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Upper houses
The concept of a
review structure to watch over political decisions is certainly not new. The
Romans had a Senate from the sixth century BC. Less sophisticated societies had
cruder structures with a similar purpose. ‘The ancient Goths of Germany had all
of them a wise custom of debating everything of importance to their state,
twice; this is, once drunk-that their councils might not want vigour; and once
sober-that they might not want discretion.’[73]
The executive government is not responsible to the upper house. The
upper house has no role in the choosing of a government, and should have none
in a dismissal. But the executive government should be answerable to the upper house for its proposed legislation and its
administration. If the upper house is to be effective in these roles, it must
have some control over the executive government, otherwise it will simply be
ignored.
Of the twenty parliaments we are
considering, only eight still have upper houses. All but two of these (the
House of Lords and the Canadian Senate) are elected. Of the seven upper houses
which have been abolished since 1867, only one was elective, that of tiny Prince
Edward Island. The Canadian provinces of British
Columbia, Alberta
and Saskatchewan have never had
upper houses. Ontario chose not
to have one on partition from Quebec
in 1867, and the Newfoundland
upper house was not re-created when responsible government was restored in
1949. There is no doubt that the non-elective nature of the upper houses
diminished their political prestige, and made possible their abolition by
governments impatient with any check to their power.
For the perceived role of upper
houses has changed since Bagehot’s day. In the eighteenth and
nineteenth centuries an upper house was seen as a check on change and the
onward march of democracy. ‘All second chambers have been instituted ... not
from any disinterested love of mature deliberation, but because there is
something their makers wished to defend against the rest of the community,
especially inherited possessions and status.’[74]
The Canadian Senate and most of the upper houses in the Canadian
Provinces and the Australian
colonies were quite openly structured so as to protect the interests of property
owners. Madison
campaigned for a strong American Senate as ‘check on the democracy ... it
cannot therefore be made too strong.’ It was this anti-democratic role of the
upper houses which led Abb Sieys to claim that ‘if the Upper house agrees
with the Lower it is superfluous; if it disagrees it ought to be abolished.’
The march of democracy could not be
halted, despite rearguard actions, and other justifications of upper houses
came to the fore. The Bryce Report
of 1918, for instance, held that a main function of second chambers was ‘the
interposition of so much delay (and no more) in the passing of a bill into law
as may be needed to enable the opinion of the nation to be adequately expressed
upon it.’ But who is to decide when the will of the people has been adequately
expressed, and what it is? And how is the second chamber to be limited to
imposing no more delay than is necessary? These were-and are-the unsolved
questions.
This role, too, has been overtaken
by events. In all Westminster-style parliaments, the past century has seen,
through the strength of party discipline and the development of party
machinery, the increasing dominance of the lower house by the Cabinet. This has
been reflected in a dramatic growth in departmental bureaucracy and an
extraordinary expansion of administrative law and delegated legislation. The
power of the courts to constrain the executive has been reduced. The lower
house has almost none. The restraining role, if it is to be performed at all,
must fall on the upper house. ‘The House of Lords, which once stood guard over
the actions of a too powerful House of Commons, now stands guard over a too
powerful Cabinet.’[75] How effective a
guard is another question.
Some upper houses are moving into
the political space abandoned by the lower houses; others seem moribund. Many
possible roles for upper houses have been suggested. They could provide an
additional pool of ministerial talent. They could perform the legislative role
with regard to bills and delegated legislation, to the extent that the lower
house is unable or unwilling to perform it. They could protect the special
interests of states or provinces, and minority groups. They could inquire
publicly into government activities, particularly those the government does not
want to be scrutinised. They could monitor the activities of government
business enterprises and other statutory organisations. And they could force a
government which is performing badly or irresponsibly to face an immediate
election.
Before the desirability and
practicality of these various activities can be discussed, it is necessary to
describe the different methods by which individuals become members of upper
houses, for they affect both the quality of membership and the effective
political power of those bodies.
United Kingdom
The House of
Lords is of course the prototype for all the other upper houses, but its
composition has never been copied, although there were a few stray attempts in Canada
and Australia.
As a result of the deal struck with Lord Cranborne
in 1998, the number of hereditary peers in the House of Lords was reduced from
758 to 92, two of them ceremonial posts. There were also 26 bishops and
archbishops (all Church of England, of course), 27 judges (created life peers
under the Appellate Jurisdiction Act of 1976 and making up the country’s
highest court of appeal) and the 515 other life peers. Before the changes were
made, the House of Lords had 1326 members, of whom 750 held their seats because
they were born into the aristocracy. Eight more had been created. These figures
do not include 63 Lords without Writs of Summons, and 52 (including four life
peers) who were on leave of absence. Contrary to popular belief, most of the
hereditary peerages are not ancient. Before the Stuarts, the
number of English peers ranged between 23 and 55. These days only 30 per cent
date from the eighteenth century or earlier. It should be noted that in the
crucial vote, less than a quarter of the eligible peers actually voted.
The 90 hereditary peers who were to
sit in the reformed House of Lords were elected by colleagues who were members
of their party. Any of the existing hereditary peers could nominate, and each
was given 75 words to state an election manifesto. These ranged from the
eccentric to the pompous. One promised ‘action against cruelty to animals,
particularly fishing with rods. All cats to be muzzled outside to prevent the
torture of mice and small birds.’ At the other extreme, one merely said that he
hoped his ‘fellow peers will honour me with their vote, on account of their
knowledge of my endeavours.’ The elections were for 42 Conservative peers, 28
crossbench, three Liberal Democrats and two Labour. Fifteen Deputy Speakers and
other office holders were elected separately, and there were two ceremonial
posts.
The royal commission, set up by Tony
Blair as the second stage in the reform of
the House of Lords, reported in December 1999. It recommended that there should
be some elected members of the new second chamber but rejected the idea of a
wholly democratic house. The Commission thought that the new House of Lords
should have about 550 members with, according to the chairman of the
Commission, John Wakeham, ‘a significant minority chosen on a basis which
reflects the views of the regional electorates’, the number of regional members
being somewhere between 65 and 195. A third of the regional members should be
chosen at the time of each general election, and their term as regional members
should be three terms of Parliament-that is, not more than fifteen years.
The Commission recommended that the
remainder of the 550 members should be appointed by a genuinely independent
Appointments Committee, aiming to achieve a political balance matching the
political opinion in the country as a whole, with about 20 per cent of the
total number of members being Independent ‘cross benchers’. The appointments
should include members with such qualities as ‘a breadth of experience outside
the world of politics’, ‘personal distinction’ and ‘a non-polemical and
courteous style.’[76] The Commission
also thought that one third of the members should be women and a broad range of
religious and ethnic backgrounds should be represented.
Despite the promise by Tony
Blair that a reformed upper house would be
in place by the next general election there was in fact no further change
before the 2001 election. Whether there will then be public support for further
reform remains to be seen.
The House of Lords is the final
court of appeal for most legal cases, and up to eleven ‘Lords of Appeal in
Ordinary’ may be created. They retire as Lords of Appeal at the age of 75, but
remain members of the House of Lords for life. The appellate function of the
House of Lords is now quite separate, and only ‘Law Lords’ may hear appeals. Bagehot
favoured removing judicial functions from the Lords, and in fact this was done
in 1873. Unfortunately the Disraeli Government restored them in the following
year, so there is the confusion of having two courts of appeal in England.
The royal commission did not see any reason to tackle this problem, thinking
rather that there was some advantage in having senior judges in the Parliament
where they could be educated in social developments. The Commission did not
discuss the desirability of the separation of the legal and legislative powers.
The bishops and archbishops are at
present members of the Lords until retirement, which is now the age of 70 if
not earlier. The Archbishops of Canterbury and York and the
Bishops of London, Durham
and Winchester are there ex
officio, and the remaining bishops are selected on the basis of seniority of
appointment. The royal commission recommended a broadening and deepening of
religious representation in the second chamber, to include Christian
denominations other than the Church of England as well as representatives of
other faiths.
Life peers have been regularly
created since 1958, at a rate of about twenty a year. These peerages have been
effectively in the prime minister’s gift, but although most prime ministers
have tended to favour their own party, all have appointed life peers from the
other parliamentary parties and from Independents. Indeed, opposition leaders
are regularly consulted before new life peers are created. The power of the
prime minister to offer someone a life peerage has been a useful way of
bringing a suitably qualified individual into the ministry.
The presence of life peers has done
much to raise the intellectual level and prestige of the Lords. The hereditary
peers did occasionally produce individuals of ability, and, because an
hereditary peer was entitled to his seat at the age of 21 also occasionally
represented youth or early middle age, but such peers are unlikely to be
elected under the transitional scheme. The Law Lords added a certain judicial
dignity and legal knowledge, while the bishops exuded rather unfocussed social
compassion. There is no doubt, though, that the Lords have been hampered by
their non-representative character, and have been reluctant to take proper
action on some occasions for fear of being pilloried in the media as ‘the Lords
against the people’.
The House of Lords is unique in that
its members are unpaid (except for daily attendance expenses),[77] and are under no constraint to attend
the House. ‘Whipping’ is therefore a very imprecise science in the Lords, and
party strengths can be deceptive. The royal commission recommended the
introduction of a modest attendance payment.
Canada
Canadian
senators, although they must reside in the provinces they represent and must
have property worth four thousand dollars, do not really represent anyone
except the prime ministers who appointed them. Since 1965 senators have been
obliged to retire at 75. As prime ministers nearly always appoint senators from
their own party, a prolonged period of rule by one party causes serious party
distortions in the Senate. A prime minister with a secure majority in the
Senate sometimes appoints a distinguished ‘Independent’, and party members
sometimes desert the party after appointment. A prime minister also sometimes
appoints an opposition MP to the Senate, in the expectation (not invariably
achieved) that the government would win the ensuing by-election for the House
of Commons.
Before 1984 senators did not take
rigid party positions, but between 1984 and 1990 the Liberals in the Senate
used their majority to frustrate the Conservatives on several occasions. In
1990 this culminated in the Senate attempting to block the Goods and Services
Tax Bill. Prime Minister Mulroney
used the deadlock procedure to appoint eight additional senators (all
Conservatives of course), and by filling some vacancies which had been left
unfilled, he managed to gain control of the Senate.
Another significant (but
short-lived) development occurred in 1990. The Meech Lake Accord had provided
that the provinces should propose lists of suitable persons to fill Senate
vacancies as they occurred. Alberta
held a province-wide election to choose a candidate and forwarded the winner’s
name to the prime minister. Brian
Mulroney was in a dilemma. Was a single name
a ‘list’? Besides, the nominee was a member of the Reform Party, which was
becoming a dangerous rival to his Conservatives in the prairies. Very
reluctantly, and after a long delay, Mulroney appointed the
new senator. The Meech Lake Accord has since died, so there will be no further
elected senators, for the present at least.
