An Upper House?

By Ashley R. Clarkson
25 November, 2007

From time to time governments of various stripes in New Zealand undertake major acts of reform that often raise the ire of elements in society. This problem is exacerbated by New Zealand's status as being a state with a unicameral legislature. By virtue of the Westminster style of governance, our executive (derived from this legislature) exerts an almost dictatorial control over the progress of legislation into law. So why could we possibly want an upper house? More politicians, right? (Something to get the old biddies who want to return to the “good old days” of 99 MPs and First Past the Post elections all fired up.) While the usual appeal to emotion over the disaster of having yet more MPs drawing a salary off the public purse tends to turn this issue into a non-starter for some of the leading hopefuls for admission to New Zealand's “Brain's Trust”, the argument needs to be had. New Zealanders like to keep their politicians on a very short leash (hence why we never seem to ditch the 3-year term for the more standard 4-year term enjoyed in other polities) – the introduction of an upper house is a good sacrifice of some extra politicians for some restraint on the power of the executive.

Why an Upper House?

As I hinted at above, our current political arrangements leave us in a theoretical position where the executive can abuse its power to pass publicly unpopular legislation in order to serve some purpose (for instance, to skew electoral law in the favour of one party or another, or else to trade support for ongoing confidence in the house for a piece of legislation promoted by a marginal minority interest group represented in a minor party in the house). Persons of whatever political slant can name pieces of legislation past and present that fit this definition. The problem arises from the ability of the executive (which is drawn from the House of Representatives) to dominate the legislative agenda. Since this executive must necessarily command the confidence of the House (unlike a country such as the United States of America, where the office of the President stands constitutionally distinct from the Congress), it is therefore in control of the majority of the votes (notwithstanding certain confidence agreements, where minor parties offer support for certain concessions).

While it would be nice to argue that the mere fact that a majority voted for a party (or parties) to rule, and so the legislation passed is the will of the majority, such an argument is flawed. For a start, it assumes that political parties will never enact legislation they have not specifically campaigned upon. It also assumes that every voter has agreed fully with the position of the party they cast their vote for, which is an heroic assumption to hold. Finally, it ignores that sometimes the major party in a coalition or 'confidence and supply' agreement is forced by MMP into concessions (such as raising the already unaffordable rate of superannuation even higher) in order to cobble together a majority to pass budgets, claim and maintain confidence in the house, and introduce new law. While some seem to believe that the introduction of MMP has sufficiently “bridled” the power of the executive, and therefore we can all go home and sleep in the sure belief that no executive will ever exert the power that Muldoon did, reality suggests otherwise. In fact, in some ways the situation is worse. For while a government cannot be elected solely by capturing a number of marginal electorates and then proceed to pass legislation with gay abandon and scant regard for public opinion for the next three years, it can now be placed in the situation where an unpopular and unwanted piece of legislation is given undue prominence in order to ensure continuing support for other government measures. Moreover, rather than pursuing best practice in legislation, a government may be forced to concede certain amendments and 'tack-ons' because a key minor party threatens to vote against the bill, thus impeding its progress.

All this scare-mongering on my part begs the question – why more politicians? What could a bunch of extra politicians do to put the skids on this theoretical possibility (which as I've implied sometimes occurs in relatively “innocuous” ways, and sometimes in less “innocuous” ways)? Let us consider the problem first of all. The executive, which is derived from the legislature, exerts great control over the party or parties from which it is derived. Where the executive itself does not actually control a majority in the House of Representatives, it becomes beholden to minor parties extracting policy (and other) concessions far in excess of their actual bargaining power due to their crucial position in ensuring the passage of legislation. As a result, unpopular pieces of legislation can be passed to curry favour with a minor party, partisan legislation can be passed by a loose majority of parties to the detriment of others, and useless (or stupid or dangerous) “pork-barrel” additions can be added to legislation to ensure its passage. Simply adding more politicians to the mix will not fix this problem – it did not do so in 1996 (New Zealand's first MMP election), and it will not do so now. Rather, it is the way in which the politicians are added into the legislative process that can have the desired effect.

By adding a second, upper house, to our Parliament, we are introducing a brake on the present system. An upper house in the legislative process offers a way to stop or slow down some of the more dangerous problems inherent in our current system. While a government may command the control of the House of Representatives, controlling the upper house may be another matter. A bigger picture is therefore required. It is not enough to simply gain control of the lower house, but the upper house must be satisfied as well (either by virtue of the electorate providing a government with a majority in the upper house, or by the governing party producing legislation sufficiently useful and bi-partisan that it is passable by both houses). It would introduce another level of deliberation into the process, helping to delay the passage of shoddy, rushed legislation. It would also provide some defence against the insertion of problematic clauses and policies into legislation in order to buy the support of minor parties. Of course, no system is perfect. While an upper house would certainly serve these aims, it would not always necessarily do so – for instance, if the government also controlled the upper house and its members were sufficiently whipped, it could pass what legislation it chose. Nevertheless, it could provide an opportunity for a government to remove bad law that had to be inserted to gain support in the lower house, thus sending a message to minor parties to be more reasonable in their demands (it could also make the minor parties more aggressive in how they support the government on confidence and supply, but that is not necessarily a bad thing – ultimately minor parties would be punished by voters for causing political havoc and would be brought into line).

