The British government, supported in principle by the opposition Labour party, is currently proposing reform of the House of Lords. The plans would move the Lords from being wholly appointed to largely elected. Clearly, they say, the Lords should be reformed to have a democratically elected membership - but is the case for change that clear?
The argument for reform is clear enough and easy to understand. In a constitutional democracy, the people ought to elect their representatives. Given that, having one of the two Houses of Parliament made up of appointed 'worthies', entirely unchosen by and unaccountable to the people at elections, is obviously problematic.
Much better, you might say, to remove all of those unelected, unaccountable people and replace them with elected members who will represent the people better. While we're at it, we can reduce the size of the Upper House. The UK does not need 800 Lords, and 450 would probably suffice (though this number appears to have been chosen fairly arbitrarily).
So democracy is the answer. We'll have proportional representation to avoid cloning the Commons. We'll elect members for non-renewable 15 year terms, which should give them time to get things done, but stop them pandering too much to the electorate or the party Whips. But obviously we don't want to lose all expertise at once, so we'll elect a third of the House every five years.
However, despite the democracy argument, I'm not convinced. It's true that if we were starting from scratch, I wouldn't devise the system that we have now; but I'm not yet persuaded either that it isn't working, or that the proposed new system will deliver any meaningful improvement. At the very least, there are reasons to wonder whether reform is a good idea, and the question is worthy of full debate.
If it ain't broke...
One argument against change is that the current system is working well enough already, though there is room for improvement within it. The function of the Upper House is to review and revise legislation introduced by the Commons. It is not there to pursue its own legislative agenda, nor (if push comes to shove) to stop the Commons from achieving its legislative aims - only to steer, to guide, to polish.
Given that aim, what characteristics do we want from its membership? The short answer seems to be: expertise and experience in a wide variety of areas of life so that whatever the issue in question there are people there well equipped to comment insightfully on it.
With that aim in mind, the House of Lords currently looks rather well equipped. The membership of the House includes current and former doctors, lawyers, teachers, business people, athletes, financiers, civil servants, scientists, academics, charity workers, and Commons MPs. (There may well be too many former MPs, but having some is a real advantage.) Just listen to the debates that take place in the House of Lords, then compare them with those in the House of Commons, and decide for yourself which you think are better informed, based on better information, engaging more productively with the issues.
The most important thing about the House of Lords at the moment is that it is not controlled by the political parties to anything like the extent that the Commons is. In general, Commons MPs do as they are told by party Whips. The Lords isn't like that. Yes, there are party allegiances, and yes Peers who are members of parties tend to vote with their parties. But they don't always, and there are no real consequences for them if they don't. The worst that could happen is that they could be expelled from the party - but since 177 members of the Lords are Crossbenchers with no party anyway, that would hardly be a major punishment. It certainly doesn't carry the same consequences of having the Whip withdrawn in the Commons, where de-selection and a lost seat at the next election would be almost a foregone conclusion.
Another benefit of the present arrangement is that there is no danger of any 'clash' between the Commons and the Lords. In the event of disagreement the elected Commons trumps the unelected Lords, thus allowing a clear line of authority and avoiding legislative deadlock.
That's not to say that there are no problems. Clearly, the Prime Minister should not be the person to appoint new Peers, regardless of the way in which the selection is made. Clearly, there is no justification for having fluctuating numbers of Peers depending on the whim of any one individual to make more or fewer appointments. But equally clearly, these problems could be overcome by fixing the number of Peers and setting up an independent commission to oversee appointments.
An elected House of Lords
Could all of these benefits be retained in the elected House of Lords? Some say so. The reason that elected Peers will have 15-year non-renewable terms is to make each member more independent. Each will have time to establish him or herself but, since there is no possibility of re-election, there will be no particular incentive to follow the party line, and no need to worry that any one decision will be held against him or her by the electorate at the next election.
But then, if we're not concerned about being able to hold individual lawmakers to account at elections, then really the only thing that we're talking about is how to select the unaccountable members of the Upper House anyway. And if selection is the only question, then there are reasons to doubt whether election is going to be better than appointment on any measure other than ticking the 'democratic theory' box.
Democracy is a good idea, but in practice our 'democratic system' is so flawed that its merits are rather diluted. The power of the political parties to pre-select our representatives is astounding and terrifying. Local party groups select their candidates in idiosyncratic and unaccountable ways, or central party groups impose candidates on local groups. Either way, it's very much an in-club: those who are in favour get a favourable seat to contest, while those less willing to toe the current party line can fend for themselves.
If this is true of our current MPs, think how much more true it will be of the new House of Lords. The plan is to elect them using proportional representation based on party lists. Yes, they will be 'open lists', so people can put the candidates on the list in their own order (rather than the party's order), but it's still a party list. You'll have to be in favour with the list-makers to stand any chance of being elected under this system. Given the current dissatisfaction and disengagement with politics in Britain, it seems that lots of people do not find any of the parties terribly reflective of their own views. Why should we think that an Upper House made up entirely of party hacks is going to improve matters?
It's true that there will be nothing in principle to stop us electing the same range of experienced and skilled people to the Upper House as we have there now - but in practice, I just don't see it. More likely, the lists will be populated with second-rate party hacks. Because the Commons will, we are told, retain its dominance over the Upper House, it is hard to see that anyone who seriously wants to run for office and has the charisma to win would choose to put themselves on a party list for the Upper House, rather than entering a constituency contest for the Commons.
On the subject of the dominance of the Commons, though, it's hard to see why that would continue. The argument for it at the moment is that members of the House of Commons are elected and members of the House of Lords are not, but that would no longer be true. Nor would mere numbers be enough. A slim victory in the Commons (say, 301 to 299 if it is reduced to 600 members) could be 'outweighed' by a strong defeat in the Upper House (say, 310 to 140). Why should those 310 accept that the 301 in the Lower House should take precedence?
Like many people, my instincts favour reform, but in practice I think that the House of Lords is currently doing a rather better job than the House of Commons, and any reforms are likely to weaken its ability to hold the Commons to account. At the very least, this is an issue that needs proper debate, and the Labour opposition was right to oppose the government's timetabling motion that would have restricted debate on this question. 10 days is not long enough to discuss the complete restructuring of our parliamentary system.
Moreover, once we've had a proper debate about it in Parliament, we should have a referendum. When all three main parties have 'Lords reform' in their manifestos, it is not meaningful to say that the electorate has 'chosen' that option - there was no alternative. I suspect, despite all that I've said here, that the majority of people would probably vote for change, but it seems important enough that we should probably find out for sure.
Rob George is a member of the Law Faculty at the University of Oxford. A fuller version of this article appears on his person blog, http://legalliberal.blogspot.co.uk