commons, the Tory-chaired Public Administration and Constitutional Affairs Committee said the Elections Bill should be paused because the evidence presented for it was so poor.

“We are getting these mega-bills that are so badly drafted that peers can see glaring problems,” Labour’s Lords leader Baroness Smith told The Guardian. “They believe that you should look at the detail and they want to see good legislation coming out of the Downing Street machine.”

Speaking to Holyrood, Purvis said the need to “look at legislation line by line and take considered views” is “especially needed under this prime minister”. The two-time MSP was ennobled nine years ago, under the then-Con-Lib coalition, and he says the come-and-go of that administration brought with it an “internal mechanism within the government which meant what was put forward to the House of Lords had a better chance of a clear run through”.

“Any time when the House of Commons has a large majority of government there is a degree of arrogance that comes in,” he says. “There was through Thatcher, Blair and now Johnson. It’s one of those ironies of our constitution that the times the Commons has a bigger majority is when the revising function of the second chamber is more important. Looking at what’s coming down the track with Northern Ireland and immigration and protests, that ability to ask the government to think again is really important.

“It’s very obvious to me that there has been a damaging development in two areas,” he goes on. “One is a massive increase in legislation or bills that have Henry VIII powers in them that give the government powers to legislate itself. The second is that the government is making a number of arrangements which have huge public policy implications through mechanisms that are beyond legislation, such as the Rwanda deal, which was done through a memorandum of understanding. I think that is an outrage. We are seeing the growth in the executive voting to bypass parliament completely. The Lords is sometimes described as being non-democratic, but we want to give back power to the House of Commons.”

When asked about the record level of defeats, a government spokesperson in the Lords said that ministers have won a third of votes there, on average. “Given the arithmetic of the house, if Labour, the Liberal Democrats and independent members of the house combine to oppose the government, then the government simply cannot win,” the spokesperson said. “While the House of Lords can ask the Commons to think again on the issue, it is ultimately the will of the elected house that should prevail.”

However, some members of the house are keeping score of the players around the parliamentary ping pong table as much as the final results. “If they actually turned up to vote then the government wouldn’t be defeated in so many different areas,” Purvis says of peers appointed by this government. The Lib Dem is an advocate of major reform to introduce elections to the Lords and a federal system.

“Boris Johnson has been happy to use the patronage to put in people like [media billionaire] Lord Lebedev and others. If they want to pack the institution with all of their appointees, then there should be the expectation that they should turn up and vote,” he says. Times Radio recently published figures showing that more than 100 current peers had attended parliament on fewer than 10 occasions during the most recent parliamentary session, while 13 had been there only once. Tory peer Lord Cormack says a vote is not enough. “There are many who say nothing and just vote,” he said in a recent debate. “A number of the recent appointments by Prime Minister Boris Johnson have barely made an appearance or a contribution,” he stated, calling on all members to “take a real interest in their vocation to public service”.

Of course, there is one party that is notably absent in the House of Lords; the SNP, which remains ideologically opposed to the unelected chamber. “The House of Lords has no place in a functioning, democratic society,” says SNP MP Pete Wishart. Without recommending any of its own members for ennoblement, the party which has formed the Scottish Government since 2007 finds itself unrepresented in the UK’s second highest chamber and cannot influence UK legislation at that level, regardless of its impact on Scotland.

“There has been a growth in the number of times when I and colleagues have been asked by Scottish ministers to intervene or bring forward amendments and vote on different areas,” says Purvis. “I see that as part of my role. But there’s an irony in it. The Lords finds itself in a situation where it’s a very convenient whipping boy for both Boris Johnson and Nicola Sturgeon, when it suits them.”

Team GB failed to clean up at ping pong during the 2012 Olympics, with China taking every gold medal available. And while there are no podium placings for parliamentary votes, there’s also no hint that the current wiff waff between the two houses provides a winning system for the electorate.