Why is the House of Lords retained in a modern democracy?

Question

Members of the House of Lords are unelected, hold their position for life, and citizens cannot remove them in any way. Leaving aside the financial aspect in maintaining this institution, the unelected members exercising supervisory powers seem to be anti-democratic in the first look. Why is this institution continuing as a component of a democracy?

Answer 1

Why is this institution continuing as a component of a democracy?

Sixteen Reasons

1. The House of Lords has been defanged (with several rounds of reduced powers), denying it a true veto of legislation supported by the House of Commons. It isn't doing much active harm and its economic cost has been trimmed.

2. The proportion of the Lords who are life lords or hold lordships ex officio as a result of some clerical or legal office, has grown, and those are less problematic. In some ways they are more akin to the U.S. federal judiciary or the formal role that the government of France provides to ex-Presidents in its system.

3. The House of Lords historically was dominated by the Tories and continues to have a plurality of them, so a major political party finds it in their partisan interest not to abolish it. Also, any attempt to abolish the House of Lords brought by another major party can be tainted as appearing to be a partisan power grab. The Prime Minister can appoint new life lords to rebalance the House of Lords and it is less extremely biased on a partisan basis than it once was, but the norms regarding the acceptable partisan mix of the House of Lords as a result of life lord appointments are unsettled and in flux. "Packing" the House of Lords in one session is disfavored, but "rebalancing" it is considered acceptable to some extent.

4. The abolition of the House of Lords would be a major step towards the disestablishment of the Anglican Church which many conservatives disfavor.

5. Functionally, as a "house of revision" the House of Lords catches inadvertent errors in legislation that the hastier U.S. style legislative process with long bills finally adopted in the dark of the night with little notice does not allow.

6. On some rare occasions, the House of Lords has called out politicians in the House of Commons for enacting legislation that impairs human rights, sometimes securing changes as a result.

7. While the House of Lords collectively, may add only modest value in the decision-making and voting aspect of legislation, the legislative process also benefits from having diverse voices present in the deliberative process that leads to the adoption of legislation, and the House of Lords provides dozens of avenues other than through partisan elected politicians for new voices to be added to that discussion. Even if only 1-5% of House of Lords members at any given time are making meaningful and useful contributions to the deliberative process that are being provided from no other source, those powerful ideas could be beneficial in some critical respect at some point.

8. Prior to the creation of the U.K. Supreme Court, the House of Lords was the pinnacle of the U.K. judicial system (and that of many former Commonwealth colonies in the form of the Privy Council) and that function created value. This is a recent event and the U.K. may want to have a fallback solution to return to if this major constitutional experiment fails to work as planned.

9. It provides a way to assuage the egos of the residual aristocracy of the U.K. at a minor fiscal and policy cost since it is only a house of delay. Abolishing the aristocracy entirely could have led to an anti-democratic revolution and postponed democracy in the U.K. considerably. Preserving it allowed the U.K. to get democracy sooner and with less resistance at the outside, while allowing the power of the lords to be gradually reduced over time.

10. More generally, legitimacy is path dependent. Generally speaking, if something has always been so, and you learned that this was the way that the system worked as a child and came to accept it, and if there is not a break in succession from one political system or regime or set of leaders to another, it will be accepted as legitimate going forward. The House of Lords has met that test without doing great harm.

11. One can also see the House of Lords as a set of "training wheels" for the democratic government in the House of Commons, because its continuous sessions means that there are legislative institutions (as well as the monarchy) in place during interim periods when a new parliament has been elected but not yet organized a government. While this is probably unnecessary now, and while it isn't obvious what the House of Lords would actually do if the House of Commons failed to reorganize properly following an election, the appearance that there are institutions that aren't disrupted by the election projects an image of stability following elections, as opposed to allowing opportunists to see a momentary power vacuum as the window of opportunity for radical or extralegal change. In this regard, the House of Lords serves of role similar to the largely symbolic legitimacy and continuity affirming process of having Congress count the electoral votes in a U.S. Presidential election.