According to a Canadian authority,
the result of the system of appointing senators is that Canadian senators are
old, biased in favour of a long-lived government, almost totally
unrepresentative of minor parties, male-dominated (though less so than the
Commons), and composed of many wealthy people who on average have more
political experience than the MPs in the House of Commons. The average age of
Australian senators in December 1999 was 49 years, and MPs 47. The average age
of British MPs was 52 and peers 65. In Canada
the figures were 51 for the House of Commons and 64 for the Senate. The
Canadian Senate is becoming less male-dominated; in 2000 there were 34 women
senators.
Australia
The Australian
Senate was patterned on the model of the US Senate, though during the
federation debates some doubted whether the concept of a powerful Senate
representing the states was compatible with responsible government. Yet there
was really no option: without such an upper house there was no way the four
less populous colonies would have agreed to federation in the 1890s, and
probably thereafter. The Constitution therefore provides for equal
representation in the Senate for each of the six original states. Because the Constitution
also provides for a two-to-one ratio between the two houses, as the population
grew and the number of MPs needed to be increased, the number of senators had
to be increased accordingly.
Initially there were six senators
from each state, elected on a state-wide basis, rising later to ten senators
and in 1985 to twelve. The term of a senator is six years, with half the
senators retiring every three years. The Northern
Territory and the Australian
Capital Territory, not being states, have two
senators each. Election is by proportional representation, with preferential
voting. The quota to elect a senator is 14.3 per cent of the votes in a normal
half-Senate election, and 7.7 per cent when the whole Senate is dissolved after
a legislative deadlock between the two houses. Robson rotation[78] is not used, so the party
organisations have control over the order in which their candidates are
elected. Indeed, if a voter wishes to follow a party ticket, all that is needed
is to tick a box, and as the alternative may be to fill in 60 or more
sequential numbers on the voting form, it is not surprising that over 90 per
cent of voters do tick a party box.
The result of all this is that the
senators are very similar in age and background to the members in the Representatives,
the choice of house being largely dictated by political opportunity, with the
proviso that those who see themselves as potential leaders of their parties
will try to head for the House of Representatives. Because of proportional
representation and the even number of senators to be elected in each state and
territory, it is most unlikely that any government will have a majority in the
Senate. The balance of power will be held by minor parties and Independents.
The Senate is thus in some ways much more representative of the political views
of the community than is the House of Representatives, though it is somewhat
distorted by the requirement (copied from the US Constitution) of equal
representation from each state, so that Tasmania (population 473 000) has
the same number of senators as New South Wales (population 5.8 million).
Fortunately the party voting patterns across Australia
are remarkably consistent, very different from those in Canada
and the UK, for
instance.
The
Australian states
Of the five
legislative councils in the Australian states, three are elected by
proportional representation. In New South Wales
and South Australia the
electorate is state-wide; the term of a councillor is two terms of the lower
house, with half the councillors facing the electorate at each general
election. Western Australia
continues its tradition of rural bias by having six regions, four returning
five councillors each and two returning seven. The number of voters in the
various regions is manipulated so as to give a two-to-one bias in favour of the
rural and remote areas, with the result that the Council is significantly more
conservative than the lower house, the Legislative Assembly, though after the
1996 election the balance of power was held by two minor parties. The life of
the Council is a fixed four years, although the elections are held at the same
time as the lower house.
Tasmania
and Victoria do not use proportional
representation for their upper houses. In Victoria
there are two councillors for each electorate, standing at alternate elections.
The Council electorates are created by lumping together four Assembly
electorates.
The Tasmanian system is distinctly
curious. For many years there were nineteen electorates for the upper house,
with wild discrepancies developing in the number of voters-by the 1990s the
electorates varied in size from 6000 to 21 000. In 1998 there was a
reduction in the Council’s size from nineteen to fifteen, to be achieved over
three years. The number of voters in each electorate has been equalised, with a
10 per cent tolerance, which triggers a redistribution if it is exceeded. More
unusual is the electoral system. Councillors are elected for fixed six year
terms, with elections being held on the fourth Saturday in May each year. When
the Council size has come down to fifteen, two councillors will be elected one
year and three in the next year and so on, the electorates which are voting
each year being selected so that they are as far as possible spread around the
state.
The extraordinary result of the
by-election atmosphere created by this system of voting has been that the Council
is almost entirely filled with Independents. In 1990, for instance, the Council
consisted of seventeen Independents (about a third of them leaning to the
Liberals and another third to Labor), one Labor councillor and one Liberal.
There were of course no party caucuses, though the two councillors who were
party members attended the meetings of their colleagues in the Assembly.
The Tasmanian Legislative Council
can be rather reactionary. When a bill to decriminalise homosexual acts was
being debated, there were claims that homosexuals should not sully Tasmania
with their behaviour, and that they should go to other states where such
disgusting behaviour was legal. When a councillor suggested that the opponents
of decriminalisation were using Old Testament arguments and ‘in those days a
person was put to death for it’, another councillor interjected ‘not a bad idea
either.’[79] The decriminalisation
clauses were defeated.
Although all the
upper houses were set up to protect special interests, this role has
diminished. Nevertheless the composition of upper houses gives various
interests formal representation they would not have in the lower house. The
House of Lords still gives power to some representatives of the hereditary
peers, and to some judges and senior clergy of the Church of England.
Appointments by the prime minister can place distinguished individuals in the
House of Lords and the Canadian Senate, although the Canadian appointments seem
more designed to reward party service than to enhance the quality of the Senate.
Life peers have done much to enhance the quality of the House of Lords. They
certainly come from diverse backgrounds.
The largest category is of politicians,
whether ex-ministers, ex-MPs or others active elsewhere in party politics,
especially in local government. But the many other occupations honoured include
businessmen, trade unionists, civil servants and other public servants,
diplomats, senior servicemen, industrialists, scientists, economists,
journalists, newspaper proprietors, doctors, lawyers, farmers, technologists,
actors and artists, clerics, accountants, nurses, social workers, and a
composer.[80]
If the recommendations of the royal
commission are accepted, the representation would become even more diverse,
with regional members as well as increased representation of women and of
religions other than the Church of England.
The Australian Senate was originally
designed as a states’ house. ‘Not only by its express powers,’ said Barton,
Australia’s first prime
minister, ‘but by the equality of its representation of the states, the Senate
was intended to be able to protect the states from aggression.’ In fact, as
some prescient members of the constitutional conventions had predicted, the
Senate immediately split on party lines. The Senate has never been effective as
a states’ house. Of course senators raise state issues, but not more
frequently-in fact rather less frequently-than their colleagues in the House of
Representatives. There is however one state advantage: the existence of the
Senate, and its election by proportional representation, ensure that there will
be someone from each state in each major parliamentary party. Tasmania
is the problem. From 1972 to 1975 all
five members of the House of Representatives from Tasmania
were Labor, from 1975 to 1987 all were
Liberal, and since 1998 all have been
Labor.
The effect of proportional
representation is to allow representation of minor parties and Independents,
and to make it unlikely that a major party will have an absolute majority. The
extent to which minor parties or Independents can gain seats depends on the
size of the quota. In Australia
federally, when there is a double dissolution and all twelve senators in each
state are up for election, the quota is 7.7 per cent, but the drift of preferences
from other parties will permit the election of someone with an even lower
proportion of the primary vote. After the 1987 double dissolution, for
instance, the state of the parties in the Senate was: Labor 32,
Liberal-National Coalition 34, Australian Democrats seven, Nuclear Disarmament
Party two, and one Independent. One of the Nuclear Disarmament Party (from New
South Wales) received only 1.5 per cent of the
primary vote. The person elected was later discovered not to be a citizen, and
his election was declared void. His place was taken by the person who was
second on the party ticket. The strength of the Nuclear Disarmament Party in New
South Wales was estimated to be under 100 at the
time, and it was divided into several factions.
Although the electoral systems in
most of the Australian upper houses do result in the representation of minority
groups and special interests, most suffer from the defect that they lag in
following changes in public opinion. This applies whether their members are
appointed for life or until aged 75, or whether a portion of the house (usually
half, but in Tasmania one-sixth)
retires at each general election. The continuing nature of elected upper houses
was originally designed to maintain stability. As one delegate to the 1891
Constitutional Convention in Australia
put it, it would be undesirable for ‘the people’s will in its burst and flush
of impetuosity to reach the statute book. That is not what the sober-thinking,
solid and-I will use the word-conservative Senate is for.’[81] A modern upper house must be aware
that its membership may not reflect changing public opinion, and must be
particularly careful not to obstruct important measures which the government
can reasonably claim were critical to its election program.
The possibility
of abolition concentrates the minds of upper houses, though the consequence of
concentration is sometimes paralysis. Yet there is no serious move against any
of the remaining upper houses. The House of Lords could be abolished by an act
of Parliament, which the Lords could do no more than delay for a year. It is
possible, but these days very unlikely, that the Queen could insist on the
issue being put to the voters before she would approve such a bill. In 1977 the
Labour Party conference voted overwhelmingly for the abolition of the House of
Lords ‘as quickly as possible’, but this pledge was dropped from the 1987
manifesto. The Labour Party adopted a policy in favour of a ‘second chamber’,
though it was not entirely clear about how it was to be constituted, except
that it should have no hereditary component. The Labour manifesto for the 1992
election suggested the replacement of the House of Lords with an elected second
chamber which would have a delaying power over bills which reduced individual
or constitutional rights. The Conservative manifesto did not mention the House
of Lords. With the reforms being implemented by the Blair Government, abolition
is not now an issue.
Everyone seems to agree that the
Canadian Senate should be reformed, but there agreement stops. ‘It would be
idle to deny that the Senate has not fulfilled the hopes of its founders; and
it is well also to remember that the hopes of its founders were not excessively
high.’[82] There is no real move to abolish
the Senate, though its behaviour over the Goods and Services Tax bill made it
many enemies. Abolition would require an amendment to the Constitution which
would have to be passed by the House of Commons and two-thirds of the
parliaments of the provinces that have between them at least 50 per cent of the
total population. It would be very difficult to obtain such a vote. The Senate
would not be able itself to block such a bill, for it has only a 180-day
suspensive veto over amendments to the Constitution.
In Australia
the Senate is powerful, and is entrenched in the Constitution. There is no way
the voters in a majority of the states[83]
would vote for its abolition, for the four less populous states firmly believe
that the Senate protects their interests. The Labor Party used to have the
abolition of the Senate as part of its platform, but in 1979 recognised reality
and deleted it.
Three of the five legislative
councils in the Australian states are firmly entrenched in their state
constitutions. The New South Wales, South Australian and Western Australian legislative
councils could be abolished only by referendum, and past experience suggests
that such a referendum would surely fail. In Victoria
the Council is only slightly entrenched, its abolition requiring an absolute
majority in each house. However, no party is currently committed to its
abolition. Tasmania, as usual, is
the odd one out, for its Council could be abolished by an ordinary act of Parliament,
but the prospect of the Independents who dominate the Council voting for their
own destruction seems remote.
It can be seen that none of the
surviving upper houses should fear abolition, anyway in the short term, or
permit that fear to prevent them carrying out the jobs that should be done.
