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| The Houses of Parliament, by: Rajan Manickavasagam |
“If a second chamber dissents from the first, it is mischievous, if it agrees, it is superfluous.” Thus spoke the Abbé Sieyès on the essentially contested topic of bicameralism. Looking at the debate that has been raging (at least within the walls of Westminster) for the past hundred years over reform of Britain’s upper chamber, the House of Lords, and the various stunted attempts to reform this anachronistic appendage of British democracy, an outsider would be shocked at how complicated and politically toxic the issue has become.
Having held together surprisingly well in the tough economic and political conditions, Britain’s coalition government stumbled earlier this month over a rather esoteric piece of legislation which rouses the tempers only of politicians and academics, leaving the general population pleasantly indifferent. Nick Clegg, the Lib Dem leader, is eager to push through reform of the upper chamber as part of his project of constitutional reform (which suffered a major setback with the AV referendum) so as to be able to point to an achievement when the time comes for the next general election. David Cameron, the Prime Minister, was happy to let Nick Clegg have his prize until it proved a major contention point with his own MPs, 91 of whom threatened to vote against the programme motion on July 10th which would have set a timetable for debate on the bill, thus stalling the whole process. As ever, the issue of House of Lords reform has not failed to get the blood boiling.
The bill that has caused cracks in the coalition would render the House of Lords predominantly elected, with 360 members elected in three staggered elections and the remaining 90 appointed. On the face of it the rationale for reforming the membership of a second chamber which currently consists of about 825 peers, 700 of whom are appointed through a process which gives the Prime Minister huge powers of patronage, is clear: the people who shape the laws of a democracy should be elected. The fact that 92 hereditary peers still sit on the plush red benches of the second chamber is a blemish on British democracy. Furthermore, Britain sits alongside countries such as Antigua, Lesotho, Yemen, Jordan and Russia in having an appointed chamber. It is hardly dignifying company. Supporters of its present composition retort that its appointed nature enables it to have a higher level of expertise and a less partisan nature, fostering a more edifying debate. However, very often its most eminent members do not attend, or in any case do not vote, as the Crossbenchers’ low voting record shows.
But is it really as simple as that? Members are elected, ergo they have the necessary legitimacy to make laws. As Shami Chakrabarti rightly pointed out, “if it is just about having elections every few years, the people of Burma and Zimbabwe need be very relieved indeed that they too live in thriving democracies.” After all, an independent (and unelected) judiciary is considered legitimate enough to protect our rights and freedoms. The House of Lords, with its rather archaic present membership, is still considered fairly legitimate by the public. Less than half the respondents in a survey conducted in 2007 thought that having some members elected by the public was very important for its legitimacy. On the other hand, making decisions in accordance with public opinion, detailed legislative scrutiny and having a trustworthy appointments process ranked higher. Thus it is time we questioned the exclusive and automatic relationship between legitimacy and popular election. It is undoubted that democratic election confers some form of legitimacy, but that does not mean that an unelected body is a priori illegitimate.
This is not an exercise in slinging mud on democracy and elected upper house members, rather it is intended to foster a more informed debate on the nature reform should take. The argument that those who shape the laws should be elected is too simplistic to be the driving force behind major constitutional change. The House of Lords has worked very well thus far, often acting as a ballast against unpopular legislation (such as control orders in the Prevention of Terrorism Bill in 2005) and acting in accordance with public opinion despite being in no way accountable to the public. Reform should be entirely contingent on the kind of upper chamber Britain wants to see. If it is to remain predominantly a revising and scrutinising chamber, as it has been hitherto, then an appointed membership (without prime ministerial patronage) that limits partisan bickering and favours expertise would be more appropriate. Its public legitimacy would be bolstered by the removal of the hereditaries and the expanded role for the independent Appointments Commission.
If, on the other hand, we want a much stronger chamber that keeps the government in check then an elected membership would indeed be suitable. This is because, with its present composition, the House of Lords has often refrained from challenging the government as much as its powers (which are significant) allow for fear of being reprimanded for obstructing the will of the people’s chamber. An elected second chamber would fundamentally change the balance of power between the two chambers and strengthen Parliament as a whole against the government. Given the largely untrammelled control of the executive over the Commons, this is something to be welcomed. The Parliament Acts, which enshrine in law the supremacy of the Commons, will not necessarily become obsolete should the Lords become elected as they can be amended and possibly strengthened. The fact that the government is still drawn from the lower chamber will continue to ensure it ultimately gets the final word. As Roger Hazell has said, the experience of the United States with gridlock has unduly coloured the debate in Britain.
Coming back to the indefatigable Abbé Sieyès, it is time Britain decided what kind of second chamber it really needs, rather than continually accusing the House of Lords of either being superfluous or mischievous. The scaremongering on the dangers of gridlock is unfounded, as is sanctimonious talk of those who seem to believe that elected representatives are all ignoramuses. Reform has waited a century already; it can wait a little longer so that a mature debate can be instigated.
