#14937 - Bicameralism - Constitutional Theory

6. Bicameralism

House of Lords

• Appointed not elected, for the most part

• About 800, but number not fixed

• Composition

  • Lords Spiritual (26) – ecclesiastical role in Church of England

  • Lords Temporal (the rest)

    • Life peers – appointed by monarch on advice of PM

    • Hereditary peers (92) post 1999 Act – based on compromise – vacancies filled by by-election by HL vote

      • 2 royal office holders

      • 15 ‘deputy speakers’

      • 42 conservatives

      • 28 crossbenchers

      • 3 lib dems

      • 2 labour

• Powers

  • Can’t prevent bills passing into law except in limited circs

  • Can delay & force Commons to reconsider (for 1 calendar year)

  • Can introduce laws, but not supply bills

  • Cannot block supply for more than 1 month, and can’t introduce or amend tax or supply bills (except with waiver, frequently granted by HC)

  • Salisbury Convention – HL does not block legislation promised in election manifesto

• History

  • First authoritative statute passed in 1569

  • Separated into House of Commons & Lords in Edward III

  • Reduced power after Civil War & during Cromwell, restored on Glorious Revolution

  • 19^th century – house greatly enlarged (once only 50 members) under George III

  • Parliament Act 1911 – abolished power of HL to reject legislation, but allowed to delay (for up to 2 calendar years)

  • 1948 – right of peers & wives to be tried by house of lords abolished

  • 1949 – delaying power reduced to 1 year/2 sessions

  • 1968 – attempt to exclude hereditary peers from voting defeated by conservatives and by abolitionists who considered insufficient

  • 1999 – reduced to 92 hereditary peers under Blair’s compromise, with view to further reforms – reduced from peak size of 1300

  • Wakeham Commission recommended 20% elected element – widely rejected

  • 2007 – House of Commons voted for wholly elected chamber by majority & absolute majority – rejected by House of Lords who voted for wholly appointed

  • 2010 – David Cameron elected, creates 117 new peers within a year – faster than any other PM

  • 2011 proposals – 80% elected by prop rep for 15y terms – 20% appointed w some space for bishops – no link between peerage & membership of upper house – powers unchanged

  • 2014 Act – allowed retirement (cf disclaimer of peerage), disqualification for non-attendance, prison sentences

• Appointment has been an honours system more than appointment on merit

Variables

• First past the post v proportionate representation

• Frequency of elections & length of tenure – rolling terms

• Distribution of electorates

• Different minimum age

• Election v appointment

J Waldron, ‘Bicameralism and the Separation of Powers’ (2012) 65 Current Legal Problems 31 (available on SSRN under the title ‘Bicameralism’)

The importance to bicameralism is in its difference to the lower house – drunk & sober theorem – difference is valuable in itself

• Broad issues

  • Can bicameralism act as a substitute for judicial review?

  • Bicameralism and supermajoritarianism within parliamentary assembly

  • Bicameralims and other QA mechanisms (eg US – president not to make judicial appointments without advice of Senate)

Bentham’s objection

• Bentham – second chamber is just more cost with no advantage

  • ‘if it dissents it is mischievous; if it agrees it is superfluous’

  • JS Mill – two chambers of similar construction will be subject to the same influences – if we want more deliberation, amend procedures at 1^st chamber

  • structural advantages of second chamber is an argument for amendment of 1^st, not introduction of 2^nd

  • Arguing in time of hereditary peerage in HL – even US Senate was appointed

  • ‘13^th chime in a crazy clock’

• Other concerns

  • More recently elected house asserting better mandate – can be remedied by rolling elections as in Senate (US, Aus)

Waldron’s Arguments

• Ensures representation

  • Different types of representation enhances proper representation of the people

  • no perfect method of representation; any assembly can be improved on by another

  • ‘the people’ comprised of millions of individuals that lie at various points on various axes – no perfect way to represent them

  • extra dimension in second house enhances representation and is good for its own sake

• Additional scrutiny

  • Even if type of representation isn’t different, extra layer of scrutiny is valuable in itself – different people at least, perhaps elected at a different time – provided not controlled by lower house

  • Mill – check on potential for despotism of single chamber used to dealing with each other and containing a single party assured of victory

• Independence from the executive

  • Independence of one chamber to another is essential pre-requisite to avoid Bentham’s ‘costly redundancy’