Although the
House of Lords does provide a pool of ministerial talent, and a convenient
method, through a life peerage, of bringing an eminent non-politician into the
government, the expertise in the Lords is not often used in this way. It may
occasionally be used as a quiet refuge for a busy minister. Prime
Minister Macmillan sometimes moved a
minister to the Lords to shield him from ‘the time-wasting turmoil’ of the
Commons. Typically there are two or three Cabinet ministers in the Lords (out
of 22) and five or six ministers of state (out of 30). As all ministers in the
Commons are required to have someone in the Lords to answer for them, the
balance of the Lords front bench team is made up of parliamentary under
secretaries and whips. A typical government front bench team in the Lords would
have 22 members, including seven whips.
Cabinet ministers in the House of
Lords are more often than not life peers. In Conservative governments the other
ministers and parliamentary under secretaries tend to be hereditary peers,
because life peers have usually had successful careers outside politics, are
not as young as they were, and are not very interested in full-time political
drudgery without compensating power. In the 1990 Conservative government under
John Major, for instance, both of the Cabinet ministers in the Lords were life
peers, but only one of the six ministers of state and none of the remainder of
the front bench. Suitable hereditary peers are much less available to a Labor
government, and in the 1997 Blair Government there were none.
The elimination of hereditary peers
will of course change this balance, but during the transitional period, where
there are 90 hereditary peers elected by their colleagues, there may not be
much change, for nearly all those hereditary peers who would have been
considered for the front bench would be among the 90 chosen. The royal
commission recommended that some ministers should continue to come from, and be
answerable to, the new second chamber, and that senior ministers from the House
of Commons should make statements to an appropriate committee of the second
chamber, and answer questions from it.
In Canada there is normally only one
minister in the Senate, the leader of the government party, although in the
past both Liberal and Conservative governments have used Senate ministers to
cover gaps in their ranks in the Commons when there is no suitable MP from a
particular province.
All the Australian upper houses,
except Tasmania’s, are substantially represented in the various ministries. In
the 1990 Hawke Labor Government, for instance, the federal ministry contained
21 MPs (out of 76 members of the government party) and nine senators (out of
32). The figures for the second Howard Liberal-National Party Government in
1998 were 20 MPs out of 80, and nine senators out of 34. In the smaller
parliaments (the Australian House of Representatives has 148 members compared to 659 in the British House of Commons and 301 in the Canadian) there is
no doubt that the upper houses usefully increase the pool of potential
ministers. Some of the most effective ministers in the various Australian
parliaments have come from their upper houses, but there is no scope for the
British technique of bringing a talented outsider into the ministry by
appointing him to the upper house.
There are nevertheless substantial
problems in having ministers in the upper house. A basic concept of responsible
government is that the Cabinet is a committee chosen by the lower house, and is
answerable to it. This has effectively prevented a non-parliamentarian
remaining a minister, though this would be technically legal in the UK and
Canada and some of the Australian states. The possibility of providing an MP in
the lower house to represent such a minister is not thought to be a politically
acceptable solution. Logically the same objection should surely apply to having
ministers in the upper house.
At a practical level, if a minister
is in the upper house he cannot be directly questioned by members of the lower
house. Certainly he will be represented there, but the minister answering the
questions may not be directly involved in the affairs of the department, or
involved in only part of it. Though he will undoubtedly have a thick book of
briefing notes, it is not at all the same as being able to confront the
responsible minister directly. The same problem arises when the house debates
the performance of departments or policies for which an upper house minister is
responsible. In Australia, for instance, during the Gulf War the ministers for
foreign affairs and defence were both in the Senate.
Senate ministers in Australia,
like the ministers in the House of Representatives, wish to keep the sittings
of the Parliament as brief as possible, so that they can get on with their
administrative work in their departments, and not give the non-government
parties opportunities for easy publicity. The consequence has been that the
Senate sits for an absurdly short time-only half the sitting days of the House
of Lords, for instance-and much important Senate business is either rushed or
neglected. It is surely wrong for the sitting days of the Senate, which is the
only effective scrutineer of government legislation and administration, to be
determined by the body being scrutinised.
Another problem is the effect that
the presence of ministers has on the numbers available in the smaller upper
houses for committee work. In the Australian Senate, for instance, where there
are only 76 members, the unavailability of eight or nine ministers for
committee work is a significant loss.
Most serious of all is the effect
that the possibility of becoming a minister might have on the zeal with which
upper house members approach their other activities, all of which have the
potential to question, constrain or expose the government. The task of a
minister in an upper house is to try to ensure that government legislation is
passed promptly, without amendments, and with as little embarrassing debate as
possible. Similarly, government activities must be presented in the best light,
and any inquiries potentially harmful to the government firmly headed off.
All of this is of course totally
incompatible with an effective role for the upper house, but the opposition
will usually support this attitude, for they hope to be in government
themselves one day, and they have no desire to see really effective controls
established. Worse still, upper house members who are or aspire to be
ministers-and that means virtually all upper house members-will try to use the
upper house to support their party’s continuing electioneering in the lower
house, and such campaigns do great damage to an upper house as a serious
legislature. In the Australian Senate, for instance, the policy of senators
from the major parties on serious issues is determined at a joint meeting of
their party, at which the lower house members outnumber the senators two to
one. And if they have any ministerial ambitions, senators have to vote in
accordance with these decisions.
It is difficult to see these
attitudes changing while the aspiration of most upper house members is to be
promoted to the ministry.
United
Kingdom
The royal
commission did not recommend any significant changes to the legislative
arrangements in the second chamber, so it may be assumed that the present
performance of the House of Lords in this area will continue. These days, of an
average of about 85 bills passed by the UK Parliament each year, about twenty
are introduced in the Lords. This figure includes a handful of ‘consolidation’
bills, which make no substantive changes to the law, but reorganise various acts
to make them more accessible. These bills are always introduced in the Lords. A
few important bills are usually introduced in the Lords so as to avoid a
traffic jam in the Lords at the end of the session, but these cannot include
supply and money bills, which must be introduced in the Commons. The Lords sit
for some seven hours a day, four (or, towards the end of the session, five) days
a week, and into the evenings each sitting day except Fridays. The total
sitting days average about 150 a year, which puts other upper houses to shame.
About half of the available time is
now spent on legislation, a remarkable increase occurring in the last two
decades of the twentieth century. Only about a fifth of the time available for
legislation is spent on second reading debates, a very low figure compared with
other upper houses. The Lords do not normally divide on the second reading of a
government bill. They follow a doctrine, first formulated by Lord Salisbury
during the term of the Attlee Labour Government, that the Lords would not
oppose bills which implement undertakings given in the government’s election
manifesto. Other bills-the deplorable retrospective War Crimes Bill, for
instance-may be opposed, though the Lords have only a delaying role, not a
veto. The impressive legal talent in the Lords effectively demolished the War
Crimes Bill during the second reading debate, but the Thatcher Government was
driven by political rather than legal standards, and after the necessary
interval the Commons passed the bill again. When the Lords rejected it for a
second time, the full provisions of the Parliament Act of 1949 were invoked for
the first time, and the bill became law.
The committee stages of bills are
much more thorough, and taken on the floor of the House. It is very rare for a
bill to be referred to a committee; only ten have been referred in the past
three decades. There is no opportunity to hear public evidence or receive
submissions. In July 1992 a Select Committee on Committees recommended a
special standing committee to take evidence on technical bills and then
consider them clause by clause. These committees were later renamed special public
bill committees, but only three bills have been considered by them, none since
the 1994-95 session. None were referred to any other committee in the 1990s.
There are numerous amendments made
to the bills considered on the floor of the House. Nearly all of them are
initiated by the government, dealing with problems with poorly drafted bills
which have nevertheless passed the House of Commons, second thoughts on
technical detail or even policy by the sponsoring department, or mistakes
noticed or promises given to make certain amendments. The House of Lords is a
convenient place to make such amendments, though if it did not exist other ways
to make them could be found, as has to be done in unicameral parliaments.
There are, though, some amendments
which would probably not be made but for the House of Lords. The first type
occurs when problems which have been raised in the Commons but dismissed there
are raised again in the Lords, and the government introduces amendments to
resolve them, either wholly or in part. The second type occurs when a peer
points out a defect which no one had noticed until then. The range of
specialist expertise in the House of Lords make this not uncommon. The third
type is different, for it is an amendment resisted by the government but passed
anyway by the Lords. Before the 1998 transitional reform of the Lords about ten
bills a year were amended in this way. For the House of Lords to press the
issue, it had to be concerned with one of the Lords’ special interests, which
were ‘in summary: the treatment of pensioners and the disabled,
rural/countryside issues, matters of constitutional etiquette, respect for
existing minority rights and, to a lesser extent-because it rarely leads to
defeats-consumer rights.’[84] It remains
to be seen how the new House of Lords will use its power.
Some, but by no means all, of the
third type of amendments were accepted wholly or in part by the Thatcher and
Major governments, which was a significant change from the attitude of the
Labour governments of the 1970s, when most such amendments from the Lords were
rejected. The Lords did not insist on them, though they did manage to negotiate
some changes to bills such as those on the dock-work scheme, devolution
proposals, and aerospace and shipbuilding nationalisation, from which the Lords
were able to exclude ship-repairing.
The Blair Labour Government also
accepted some amendments from the House of Lords, one of which significantly
changed the Crime and Disorder Bill (1998), which contained wide ranging provisions
on law and order. At the report stage in the House of Commons a motion was
moved to reduce the homosexual age of consent from eighteen to sixteen, to
bring it into line with that for heterosexuals. The amendment was passed on a
free vote by 336 votes to 129, but was rejected in the Lords. The government
accepted the Lords rejection so as to get the other 25 measures in the bill
into operation.
Although the House of Lords rarely
refers government bills to committees, it has set up a European Communities
Committee to consider draft EU legislation. The committee has six
sub-committees, and they consider selected draft legislation in detail, taking
evidence from witnesses including UK
ministers and European Commission officials and members of the European Parliament.
Although the UK Parliament has no formal role in the EU legislative process,
the House of Lords reports are regarded as authoritative and often superior to
anything produced by the European Parliament.
Private bills are concerned with benefits
to any person or body of persons. About half of the private bills to come
before Parliament are introduced in the Lords, and if they are disputed they
are referred to select committees which act in a quasi-judicial manner, hearing
evidence and arguments from both sides. The Parliament Acts of 1911 and 1949 do
not apply to these bills, and the Lords occasionally reject them, notably a
1976 bill to nationalise Felixstowe Dock, despite the bill being supported by
the Labour government. There has been a considerable increase in private
legislation in recent years, because railway, light rail and other works
projects require such legislation, and although the Lords could cope with the
workload the Commons was under pressure. In a typical reaction of a modern
‘responsible’ government, the system was changed so that Parliament no longer
has to approve these works bills.
Several private members’ bills are passed each session but such bills frequently
die in the Commons, for a private member’s bill from the Lords not only
requires a sponsor in the Commons but must follow the same tortuous procedures
as private members’ bills introduced in the Commons. Nevertheless private
members’ bills from the Lords have raised important issues, such as abortion,
homosexuality and sex discrimination, which have ultimately been dealt with one
way or another.
