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Saturday, March 17, 2007

Electing the House of Lords

Rory Stewart has been a wonderful guest addition to the NYT's op-ed page.  He is more cosmopolitan than most on the page, bringing a decidedly non-American perspective to the paper.  And his writing is better than any of the regular columnists.  If you haven't read his The Places in Between, I highly recommend it: it a subtle, informative, and fascinating account of his walk across Afghanistan, introducing us to the people and the lifestyle of Afghans right after the fall of the Taliban.

Today's column, however, moderately denouncing the House of Commons' recent vote to make members of the House of Lords stand for election, has a few problems. 

In the first place, there is some misguided political theory.  Consider this account, for example, of what bicameral legislatures are good for:  "Two elected houses make sense in a federal system, where the lower house represents individuals and the upper house the states. But Britain is not a federal country."   Not quite.  Forty-nine states in the US have bicameral legislatures -- and are not themselves meaningfully engaged in "internal" federalism.  There are, in short, other good reasons to embrace bicameralism even if the "upper house" does not represent states as states.  Merely having longer terms in the upper house, for example, can focus that house on a different type of deliberation.

Stewart is also under the misimpression that changing the very nature of the upper house can only be done through revolution:

Real constitutional change should be driven by crisis and necessity. The United States achieved change on this scale only through revolution. That crisis created the opportunity for the Founding Fathers to define their basic philosophical principles and write a new constitution, which remains to this day both a cornerstone of national pride and also a formal political instrument, governed by strict rules.

It may be that there is no crisis of legitimacy in Britain calling for an end to an upper house filled with bishops and nobles.  The people may not care very much who serves in the House of Lords because it has relatively less authority than elected officers.  And it may be that a written constitution would be good for Britain in the long run.

But changing the upper house from a largely appointed body to a directly elected body in the US was not the work of the Founding Fathers post-revolution.  This was the innovation, instead, of the Seventeenth Amendment, amending Art I, sec 3, cl 1.  The US did not need a new Constitutional Convention (as Stewart essentially seems to be calling for) to make this sort of change.  It was evolutionary and not revolutionary -- and was done under the "old" Constitution.   It was a quick change that did not require rethinking our entire constitutional document (even if it has had some ramifications that emanate out of the Seventeenth Amendment into other constitutional provisions).

I don't know enough about Britain's political culture to assess Stewart's conclusion (I only lived there for a year):

But in reality, an elected upper house would make sense only in the context of a new written constitution that redefined the separation of powers; the relationship with the lower house, the church and the monarchy; and deep issues of national identity. But to do that would require the rigor, seriousness and courage of the Founding Fathers.

But given that Stewart wants to look to the US as an example, I don't think our constitutional history  (particularly the changes to the design of the upper house) proves his point.

Update: Because my LRB always arrives weeks late, I only saw this when it arrived in the mail today.  Bruce Ackerman has a very nice discussion of the House of Lords and what to do about it here.  He has much more informed and sophisticated reasons for denouncing the move, which I hope to discuss in a future post.

Posted by Ethan Leib on March 17, 2007 at 12:23 PM in Article Spotlight | Permalink

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Mr. Stewart should read Samuel Coleridge on why the particular two house arrangement works in Britian.

It has very little to do with federalism and everything to do with solving the particular power blocks inherent in English politics.

If you want to reform or change the House of Lords make sure you understand why it worked, first.

Posted by: Michael Webster | Mar 17, 2007 5:12:42 PM

This strikes me as the proverbial solution in search of a problem. The British constitution seems in many respects to be a nice illustration of Aristotle's 'mixed government' (of 'the one, the few, and the many': not the ideal, but 'second best' as it were). I certainly agree with Ackerman's conclusion that 'it is wiser to fine-tune the operation of a largely meritocratic House of Lords than to create a half-heartedly democratic chamber.' I look forward to your future post on this subject.

[Ethan: I still haven't received my LRB!]


Posted by: Patrick S. O'Donnell | Mar 17, 2007 9:38:33 PM

Question: Didn't states have bicameral legistlatures for "mini-federalism" - with the upper houses representing counties - until the one person/one vote rule was instituted in the late '60's? I know that was the case in my home state of Colorado, whose voting system was at issue in that case.

If so, that tends to undermine the argument that bicameral legislatures are good for other things - they may be around in states in large part due to inertia. Then again, if properly set up, then the checks and balances can be helpful even if both houses are direct representation.

Posted by: Michael Risch | Mar 18, 2007 11:39:11 AM

I don’t want to directly address Stewart and Ackerman’s articles, but Ethan has kindly consented to me saying a few things in favor of the existing House of Lords. The bulk of my comments come courtesy of a chapter by Dawn Oliver from Jeffrey Jowell and Dawn Oliver, eds., The Changing Constitution (New York: Oxford University Press, 5th ed., 2004).

