THERE’S something inescapably charming about the House of Lords, the upper chamber of the British Parliament with 817 active members. But the usually discreet charm of the aristocracy is under attack this week after the Lords used its power to delay tax-credit cuts passed by the Conservative majority in the House of Commons.

The prospect of a Tory government complaining about tradition is deliciously ironic, but it does raise two serious questions: is there a place for an unelected chamber in a modern democracy? And what benefits, if any, stem from its slowing or delaying the operation of the elected government?

It should be noted that there’s a nice question of constitutional law at stake in the controversy. Ordinarily, the Lords’ delaying power doesn’t extend to money bills. The excuse provided by the Labour-Liberal Democrat coalition that slowed the bill was that, in form, it isn’t budgetary at all, but rather a “statutory instrument”.

What’s fascinating to constitution buffs worldwide is that the constitutional rule that the Lords can’t delay money bills isn’t written down in a single constitution — nor can it be resolved by a court. The UK’s unwritten constitution is, and has always been, a complex combination of statutes, rules, principles and precedents subject to uncertainty, negotiation and debate.

This rule in particular dates back more than a century. In 1909-10, the Lords initially blocked, and then under pressure passed the so-called people’s budget, which systematically redistributed wealth through social programmes for the first time in British history. The aftermath was the Parliament Bill of 1911, which significantly limited the power of the House of Lords. It specified that the Lords could delay money bills by a month, and gave the speaker of the Commons the authority to certify what was a money bill and what was not under the terms of the law.

The upshot is that any constitutional crisis over the current delay will have to be resolved by the Commons and the Lords themselves. It’s broadly accepted that the Commons could, if it wanted, pack the already overstuffed House of Lords with new conservative peers. Although a few MPs have recommended that course, it’s unlikely to be taken.

That leaves the underlying challenge to the unelected chamber’s legitimacy in a modern, democratic state. It helps a little that today’s Lords, unlike their predecessors, mostly did not inherit their posts. In 1999, almost all of the hereditary peers were purged from the house by legislation that left just 92 behind. The current Lords are in essence lifetime political appointees — a bit like US Supreme Court justices, but with much less power.

The classic justification for an upper chamber is to slow down the enthusiasms of popular democracy. In the famous metaphor attributed to George Washington, the US Senate (then elected indirectly by the state legislatures) was like a saucer. The hot tea of legislation passed by the directly elected House of Representatives could be poured into the saucer to cool it down before drinking.

As the metaphor shows, there’s something slightly paternalistic, even condescending about the idea that the people’s democratic expression needs to be tempered by wise people chosen undemocratically. Indeed, critics condemned the original Senate as aristocratic.

Yet it remains the case that rational deliberation can be enhanced by a check, however brief, on major, transformative legislation. Because the Lords can only delay legislation, not block it, their goal is always to drive further public reflection.

In democracies, the public sometimes forgets to pay enough attention to major issues. A delay, judiciously deployed, is a signal to the public to sit up, listen and weigh in. If not overused, the delay should push the government to justify its programmes convincingly.

Knowing that a Lords majority from other parties might delay legislation therefore forces the government to internalise the costs of potentially unpopular laws that it wants to pass. In a democracy, that’s a benefit — one that no other state institution is well-placed to deliver.

In theory, an elected upper chamber with the same limited powers could perform the same role. Since 1999, there have been multiple proposals to elect the Lords. That would give the chamber a democratic pedigree.

But if the election of the Lords takes place at the same time as the election for the Commons, the results should be roughly parallel. If that happens, the checking function would disappear. This would raise the question of why an upper chamber is needed at all, given that the House of Commons is already elected.

It emerges that some lag in the composition of the two houses is a good thing. Party control should ideally be different in each. That won’t always happen, of course. But the more it does, the better.

Properly configured, then, an unelected upper house is actually a boon to democracy. And, anyway, wouldn’t it be a shame to give up on the old-fashioned pleasure of saying “M’Lord” and M’Lady”, even if it’s only to a bunch of retired do-gooders and superannuated politicians?

Noah Feldman is a professor of constitutional and international law at Harvard.

—By arrangement with Bloomberg-The Washington Post

Published in Dawn, October 31st, 2015

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