As the Lords have no power over
money bills, the estimates are not considered at all by them.
Canada
Until 1984 it was
a much calmer picture in Canada. The Senate had not rejected a government bill
since 1940, or insisted on an amendment since 1961. The Senate did do some
useful work in tidying up defects in the bills which were overlooked in the
Commons, or making last minute changes to bills-possibly to meet promises made
in the Commons, though in fact only 69 government bills have been amended in
the past 30 years. During the 1970s and early 1980s the Senate used a system of
sending the subject matter of government bills (not the bills themselves) off
to legislation committees for public input while the bills were still before
the Commons, and tabling the reports in the Senate where they would be
available to the responsible minister. This pre-study was helpful, as
worthwhile amendments could be made to a bill before it arrived in the Senate,
but its almost clandestine nature did nothing for the public image of the
Senate. Many senators felt that it was more appropriate for the normal
procedures to be followed, and pre-studies are now very rarely used.
Things changed dramatically in 1984,
when the incoming Conservative government was faced with a Liberal majority in
the Senate. On past experience this would not necessarily have been a problem,
but the Liberal senators had been reinforced by new senators chosen from ex-members
of the House of Commons, and they introduced partisan tactics to the Senate.
In the 1984-85 session the Senate
delayed a 19.3 billion dollar borrowing bill until the government tabled its
spending proposals. Although the Senate was technically in the right, its
action provoked anger and the Senate responded with threats to delay
legislation. Helpful procedures such as committees privately suggesting
amendments to ministers were dropped. Bills were still referred to legislation
committees, and there was substantial input to these committees, but the
committees were controlled by the Liberal opposition, and they became very
partisan, with almost no cross voting. Although the Senate never finally
insisted on its amendments, they did cause considerable delays and frustration.
In 1988 there was a dramatic
development. The Conservative government had negotiated a free trade agreement
with the United States. The enabling bill was duly passed by the Commons, but
the Liberal parliamentary leader announced that the Senate would not pass the
bill until an election was held on the issue. Whether the Liberal majority in
the Senate would have obeyed these orders (it almost certainly would have) was
not put to the test, for Prime Minister Mulroney called an immediate election,
which he won. The bill was then passed by the Senate.
This was nothing compared to what
happened two years later. The Mulroney Government had passed a bill through the
Commons to introduce a new indirect tax, a ‘goods and services’ tax. When the bill
reached the Senate it was referred to a legislation committee. The committee,
controlled of course by the Liberals, toured the country for two months
stirring up opposition to the bill, which the committee then recommended should
be rejected. Extraordinary scenes followed: the Senate sitting 24 hours a day
for weeks on end while the Liberal opposition filibustered, with whistles being
blown and old speeches and complete books being read; the use of the deadlock
power to bring in eight new Conservative senators; sustained uproar for hours
to prevent the Leader of the Government being heard so that he could move a
motion to bring the matter to a vote; members of the Commons being invited,
most improperly, on to the floor of the Senate to harangue senators; press
photographers on the floor of the Senate; and fist fights almost breaking out
between senators. The bill was eventually passed, but the whole process was
scandalous and a dramatic change from the dignified and rather somnolent Senate
of the past. What will happen in the future, if another government is faced by
a Senate controlled by an aggressive opposition, is a critical question. The
problem has been deferred, for the Liberal government elected in 1993 managed
to regain control of the Senate two years later by filling four vacancies with
party members.
Before we leave the question of the
Senate’s handling of bills, two unusual procedures should be mentioned.
Although the Senate can establish legislation committees, it has never yet done
so. If a bill is to be considered by a committee-and this is rare-the bill is
referred to one of the standing committees. Only one standing committee (the
National Finance Committee) deals with estimates. Because of the absence of
ministers in the Senate, the responsible minister from the Commons may give
evidence to the committee handling the bill, and may even be invited to come
into the Senate to handle a bill at the committee stage. Other upper houses
could well consider such arrangements.
They might also consider the
Canadian Senate’s arrangements for the pre-study of bills, which have already
been described. The purpose of the procedure was to allow some Senate input
into bills, which are frequently sent up to the Senate at the end of a session,
and expected to be adopted quickly and without change. It falls far short of
making the Senate an effective legislature, but it was better than nothing,
until it fell into disuse.
The Canadian Senate does not really
consider supply bills at all, thought it certainly has the power to do so if it
chooses. Private bills are usually introduced in the Senate in order to balance
the workload between the two houses. Private bills are considered carefully by
a committee, which hears both petitioners and those opposed to the bill. There
are many fewer such bills than there used to be, for most were divorce
petitions from Quebec and Newfoundland, and these were stopped in 1963. There
are few private members’ bills
introduced in the Senate, because such bills have little chance of becoming law
and there is no publicity value, for the Senate is little reported and there
are no constituents.
Australia
The government
has had a party majority in the Australian Senate for only five of the last 30
years (1976-81). With the House of
Representatives having abandoned any pretence to being a legislature, it might
have been thought that the Senate would move rapidly to fill the gap.
Nevertheless the Senate was surprisingly slow to move into the field of careful
committee examination of government bills.
In 1970 seven (later increased to
eight) ‘legislative and general purpose’ standing committees were set up, and
one might have thought that they would play a major role in reviewing
government bills, whether originated in the Senate or received from the
Representatives. In fact very few bills were referred to these
committees-usually only one or two a year, none in some years-although it was
generally agreed that the bills which had been considered by the committees had
been considerably improved as a result.
Of course the government could be
expected to resist such referrals, claiming delay, though the urgency was
rarely apparent. The real reason seemed to be that the government felt that any
detailed examination of its bills, with public evidence being taken, by an all
party committee was an unreasonable intrusion by the legislature into the
business of the government! Yet the government did not normally control the
Senate, so how did it prevent a bill being sent to a committee? The secret was
to do a deal with the Democrats or the Independent senators holding the balance
of power, agreeing to allow them to make amendments which would be attractive
to their supporters, on the implied condition that opposition amendments and
attempts to refer the bill to a standing committee would be resisted. It was a
pernicious system. A deal could not always be made, and bills were frequently
amended by the combined votes of the opposition and the Democrats, or very
occasionally referred to a standing committee for thorough examination.
Even attempts to refer bills to the
standing committees for consideration in the lengthy winter recess never
succeeded. The chairs of the legislative and general purpose standing
committees were always government party senators, and they always maintained that their committees were already overloaded
with inquiries and they could not possibly deal with any legislation.
After prolonged campaigning by those
who wished to reform the Senate as a legislature, in 1989 a select committee
was set to examine, among other things, the question of the referral of bills
to standing committees. The committee recommended the setting up of a Selection
of Bills Committee, to consider all bills except money and appropriation bills,
which at this time were dealt with by the estimates committees. The Selection
of Bills Committee was required to report on each of the other bills as to
whether it should be referred to a standing committee, and if so which
committee and by when it should report to the Senate. The select committee’s
recommendations were unanimously adopted by the Senate, and the immediate
result was a sharp increase in the number of bills considered by the standing
committees. More bills were referred to committees in the first twelve months
of this procedure that had been in the previous twenty years. Now about 30 per
cent of bills presented to the Senate are examined by one or other of the
committees.
Another problem that had to be
tackled was how to provide adequate time for the Senate to consider a bill
thoroughly. Governments of both persuasions tended to pass a mass of bills to
the Senate at the end of a session (until 1994 there were two sessions a year)
with the demand that they should be rushed through. The Senate, which was not controlled
by the government, imposed increasingly stringent guidelines for the handling
of government legislation, and the government eventually agreed that it would
make ‘a concerted effort to ensure that in future most legislation is
introduced in one sitting for debate in the next’, and that from 1994 the
number of parliamentary sessions would be increased from two to three. The
Senate strengthened this by passing a standing order which required that a bill
passed in one period of sittings may be considered in that period of sittings
only if it is introduced in the first two-thirds of that period, and any bills
introduced after that are automatically adjourned until the next period of
sittings. The government has to make a special plea for a bill to be exempted
from this rule.
There was a further change in 1994.
There is always a danger when a committee is examining legislation and also
conducting inquiries into the activities of a government department that the
committee will become overloaded and one or the other will have to give. The
solution adopted was to set up two committees-one dealing with legislation, the
other with references-in place of each of the eight legislative and general
purpose committees. The chairs of all the legislation committees were
government party senators, giving the government an effective majority on each
of the committees.
The big increase in the number of
bills referred to committees is all very well, but the quality of the
examinations of controversial bills has fallen very sharply. While only a few
bills were being considered by Senate committees, the party leaderships did not
attempt to force committee members to toe the party lines. The bills that were
referred were thoroughly examined, and the reports were usually unanimous, even
on highly controversial bills such as the one on freedom of information.
With the greatly increased number of
bills being considered since 1990, it is no longer acceptable to the party
leaderships to have them examined in such an independent way. Effective
pressure has been brought to bear on the senators concerned. Committee members
now follow the party lines, and committee hearings on controversial bills tend
to become electioneering stunts rather than serious examinations of the
contents of bills.
There has also been a disturbing
development in the behaviour of the chairs of legislation committees. All such
chairs are held by the government party, and the senators concerned seem to be
moving towards a belief that government bills should not be touched. Even the
referral of the very important GST bills to legislation committees was resisted
by the government, apparently on the grounds that the very complex bills had
been carefully considered by the government, so why was the legislature trying
to get involved in the detail of such legislation?
The attitude of the legislation
committee chairs is that, if possible, bills should not be referred to a
committee at all, the chairs using often dubious claims of work overload. If
they are referred, the hearings should be brief and if possible no amendments
should be made. The reason for this developing attitude is that a committee
chair is seen as a stepping stone to the ministry, and the prestige of a
senator is thought to be greatly increased by ruthless and successful
protection of government bills. The reaction of the non-government parties was
to use their majority to refer some controversial bills, not to the legislation
committees but to the references committees, where the non-government parties
had a majority.
These problems do not arise if a
bill is not a matter of dispute between the parties. About 90 per cent of bills
fall into this category. There is no doubt that the legislation committees do
valuable work with these bills, and many of the non-controversial bills they
consider are improved as a result of their investigations. In the committee
hearings expertise in the community is brought in, and perhaps even more
importantly the opportunity for members of the community to have some chance to
make an input into laws which may have a significant effect on them is very
important for the working of the democratic system.
The question, though, is whether the
Senate committees can afford to spend time on these non-controversial bills.
There are only 76 senators, and there are unlikely to be more than about 33 or
34 government party senators. By the time ministers and the president have been
provided from the government party, there are usually not more than 23 or so
government party senators available for committees. With the number of joint
committees with the House of Representatives and other important Senate
committees stretching the time of the available senators, it is important that
the Senate committees should focus on investigations the House of
Representatives cannot or will not undertake.
For this reason it was earlier
recommended, when the performance of the House of Representatives as a
legislature was considered, that consideration of non-controversial bills
should be left to the committees of the House of Representatives, thus leaving
Senate committees with time for more controversial investigations. At the
moment the committees of the House of Representatives do nothing about such
bills; some effective pressure will have to be applied to them.
