Mutterings have been heard from the House of Lords that they could block the Government’s proposed Brexit legislation. It’s unlikely they will, because that would provoke a constitutional crisis. Which in turn would raise all kinds of uncomfortable questions about the legitimacy and future of the Lords themselves. The long-standing Salisbury Convention — under which the Lords agrees not to hinder legislation that was outlined in the manifesto of the party that wins a general election — exists for good reason. If the people have voted for a law, the House of Commons might vote it down; but what right do the Lords (unelected except in 92 cases by themselves) have to stop it? Perhaps one could imagine circumstances in which the Convention might reasonably be breached as a one-off, emergency, or vital response to some huge and destructive flaw in the legislation passed by the Commons. But it is hard to do so. But it is hard to imagine any case in which the Lords could reasonably abandon the Convention and directly thwart the will of the people in a referendum. That would pit the Lords against the people in a very stark way that would unquestionably lead to fierce national argument, and in all probability would eventually bring about the demise of the House of Lords and its replacement with — well, probably something even more partisan and less independent. Which is no way to make good laws in the future. It is not even likely that the Lords would dare to breach the Convention to block legislation that was designed to give effect to a referendum decision. True, the House of Commons could completely mess up the eight Brexit measures in the Queen’s Speech to the degree that no sane, objective person could support them. Where every vote counts, all sorts of vote-grabbing junk can get added on to a measure before the Commons, true enough. But in such circumstances, it is more likely that the debate will be sharp and that the government will take account of criticisms long before the Bill gets to the Lords. Really bad legislation more often comes from a House of Commons in which the government has so large a majority that it does not have to bother listening to critics. And that is when the Lords have a greater right, indeed an obligation, to grumble about it. And arguments that people did not know what they are voting for, or only voted for Brexit by a small majority, or have changed their minds, cut no ice. The public are a lot brainier, and mindful of the good of the nation, than the Westminster Village often gives them credit for. And remember that the Scottish and Welsh devolution referendums were close — as I recall, the Welsh one was lost by a close majority in the last constituency to be counted — but nobody suggested, as the bills for the new Assembly and Parliament buildings soared, that the people had changed their minds or realised they were hoodwinked. A majority of the people in a referendum is a powerful authority, and not to be questioned, or over-ridden, without the most thoughtful and exact consideration. What then of the Lords, should it provoke the questioning that will inevitably bring its destruction and unhappy replacement? The irony is that, bizarre as it is in democratic terms, the Lords worked quite well for many years. Even when it was all hereditary, it accepted its limits, particularly on financial measures, questioning and holding up legislation rather than blocking it. Even the Lords had to agree to the Parliament Act, which gives the Commons, in extremis (or in Tony Blair’s case, whenever he liked) the power to force legislation through despite them. Undoubtedly it should change, though nobody can agree how: successive Prime Ministers have commissioned, then shelved, studies on the matter. Nobody wants a House of Lords that, being elected, turns out just like the House of Commons. If elected, it needs to be on some quite different principles, preferably ones that produce a non-partisan, independent body at the end of it. The real role of the House of Lords, in my view, is not as some unelected quango that second-guesses legislation. It should be to examine the legitimacy of legislation. Does a bill favour some interest group, or penalise some groups (think home-owners or higher earners) and not others? Does it interfere with people’s right to decide things for themselves (think smoking ban or regulations on sugary drinks)? Does it give power to officials that could be abused (think anti-terrorism laws and what they have been used for). These are questions of justice: not of policy and certainly not of politics. A Lords which confined itself to upholding justice and the rights of individuals would be a well-respected one. What a pity we are so far from that ideal.