Category Archives: Juries

What to do with the House of Lords

The following blog post is a plea to journalists, activists and politicians. The country has entered a period of intensifying debate over the future of its Upper House, and this proposal (not solely forwarded by me) must feature in the argument. If readers support the idea, then please email a link to this piece to your local MP.

I am getting tired with repeatedly seeing fresh calls for the abolition of the House of Lords, or with demands for the second chamber to be an elected one, so I want to use this blog to help push forward a proposal for real Upper House reform; the kind not being discussed by the very people who would appreciate and support it most. I will present a case against abolition of Westminster’s Upper House entirely (with particular emphasis on the dangers of a possible referendum), a case against electing the House and a case for a system of citizen juries, known more formally as sortition.

The first thing that needs to be said about this new wave of anti-Lords sentiment is that, were it not triggered by Britain’s EU withdrawal, it would not exist in such vitriolic form. Politics, as I feared post-referendum, has become a battleground entirely transformed by the Brexit vote. The public is now viewing issues from the perspective of its referendum camp, which has resulted in a skewing of objectivity. The Lords debate is not the only evidence of this, either. By-elections, too, such as that of Richmond, are being manipulated according to how voters voted in last summer’s poll, and results are being translated in the same fashion. I hope, therefore, by writing this and avoiding EU-related tribalism, I will present a reasonable case (though likely untenable at the present time) for radical reform of the Upper House.

 

Why we shouldn’t abolish the Upper House

Without meaning to condescend, I believe that much of the anger of the abolitionists is down to short delays to the Brexit process and not principled opposition to the House itself. The public were told many months ago that March 31st would be the deadline by which Article 50 was triggered. I don’t think anybody remotely sensible ever thought that this would be over quickly, given its obvious constitutional magnitude.

I also think the reactionary behaviour of Leave voters is dangerous because they fail to present us with a viable alternative or safety mechanism. They simply say: ‘Abolish the Lords!’, without proposing any legislative reform or telling us either what will come in its place, or how the Commons and its operations will adjust to being the sole source of law-making in the UK. Overzealous reformers can sometimes, as problems in our education system show, be the obstacle to positive progress. 

Those calling for the abolition of the second chamber should remember, firstly, that due to timetabling restrictions, the House of Commons often has to rely on the Lords to introduce smaller bills. Commons ‘sessions’ do not manage to get through all proposed legislation, so the second chamber plays a useful role in introducing Bills which would otherwise be forgotten about. In the 1983-87 parliament, for which we have easily accessible data, the House of Lords introduced 88 Bills[1] out of the 209 tabled in total. It may be argued, therefore, that the Upper House often speeds up the legislative process, despite popular allegations to the contrary. Readers may like to give the current table of Bills a glance. Please pay particular attention to those with [HL] in their titles. This means that the relevant Bill was introduced in the second chamber. I would put it to those calling for the Lords’ heads that, if they got their way, legislation beneficial to their interests may be slowed, ignored or not introduced to parliament at all.

Unicameralism, for good reason, is not anywhere near as common as bicameralism across international legislature[2]. Another reason why this is so could be down to harbouring appropriate scrutiny of government. Those who take a look at the map provided will quickly note that some of the most authoritarian countries in the world, such as Iran and China, opt for systems that do not allow for the executive to be held to account. I acknowledge, also, that many civilised and democratic countries appear in the list of unicameral legislatures, but thorough examination tells me that most are either rife with corruption or authoritarian in nature. Part of the reason for this could be a lack of monitoring of government operations, and so I think that Britain benefits from having strong measures of scrutiny throughout its parliamentary process. The Lords have also shown unity with public opinion on many occasions, proving their worth when voting on major changes to the law. Halting George Osborne’s tax credits plan, showing their support for same-sex marriage and voting against Blair’s anti-terrorism legislation are three such examples. As James Forsyth wrote in ‘The Spectator’ recently, “the House of Lords has a strong self-preservation instinct: it knows its limits.”

 

The absurdity of a referendum

If readers recall, the last time we held a referendum on substantial change to Britain’s constitution, we found ourselves stuck in the position we are currently in. Delays, anger and confusion have become the three pillars of British politics. Referendums require Bills, and Bills require filtration and inspection, so I doubt that those sitting in the Upper House would be convinced that a simple national poll is provision enough for major constitutional change.

Referendums are a fun exercise of direct democracy (not because people vote, but because they get to decide themselves on an issue rather than hoping somebody else will), but they aren’t usually congruent with the constitution, as the incessant delays and stoppages attached to Britain’s departure from the European Union illustrate. Referendums are, by their very nature, simplistic and often binary. In their make-up, they ignore the nuances that become apparent after votes for change are cast.

 

Why we shouldn’t elect the Upper House, either

I hear constantly the term ‘unelected’ being used pejoratively. This is primarily because the public has been conditioned, after many years of propaganda by politicians and parties, to conflate ‘democracy’ with ‘elections’. I will delve further into this at some point in the future, but democracy, firstly, predates elections, and secondly, most democratisation has absolutely nothing to do with government (see, for instance, the introduction of the daily newspaper in the early to mid 19th century).

There are three main reasons why electing members of the Upper House is a bad idea. The first concerns general voting patterns, marginalisation and plummeting turnouts. I would at this point ask the reader to consider, hypothetically, that the UK is about to hold a national Upper House election. What do you think voter turnout would be? European elections in Britain have historically produced very poor turnouts[3]. Turnouts at General Elections have for very many decades been on the decline[4]. What makes anybody think that voter turnouts would be anything other than miserable? I don’t, myself, see a scenario in which voter turnout for Upper House elections reaches even 30%. Low turnout is important because we are told that the purpose of elections is to provide those in power with a mandate.