Private members’ bills in the Senate
used to be infrequent, but the development of the minor parties has made a
sharp change, the number being introduced rising from about two a year in the
1970s and 1980s to twelve in the 1990s. This is because there is some prospect
of the bills being passed, as a result of the lack of government control of the
Senate, and senators have begun to make use of the publicity opportunities.
Since 1970, 162 private members’ bills have been introduced in the Senate, and
twenty have been passed by that chamber. In order to be taken up by the House
of Representatives, a senator’s bill must be sponsored by an MP, and seven of
the twenty bills passed by the Senate were ultimately accepted by the
Representatives. It is worth noting that two of the seven successful Senate
bills were moved by opposition senators, and two others by Australian
Democrats.
The estimates are reasonably
thoroughly dealt with. They are considered by the eight legislation committees,
who are allocated departments to consider by a Senate resolution. They consider
the main estimates (after the introduction of the budget in the House of
Representatives in May) and the additional estimates (usually in November). The
evidence is taken in public session, but ministers from the House of
Representatives do not appear before these committees, with the result that
most of the departments being examined are represented by a Senate minister who
has little detailed knowledge of what is going on in the department. Public
servants from the department being examined do attend, and may answer the
questions of committee members if the minister approves, which he usually does,
particularly if he is not the responsible minister.
These committees have been effective
in forcing the government to produce estimates in a standard format with proper
explanatory notes. They have also uncovered some waste and mismanagement, and
certainly public servants view the hearings with trepidation. On the other
hand, the committees have serious shortcomings. They are not permanent
watchdogs, for they meet for only a few days a year. Worst of all, the
non-government senators are anxious to embarrass the government by uncovering
dramatic mistakes by public servants, rather than examining the policy and
methodology to which the expenditure is related. Still, that is the nature of
politicians.
The increased influence of the minor
parties and Independents in the 1990s has resulted in a great deal of the
negotiations on the budget being conducted directly between them and the
government, and they have been able to negotiate specific changes to the budget
in return for their support for the budget as a whole. This is a great change
from the days when the budget was regarded as non-negotiable and its progress
through both houses was regarded as automatic.
The consideration of annual reports
by government agencies has also been greatly improved. Responsibility for
considering these is assigned among the legislation committees, and the
committee has to report to the Senate whether the report is apparently
satisfactory. If it is not the committee has to conduct a detailed examination.
There is no doubt that, although the system is far from perfect, the Senate has
made a dramatic improvement in the supervision given to the very numerous
government agencies, which a decade ago were scarcely scrutinised at all.
The Australian Senate has taken also
three dramatic actions which have substantially improved its performance as a
legislature. In 1981 it set up a Scrutiny of Bills Committee, with independent
legal advice, with instructions to examine each bill when it is introduced and
to report if any bills trespass unduly on personal rights and liberties; make
rights, liberties or obligations unduly dependent upon insufficiently defined
administrative powers; inappropriately delegate legislative powers; or
insufficiently subject the exercise of legislative power to parliamentary
scrutiny. The all party committee raises queries about an average of 85 bills a
year, nearly 40 per cent of those introduced into the Parliament. In something
like half of the cases the responsible minister provides a satisfactory
explanation, but that leaves nearly 50 bills a year where there are concerns
which the minister, in the opinion of the committee, cannot meet.
The committee does not yet have the
political clout of the comparable Senate committee watching over delegated
legislation, but its views are available to both MPs and senators, and about 30
per cent of its criticisms result in amendments to bills. Without this
committee a good deal more defective legislation would be passed. It will come
as no surprise that the establishment of the committee was strongly opposed by
the government of the day, the Fraser Coalition Government. The government’s
attitude was that the bills had been carefully drafted by the government and
its advisers, so why should the Parliament want to get involved? A waste of
time, the government said. The committee was established only after several Liberal
senators cross voted.
The Senate has also taken action to
limit two other abuses of power by governments. A custom had grown up by which
the treasurer would announce a change of tax policy in a press release, and
this change would come into immediate effect, even though the bill to enact the
changes retrospectively might not be introduced for many months, sometimes more
than a year. Worse still, the bill might differ significantly from the press
release which until then taxpayers were being expected to obey. In 1988 the
Senate passed a resolution which sharply restricted the amount of
retrospectivity it would tolerate, and since then government behaviour has
noticeably improved in this regard.
The other abuse of government power
which has now been controlled concerns the failure to proclaim acts or parts of
acts which have been duly passed by the parliament. Certainly delay is
sometimes justified, to allow for such matters as the preparation of
regulations, but the situation was often absurd, with acts which had been
rushed through the Parliament as ‘urgent’ remaining unproclaimed for months or
even years. Following Senate protests, all acts which are to commence on
proclamation now have a provision that they come into effect after six months
if the proclamation is not made. The Scrutiny of Bills Committee is very
assiduous in drawing attention to any bills which have open-ended
proclamations. The government provides the Senate with an annual list[85] which shows the details of legislation
which is to come into effect on proclamation and has not yet been proclaimed.
The reasons for the failure to proclaim the act are set out. As an example, in
the 1999 report there were 24 such acts. The oldest was passed in 1974, and
dealt with financial corporations. The government said that Part IV of the Act
was inconsistent with new arrangements for the financial sector, and the need
for it was being reviewed.
If the government, for some good
reason, does not wish to proclaim an act, or part of it, it now has to come back
to the Parliament, explain its reasons, and ask it to amend or repeal the act.
That is as it should be.
State upper houses are generally
less effective than the Senate as legislatures. None of the state upper houses
regularly sends bills to committees for public examination. Western
Australia has the only upper house with a standing
legislation committee, intended to deal with contentious bills as well as
revisions of acts. The committee is empowered to take evidence from the
community, but only about 5 per cent of bills are referred to it. Tasmania, as
usual, has an unusual arrangement. Although the Legislative Council does not
formally take evidence from the public, there is an arrangement whereby the
whole Council meets with pressure groups, hears their cases and asks questions.
Although evidence from the public is desirable, this procedure is far too
loose. There is no public call for submissions on a bill, the evidence is not
given on oath, and the proceedings are not recorded.
When upper houses are not controlled
by the government, bills are fairly frequently amended. The Tasmanian
Legislative Council, which is never controlled by any government, amends 40 to 50 per cent of bills, many of them
heavily, and meetings of managers from the two houses are often used to try to
resolve differences.
Ministers from the lower houses are
entitled to attend the upper houses in Victoria and New South Wales, to explain
their bills and to answer questions, but not of course to vote or to move
motions. The right has occasionally been exercised in New South Wales, but is
not used in Victoria.
To show the contempt state
governments sometimes show towards upper houses, it is worth looking at the
recent behaviour of the New South Wales government towards its upper house. The
Legislative Council is elected by state-wide proportional representation, and
is rarely controlled by any government. The Legislative Council, against the
wishes of the government, added clauses to a government bill. Rather than go
through the complicated procedure for the resolution of a deadlock between the
two houses, the government accepted the amendments in the lower house, and then
proclaimed the Act excluding the amendments made by the Legislative Council.
And there was nothing the Council could do about it.
If upper houses
are to be effective legislatures, there will inevitably be deadlocks over
legislation between the two houses, or, lower houses being what they are, more
accurately between the government and the upper house. A method of resolving
such deadlocks is desirable, but not easily devised. In the UK the problem has
been solved by removing any power over money bills from the Lords and limiting
them to a mere delaying power over most other bills. In Canada the government
can nominate four or eight additional senators (one or two from each region) to
resolve a deadlock. This has been used only once, in 1990.
In Australia federally there is the
so-called double dissolution procedure, by which, if there is a deadlock over a
bill, both the Representatives and the whole
of the Senate may face an election if the government so desires. If the
deadlock persists after the election, it can be resolved at a joint sitting of
the two houses. A legislative deadlock is held to exist if the Senate rejects
or unacceptably amends a bill passed by the House of Representatives, and after
an interval of not less than three months the same thing happens again. The double
dissolution method of resolving such deadlocks was adopted by the 1897
Constitutional Convention after other suggestions had been rejected. The idea
of a referendum was decisively defeated, and almost in desperation the
Convention accepted the concept of a double dissolution.
It was not very well thought out.
Although the delegates to the 1897 Convention were quite clear that the Senate
had to have the power to reject (but not amend) the budget, they did not
consider what happened next. Perhaps they thought that a compromise budget
would be produced by negotiations between the two houses. Whatever their
thoughts, the deadlock procedure does not cope with the blocking of supply,
because a government cannot afford the waiting period of three months, at any
rate with the traditional budgetary timetable.
Nor has the procedure worked at all
well for other deadlocks, for in an election campaign the dissolution issue is
soon forgotten. It would be a bold person who held that, after such a campaign,
the voters’ decision on who should form the government was also a decision on
the particular piece of legislation which caused the election. Moreover, in
some double dissolution elections, several deadlocked bills have been put to
the community. What does a voter do if he or she agrees with some of the deadlocked
bills and disagrees with others? The threat of a double dissolution is not even
an effective way of bringing a recalcitrant Senate to heel, for governments
hold elections when it is politically advantageous to do so, and would very
rarely be prepared to risk loss of government over a particular piece of
legislation. Besides, with proportional representation in the Senate, a double
dissolution is an advantage to minor parties, and therefore unattractive to the
major parties.
Victoria
and South Australia are the only
states with similar deadlock procedures. In each of these states the first
three years of the four year term are ‘fixed’, and an election cannot be held
unless a no-confidence motion has been passed in the lower house, or there is a
legislative deadlock between the two houses. If the Victorian premier wants to
resolve a deadlock issue (or use it as an excuse for an early election), an
election can be held for the whole Assembly and half the Council. In South
Australia an election must have been held between the
first and second rejections by the Council, and the premier has the option of
sending the whole Council to the polls, as well as the Assembly. But it is
almost inconceivable that any re-elected government would want to have another
election so soon, so it is not surprising that the procedure has never been
tried. South Australia has an
alternative method of resolving deadlocks, the election of two additional Council
members, but this too is not very attractive and has never been tried.
The American model is not helpful
either. In Washington
the president can veto legislation passed by the Congress, though this veto can
be overridden by a two-thirds majority of each house. This system is designed
to allow the executive to prevent the legislature passing laws not desired by
the executive. In modern responsible governments the problem is the opposite.
There the problem is how to prevent an active Legislature not controlled by the
executive from unreasonably frustrating its legislative program.
A system of resolving legislative
deadlocks is clearly desirable, and general elections have not been a
satisfactory solution. More use could undoubtedly be made of conferences
between delegates from each to try to resolve differences over amendments.
There have been only three such conferences in the Australian Parliament since
1901 and all produced solutions. It is certainly a better system than the
government attempting to do secret deals with minor parties and Independents in
the Senate. In Canada
eight such conferences were held between 1925 and 1999. Five resulted in
settlements, one in a stalemate, and two bills were abandoned when the
government refused to accept the recommendations of the conferences.