Adding an Upper House

Having discussed briefly why we might wish to add an upper house, it would be worth covering briefly how this might be instituted. In this section I am not going to discuss the practical steps for establishing such a house, as it would really only require the passage of a piece of legislation establishing it (though obviously that would leave it open to later repeal, so it would be better were it to be instituted in some future written constitution). Rather, I want to discuss a few practical things about the existence of the upper house that would be (arguably) desirable.

It need not surprise many readers that a necessity of a new upper house would be that it was democratically elected. Indeed, besides a few antiquated clowns who might think otherwise (loyal members of New Zealand First them all, no doubt), any proposal to re-introduce an upper house to New Zealand would need to be modeled as such. There was a reason the Legislative Council was abolished in the first place, after all! Incidentally, while a future upper house could re-adopt the name Legislative Council, I think that the use of the term 'Senate' should be used – drawing parallels with the American chamber, and the Australian chamber. Whereas the Legislative Council represented a body here that was much like the House of Lords in its appointment, the Senate has in more recent times an association with democratic institutions.

One misconception over the possible creation of an upper house is that it would require a large further number of politicians to be effective. While this may be the case in some countries, this need not necessarily be the case here. The size of the US Senate is dictated by a requirement for two representatives from each state in the union (2 * 50 = 100), while the Australian Senate gives each state twelve members, and each territory two ((6 * 12) + (2 * 2) = 76). New Zealand has no states or provinces to deal with (we abolished them in 1876), so we would have to choose some other mechanism. Two factors seem to be in tension in choosing an appropriate number – that between representation and appropriate size. While it is understandable that we might look upon a 100-member chamber in the USA (and 76 in Australia) and think that we must therefore pick some comparable number, there is no rule that states this. Consider for instance that while the USA now has 50 states, it has not done so in previous years. In fact, at the point of the founding of their federation, their upper house contained closer to thirty members than the 100 it does now! I see no reason myself why we would need more than thirty members in our upper house. Based on current population figures, that is one senator for approximately 150,000 people (a much denser distribution than in other countries). Thirty senators would provide a sufficient number that there would be a decent consideration of any legislation put before it (consider that in the House of Representatives only twelve speeches of 10 minutes duration are given per reading, and most select committees operate with ten or fewer persons).

What of selection of candidates? There are of course several models that could be used. We could split the country into thirty geographical areas comprising the same land area – this has the obvious flaw of marginalising much of the population (who live in the cities, not the provinces). Alternatively each electorate could be designed to represent a certain number of people (approximately 150,000 people at present, though that would increase over time). This solves the above flaw, although it has the effect of shifting much of the representation in the house to the northern half of the country, where the majority of the population lives. Finally, we could elect members based on a straight proportional representation system from lists. While this would line up with our current MMP voting system, I think it would be flawed to adopt this system. Strict representation of groups is not inherently the point of an upper house (it is the role of a lower house), but rather the review and consideration of legislation passed by the lower house. In introducing a population based approach (which inherently involves a degree of geographical representation), rather than a party-based approach (which assumes that party ideological interests are the dominant system of vote expression), there is a better likelihood that the interests of specific geographical regions and regional interest groups will be considered rather than simple ideological dogma. In fact, it may further lend towards the possibility of a relaxation of whipping in the upper house, as there is no reliance on satisfying the party hierarchy to ensure one's place on the party list.

Finally, where in the process should the upper house come in, and what should it be allowed to vote on? There are two possibilities here. One may be to allow the upper house to consider the legislation after the House of Representatives has passed it. The other would be for the legislation to be sent to the upper house after the committee of the whole in the House of Representatives for consideration, and then sent back for its third reading. Either option has its advantages – allowing the lower house to vote on the bill having returned from the upper house means that if the bill is changed out of proportion to what was intended, it could be voted down. On the other hand, this then stops the upper house from fulfilling one of its purposes – getting rid of shonky clauses inserted to ensure passage through the lower house! On this basis, I think that the upper house should come in to the legislative process after the third reading in the lower house, and before the assent given by the Governor-General.

This short piece is not meant to be the great enlightenment of a country to the need for an upper house, nor to conclusively cover the various reasons why (or why not) and how such a house should be established. Nevertheless, I hope it provides some readers somewhere with pause for thought. And if it starts a small senatorial fan-club in New Zealand, more the better! Whatever the outcome, let us hope that the ultimate reasons for desiring an upper house never face our country, with or without a Senate.