Friday, 13 July 2012

On House of Lords Reform

I'm opposed to the present HoL reforms. Vehemently so, and instead of writing an essay on history and the constitution and the nature of democracy I want to simply go over a few arguments (for and against) that are floating around right now.

1. It's undemocratic that the upper house which writes our laws should be composed of bishops/aristocrats/party cronies.

The first point here is that the HoL only has a suspensory veto. It is not capable of resisting the Commons indefinitely, and on certain kinds of bill--the most important of them-- it is not by convention permitted to resist it at all. It is also a mistake to assume that the amendments of the Lords are such a crucial factor in writing legislation. Politicians do not hand write their laws, a great many factors go into producing a bill and the Lords play a fairly minor role, aiming to improve the laws.

Of course the composition of the Lords must be reformed, and it has been gradually changing as a result of past reforms. The Law lords no longer sit, and the inherited positions have been disappearing. In any case, the absence of elections provides great freedom to all members, and there are a great many crossbenchers and individuals of great expertise. The current reforms do not aim to do away with these benefits entirely, but the imposition of party lists and elections would fundamentally change its operation.

2. The last thing we want is more elected politicians.

Democracy is important but it is not a panacea for all ills. Elected doctors would not be better than professional doctors. Nor are elections the only or best means of accountability in all situations. Barristers are not held to account by popular opinion, nor judges by the media. They have professional standards and a culture which promotes certain forms of behaviour. An elected judge would have to consider what would win him elections, and not merely what the law (which was set by the elected legislature) demands given the facts of the case in so far as the law of evidence renders them applicable.

The Commons is our elected house, and it writes our laws. If the Lords was elected by PR there would be a clash for primacy, as parliamentary supremacy is based in large part on its democratic legitimacy. This would not only produce cost, uncertainty and potentially gridlock, it would also risk situations where one house 'won' on an issue, and sections of the public felt cheated, choosing to regard the house which favoured their position as more legitimate.

Not that I am arguing there is no place for elections, or PR in the Lords. The overwhelming purpose of the Lords is to consult, consider and provide improvements to the Law as proposed by the Commons. Bagehot favoured it as a place where elections were not a consideration, but today we would additionally favour it as a place where appointed experts could play a role in the process. There are many in the field of law who have vehement objections to how legislation has unfolded in recent decades, and many in the fields of science who feel evidence has not been taken into account properly. These elements, while not democratic, may be considered helpful to the production of mature law.

Elected politicians represent us. They play a competitive sport whose aim is to win our votes and to remain in power. Most of them are idealistic and want to produce a better country, but they are hampered in what they can do by their need to position themselves in the eyes of the public, and against their rivals in the quest for power. They are necessary, often hard working and frequently noble of intent, but they need not make up every part of the system.

3. The Supremacy of the Commons would be threatened.

This serious concern, already mentioned, is entirely valid and difficult to assuage. It rests on the character on the second house. If the upper house is to remain an amending chamber with a suspensory veto, it would not be expected to challenge the primacy of the lower. However if 80% of the members were elected by PR, arguably a more representative electoral system than FPTP, they could absolutely claim the legitimacy to go substantially further than the bounds of the Salisbury convention, or of the Parliament Acts. And many in the public would sooner or later support this position.

However the danger might manifest, it remains real and serious. Governments may do things that many do not like, myself included, but they are fundamentally democratic and responsive, even if it does entail the odd U-turn. An elected second house would either produce expensive redundancy, or gridlock, where each house was dominated by a different party, or coalition of parties. The benefits of blocking something you dislike quickly fade when you are faced with a complete inability to achieve anything when in power.

And this presents other problems as well. Many policies cannot work if incremental in nature. Small changes intended to address regional poverty will often result in no measurable change at all, owing to the feedbacks involved. This can serve as a justification to avoid doing anything, when a bolder measure would prove successful. Government should be many things. It should be transparent, accountable and limited in its powers, but it should not be rendered impotent by the prospect of being blocked in the second house at every turn.

The current argument is that long terms (15 years) would sustain the primacy of the Commons, and achieve many of the benefits of the unelected status quo. There is some truth in these assertions. However, they carry with them certain negatives. Elections either must be drawn from votes taken at the close of each general election, electing by thirds, in which case the tactical voting of FPTP would be enforced on the PR system, or it must come from costly additional elections, in which people vote in largely a similar way, for parties and not for candidates. This produces members selected by their parties, not particularly voted for by the public on an individual level, without any guarantee of expertise on any issue, and without any measurable accountability for the ensuing decade and a half. It may actually close, rather than open the system, rendering it more dominated by elites. Bear in mind, appointed individuals would be drawn from outside the political elite by an independent selection commission.

There is some virtue in having party list candidates for the Lords. Clearly the purpose of PR is to achieve a mix of MPs who reflect the parties voted for at the election by percentages, achieving representation of views of the nation as a whole, not of a geographic constituency. The question is whether they should make up such an overwhelming majority of the Lords, and whether 15 year terms are the proper reply to the primacy issue. A smaller proportion would give greater prominence to the appointed individuals in applying scrutiny, and reduce the capacity of the party faithful to act as spoilers for Government legislation. A larger proportion risks undue legislative authority, a risk averted only by long terms in Parliament-- even though long terms, relatively unchallenged are the norm for many seats in the Commons.

It is also important to avoid applying PR to the Lords simply because Mr Clegg was unable to secure AV for the Commons. Electoral reform in the Commons itself is important, and effecting constitutional change of this magnitude to the second chamber in order to change the nature of British Democracy is a drastic, and likely undemocratic move, given there will be no referendum, the people rejected AV, and noone has put much effort into explaining the reforms.

In Conclusion

I don't personally want to leave the Lords unreformed. I don't think it has to be put off simply because there are "more important things" on the agenda. Nor do I oppose everything that has been suggested. It does seem that the current proposals have not been settled on, and that a strong political consensus, or a referendum should be pursued before such a major constitutional change is attempted. Whatever was or wasn't on manifestos in 2010, it is clear that no such consensus really exists. Nor have these changes been discussed properly in the media. The majority of the discussion has been dominated by the politics, and not by the arguments.

We need to talk about it because it isn't as simple as taking an archaic institution, removing the landed aristocrats and introducing democracy. We have to consider the system as a whole. How does the elected House of Commons operate, should FPTP prevail? How will the two houses interact for any given set of reforms? What benefits and costs will accrue for any given set of reforms?

And to those who say it has to be better than the status quo, we should bear in mind that the status quo is capable of change at any time, doom and disaster will not result from leaving it in place another year, but changes can be dramatic and may produce unanticipated consequences. The case for reform must not only be made in terms of broad ideas, but in terms of practical realities. The opportunity presented by Lords reform is potentially far greater than the problems it presents, if done with great care and thought, it could dramatically improve the quality of our democracy, but that does not require it to be democratic.

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