According to Jeremy Paxman, a debate about whether or not we need an unelected House of Lords is about as useful as one about whether or not the Moon is made of green cheese.
It seldom augers well for the strength and persuasiveness of an argument if the author starts by insisting there’s no argument to be had, and so it proves here.
The subs, sifting for the closest thing to a point, have titled his article in the Times thus: ‘If Britain is truly a democracy, the House of Lords has no place in it’.
Why should this be the case? Surely to deem a constitution democratic we need only its core mechanisms and supreme components – in our case, the House of Commons and its executive committee, the Cabinet – to be democratically accountable.
Certainly, there are cases to be made for expanding democratic accountability in various areas. I have argued that more public appointments should be directly and politically appointed by an incoming government, to combat the tendency of an autonomous system to sustain a ‘quango class’.
But surely few would argue that every element of the constitution must be directly democratic. There are not many in the UK who advocate for our adopting the American habit of electing our judges and local magistrates, for example.
Yet the judiciary play an extremely important (not to mention expanding) role in developing and enforcing the law of the land, all whilst being entirely unaccountable to the people or their representatives. If we wish to live in a democracy of the Paxman definition, this would have to change.
Then there is the House of Lords itself. Walter Bagehot, the wry observer of the 19th century constitution, once wrote that ‘the cure for admiring the House of Lords was to go and look at it’. But in the 100 years and change since he penned those words, if anything the opposite is now the case.
It is very easy to scorn the Upper House in the abstract. Those more familiar with its workings tend to take a much kinder view. It is often in the Lords that a lot of the heavy lifting in making legislation fit for purpose takes place – a role it has grown into as the Commons has wilfully slashed its sitting hours in an ultimately impossible effort to become ‘family-friendly’.
Likewise, it is easy enough to splutter about the size of the Lords – second only to the Chinese legislature – if you don’t stop to think about the model.
Peers are not salaried: they are paid only for the days they sit and conduct business. At the cost of a title, the Upper House offers us the means of placing all manner of experts on retainer to the nation, for nothing. You may dislike the model – and it could certainly use an overhaul – but it is silly to discuss the headline numbers as if it were a full-time chamber of paid representatives.
Very often, this level of ‘analysis’ is followed by the suggestion that we replace the Upper House with an elected senate of some kind. But that would cause far more problems than it solved.
First, it would no longer be made up of a different sort of person to the House of Commons. Instead, we would simply have another room full of full-time, professional politicians. We have 650 of them as it is.
Second, and more seriously, there would be a clash of mandates. This would be a certain and unavoidable consequence of an elected Upper House – especially if, as seems likely, senators were returned under a different and more proportional electoral system than First Past the Post. Why should the Lords, or whatever we call it, defer to the Commons when it has a democratic mandate of its own? Particularly senators from parties such as the Liberal Democrats which believe PR is more legitimate?
Others, such as Gordon Brown and the Scottish Conservative MSP Murdo Fraser, have suggested that a ‘senate of the nations and regions’ should be where Scotland, England, Wales, and Northern Ireland are represented in Parliament.
Yet these places are already represented in the House of Commons, albeit by a patchwork of MPs representing particular communities rather than en bloc. It’s difficult to see how a senate could be any different, unless specifically designed to be the sort of legislature Edmund Burke denounced: ‘a congress of ambassadors from different and hostile interests’.
For all that, however, the House of Lords does need to change. The current model is unsustainable, not only because it so often appears grubby but because post-New Labour, its basic mechanics make no sense.
There is no mechanism either to maintain the balance of power in the Upper House or to have it track the changing political views of the country. Marginal parties such as the Liberal Democrats have a big caucus of legacy peers, whilst the Government has no means of trying to rebalance the chamber other than endlessly bidding up the number of peers.
My suggestion would be something like this: do for political peers what we have already done for the hereditary peers, and decouple the peerage from the automatic right to sit in Parliament.
We might instead cap the number of sitting peers in the House of Lords at some appropriate number. Then divide that into three blocs: Government, Opposition, and Crossbenchers.
Each caucus would have more peers than there are seats. At the start of a new Parliament, each would elect from within its ranks those it wished to sit. For the Opposition caucus, parties could be assigned a number of seats within it that reflected their relative strength, if not in the current Commons then over the past few elections.
Such a model has several advantages. First, it ensures the crossbenchers always have the balance of power and removes the temptation for any government to try and pack the Lords. Second, it goes some way to ensuring that only active peers get paid as legislators. Third, it renders a quite effective tax on vanity more harmless, as a peerage is no longer an automatic seat in Parliament.
Of course, such an arrangement would not appease those for whom everything must be ‘democratic’ and ‘modern’, which tends to mean modelled on the United States. But that’s all to the good. Surely the sorry saga of the Fixed-term Parliaments Act is warning enough against letting such notions shape our constitution.
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