My suspicion is that, given immense electoral fatigue – thanks largely to the digital age and the information saturation that comes with it – and widespread public disengagement from politics (that voter turnouts highlight), most British people would not care enough to venture to their nearest polling station and vote for members of the second chamber. Increasingly, we don’t bother to vote at General Elections, so electing a senate would prove no less purposeless.

Secondly, electing the Upper House would transform it into a mirror-image of the Commons. One of the great features of the House of Peers was that it was supposed to act as an objective, politically-unaligned chamber more able to provide the executive with appropriate scrutiny and amendments. In a scenario where members are elected, they are more easily forced to think along party lines, as they are constrained by campaign promises, manifesto commitments and may view legislation more tribally and ideologically, perhaps reducing space for independent thought and concern for others. I also think it could be the case that Peers may see their democratic mandate (however small) as not subservient to the Commons, but as equal in its validity. This could create a situation in which there is unnecessary competition between chambers, and long periods of ‘ping-pong’.

A third issue with Upper House elections is that they will consume unnecessary resources and eat into time and budgets. The legislative process is long, drawn out and requires a lot of thorough examination and re-examination. Taking a couple of months out of a parliamentary session to focus on being re-elected would seem to me to hamper the ability of Peers to carry out their primary function: scrutiny of government. Election campaigns are expensive and have a noticeable draining effect on both the public and those involved in them. They also, crucially, subvert attention away from getting on with the job. We begin to focus more on people and less on issues.

 

Proposal: Replace the Lords with citizen juries

Most people are not familiar with the meaning of the word ‘sortition’. It is a political structure that has proven successful in British life, most notably in our courts, where juries of randomly selected citizens come together to decide upon the fate of another person. Juries were first constructed shortly after the Norman Conquest more than 1,000 years ago, but have undergone several reformations since. Sortition is the process of allocating to office or duty a jury of citizens selected at random. I mention our courts because, before we proceed, it is important that we respect both the liberty the system has given us and its use in Britain’s criminal justice system. Most people report high levels of trust in criminal juries, despite the lack of legal experience of those sitting on them, and consider taking part an ‘important civic duty’[5].

It is my belief that an Upper House comprised of a jury of citizens, cycled on periods lasting a few weeks, with those from afar allowed to expense either travel or accommodation expenses, would be a much more democratic and fairer alternative to its current formation. By bringing together randomly-selected, representative members of the public (on a scale closer much closer to 600 than 800) to scrutinise Bills presented by the House of Commons, vote on legislation and contribute to committees and initiatives that they care about, Westminster will be enriched by more cognitive diversity, democracy will be enhanced through the introduction of more people into the legislative sphere and we will have an excuse to end the slow, painful suffering of the peerage.

I mentioned earlier that scrutiny is perhaps best provided by a chamber that is objective and non-partisan. It is also true that most people think in terms of issues and not in terms of ideology. To propose, therefore, an Upper House comprising of randomly-drafted members of the public is to join together these two premises. And I think ordinary people will jump at the chance, too. The House of Lords is an exotic place, especially for those living in distant, forgotten parts of the UK. Introducing jury service may also act as a way for Westminster to reach out to forgotten communities and perhaps ease some of the discontent and mistrust that has grown substantially in the modern political climate.

There is also no technocratic argument against this proposal. Members of the public have skills, knowledge, expertise and common sense, and are able to think rationally about the effects that Bills will have upon individuals. They will also, upon initiation, be aided by secretaries, parliamentary assistants and researchers with experience of the inner workings of the Upper House and legislative procedure. We trust our fellow man to make important decisions over matters of justice, so we can do the same in other aspects of public life. I am not saying that jury service in court is logistically identical to service in the Upper House, but as research shows[6], people approach civic duty in a conscientious and serious manner. I do not think this would change under this proposal. 

 

The suffering of the peerage

Back in November, Jacob Rees-Mogg instructed the Prime Minister to create 1,000 new sunset peers in order to help speed up the Brexit process. This may sound like a good idea for those who support Britain’s departure from the EU, but this sort of political puppeteering has profound consequences for the legitimacy and value of the peerage; one of the oldest – and now most devalued – honours anywhere in the world. One of the main causes of the suffering of the peerage has been the temptation displayed by governments (often acted upon) to give peerages to party representatives, usually donors or political advisers behind the scenes, purely for the purpose of aiding legislative efforts in the Upper House.  Tactical posturing on the part of parties is cynical and undermines the importance law-making. It is, after all, about what is best for the country, not what is best for preserving electability.

 

Final comments

I invite readers (whom I thank sincerely for reading what has turned out to be a necessarily long post) to leave their feedback in the comments below. As I said in my opening remarks, this idea is not unique to me. In 2008, The Athenian Option: radical reform for the House of Lords was published by Anthony Barnett and Peter Carty. The argument about the future of the Lords cannot be a binary one. If a perfectly reasonable suggestion such as this exists, we must not frame this debate merely in terms of abolition or election. The political potential of sortition has been an interest of mine ever since I became familiar with the pitfalls of electoral representative democracy. I think it should interest you too.

 

Notes:

[1] See third table (section 3): http://www.leeds.ac.uk/law/teaching/law6cw/hc-3.htm

[2] https://en.wikipedia.org/wiki/Unicameralism#/media/File:Unibicameral_Map.svg

[3] http://www.ukpolitical.info/european-parliament-election-turnout.htm

[4] http://www.ukpolitical.info/Turnout45.htm

[5] See table 3.1: http://www.icpr.org.uk/media/10381/Juries%20MOJ%20report.pdf

[6] See page 2: http://www.britsoccrim.org/volume4/004.pdf