12. British political and constitutional history is marked and distinguished by avoiding all or nothing approaches. For example, it retained a constitutional monarchy rather than becoming a Republic (after a brief attempt at that left a bad taste in the British collective consciousness in the 17th century, and then in the 18th century with the American Revolution). Rather than granting full independence to its territories and dependencies, the U.K. has reached individual deals with incomplete autonomy for them. Some have their own domestic laws but remain British for foreign affairs and military purposes (the British demonstrated they were willing to go to great length to honor their obligations in the Falklands War), in some like New Zealand, Australia and for the first century, Canada, it retained final judicial review over its courts, and all have kept a Governor-General's position as a representative of the monarchy. It has different arrangements with Scotland, with Northern Ireland, and with Wales. The House of Lords reflects again the British political culture's tolerance for a situation that is neither an absolute republic, nor an absolute oligarchy or monarchy. France abolished the aristocracy with revolutionary consequences. The British have merely whittled away at it, reducing its privileges, rather than absolutely adopting the principle that all persons are created equal and should be equal under the law for all purposes. As the Daily Express newspaper noted in a January 22, 2020 article:

    Desire to do away with the House of Lords has long existed in British political consciousness and was once accomplished nearly 400 years ago.

    When Oliver Cromwell came to rule England after the Civil War of the 1640s, he dramatically reduced the House of Lords’ power, and ultimately abolished the upper chamber in 1649.

    Parliament branded the Lords “useless and dangerous to the people of England” as they abolished it, but it eventually returned with a resurrected monarchy in 1657.

    Afterwards, the Lords briefly enjoyed an increase in their power, able to vote down legislation until the Parliament Act 1911 removed this right.

    ("Briefly" in this case, meant 254 years, reflecting the British sense of history.)

13. The preservation of the House of Lords is tied into the norm that British legislators protect the country's constitutional traditions that are only entrenched in ordinary legislation, such as the requirement to hold elections at least every five years and a constitutional tradition of protecting civil and human and property rights. While the institution of the House of Lords adds little value in and of itself, the norm of protecting constitutional traditions that protected it has great value and indeed, is really indispensable to, the U.K.'s democracy since it relies on such norms more than almost any other modern democracy. Abolishing the House of Lords could weaken more important aspects of the U.K.'s constitutional order that lack formalistic protections of the kind found in the U.S. Constitution and the constitutions of most other modern democracies and instead rely on this political norm.

14. Since aristocratic positions are legally a form of inheritable property, abolishing the aristocracy, or at least seeming to do so by abolishing its most visible vestige in the House of Lords, could also be perceived as an attack on the inheritable property rights that share of common legal heritage with aristocratic hereditary titles and the perception that one is undermining property rights by doing so could also be politically problematic since protecting property rights is another important quasi-constitutional political norm in British politics.

15. Closely related is that almost any argument for abolishing the House of Lords is simultaneously an argument for abolishing the monarchy, and the monarchy is seen as a valuable institution in the U.K. system as a symbol of the state that is not tied up in partisanship, and as a safeguard in the event of an event that might threaten the existence or legitimacy of the nation such as a dispute over succession to the Prime Ministership or a disaster or military event that disrupts the ordinary operations of government. Constitutional monarchies, in general, have done better at surviving crises than pure Republics. Abolishing the monarchy without broad support could precipitate a constitutional crisis and crisis of legitimacy in the U.K., and abolishing the House of Lords could threaten to hasten such a crisis.