But although conferences might be
helpful, they certainly will not resolve all the legislative deadlocks,
particularly with the tightening of party discipline which has occurred in most
parliaments. There are two other possible ways of resolving deadlocks-by a
joint sitting of the two houses, or by a referendum of voters. The problem with
a joint sitting is that different methods of election are usually employed for
the two houses. The most common is single member constituencies for the lower
house and proportional representation for the upper. The narrow margins which
normally result from proportional representation, and the decisive majorities
which are the usual outcome of single member constituencies, would mean that
the government would nearly always have a secure majority at a joint sitting,
which would then become merely another party controlled rubber stamp for the
government’s legislation.
A referendum of voters would be a
better way to resolve a deadlock, for in a referendum on a particular piece of
legislation the interest of voters would be focussed on the bill rather than
electing a government. The only Parliament to have adopted the referendum as a
means of resolving a legislative deadlock is New South
Wales, but the procedure is so cumbersome that it is
almost unusable. It takes at least nine months for the pre-conditions for
holding such a referendum to be met. If a bill passed by the Legislative Assembly
has not been dealt with by the Legislative Council after two months, or has
been rejected or unacceptably amended, the Assembly may, after waiting three
more months, pass the bill again, and the process is repeated. But that is not
the end. There has to be a conference between managers (usually ten of them)
from each house, but no votes are taken. If the managers fail to reach agreement
on the bill there may be a joint sitting of the two houses, though again no
votes are taken. If there is still no resolution, the Assembly may direct that
a referendum be held, but such a referendum may not be held for at least two
more months.
It is not surprising that such a
complex procedure has been used only once since its adoption in 1933. That was
in 1960, on a bill to abolish the Legislative Council. At the subsequent
referendum the bill was soundly rejected. There are too many delays and safeguards
in the New South Wales procedure.
Governments will not hold referendums recklessly, for defeats are usually
politically very embarrassing. A government will consider a referendum only if
the bill in question is important, there appears to be strong community support
for it, and there is no prospect of the upper house passing the bill in an
acceptable form. Certainly the upper house should be given time to consider the
bill properly, but surely a period of four months from the time a bill has
first left the lower house should be ample. Governments deserve to have the
power to implement key elements of their program in a timely fashion. The
safeguard is that if what they want is out of tune with the community, the
referendum will fail. New South Wales
has the right solution, but the wrong method of applying it.
In monitoring the
activities of the government, its departments of state, its business
enterprises and other statutory and non-statutory government bodies, upper
houses have the same weapons as lower houses: questioning ministers, either
orally or in writing; setting up committees of inquiry; and forcing debates on
particular topics by moving motions. One might have thought that, as lower
houses have become more disciplined to the will of the government, the upper
houses would have moved to fill the void, but this has by no means always
happened.
The House of Lords uses select
committees to meet particular needs, but with no coherent pattern. There are
two committees, one (with six sub-committees) dealing with the scrutiny of
European Union legislation and the other (with two sub-committees) with science
and technology. They have a high reputation for objective, in-depth analysis
among their somewhat specialist interest groups. There are occasional ad hoc select committees-about one or
two every three years-dealing with general policy matters such as murder, life
imprisonment, overseas trade, unemployment and also some domestic committees
dealing with such matters as the broadcasting of the proceedings of the House
of Lords. There is no systematic scrutiny of the activities of government
departments and quasi-government organisations.
The Royal Commission on Reforming
the House of Lords, which reported in January 2000, appeared to accept the
present arrangements, but recommended the establishment of three new
committees. Two of these were a Constitutional Committee to scrutinise the
constitutional implications of all legislation, and a Human Rights Committee to
examine all bills and delegated legislation for human rights flaws. There is no
doubt that these committees would be valuable, after the experience of the
Scrutiny of Bills Committee in the Australian Senate. The third proposed
committee was potentially the most important, for it was to scrutinise treaties
laid before Parliament and to draw attention to matters which should be
considered by the Parliament before the treaties were ratified by the
government. The royal commission also recommended the strengthening of the
power and the support provided for two existing committees, one scrutinising
delegated legislation and the other scrutinising ministers’ handling of
European Union business. Finally, the Commission thought that there should be
more consideration of the drafts of bills before they were introduced into the
chamber.
The Canadian Senate uses standing
committees fairly freely to investigate particular problems, and some useful
reports are made. The committee reports are usually fully debated in the
Senate, but government responses to the recommendations are infrequent.
Critical examination by Senate committees of the activities of government
departments and business enterprises (Crown corporations) is negligible.
Perhaps the most useful recent Senate committee inquiry concerned a proposal to
establish a security intelligence service. The bill was very controversial and
heavily criticised. It was not debated by the House of Commons, but instead was
referred to a special Senate committee, which proposed substantial amendments.
These were accepted by the government, and a satisfactory new bill was drafted.
The Australian Senate has eight
‘references’ committees, covering the full range of government departments.[86] These committees have conducted some
valuable inquiries, by no means always on subjects welcomed by the
government-which are of course often the ones that should be investigated. The
committees can inquire only into subjects assigned to them by the Senate, but
in practice the Senate rarely gives a committee a task it does not want or refuses a committee a reference it does want. The committee reports are
debated in the Senate and generally receive good media coverage. The government
is expected to reply to a committee report within three months, and it usually
does, giving its observations and intentions with regard to the committee’s
recommendations. As part of the deal when the functions of the old legislative
and general purpose committees were divided, all the references committees have
a non-government chair. This gives the non-government parties control of the
committees, and there has been some blatant electioneering by some of the
committees, which has reduced their prestige and the value of their reports.
The Senate also occasionally sets up a select committee to investigate a
particular problem.
Senate supervision of government
business enterprises and other statutory commercial and marketing bodies is
negligible. Some questions are asked by estimates committees, though these are
often inappropriate because there is no proposed appropriation for the
enterprise concerned. In any case, the party political nature of estimates
committee hearings makes any serious examination of their operations very
difficult. The old Senate Finance and Government Operations Committee did some
useful work in establishing how many such bodies there actually are. It
uncovered a surprising number no one seemed aware of. The committee also did
some excellent work in ensuring that annual reports were made and were presented
to Parliament. There is an opportunity for senators to speak briefly when an
annual report is tabled,[87] but the
real responsibility rests with the Senate references committees, for each annual report is referred to the appropriate
committee for it to make any investigations it thinks appropriate, and since
1989 the relevant committee has been required to examine each annual report
referred to it. A committee could, if it wished, summon members of the
management before it, and cross-examine them on their operations and the
quality and timeliness of their reporting to Parliament. In fact, no committee
has yet systematically exercised its power, partly because of the pressure of
other work and particularly because of the tradition of very short parliamentary
sittings. Meanwhile the organisations concerned go on, virtually unsupervised
by the Parliament which represents their owners.
The Australian state upper houses
generally do not have a very developed system of standing committees, though
they do participate in joint committees with the lower houses on matters such
as public accounts and delegated legislation. Western
Australia’s system is the most extensive with five
standing committees. The Western Australian committees cover legislation;
estimates and financial operations; ecologically sustainable development;
constitutional affairs; and public administration. Bearing in mind that there
would typically be more than 600 state government agencies, it can be seen that
the supervision is very limited, even in the one state which has a standing
committee on the subject.
New South
Wales has also made some useful advances in recent
years. In 1988 two standing committees were created, on Social Issues and State
Development, with a third standing committee, on Law and Justice, established
in 1995. There are also three estimates committees to scrutinise the annual
budget.
Seven of the
eight upper houses have daily question times while the house is sitting, though
in all of them its effectiveness is limited because most of the ministers are
not available for questioning. Certainly a frontbencher represents each lower
house minister, but this is not at all the same thing as directly questioning
the responsible minister. In the House of Lords questions are not directed at a
particular minister but at the government, and a frontbencher replies on behalf
of the government. None of the upper houses has attempted to arrange for lower
house ministers to visit the upper house, on a roster basis, to answer
questions. This would no doubt be difficult to arrange, but in its absence
question time in the upper houses remains of limited effectiveness.
In the House of Lords, as in the
Commons, all the questions are printed on the order paper,[88] and the Lords deal with four questions
each sitting day. Supplementary questions are freely allowed, and the period is
fairly lively. The average time taken by the question period has risen from ten
minutes in 1970 to 30 minutes in 1999.
The Canadian Senate has traditionally
had a club-like atmosphere, with senators deciding among themselves who is to
ask a question or a supplementary question. The Speaker has had little control
unless appealed to, though he has been given a little more authority after the
traumatic events of 1990. Question time is certainly not very satisfactory.
Usually the only minister in the Senate is the Leader of the Government, and he
has no departmental responsibilities. Committee chairs are sometimes asked
questions. It is all a sort of ritual game, with opposition senators trying to
induce the minister to depart from his brief and to make an admission which
will embarrass the government, while the minister tries to stick to his brief
while at the same time not looking ignorant or foolish. Question time used to
be open ended, but it has been reduced to 30 minutes.
In the Australian Senate, as in the
Representatives, all questions are in theory without notice but, unlike the
Representatives, one supplementary question (never more) is allowed to the senator
who asked the question (never to anyone else). An hour is allowed for question
time each sitting day, and in that time an average of sixteen questions and
four supplementaries is asked. To avoid lengthy policy statements by ministers
in response to a ‘Dorothy Dix’ question, (named after an American ‘agony aunt’
who ran a column in an American newspaper answering questions most of which she
had written herself) and lengthy speeches masquerading as questions from other
senators, the Senate in 1992 imposed a one minute limit on questions and a four
minute limit on ministerial answers, and on supplementary questions a one
minute limit on both question and answer.
The questions alternate between the
two sides of the chamber, and a minister in trouble with an opposition question
will hope for a friendly one from his own side. Question time is heavily biased
in favour of the ministers, but the opposition has an opportunity for 30 minutes
after question time to debate the answers given by ministers. A senator may
move to take note of an answer given that day by a minister, and may speak for
up to five minutes on it, the call alternating between the two sides of the chamber.
In the state legislative councils
question time is substantially the same as in the Senate, though except in New
South Wales the period is shorter. Supplementary
questions are not permitted in the Victorian Legislative Council, whereas as
many as three have been permitted in Western Australia.
The Tasmanian Legislative Council has no question time because it has no
ministers.
In all the upper
houses, there are arrangements for ministers to provide written answers to
questions from upper house members. In the House of Lords, the number of such
questions has risen from about 300 a year in 1971 to 4322 in 1998-99. Some of
these questions are ‘planted’, so that a minister may make a written statement
without going through the formality of making it orally in Parliament. All the
questions are normally answered within a fortnight.
In Canada
written questions are little used by senators, only about 40 a year being
asked. The government certainly does not hurry in answering them, but there is
usually a reply within three months. In the Australian Senate an average of
about 1000 questions a year are placed ‘on notice’ to be answered in writing,
and most are answered within 30 days, although some remain unanswered for many
months. If a question is not answered within 30 days, and the minister has not
given an acceptable reason for the delay, the matter may be raised at the end
of question time, usually by moving a motion for the answer to be tabled by a
specific date. Ministers usually comply with such orders, though nothing
effective can be done to them if they do not.