First of all, after the Salisbury convention, the government is ‘entitled to have measures that were promised in its election manifesto given a fair wind in the House of Lords….’ Secondly, it is the sole prerogative of the House of Commons ‘to withdraw confidence from the government so that a general election or resignation of the government followed by appointment of a new Prime Minister charged with producing a new administration should take place.’ Finally, it is also the sole right of the Commons ‘to grant or refuse supply to the government, so that the Lords are not entitled to amend or delay—beyond a month—the passage of a money bill.’ This is clear evidence that the House of Lords plays a secondary governance role vis-à-vis the Commons, and this is no doubt a function of the latter’s democratic legitimacy. It would seem that having elected members in the upper house has implications for the primacy of the Commons with respect to its electorally (politically) derived democratic legitimacy.

The House of Lords, on the other hand, counters well-known problems associated with democratic majoritarianism with its largely constitution-preserving and constitution-enhancing functions: ‘the revision of legislation, especially on technical or drafting points; …delaying legislation in order for the Commons or the government to reconsider a proposal where there are serious concerns, in the House or elsewhere, about its wisdom; [serving as] a constitutional watchdog…; [scrutinizing], for instance, the grant of delegated power, of deregulation orders, and of European legislation; and…debating matters of public importance.’ The fact that these functions take place in a ‘House of Parliament’ makes them a bit of an anomaly, but they exist elsewhere as extra-parliamentary constitutional and legal functions deemed necessary or desirable for the maintenance of (democratic) constitutional integrity. This is one way in which the House of Lords reflects the fact that by design and default it complements the House of Commons.

Oliver provocatively remarks that the House of Lords ‘is not a body of “representatives” though to an extent it is a body of “voices”—a “civic forum”—in the sense of a body of people who can contribute particular and significant perspectives to debate.’ Democracy, as deliberative democratic theorists appreciate, is a talking-shop as well as a working-shop, and the House of Lords is well-suited to the former task.

The House of Lords complements the House of Commons in its intra-parliamentary ‘checking’ function with regard to an uninhibited majoritarianism while furthering the principles and practices of good governance (e.g. in providing non-party political mechanisms of accountability), a function provided by external, independent institutions in other constitutional regimes (i.e. those without parliamentary sovereignty): ‘My suggestion is that the House of Lords is coming to fill the gap and to compensate for the fact that other non-parliamentary checking institutions commonly found in written constitutions do not exist in the U.K.’

The constitutional ‘watchdog’ function mentioned above is seen, for instance, in the committee work of the upper chamber: the Joint Committee on Human Rights, the House of Lords Constitution Committee, its European Union Committee, and the Delegated Powers and Regulatory Reform Committee. As Oliver reminds us, ‘the House of Lords is in many respects a highly regarded and effective chamber in much of what it does. In its Annual Report for 2001-2 the House claimed to be one of the busiest parliamentary chambers in the world. Although its members are part-time, it is a full-time house. Increasingly its best work is done in committees and is of a non-partisan, technical, expert, or constitutional kind.’

Heretofore even party-aligned members of the House of Lords have acted in ways that reflect relative freedom from party pressures (without assuming all such pressures are negative): ‘Cross-benchers will often hold the balance in the House, and this means that the parties seeking the support of cross-benchers—as will often be the case since no one party has a majority in the House—have to argue the issues on the merits rather than appeal to party loyalty.’ Of course instances of members acting in a highly politically partisan manner ‘presents a legitimacy problem which could in turn undermine the apolitical and democratically desirable activity of the chamber.’

I leave the (mine, not hers) conclusion entirely to Oliver, who states than ‘An elected or substantially elected house would not…add value to the political process. A second chamber that was able to paralyse on party political grounds a government supported by a majority in an elected first chamber would tip the balance too far away from effectiveness and towards populism. [….] Further, in my view, elected members would not be well fitted to perform the important scrutiny and watchdog functions that the House of Lord performs. They would not necessarily have the required expertise and impartiality for these functions. These functions require substantial numbers of impartial and expert members, beyond the 20 per cent of cross-benchers currently in the House. People who do have the necessary combination of qualities would be unlikely to be willing to stand for election on a party ticket. Many such people are not politically committed and not aligned with political parties, or if aligned would not want to go through the process of submitting themselves for selection to stand for election and then standing for election. […] The present arrangements do provide people with the required expertise and impartiality, and they work in conditions which promote and respect that impartiality and do not expose them to undue party political pressure. Election could not in my view be expected to provide sufficient numbers of appropriately qualified people.’

Posted by: Patrick S. O'Donnell | Mar 18, 2007 10:22:08 PM

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