Thursday, 28 January 2010

Lotteries and lordships

Graeme Archer, on Conservative Home, has an interesting (if unlikely) suggestion about that perennial conundrum, reform of the House of Lords. In essence, he wants to replace a permanent second chamber with "people's juries", selected to revise and vote on individual bills. He explains:


An objection often raised is: how could random people be expected to be expert on any particular legislative topic? I do not propose that they should, any more than I was an expert on the problems faced by new immigrants in Bethnal Green, when I sat on a jury a few years ago. I propose that the parties in the Commons should nominate Advocates to make their case to the jury in the upper chamber. Amongst other benefits, this means that the Upper Chamber has access to experts for any particular topic....Each chief advocate could produce a panel of experts to help with their case - including (why not?) government ministers and their shadows, or backbenchers, or members of select committees, and even Baroness Greenfield or Helena Kennedy.

After reviewing the evidence, the upper "chamber" could then vote in one of two ways: Ready for Royal Assent, or Send Back to Commons for Revision. Such a process would almost certainly increase the power of the Select Committee (and hence the backbencher) at the cost of the Executive, but the (unelected) upper chamber could never permanently overthrow the will of the elected commons. It could make a government pause and re-consider. In this way we might see better thought-through legislation.


I've long been attracted to lot-based systems, partly because of the Athenian precedent (although that, of course, was a very different society) but mainly because random selection is inherently a more democratic mechanism than election. Pure democracy isn't everything, of course: you also need people with expertise, passion, reliability and high intelligence leading the political and legislative process. You need politicians, in other words. But any democracy worthy of the name should seek to involve as wide a cross-section of the population as possible in the political system. Once political parties had a mass membership and the House of Commons could draw upon people with a wide range of experience outside politics. Now it is dominated, on all sides, by career political hacks, who are viewed by the electorate with ever growing contempt. This is neither democratic nor stable.

What has happened over the past few decades is less an aberration than the exposure of the inherent flaws of the system. A broadly-based Parliament may be desirable, but in time the institution will tend to become colonised by politicos parasitic upon the body politic. Politics ceases to be a forum of democratic decision-making and evolves towards being a self-perpetuating mechanism, the purpose of which is to enable its practitioners to win elections and thus retain their jobs.

Most people do not want to become politicians, and of those who do only a small minority have the characteristics that bring success inside political parties, which may not be the characteristics best suited to serving the people of a country as a whole. Another way of saying this is that elections are invariably won by politicians, and that while electoral politics presents an illusion of choice to the voters, politicians in all mainstream parties have more in common with each other than with the voters they purport to represent. When we are told that parties are "essential for democracy", what is meant is that they are essential for politicians.

The most fundamental divide between politicians and the electorate is that for the public, politics is important (rather than merely interesting as a spectator sport) because of the policies, whereas for the politicians what matters most is their political career. Individuals MPs may be strongly motivated to pursue particular causes, but even they, outside their narrow enthusiasms, will by and large bear out the truth of WS Gilbert's caricature: "I always voted at my party's call, and never thought of thinking for myself at all". Such an MP is, of course, thinking for himself as he votes his party's way on a bill of whose content he knows or cares little - at least, he is thinking of himself. The ambitious backbencher is rarely an habitual rebel, and most backbenchers, to begin with at least, are ambitious. Getting on means making compromises, and some of those compromises will affect real people in profound ways.

This is where Archer's proposal begins to sound attractive, though he doesn't quite spell it out. He's attracted to the effectiveness of juries as noted by theorists like Ian Hacking. His major concern is that the system should churn out the best possible legislation. The principal advantage of a jury system, however, is that it would be representative of the whole country, including the people likely to be directly affected by particular laws. Instead of trying to find a sympathetic MP - who is most unlikely to prevail against a government machine - they will have a seat at the table, the chance of putting their case directly to their fellow-citizens, and a vote (if not a veto). Such a system would also counteract the power of lobbyists and big business to distort legislation (see, for example, the current Digital Economy Bill) - since part-time jurors, who are only deciding on one particular bill, would be virtually immune to such blandishments.

I don't hold with Archer's idea entirely, however. While having a truly democratic lock on legislation - provided by a randomised jury system - is a good idea in principle, it couldn't achieve the detailed scrutiny that experienced lawmakers acquire by virtue of years learning about procedure and political manoeuvring. There's need for a revising chamber that has that knowledge - and, however unfortunate the method of its selection, the House of Lords is currently not ineffective at doing its job. The major problem is that carefully reasoned amendments are too easily discarded by a government determined on getting its way, which can and does fall back on the argument that as "the elected chamber" it has a moral right to prevail. The obvious solution is for at least the overwhelming majority of the members of an upper house to be directly elected.

Personally, I would favour a small chamber - a hundred members seems about the right size - elected by rotation (say ten per year) by the entire electorate. No constituencies, no fancy PR mechanisms, just the ten candidates who nationally attracted the highest support. These "senators" - but perhaps someone could suggest a more English-sounding title - might be affiliated to political parties and stand under their colours, or they might be independent, but either way their huge electoral mandate would render them largely free of party control.

Needless to say, the party machines would never allow it.

Graeme Archer isn't very keen on elections to the upper house, because of the potential for conflict between two elected chambers. This would be "inevitable", he thinks, because "election, through universal suffrage, is a valid mechanism, and all the 'rules' and 'principles' and 'unwritten agreements' in the world will not change this. If I am elected to one chamber in parliament, and you are elected to another, we have the same (democratic, legitimate) basis on which to interfere with that parliament's proposed legislation."

This is true - just look at the United States, where gridlock can only be avoided if the same party controls the Presidency, a majority of the House and 60 seats in the Senate. Arguably the system has impeded necessary reform, healthcare being the obvious newsworthy example. It also gives opportunity for porkbarrel trading of special interests for votes. At the same time, though, it serves as a brake on ill-considered laws. A system that led to gridlock would have prevented the Thatcher government from introducing the poll tax, which would have been a great thing all round (especially for the Thatcher government). It might also have held back some of the worst New Labour legislation, in the process saving ministers from repeated drubbings in the courts. So legislatiave logjam has its advantages.

Indeed, the notion that the government should get its way, simply because it is elected, is not a democratic principle. It belongs to the theory of elective dictatorship, that a government gains legitimacy from the fact of having been elected, and once elected should be able to exercise near absolute powers until it submits itself once more to the voters. There are obvious problems with this. First, the support a government enjoys in Parliament does not, even under a proportional system, accurately represent the will of the people. The present government was elected on only 35% of the vote and has consistently polled below 30% in recent years. And even if a system of PR assembled a coalition representing in excess of 50% of votes cast, that coalition would be an expression of the compromises reached between politicians to enable them to work together, rather than the popular will.

My suggested Senate could sit alongside some version of Archer's juries. It might, for example, have the power to remit a bill for consideration by a special people's jury, or a jury might be invoked to resolve conflicts between the two houses. Perhaps, though, all these systems belong to an earlier age. If we were designing a political system from scratch, wouldn't we want to incorporate the potential for true democratic involvement available on the Internet?