All the legislative councils in the
Australian states use such questions lavishly, with New
South Wales councillors asking more than 900 a year.
In Tasmania 150 are asked each
year, for this is the only way a councillor can question a minister. In all the
states, the delays in responding to upper house questions are the same as for
lower house members.
If the executive
government is to be accountable to the parliament, it must be prepared to
produce relevant documents on matters of public concern. Some government
documents of course should be exempt, such as Cabinet minutes or ones affecting
national security, but most should be made available to the parliament.
Governments of all persuasions resist such disclosure when the documents would
be politically embarrassing, and mere requests for the documents are not likely
to be effective.
An extreme example occurred in the New
South Wales upper house in 1996. When an opposition
councillor asked the treasurer, Michael Egan, for some documents about
allegedly improper government handling of the Fox Film Studios agreement, Egan
refused to produce them. When the Council passed a motion requiring Egan to
produce the documents, Egan refused again, and the Council suspended him from
the remainder of the day’s sitting. Egan disputed the validity of the order for
his expulsion and refused to leave. He had to be escorted out by the Usher of
the Black Rod, acting on the orders of the President. Egan took the Council to
court (at considerable expense to the taxpayers) seeking a declaration that an
unlawful trespass on his person had taken place when he was expelled, but the
real issue was an attempt to prove that the Council did not have the legal
power to require the production of documents, and that the government, having
being elected to govern, had the right to determine which documents should be
made public. Egan failed, both the New South Wales Court of Appeal and the High
Court finding that the Legislative Council had the power to act as it did, and
the Court of Appeal finding that claims of public interest immunity and legal
professional privilege do not protect the government from the use of the Legislative
Council’s power. The documents were eventually tabled on 26 November 1998, more than two years after
they had been asked for.
Over the years the Australian
Senate’s power to order the production-and even the creation-of documents has
been used increasingly, and in recent years has averaged about fourteen a year. The reaction of the government has
been predictable; in 1999 the government started freely to use ‘public
interest’ as a reason for not producing the documents, although the grounds
were nearly always very dubious. There were five refusals of requests for the
production of documents during the year. Two were of particular interest. The
first of these was when the Leader of the Government in the Senate, Senator
Hill, was formally censured by the Senate for not producing documents which had
been requested. The documents concerned the Jabiluka uranium mine. He did table
some of the documents, but withheld others, and later said that only ‘key
documents’ had been produced.
The Minister for Family and
Community Services, Senator Newman,
was involved in the second of these dramatic refusals to produce documents. She
refused to release a draft document on changes to the welfare system, despite
having earlier said she would release the draft at a Press Club speech. Among
the many grounds she gave for refusing to release the draft to the Senate were
that its disclosure would ‘confuse the public debate’ and ‘prejudice policy
consideration’, whatever that may mean. The minister was censured by the
Senate, and the government was put under pressure by the Senate majority who
increased the length of question time and ordered a committee hearing on the
minister’s behaviour. The draft document was eventually produced, but it
certainly would not have been if the government had had a majority in the
Senate.
The power to order the production of
government documents is much less used in the Canadian Senate. One of the few
significant examples occurred in 1995, when a special select committee
recommended ‘that an humble address should be presented to His Excellency the
Governor General praying that he will cause to be laid before the Senate a copy
of the submissions to the Treasury Board in August 1993 relating to the Pearson
Airport Agreement.’ The recommendation died on the order paper without being
brought to a vote.
Select committees in the House of
Lords can request the publication of government documents. The government
usually produces the documents requested, but in fact requests are very rare.
In all the upper
houses there are procedures by which debates can be initiated, to give
information, to gain publicity, to draw attention to problems, or to attempt to
force government responses. In the House of Lords ministerial statements are
infrequent, because so few ministers in the Lords are responsible for policy. However,
important statements made in the Commons are repeated in the Lords by junior
ministers, and questions on them are allowed for up to 30 minutes. Wednesdays
are set aside for debates rather than legislation. These debates may be
initiated by the opposition parties, or by the cross-benchers, or by government
backbenchers, but once a month there are two two hour debates on backbenchers’
motions chosen by ballot. There are other debates on government motions, such
as to ‘take note’ of a green or white paper, and there are debates on select
committee reports, usually moved by the chairman. These various debates occupy
about a quarter of the sitting time. Peers can also initiate debates as the
last business of the day (similar to adjournment debates in other parliaments)
by giving notice of a so-called ‘unstarred’ question, and the debate on the
question has no time limit, which makes it unpopular with the management. About
50 such debates occur each year, typically taking a total of 60 hours.
Important ministerial statements
made in the Commons are sometimes debated in the Canadian Senate, but no
ministerial statements are made there. Very little use is made, either by the
opposition or by individual senators, of opportunities to initiate debates on
other subjects, because the purpose of such debates is publicity, and such
debates in the Senate would not attract it. The fact that senators have no
constituents to appeal to is another reason for the lack of interest in such
debates.
In the Australian Senate, as one
might expect in a house not normally controlled by the government, there is
generous time allowed for the opposition to debate matters of its choice, at
least while the Senate is sitting, which is an average of only 73 days a year,
as compared with the House of Lords average (1994-95 to 1998-99) of 148 days a
year and the Canadian Senate average of 82 days. The Australian state upper
houses meet even less frequently than the Senate, and for shorter hours when
they do meet. Each sitting day in the Senate there is a period, usually two
hours, when ‘matters of public importance’ or ‘urgency motions’ may be moved,
and there is a further period on Thursday when motions or private members’
bills may be moved. Both these periods are used almost exclusively by the
non-government parties, in proportion to their party strengths, but the
subjects are chosen by the party leaderships. There are two other periods when
backbenchers can air their personal interests and campaigns-the lunch hour on
Thursday and the adjournment debate each day. The latter lasts as long as
senators desire to speak, which is sometimes quite a long time. In all, the
party controlled debates last roughly 200 hours a year, and the backbenchers’
debates 40 hours. Considering the relatively small number of sitting days a
year, the non-government parties have very fair opportunities to put their
point of view.
New South
Wales, Victoria
and Tasmania set aside one day
each sitting week as a private members’ day though, except in the Tasmanian
Legislative Council where there are no parties, it is usually pre-empted by the
party leadership. New South Wales
also permits ‘matters of public importance’ to be raised, but this is not much
used, despite unlimited time being available for the debates. In the Western
Australian Legislative Council there is no government business as such, and
ministerial motions have to take their turn with the motions of other
councillors. Backbenchers may be able to raise their own issues on private
members’ day (if they can persuade their party leadership), and there is
another opportunity on the adjournment debate each day.
In some upper houses the members use
the device of giving notices of motions, knowing that there is no chance of
them being debated, but hoping to gain favourable publicity for themselves, or
their party, or their cause. The number of such motions ranges from 475 a year
in the Australian Senate to an average of eight in the two legislative councils
which use them. Such motions are little used in the House of Lords or the
Canadian Senate, because the Lords and the Canadian senators have no
constituents. The subjects of the motions may vary from serious matters such as
international relations or abortion, to trivial publicity such as the victory
of a football team, though some upper houses do not permit such motions. The
aim is always publicity.
The last, and
most controversial, of the possible activities of an upper house is to force a
government which retains the confidence of the lower house to a premature and
unwanted election. Justification for such action might be found if the
government were acting illegally, or governing so incompetently that it had
lost the confidence of the voters, or was proposing a major change of policy
which had not been foreshadowed to the voters.
In the nineteenth century the head
of state might have taken action on such matters, and as late as 1914 it was
thought that King George V might order an election over the government’s
proposals for Irish Home Rule, but it seems highly improbable that any head of
state would now intervene in such matters, though questions might be asked and
warnings given. The only exception might be if the government were acting
illegally and refused to refrain. In all other cases, if any action is to be
taken it will have to be taken by an upper house, if it has the power.
An upper house, disenchanted with
the government and seeking to destroy it by forcing it to a premature election,
has two weapons at its disposal: refusal of supply, or the rejection of so many
government bills as to frustrate the government totally. The House of Lords has
lost both these powers. The Canadian Senate has the power to reject
appropriation bills, but it would be pointless for it to use this power, for
the government would survive without difficulty by using special
appropriations, which do not need parliamentary approval.
The only upper houses with effective
control over supply are the Australian Senate and the legislative councils of Victoria,
Tasmania, South
Australia and Western Australia.
The New South Wales Legislative Council has not had power over a bill for ‘the
ordinary annual services of the government’ since 1933. Since federation in
1901 the supply-blocking power has been used six times: twice federally (1974
and 1975), twice in Victoria
(1947 and 1952), once in South Australia
(1912) and once in Tasmania
(1948). On each occasion the outcome was an election, and in all but two of the
elections the government which was refused supply (or threatened with refusal)
lost the election. The exceptions were the 1974 federal election in Australia,
in which the incumbent Whitlam Labor Government scrambled home in the House of
Representatives but did not gain control of the Senate, a failure which would
be fatal for it eighteen months later; and the 1948 election in Tasmania,
where the Labor government was returned. There were dark mutterings in the
Labor ranks, but no action was taken against the Legislative Council.
What is to be said for the upper
house taking over the electoral college role of the lower house? Certainly
governments sometimes govern badly, and lose the support of the voters, though
oppositions are not always the best judge of this, as evidenced by the 1974
fiasco in Australia.
Certainly governments sometimes make abrupt changes of policy, towards
objectives not considered in the preceding election campaign. The Canadian
Senate forced such an election in 1988, by threatening not to pass the bill on
free trade with the United States
unless an election on the issue were first held. But if an election is forced
on such a change of policy, it cannot be guaranteed that the new policy will be
a major issue in the campaign. Experience suggests that it will often be
submerged in other issues. Besides, it is important for a government to be
prepared to change its policy, radically if necessary, to meet changed
circumstances. There was a story of Australian Prime Minister Gough
Whitlam keeping a chart in his office of
Labor’s election promises, and gleefully crossing them off as they were met,
despite the fact that radically changed economic circumstances (the first oil
crisis) had made many of them very inappropriate. If the threat of a snap
election dissuaded the government from taking sensible administrative action,
the nation would be the loser.
This is the nub of the problem. If a
government, despite possessing the confidence of the lower house, is under
constant threat of being forced to an election, it will behave very much like a
public company faced with a hostile takeover. That is, it is likely to drop any
long term investment plans and concentrate on immediate benefits to the
shareholders. In a government, such behaviour would be very damaging.
The likely behaviour of a government
deprived of supply must also be considered. After the events in Australia
in 1975, it seems certain that no government would meekly accept being forced
to the polls by the upper house, unless the government was satisfied that the
opposition had made a misjudgement and that the government would win the
election, as happened in 1974. A government is more likely to attempt to
outface the opposition, refusing to recommend a dissolution to the
Governor-General or Governor. Despite the fact that historically the failure of
a government to secure supply from the parliament justifies the dismissal of
the prime minister or premier, it is most unlikely that any Australian head of
state would act as Sir John
Kerr did in 1975. The memories are too
bitter. Besides, a government might not accept dismissal in such circumstances,
and what would the head of state do then? Call in the army, or the police? What
would almost certainly happen if both sides remained intransigent is that
supply would run out and essential government services would fall into chaos.