16. In the current statutory arrangement, the House of Lords is the primary institutional barrier stopping the House of Commons from legislating to cancel the next election and just ruling in perpetuity with no elections. This is because there is an exception to the Parliament Act allowing the Lords to permanently veto any law that could postpone a general election. Arguably, the institutional barrier could be overcome by legislation, just as the House of Commons, in general, has broad authority to reconfigure the House of Lords in general, in a manner reminiscent of the use of the "nuclear option" in the U.S. Senate to abolish the filibuster with only the support of a bare majority of Senators, rather than the two-thirds majority normally needed to change the rules of an institution with continuity of members from one two year "Congress" to the next. But it is a significant speed bump that any effort to do so would have to overcome that could lead to bipartisan opposition that would prevent such a bill from passing in the House of Commons.

What Does A Leader In The House of Lords Say?

The Lord Speaker of the House of Lords (who was a member of Margaret Thatcher's Cabinet for 11 years, pointing out another role of the body as a way to pension off and retain the collective wisdom of former political leaders) defended the institution, albeit with some reforms, in a June 3, 2019 op-ed column in the Guardian newspaper:

Given the Guardian’s reports on the House of Lords, you might expect me, in my role as Lord Speaker, to come forward with some blanket defence. I do not. As this paper reported at the beginning of the year, I am opposed to what I called “passengers” in the Lords who make no or very little contribution. They are a minority, but they undo much of the good work done by the vast majority.

In the past 12 months the House of Lords has made almost 2,300 changes to improve legislation; apart from daily oral questions, peers have tabled more than 8,000 written questions and taken part in more than 160 debates; while well over 300 peers have been active members of select committees which have published more than 150 reports on subjects ranging from tuition fees to intergenerational fairness.

Those who argue for the abolition of the second chamber, as Owen Jones did last week, need to say how this work would be done. It is not enough just to propose more powers for the Commons in a unicameral system – this would do little to improve levels of scrutiny when a government is returned with a big majority. In those circumstances, having a second chamber to ensure legislation does not slip through without proper debate and analysis is absolutely essential. Proponents of abolition or complete reform also need to explain how the legislation necessary to radically change the Lords will get through parliament at a time when Brexit dominates the legislative agenda. It is politically naive to believe that any government, in present circumstances, would embark on such a course.

The Lords itself – not the government – has agreed to take action to reduce numbers following the report of the committee I set up under the chairmanship of Terry Burns. We want to see the total size of the House capped at 600 and fixed terms for new members. Since the Burns report was published there have been almost 70 departures from the House but there is clearly more to do. As we await the result of the Conservative leadership election and the new prime minister we want to see the policy of Theresa May, exercising restraint in appointing new members to the Lords, continued by her successors. Responding to the Burns report, she said: “I intend to continue with the restraint which I have exercised to date and, when making appointments, to allocate them fairly, bearing in mind the results of the last general election and the leadership shown by each party in terms of retirements.”

That is the first time a prime minister has made such a commitment. It is in stark contrast to the policy of Tony Blair who appointed 374 new peers and David Cameron who appointed a further 245. To date, May has appointed 42 new life peers but the resignation honours list beckons. It is at this point that prime ministers are tempted to reward rather than ask what contribution a person under consideration can make. I very much hope that May will continue to follow her excellent policy of moderation.

There has been concern over the work of sitting Lords. Both Conservative and Labour governments have confirmed that members should be allowed to take up part-time jobs, it would be extraordinary in a non-salaried House for it to be otherwise. The rules clearly prohibit peers acting as paid lobbyists and also require public disclosure of sources of income. We have now set up a new conduct committee under the chairmanship of Lord Mance, a former deputy president of the supreme court. They keep the code of conduct under review and can propose any changes which are necessary.

The Guardian survey of participation underlines one further step that we should now consider. Many life peers come to the Lords without much idea of the contribution they are expected to make. I remember one peer who had just been sworn in coming to me to say they had made a mistake and had not realised the work that was involved. We could set up a system, as is already the case for those who apply to be a crossbench peer, where the House of Lords appointments commission questions each new candidate on the contribution that he or she would make if their appointment was confirmed.