  • Lower house dominated by PM & Cabinet = Executive – sets legislative agenda

    • Cabinet & PM are in house

    • MPs have ministerial aspirations

      • Particularly so in small parliaments eg NZ, where 120 MPs, don’t have to be present to vote, no quorum

    • Party rules may require voting in a certain way

  • Difficult to ensure total independence if elected – party politics necessarily play a part

    • In Aus, Ministers can be in the upper house so aspirational objection persists

Relationship to judicial review of legislation

• Concedes (surprisingly?) that opposition to judicial review of legislation is hard to maintain in case of unicameral parliament, or parliament controlled by executive

• Basis for objection to judicial review of legislation

  • Not based on elected and non-elected institutions

  • Based on constitutional standing of body devoted specifically to legislative functions

    • Undermined by judicial review

    • Also undermined by executive ascendancy – even when executive itself has been elected (as in presidential systems)

Ascendancy of lower house

• UK – limitations on power of HL come from fact not elected

  • Salisbury convention – doesn’t interfere with election promises

  • Doesn’t block supply, can only delay not refuse to pass legislation

  • BUT these limitations would be less justifiable if HL elected

• But even in elected Senate, supremacy of lower house can be justified

  • Logistically, and allowing executive government to control the agenda

Methods of establishing upper house

• Arguments against appointment

  • Distorted by PM’s appointment in the same way as lower house’s ambition for cabinet

    • Depends on length of tenure / whether can gain 2^nd term / retire strategically

• Aristocracy? Aristotle, Harrington etc suggest that people vote for the best legislator, more likely to return aristocracy – and that that is a good thing

J Uhr, ‘Bicameralism’, chapter 24 in R Rhodes, S Binder, B Rockman (eds) The Oxford Handbook of Political Institutions (OUP 2006), 474

Bicameralism generally

• Lower houses generally

  • have primary responsibility & responsibility for fiscal affairs

  • contain executive / or responsible for votes of confidence

• Certainly pre-democratic, possibly anti-democratic to extent based on peerage etc (“Senate” originally an anti-democratic Roman institution)

  • But not exclusively from antiquity – eg Indonesia converting to bicameralism; Belgium converting to federalism in 1995

• Stats

  • 1/3 of legislatures are bicameral, including 2/3 of advanced democracies

  • more likely in larger and federal states

  • anomalies –

    • Sweden (elected as one, return as 2 chambers); other polities with 3 or 4 houses representing different interests;

    • Italy (both houses elected in the same way & have the same powers)

  • Many upper houses abandoned because of link to peerage or other antidemocratic characteristics

• Primacy of lower house

  • More prominent in parliamentary systems – where executive contained within lower house – cf US, South American systems

  • Upper houses generally smaller (cf HL), with no/less powers over fiscal matters

• Diversity as advantage between houses

  • Germany (lower house elected, upper house appointed by State govs)

• Independence from executive power – Parliamentary v presidential

  • Parliamentary – power struggle between two houses – between executive-controlled lower house & Senate

  • Presidential – power struggle between executive & legislature is external to the legislatures

  • NB parliamentary or prime-ministerial government? In practical terms, PM dictates policy – this strengthens argument for bicameralism in terms of independence from Executive

• Posits US as model of tri-cameralism – realist view of all those with legislative power as a layer in the legislative framework

  • Presidential – president has power to negate

  • Parliamentary/prime-ministerial – PM has power to initiate & control

Arguments for bicameralism

• Constructive Redundancy

  • Parallel systems – Analogy with front & rear brakes on a bike – not both strictly necessary but one can operate where other fails

    • Akin to federalism – duplication of services

  • BUT reduces accountability – as in federalism, each government can blame the other

• Diversity of representation

  • Overcomes problems in representation in lower house

  • Provides greater stability – decisions harder to arrive at but harder to overturn also

  • Not as easily hijacked by cross-bench minorities

  • Not simply duplication – draw from different interests

• Bicameralism as a balance

  • History

    • Classical bicameralism – balancing interest groups (eg peers v commons) – mixed sources of political authority

      • Maintains relevance in federal context? 2 sources of sovereignty = people & States

      • BUT proportionate representation/different terms etc in Senate show require a broader justification than this

    • Modern bicameralism – mixed but complementary expressions of the same source of sovereignty (the people) – different representations

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