Of course this could not continue indefinitely; there would have to be an
election eventually, but the government would try to make sure that the
opposition was blamed for the chaos-and would probably succeed, which is why
any future blocking of supply would be an act of political insanity.
If its use would be so damaging,
what should be done about the power of upper houses to block supply? Neither
the British nor the Canadian model is desirable. Both the British and Canadian
upper houses have lost power as legislatures because of their lack of control
over supply, though their non-elective nature restricts their legislative role
in any case. Victoria and South
Australia have made attempts to deal with the problem.
The legislative assemblies in those states have four year terms, with the first
three years being ‘fixed’ and the final year having the usual arrangement
whereby an election can be held at the whim of the premier. If the full four year
term were made fixed, as it is in New South Wales, it would eliminate the
possibility of the Legislative Council blocking supply in order to force an
early election, for there could not be one.
Before it adopted the fixed four
year term, New South Wales had
had in place for many years an alternative arrangement for preventing its upper
house from forcing a premature election by blocking supply. The state Constitution
has a unique provision, by which the Legislative Council has the power to
reject or amend any bill, except money bills dealing with the ‘ordinary annual
services of the government’. This is a sensible provision for those who think
an upper house should not have the power to usurp the electoral college role of
the lower house by making it impossible for the government to continue, but who
also think an upper house should have the power to amend or reject other supply
bills.
Unfortunately the New
South Wales scheme is not well worked out. The Legislative
Council is confronted with a single bill covering not only the ‘ordinary annual
services of the government’ but all other annual government expenditure. How
does the Legislative Council amend such a bill to remove something it finds
objectionable-a new capital-works project, for instance-without risking
blocking supply? Unless the government was prepared to accept the Council’s
amendment, or to split the bill, the very crisis which the provision is meant
to overcome would strike. Besides, the expression ‘ordinary annual services’ is
not defined. A definition was worked out between the federal government and the
Senate in 1965, when it was agreed that certain government expenditures were
not for ‘ordinary annual services’. Such exclusions covered the construction of
public works and buildings; items of plant and equipment which are clearly
definable as capital expenditure; certain grants to the states; and new
policies not authorised by special legislation. To the list was later added the
expenditure for Parliament, which is certainly not ordinary annual expenditure
of the government.
There is nevertheless no guarantee
that the New South Wales courts would use this definition. It seems desirable
that the New South Wales Constitution should be amended to include a definition
of the ordinary annual services of the government (preferably based on the
federal model, which works), and also to require that the expenditure for the
government’s ordinary annual services be submitted to Parliament in a separate
appropriation bill. If New South Wales
made these changes, it would have a model which other bicameral parliaments
could well copy.
The frustration of a government by
the upper house rejecting or unacceptably amending key government bills is a
much less certain method of forcing an election, and in doing so an upper house
destroys its credentials as a responsible legislature, and damages the
community it represents in the process. In any case, the election initiative is
in the hands of the government, and it certainly will not call an early
election which it is likely to lose.
There are
constant proposals for the reform of upper houses, particularly the non-elected
House of Lords and the Canadian Senate, but all the reform proposals have
started from the faulty premise that the role of an upper house has not changed
since Bagehot’s day, a ‘revising and leisured legislature’ which is ‘extremely
useful, if not quite necessary’. In fact, as most lower houses have effectively
abandoned their legislative and critical public inquiry roles, and responsible
government has become party government, the upper houses must take over the
abandoned roles, for otherwise there will be an elective dictatorship.
The Australian Senate is the most
effective of the eight upper houses being considered. It sends about a third of
the bills it receives to legislation committees for input from the bureaucracy
and the public. It has established a Scrutiny of Bills Committee, with
independent legal advice, to examine the legal details of bills, and this
committee has uncovered an astonishing number of flaws. It has established an
efficient system for control of delegated legislation, a subject in which the
House of Representatives takes no interest. The Senate has taken action to
restrict the government’s use of ‘legislation by press release’ and also to
force the government to proclaim within a reasonable time the bills duly passed
by the Parliament-or to come back to the Parliament for permission not to. estimates
committees examine all the appropriation bills, and force public servants to answer
questions about their details. In the investigative field, the Senate
committees have conducted many useful inquiries, and have shown themselves
willing to venture into fields the government would have preferred to keep out
of sight.
This is all very well, but there are
many deficiencies. First, the Senate is the only upper house in the past 50
years which has forced a premature election by blocking, or threatening to
block, supply. Nothing has been done to restrain this power.
Second, committee consideration of
some controversial bills has often developed into electioneering slanging
matches, a far cry from the days when the committees considering controversial
bills nearly always produced unanimous reports. The Senate also often tamely acquiesced
in absurdly short time limits imposed by the government, though the situation
was greatly improved in 1993 when a motion was moved by a minor party to
require bills to be automatically adjourned if insufficient time was available
for scrutiny, unless the government could provide good reason for urgency. The
motion was adopted by the Senate, although Prime Minister Keating
described it as a ‘constitutional impertinence’. The responsible ministers, if
they are in the House of Representatives, do not appear before the committees
considering the bills. If the bills are controversial on matters on which
government and opposition have taken opposing stances, the attitude of
committee members is dictated by the decisions made at party meetings, at which
senators are outnumbered two-to-one by representatives.
Third, the chairs of all the
legislation committees are government party senators, and as the proportion of
bills being reviewed by committees increases they are coming to see their role
(and their prospects of promotion to the ministry) as getting government bills
through with no delay and no amendments.
Fourth, the estimates committees are
only temporary, and are poorly staffed. The Senate has not been prepared to
stand up to the government to insist on adequate resources being made
available.
Fifth, the Senate has taken no
action to persuade the government that ratification of treaties and some
aspects of the use of the defence power should be subject to approval by Parliament.
Sixth, the scrutiny of non-departmental
government activities-business enterprises and so on-is derisory.
Finally, and this is the most
serious of all, the Senate meets far too briefly, typically for only half as
many days as the House of Lords, and much necessary work is rushed or neglected
as a consequence. It is absurd that the Senate’s sitting pattern is largely
determined by the government it is supposed to be watching. Ministers tend to
regard parliamentary sittings as irritating distractions from their other work.
Provided they can get their legislation passed, they feel that the less the
Senate sits the better, and the Senate tends to oblige.
What can the Australian Senate learn
from the other upper houses, and what will it have to solve for itself?
There is nothing to be said for the
Senate usurping the electoral college role of the House of Representatives by
blocking supply in order to force an election. If the House of Representatives
had a fixed term this danger would be largely removed, though it is just
possible that the Senate might try to force an election by demanding that the
government party pass a vote of no confidence in itself. If that is thought to be a real risk, or a fixed term is not
implemented, then the provision in the New South Wales Constitution denying the
upper house any power to reject appropriations for the ordinary annual services
of the government should be adopted.
In order to make the best use of the
relatively small number of senators available for committee work, the Senate
should concentrate on controversial issues. Committee examination of bills
should concentrate on controversial bills-about 10 per cent of the
whole-leaving the House of Representatives to handle the careful consideration
of non-controversial bills.
It would also be important that the
responsible minister should give evidence to legislative committees. If
ministers from the House of Representatives showed reluctance to give such
evidence, and be subject to cross-examination, the answer of the Senate would
be simple. The bill will not be proceeded with until the responsible minister
has given evidence. It would also be worth considering the Canadian Senate
arrangement by which the responsible minister from the lower house is allowed
to handle a bill in the Senate at the committee stage.
The budget should be accepted as a
package, but to ensure that this understanding is not abused, the Senate should
insist that any new programs of expenditure or taxation should be debated and
agreed by the Senate before being incorporated in the budget.
The Senate general references
committees should be encouraged to tighten their examination of
non-departmental government agencies. A greatly increased annual number of
sitting days-up to 150, say, to make the Senate comparable in this respect with
the House of Lords-would facilitate this.
The Senate should look to the
Canadian legislation which gives the Parliament control over the government’s
use of its defence power, without preventing an immediate response by the
government in an emergency. The Senate should press for a similar act in Australia.
None of the four national parliaments has control over the ratification of
treaties negotiated by the government, so the Senate will have to mount its own
campaign there.
If the Senate functions as an
effective legislature, deadlocks between the two houses over legislation would
be inevitable. Many could be resolved by conferences between delegates from
each house, but some will be intractable. Special general elections have proved
a hopeless method of resolving such deadlocks, and joint sittings of the two houses
would be little better. The only Parliament with a potentially satisfactory
solution is that of the New South Wales,
where a deadlock may be resolved by a referendum of voters. Unfortunately the New
South Wales referendum procedure is so cumbersome as
to be virtually unusable, but it would not be difficult to produce a workable
scheme. A referendum would certainly be better than any of the alternative ways
of resolving an intractable legislative deadlock.
The acceptance of the Australian
Senate as effectively the sole legislature would require the modification of
its method of election. Proportional representation results in a Senate which
certainly represents the balance of political views in the community, but there
are two defects in the electoral system. The first is caused by the equal
representation of the six states, regardless of population. Fortunately voting
patterns are remarkably consistent across the country, if one treats the Liberals
and Nationals as a single party. This consistency of voting is quite unlike
that in Canada
and the UK,
where major parties may have no representation in significant areas, and local
parties proliferate. It would be almost impossible to alter the provision in the
Australian Constitution for equal representation of the states, for the less populous
states strongly (though wrongly) believe that the Senate protects their
interests.
The second problem with Senate
representation is caused by the election of half the senators every three
years. This continuing nature of the Senate may be appropriate for a
conservative house of review, but is not suitable for a legislature, which
should be as reflective of current community opinion as is the government whose
proposed laws it is reviewing. The answer is to make the terms of both houses
the same (as has been done by some of the state parliaments), hopefully a fixed
four year term for both.
The status and financial rewards of
the chairs of major Senate committees should be raised so that they approximate
those of ministers. To avoid abuse of these rewards, the number of such major
committees should be limited to half the number of ministers there are in the
House of Representatives. If the chairs were fairly divided among the parties
in the Senate one might expect more unbiased chairs, for they would owe their
positions not to who was in government, but to their personal standing in the
Senate. These rewards to prominent senators would compensate them for the loss
of the possibility of ministerial office, which is an essential change.
For the presence of ministers in the
Senate is the greatest obstacle to reform. Upper houses have been regarded in
most parliaments as providing a useful pool of ministerial talent, but there
are other and better ways of providing such a pool if it is needed, which
indeed it often is because of the shortage of talent in the lower house. While
the aspiration of most senators remains to become ministers, there will be
little pressure for reforms which will make the government more accountable to
the Parliament, and the Senate more effective as a legislature. Those in power
will resist such moves, while those out of power will not wish to see any new
constraints on their power when their turn comes.
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Last reviewed 20 December 2004 by the Senate Web Administrator
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