Originally published on 15 August 2015 for The Herald. By Nigel Biggar.
Lord Sewell’s scandalous conduct has been a gift to the professional enemies of the British constitution. Thus Pete Wishart, the SNP’s leader in the Commons, has used the occasion to mock the House of Lords as “the most absurd and ridiculous legislature anywhere in the world”, and to call for “the abolition of the whole chamber and the creation of a fit-for-purpose 21st Century democratic House”. And in The Herald Iain Macwhirter pronounced that “the UK House of Lords [is] the biggest parliamentary abomination in any Western democracy”.
The truth, however, doesn’t live down to such bombastic caricature; actually, it’s quite flattering. In her authoritative comparison of seven upper chambers from around the world, Meg Russell judges that none of the others “achieves the same reputation for expert membership as the [British] House of Lords” (Reforming the House of Lords: Lessons from Overseas). It is this expertise that confers on law-making and policy-formation the signal benefit of a kind of public deliberation able to rise above posturing party-political discourse which, constrained by career-politicians’ need for popularity and ambition for office, tends toward unthinking cliché.
It is widely acknowledged, even by its critics, that the Lords’ scrutiny of legislation is often more thoughtful, careful, and searching than that of the Commons. This is the direct result of the upper house’s part-composition including people representing a wide range of professional expertise and civil social life who, precisely because they have been appointed and not elected, are freer from the trammels of party orthodoxy. These include the likes of Helena Kennedy, the Pollokshaws-born barrister; Ilora Finlay, expert in palliative medicine; Jonathan Sacks, the widely respected former Chief Rabbi; Onora O’Neill, the public philosopher; Robert Winston, the medical scientist; and Maeve Sherlock, former director of national councils for refugees and one-parent families.
If Professor Russell is correct, and if the experience of the Republic of Ireland’s Seanad is to be heeded, popular election cannot ensure, and will seldom deliver, such a well-informed, independent-minded, plural upper house. In 2010, for example, the UK’s General Election inadvertently robbed the House of Commons of most of its scientific expertise.
We need to shift our thinking beyond the populist mantra that popular election alone confers political legitimacy. This is nonsense. Election is no guarantee of either wisdom or justice, and electoral majorities are perfectly capable of getting it very badly wrong. After all, the popular will raised the Nazi party to power in Germany in March 1933 on a proportion of the vote (43.9 per cent) considerably higher than that achieved by the Conservatives in the Westminster election in May (36.9 per cent) or by the SNP in the Holyrood election of 2011 (31 per cent).
Of course, those who make law and shape policy must be made sensitive to the needs and wants of ordinary citizens. That is why a democratic element in our constitution is absolutely vital. But the representation of citizens in the making of the laws of the land is already secure through popular election to the Commons, which is the primary and decisive chamber. To extend the same form of representation to the upper chamber would add nothing, except the likelihood of greater inter-cameral conflict.
To ensure that British public deliberation benefits from information by a wide range of professional expertise and civil social experience, the upper house, or at least a substantial part of it, should be appointed by an independent commission, as the Wakeham report recommended in 2000. Such a system could easily be made transparent by publishing the criteria for the commission’s membership, and its own criteria and process of appointing.
None of this gainsays the need for wider reform. The relentlessly inflating membership of the Lords needs to be dramatically culled; party-political patronage should be reduced in scope or abolished altogether; and, for the sake of those who can’t see past the antique title to the (largely) modern substance, perhaps lords should be changed to senators.
All of that is true. But this remains true, too: a healthy parliament needs a mixed constitution, not a simply democratic one.
Nigel Biggar, a native of Kirkcudbrightshire, is Regius Professor Emeritus of Moral & Pastoral Theology, and Director of the McDonald Centre for Theology, Ethics, and Public Life, at the University of Oxford.