Democratic Legitimacy and the House of Lords

I’ve been having a Twitter debate with several people. The weird thing that keeps cropping up is that most people believe the House of Lords should be elected because they should be democratically accountable, or must be voted for to be classed as ‘legitimate’. When I ask these people “Why?” I don’t get a definitive answer, just some statement that Democratic principles are important. No facts, nothing about them doing their job better. This troubles me.

We don’t vote for Police Chiefs (yet), Judges, Civil Servants, Senior armed forces officers, The Queen, special advisers to Government, or a variety of other things. No one is claiming Judges are not legitimate are they? Some say because the Lords have a direct affect on legislation they require legitimacy. Why? Civil Servants come up with the wording of legislation and we don’t vote for them. Legitimacy doesn’t matter for them because MPs introduce and vote for legislation. The thing is, MPs must also vote for and agree legislative amendments from the House of Lords too. So where is the difference?

Currently the only power the Lords have is to delay legislation for a session (minimum 13 months). Even then the Commons can have the final say by forcing legislation through using the Parliament Acts. If a Lord introduces a Bill in the House of Lords it must go through the same readings and committees as legislation introduced in the Commons, and must still be voted on by both Houses. The House of Lords do not have the ability to pass or alter Acts without the consent of the Commons.

So what do we mean by legitimacy? Why are Judges legitimate? They have formal qualifications, sure, but no one votes for them. They are measured on their record and experience. Why should the same not be true of the House of Lords? Why not fill the Lords with dedicated and passionate individuals who are experts in their fields and can provide a useful function – reviewing and bettering legislation. If they are selected because of their expertise and experience, they show up regularly and contribute to the legislative process, then why are they any less legitimate than Judges? Experienced, passionate Lords could be legitimized by their track record professionally, and then by their actions in the Lords, not only via the ballot box.

I am much more of a pragmatist when it comes to anything. Rather than ask “What should a solution look like?” I always instead ask “What are we trying to solve?”. After all, if you don’t know what shape a solution should be, you can’t decide on how best to build that shape, can you? We must first decide what we want the House of Lords to accomplish, and then provide it with the structure, members and power required to do those jobs. This is not a short or simple task that can be written on the back of Nick Clegg’s beer mats.

A range of tasks have been suggested, some of these I detail below:-

• Review Legislation – currently regarded as the most effective legislative review body in the world. This is no accident.
• Provide expert advice – through committees and debates, to inform policy and investigations, not just to modify Bills
• Checks and Balances – some people have mentioned they want a check on the power of a majority government in the Commons, which currently can force through most legislation and curtail democratic debate without too much trouble
• Provide minority input – usually around geography in the UK. MPs will soon, and suggestions of PR for the Lords would also enforce, a massive bias to the South East of England in Parliament. The House of Lords could provide lower population geographies with an input, much like Senators in the US Senate do, to counter balance this bias.
• Recognise notable citizens – We currently ennoble citizens by giving them titles, some of which provide the right to sit in the House of Lords. These people could have been successful in a career or in helping their communities, or providing long standing and valuable public service. This potentially gives a broad range of people input in to the legislative process. This is only seen as a bad thing when it is given via cronyism for patronage rather than deeds. Perhaps the appointments commission could be placed in sole charge of this, and a Joint Committee of the Commons and Lords could confirm them in hearings?

We also have a range of issues with the current system that need resolving:-

• People sitting in the Lords that do not turn up (Fix via rule changes)
• People sitting who are convicts (Fix via rule changes)
• Large number of Lords (Could be fixed by removing governments’ ability to appoint as many as they want, term limits, and total quota)
• Hereditary peers (Just remove them. Simples.)
• Bishops sitting are anachronistic, and adding other religions would always exclude Atheists and Humanists, thus perpetuating religious privilege for no good reason (Just abolish the Lords Spiritual instead)
• Seen as a retirement option for failed politicians (again, prevent governments from appointing Lords directly, or limit them to a very small amount with the same term limit as the gov’ in the Commons)

How many of the above problems would be fixed, or tasks accomplished, purely by having an Elected House of Lords? Answer: NONE. In fact it would likely make some of them worse – E.g. SE England bias if elections are done via PR, because that’s where most people live. A set of simple rule changes and different selection criteria could fix them all. This would give the Lords legitimacy in the eyes of the public and make a second chamber to be proud of, free from sleaze, politicking, and vested interests. It would also ensure we keep a simple and well understood election night too.

The only areas that would require detailed thought are:-

1. What mix of people to have and where would you find them? One rep per region? Profession?
2. How can they provide an effective check against a powerful executive? Perhaps repeal the Parliament Acts, or allow them veto over certain types of legislation? (E.g. Constitutional) Or allow them to send Legislation for approval in a Referendum to the electorate directly? (This would effectively be like the Parliament Act which says legislation can only be passed under the Act after one month of a new session, minimum 13 months between passages – we could ask for approval on election night. This would actually streamline the process!)

If we fix the powers and make-up of the House of Lords we will have a much more effective House of Lords that is more capable to carry out the tasks required of it than any elected chamber could ever accomplish.