Lord Grenfell
The question of democratic authority
In their Foreword to the Draft Bill, the Prime Minister
and the Deputy Prime Minister write that "The House of Lords
performs its work well but lacks sufficient democratic authority",
since "those who make the laws of the land should be elected
by those to whom those laws apply." In other words, an unelected
House of Lords cannot by definition claim the necessary legitimacy
to legislate. This latter, very doctrinaire, position can and
should be challenged. Why?
John Locke took the view that political legitimacy
derived from popular explicit and implicit consent; that the government
is not legitimate unless it is carried out with the consent of
the governed. I entirely accept that, but I would argue that where
the people are prepared to entrust a legislative function to a
non-elected chamber of parliament, their consent to such an arrangement
confers political legitimacy on that institution.
In an entry entitled Political Legitimacy, dated
April 29, 2010, in the Stanford Encyclopaedia of Philosophy,
the author, Fabienne Peter of Warwick University, observes
that in contemporary political philosophy, not everyone agrees
that democracy is necessary for political legitimacy. My own view
is that it is not always necessary, and that the House
of Lords is a case in point. I suggest that two of the several
theories of political legitimacy explored by the author can usefully
be considered when challenging the assertions in the Draft Bill's
Foreword.
Under the theory of 'democratic instrumentalism',
the definition of what is an ideal outcome provides the standard
that determines political legitimacy. In other words, if democracy
does not contribute to the identification and achievement of the
best outcomes, it is not necessary for political legitimacy. Democratic
instrumentalists argue that there is some ideal egalitarian distribution,
and that the legitimacy of political institutions and of the decisions
they take depends on how closely they approximate the ideal egalitarian
distribution. For the democratic instrumentalist, and I quote
from the Stanford entry:
"If sacrificing political equality allows
for a better approximation of equality overall,
then this does not undermine legitimacy."
Applied to the House of Lords, this might suggest
that the outcomes delivered by an all-hereditary House could in
theory have passed the political legitimacy test. That does not
in itself invalidate a theory based on the quality of outcomes.
It does, however, raise the question of whether, in the contemporary
political environment, quality of outcomes is alone a sufficient
justification for declaring democracy not necessary for political
legitimacy. In my view it is not a sufficient justification by
itself, but it is an indispensable half of a whole claim to political
legitimacy. The other half is found in the so-called 'rational
proceduralist concept' of democratic legitimacy which holds that
the fairness of the democratic decision-making process is not
sufficient to establish the legitimacy of its outcomes. I find
that persuasive but would add that 'fairness' is nonetheless indispensable
to establishing that legitimacy.
In seeking to apply the concepts of 'democratic instrumentalism'
and 'rational proceduralism' to the political legitimacy of the
House of Lords, it seems to me that that legitimacy derives from
a marriage of the two. The legitimacy of the Lords scrutiny and
revising role depends on both a set of procedural values and on
the substantive quality of its outcomes. Its deliberative decision-making
procedures, recognising the supremacy of the elected chamber,
coupled with the high level of expertise provided by its composition,
ensure respect for procedural values and encourage high quality
outcomes.
I return to my opening argument that where the people
are prepared to entrust a legislative function to a non-elected
chamber, their consent to such an arrangement confers political
legitimacy upon it. It seems to me to follow that unless and until
it chooses to withdraw that consent, the chamber enjoys that political
legitimacy. The Foreword to the Draft Bill seems to suggest that
there can be no political legitimacy where there is a lack of
democratic authority. I question this assertion on the grounds
that if the House can demonstrate its political legitimacy in
the terms I have used above, a claim that it lacks sufficient
democratic 'authority' must surely fall.
That said, can the House of Lords make a persuasive
case to the public for the House's continued enjoyment of that
consent? I argued in the chamber on 29 June 2010 (at column 1693)
that such a case could be made.
"In simplest terms, the House of Lords seeks
to meet the electorate's requirement that the legislation promised
by the party that wins office is fashioned to the highest possible
standard consistent with the will of the elected House, whose
primacy we unquestionably acknowledge. With few powers to exercise,
and rightly so, we Members of the Lords participate in the legislative
process by drawing on our experience and applying our expertise
to help ensure delivers to the people what it has the right to
expect: high quality, implementable Acts of Parliament. It has
yet to be proven to me that the fact that we are an appointed
House disqualifies us from performing that crucial democratic
function."
I still hold strongly to that view while readily
accepting that others take a different view. It is precisely because
there are different views on what constitutes political legitimacy
that I find the failure of the authors of the Foreword to recognise
the existence of any other view than their own very unhelpful
and not at all conducive to the pursuit of a profound and informed
debate on the future of the House.
2 November 2011
| 
