Good Chaps and Guardrails: Backstopping Democracy with a Reverse Salisbury Convention for the House of Lords

Democratic backsliding is an increasing global concern, and democratic systems are consistently proving vulnerable to anti-democratic manoeuvres. Most relevant to the UK, Donald Trump’s re-election comes with a clear intent to dismantle checks on presidential power and undermine democratic norms Yet, whilst Britain has avoided a full-blown crisis (notwithstanding Boris Johnson’s premiership) the "good chaps" theory—that those in high office will respect unwritten norms and act in good faith—leaves the UK dangerously exposed to democratic backsliding. In the event of a democratic crisis, I argue that the House of Commons majority would likely support the backsliding Prime Minister, with the courts constrained by Parliamentary sovereignty, the King unlikely to take action, and extra-constitutional action by the military undesirable. However, the House of Lords could act as an effective democratic safeguard if prepared for the possibility.

Unlikely heroes? The House of Lords and a reverse Salisbury convention

For democrats, the idea that the House of Lords might serve as the final safeguard for democracy is, at best, uninspiring. Its formal powers are limited: at most, a suspensory veto, easily overridden under the Parliament Acts. Its track record in restraining executive overreach is similarly weak—the Rwanda Bill stands as a recent and troubling example. Nonetheless, in a moment of democratic crisis, the Lords do possess the formal authority to act. The limits on that authority are conventional rather than constitutional, and conventions, by their nature, are flexible and unenforceable. The true constraints would be political.

Any such intervention would be difficult and, crucially, would need to be seen as legitimate. That legitimacy could be established in advance. One way of doing so would be a public commitment to resisting specific anti-democratic measures—a kind of ‘reverse’ Salisbury convention. Rather than refraining from blocking a government’s manifesto commitments, the Lords would affirm that they will act, if necessary, to defend the democratic order. This would harness a central strength of constitutional conventions: the ability to set clear expectations for future conduct.

The proper scope of democratic constraint

Ultimately, limits would need to be determined by the Lords. Here we are looking to restrain actions so far beyond the democratic pale that we have not considered good chaps to be capable of them. We should also be careful not to undercut the Parliament Acts, which provide the essential democratic guarantee that the elected government can get its manifesto promises through. One false step would be to treat the rule of law as a sufficient shorthand for democratic norms. It is important that no one, however highly placed, is above the law and an implicit requirement for those holding powers to exercise them in good faith, but a mere desire to entrench ‘the rule of law’ is unlikely to be adequate, even though it is an obvious consensus starting point.

Rather, the overriding requirement for the continuation of democracy is that government continues to answer to Parliament, and to the people through free and fair elections. Peers will need to select democratic red lines that they are willing to defend, if necessary. Unfortunately, the defence of democracy is not an area where careful iterative development is possible: the slow workings of the good chaps’ constitution would be no match for an authoritarian prime minister in a crisis. We therefore need to work out how we could adopt such a convention well before a crisis.

How to get there from here

Previous discussions on the powers and conventional limits of the Lords have assumed business-as-usual, and not that the overall democratic culture could break down or that democratic rules could fail. That assumption is no longer safe for the future, but attempts to strengthen Lords’ oversight of British democracy would certainly raise objections from government. Nevertheless, as any new convention would be laid down for the future, it would cause no immediate legislative collision and there would be nothing for the government to veto.

A Lords select committee should consider the case for establishing democratic red lines—working across parties and benches to build the broadest possible consensus. This should be followed by some tangible action; mechanisms rust if left unused and must be kept in good working order. The Lords already claim the right to reject legislation in exceptional circumstances. This right should be maintained with an infrequent, but regular, demonstration. Opportunities for such interventions do present themselves. The ideal case would be a poorly drafted and substantively problematic statutory instrument . Crucially, it should be something the government is not especially invested in: the point is not to pick a fight, but to make a point. The Lords should happily accept a government revision if it’s better, sticking to their guns if reintroduced unchanged.

Once the precedent is set—that the Lords do, from time to time, reject statutory instruments—it should be maintained. A refusal or two per decade is a small price to pay for the continued credibility of the Lords’ oversight role. Combined with a declared set of democratic red lines, this would leave the Lords better placed to say ‘no’ if it ever truly mattered. And crucially, this would not require government approval or further reform of the Lords themselves. It is about defending the constitution, not expanding the Lords’ political reach.

Better than nothing

None of the approaches offered here are guaranteed to survive the pressure of political crisis, and it is no small irony that the least democratic part of the British constitution could be called upon to backstop British democracy. It is, perhaps, yet more ironic that those required to act to handle a failure of the good chaps theory of government would be those specifically selected for the House of Lords because of their status as good chaps. But, by providing guardrails and democratic backstops in advance of a crisis, we can provide ourselves with extra chances if all else fails—and that is much better than nothing.

Digested read produced by Sam Hill in collaboration with the author.