openDemocracyUK

Replacing the Lords while reinforcing the past

Anthony Barnett
Anthony Barnett
11 June 2010

Apart from the timing of the referendum on the voting system, perhaps the most awesome decision for the reformist credentials of the Coalition and the most consequential for the future of democracy in Britain is how it decides to replace the House of Lords. In a welcome article in the Guardian Simon Jenkins attacks the idea of a list-based, party-controlled elected second chamber, as a step backwards. It would be. Far from opening up politics and making it more representative, it would make it more closed and would be less in the spirit of democracy.

Jenkins calls for pluralism. But he remains stuck in the mental universe of the establishment. Within it, he is a radical in the true and best sense of being unattached, unpredictable and sharp. But he still seems not to have shaken off the baleful influence of having been editor of the Times and therefore duty bound to dismiss any noises that emerge from the throats of the unwashed.

On the Lords, the key arguments have been set out by outsiders. First, what is its function supposed to be? Any effective reform has to follow its purpose. At the moment it remains an active legislative body, initiating as well as amending bills and it is used and abused by the executive (ministers and civil servants) for this purpose. This everyday function is distinct from its more dramatic but occasional role as a potential check on the government. One reason why those unpaid positions in the Lords are so sought after is that they offer lobbyists a means of directly amending legislation as part of normal business.

When I gave evidence, with Peter Carty, to Lord Wakeham's Commission on the Lords - created by Blair in 1999 to ensure democracy was held at bay - there was a telling moment when Wakeham made it clear, as much in his manner as what he said, that no reform would be contemplated that deprived the government of its use of the Lords as its legislative instrument.

One of the main drawbacks of making the existing second chamber elected, therefore, as Simon graps, is that it consolidates this broken and corrupted parliamentary process.

How the Lords is chosen should follow from what roles it carries out and any change should start from saying what these should be.

If, as Simon seems to be arguing, the role of the Lords should be as a deliberative chamber that checks and assesses what the Commons does then a) the Commons should be the only place initiating legislation, and b) the remaining functions of the Lords should be set out clearly. One of these, for example, could be to assess if proposed laws are written in comprehensible language. Once its function and purposes are definied then, indeed, non-elected ways of representing public wisdom can be considered which do not return us to a hereditary aristocracy or continue the current cronyism. 

This is where the Athenian Option, drawing on the deliberation of regular people on a jury principle, comes in as a possibility. Carty and I set out one way this could be included in a reformed second chamber in 1998 and republished the arguments in an expanded version ten years later. The idea constantly reappears, most recently from Alan Urdaibay. While Keith Sutherland has published six other titles in imprint academic's excellent series on 'Sortition and Public Policy' (Sortition is the term for selection by lot.)

Yet Jenkins limits himself to the arguments of established experts such as Dawn Oliver who was a member of the Wakham farce, and Vernon Bogdanor, both of whom have shown a longing to drape their authority in ermine.

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