Electing the Lords: Issues 7 – Voters and Legitimacy
My seventh post on electing the Lords addresses what constitutes legitimacy, and a little more on bicameral relations.
Many talking heads with half-baked notions of constitutional practicalities resort to the last refuge of the scoundrel – that, for example, election is the only acceptable form of legitimacy. It’s a huge, gaping fallacy to presume so. To paraphrase Sir Winston Churchill, those who argue this remind me of the man who, upon learning that ventilation is a wonderful thing, smashed every window in his house and got fever as a result.
The Commons, as the elected Chamber, rightfully has the final say over everything in Parliament – the existence of government, the budget, the passing of laws, ministerial careers, the maintenance of the Armed Forces, to name a few. There is, clearly, no other conceivable way of holding the government to account on behalf of the people. But the function of the Upper House is to support the Commons through detailed consideration of legislation and expertly conducted inquiries. There is no other function it can have. It does not follow that it should be elected. As I have shown, it’s neither necessary nor desirable.
Moreover, election is not the sole form of legitimacy. Donald Shell describes legitimacy as ‘primarily a quality afforded by others to an institution’, not an intrinsic quality magically conferred by election. The Lords does have legitimacy, and plenty of it.
There are two kinds of legitimacy – output and input legitimacy. The Commons has input legitimacy – it is legitimate because it is freely and fairly elected. The Lords has output legitimacy. As we have seen, the combination of independence, expertise, relative cheapness, ability to make long-term considerations, and its support of the Commons is seen by the public generally quite positively. See Meg Russell’s 2007 analysis for more.
Two houses with equal legitimacy could end up fighting each other and not doing their job of holding the government to account. We could well see much, much more of the filibustering and empty, time-consuming debate that dominated the final Lords stages of the Parliamentary Voting System and Constituencies Bill in January 2011. As it stands, the two chambers of Parliament complement each other nicely; the Lords’ high quality debates, inquiries and consideration of Bills helps the Commons to manage its enormously heavy workload, while the Commons has the final say through being elected. Electing the Lords could endanger this.
There is also the problem of turnout. Pairing elections for the Upper House with those for the Commons would mean people voting for one would likely vote for the other at the same time, but then we run the risk of creating an echo chamber. Alternatively, separating the elections, in order to encourage a different political balance in the two chambers, would almost certainly mean that all but the most politically active would bother turning out for elections to the Senate.
The Commons is, and would remain, the principle chamber for exercising popular power, and turnout for it would always be higher. Turnout for the Senate’s elections would be abysmal, making it unrepresentative and quite unstable. It wouldn’t surprise me if we got turnouts of 20%, like the European Parliament – which, paradoxically, is a relatively powerful but ignored chamber. Equally, as we have seen, this would cost money.
The answer might be in ‘phased’ elections, in which a portion, say half or a third, is elected each time the Commons is elected. But this leads into ‘voter fatigue’. Turnout for the May 2010 General Election was 65%. Throughout the world, lower turnouts are linked to constitutions with lots of elected institutions.
Vernon Bogdanor on the subject:
‘If the elected upper house had fewer powers than the House of Lords, or even perhaps if it had the same powers, there would be a danger that few would bother to vote in elections to it. This danger, which bedevils local authority and European Parliament elections, must be a very real one. Elections for the Mayorof London and the London Authority yielded, in 2000 and 2004, a turnout of just 34%, and in 2008 a turnout of 45%, even though the mayoral election attracted candidates with a high public profile; and the functions of local authorities are rather clearer than those of the new upper house would be. Elections to the upper house would, in addition, be unlikely to attract candidates with a high public profile; such people would probably still prefer to enter the Commons in the hope of becoming ministers.’
Turnouts tend to be higher for institutions which are seen to be more prestigious and more powerful. In the US, Presidential elections on average pull turnouts of 55% or so; gubernatorial, House and Senate elections are substantially lower, such the 2006 US Senate election, where 29% voted. Paul Vallely in the Independent highlights this himself:
‘And what of the electoral cycle? Mr Clegg is said to favour a Senate in which members sit for 15 years. A third would be elected every five years. Presuming those elections would be mid-way through the newly-fixed five-year Commons cycle, that would subject Westminster to periods of barely two years between elections, a paralysing process. But even if they coincided they would alter the political dynamic. At present the 1911 Parliament Act limits the blocking powers of the upper house on the ground that an unelected house should not prevail over an elected one. But if both houses were elected there would be no logic in opposing the repeal of the Act since both houses could claim equal legitimacy. That opens the way to the deadlock of the United States bicameral system.’
So which is it to be? Either way bodes ill for the interests of Parliament. Either the elected Senate would challenge the Commons for party political reasons, dividing accountability and preventing constructive and thoughtful scrutiny, or it will end up being an echo chamber.
Back to Article 6
Forward to the Conclusion
Vernon Bogdanor, The New British Constitution (2009), p 171.