My belief is that a policy of reducing numbers and checking new candidates are prepared to make the contribution that most peers already make would go a very long way to eliminating the passengers. I should also add it is already the case that every member must make a declaration that they have undertaken parliamentary work when they claim the daily allowance. If there is any question, the independent commissioner for standards can investigate.

Of course, I recognise the policy I have set out will not satisfy those who want, for example, to elect the second chamber, but perhaps they might understand such a move is currently politically impractical. However, progress to make the Lords smaller with all members making a sensible contribution is within our grasp.

An op-ed in favor of abolishing it from 2020 can be found here. The Week offered a short December 18, 2020 pros and cons article also outlining the status quo. It argues, in favor of retaining it, that:

The Daily Telegraph’s Peter Oborne argued that the House of Lords continues to work remarkably well, throwing out what he calls “populist measures introduced by governments determined to bolster their right-wing credentials”.

An elected House of Lords would never have the will or the courage to stand up against public opinion, he argues, and would deprive the public of the judgement of “very valuable” peers, such as retired generals, trade union leaders, academics and judges.

Commentary

Are these good reasons? Is this the choice I would make if I were king?

Maybe, maybe not. But the point is to recognize that there are some reasons for the status quo and to properly weigh them when deciding to deviate from them.

Answer 2

It is seen as sufficiently powerless, in the real scheme of things, to make it a quaint holdover from ancient times. Much like the monarchy. If the Queen would actually exercise all those powers which she graciously delegates to the elected representatives of the people, the UK would be a dictatorship. But the Queen knows that she couldn't do that (at least not for long) and she probably doesn't want to do it, either.

Read about the Crown-in-Parliament so see how the UK reconciles the traditional powers of the monarchy with modern times.

The House of Lords actually does wield some powers, but the influence of the hereditary peers is sufficiently diluted by the new, lifetime-only peers to make the tradition acceptable to modern, democratic sensibilities. These peers are chosen by the Queen, on the advice of the Prime Minister and parliament. Which is a fancy way of saying, by the elected representatives.

But any honest observer would admit that the House of Lords is not, at the core, a democratic institution.

Answer 3

The House of Lords is a house of review. Life peers represent a cross section of society, either appointed by the government of the day, or as hereditary peers. (c.f. juries) Apart from the fact that hereditary peers are generally perceived as more conservative on average than the rest of the lords, the system has worked well, as has our monarchy. The Queen is unelected too but enjoys wide support. "If it ain't broke, don't fix it".

Changes often have unintended consequences. Blair gave Scotland and Wales their own parliament which has probably emboldened their nationalist movements and now threatens the union.

Answer 4

The other answers are great, I'd just like to highlight a term lengths matter.

It's very useful in democracies to have a mixture of term limits as it limits the tendency toward landslides, like adding baffles to a water tank to limit sloshing.

You see this in the US with Representatives (2 years), President (4 years), Senators (6 years) and Supreme Court Justices (life (incidentally also not really elected)).

In the UK, having only one elected house and a PM instead of a President loses the separate terms for Senate and President, the House of Lords counter balance this a bit.

Answer 5

It's worth noting that Canada has a similar upper house in a bicameral legislature. It has no trappings of nobility, but the appointments are for life (though there's a mandatory retirement at age 75).

The Queen of Canada makes the appointments upon recommendation of her government. In reality, it means that the government of the day gets to make appointments when seats open up.

There is much discussion in Canada about making the Senate more democratic. The advantage that is has as an appointed (rather than elected) body is that it is pretty toothless. The House of Commons, being elected, is where power resides. It is very rare that the Senate gets in the way of the will of the people.

Compare this to the US where Senators (even from states like Vermont or Wyoming; states with only a single congressperson) are imbued with much more power than congresspeople. I'm a big fan of a toothless upper house. It's also worth noting that the "founders" (the folks who drafted the US Constitution) did not plan on an elected Senate. Until the 17th amendment (in force in 1913), the Senators were chosen by the states.