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Lord Cooke of Thorndon --- "Unicameralism in New Zealand: Some Lessons" [1999] CanterLawRw 1; (1999) 7 Canterbury Law Review 233


Lord Cooke of Thorndon[*]

As Ulysses informed Achilles[1] 'One touch of nature makes the whole world kin'. The particular which Ulysses went on to give, and which Achilles very reasonably found insufficient to persuade him to throw off his lethargy and fight the Trojans, was 'That all with one consent praise new-born gauds'. But there is a more convincing illustration, relevant to this seminar, as I hope to show. Although many fewer people live in the Antipodes, human nature in New Zealand is much the same as in the United Kingdom, and the law and ethos of the far-apart countries still have much in common. So the New Zealand experience in the matter of a Second Chamber may have some bearing on the reform of the House of Lords; and to think this is to fear it.


A sketch of the history is necessary. Sovereignty over New Zealand was acquired by the British Crown in 1840, after the first Governor (Captain William Hobson of the Royal Navy), acting in accordance with the instructions of the Colonial Office, gained the assent of what he judged to be a sufficient number of Maori chiefs to the Treaty of Waitangi. Initially the Governor was instructed to act with the concurrence and advice of a small Executive Council of permanent officials. Representative Government - leading before long to responsible Government - was established by the Imperial Parliament at Westminster by the New Zealand Constitution Act 1852, which with amendments remained the basic statutory document until 1986. In the latter year the New Zealand General Assembly, which had long been loosely known as Parliament and had come to enjoy plenary legislative power, enacted the current Constitution Act. The standard textbook sums up the public impact of this important legal measure accurately, in saying[2] 'If asked, most New Zealanders would reply that they have never heard of the Constitution Act 1986'.

The Act of 1986 provides[3] inter alia that there shall be a Parliament of New Zealand consisting of the Sovereign in right of New Zealand and the House of Representatives; that the Parliament continues to have full power to make laws; that no Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend to New Zealand as part of its law; and that certain enactments of the Parliament of the United Kingdom shall cease to have effect as part of the law of New Zealand. The enactments so thrown off are three previously cardinal sources of New Zealand law,[4] namely the New Zealand Constitution Act 1852, the Statute of Westminster 1931 and the New Zealand Constitution (Amendment) Act 1947. This was a cutting of the painter, intended to make New Zealand constitutionally autochthonous, notwithstanding that both Parliament and the House of Representatives were at the same time declared[5] to be the same bodies as had existed under the Act of 1852. The cutting off of a possible source of authority to change the nature of the legislature gives rise to, or complicates, the currently purely theoretical question whether there is power to abolish the monarchy;[6] but the point relevant here is that the system is unicameral.

The Act of 1852 had constituted a General Assembly comprising the Governor, a Legislative Council of appointed members holding office for life, and an elected House of Representatives. In the eyes of the Secretary of State for the Colonies and the Colonial Office, the Legislative Council and the House of Representatives were seen as roughly corresponding to the House of Lords and the House of Commons. As with other colonies, there was not of course, and never has been, any suggestion of a separate New Zealand peerage, although in the ensuing 146 years some New Zealanders have inherited British peerages or have been made British hereditary peers of first creation (Lord Rutherford and Lord Freyberg), while more recently some have been appointed British life peers. The New Zealand society and ethos have always been essentially egalitarian - a point to which I will return - but the Legislative Council was envisaged as a relatively small body of permanent members providing political stability. In the period of some 40 years for which it did exercise significant power, it tended to be conservative and to represent the interests of major landholders.

During that period it amended about 50 per cent of all Bills sent up by the House of Representatives.[7] In the 1870s it rejected about 12 per cent.[8] If it ever enjoyed a heyday, the time was then. In the early days the Govemor was appointed in London on United Kingdom ministerial advice and limited by Letters Patent and Royal Instructions. Now the Governor-General is still appointed by Her Majesty, but on New Zealand ministerial advice; and his or her Letters Patent are likewise a New Zealand product. The early Governors were instructed to confine Legislative Council appointments to a total membership of 15, later raised to 20. But in 1862 the limit was removed; and it has been alleged that more and more the Council became a pensioning-off place for party supporters.[9]

As appointment was for life, control of the Council was not assured for the Government for the time being in office. In the early 1890s a struggle resulted between a reformist Liberal Government,[10] backed by strong popular support, and the Council as then constituted. What happened was a forerunner of events in the United Kingdom in 1909-11. The Colonial Office told the Governor that, as to new appointments to the Council, he should act on the advice of his local Ministers. Faced with a threat of swamping, the existing Council succumbed. Further, legislation was passed in 1891 substituting for life tenure a term of seven years, renewable. With rare exceptions the Council was never again during the remaining 60 years of its retention an effective political force.

The exception usually quoted occurred in 1916 when Sir Francis Bell KC persuaded the Council to insert into a military conscription Bill an exemption for conscientious religious objectors. A few words about Bell should be added. He was partly of Quaker stock. A towering figure in New Zealand law and politics, albeit certainly no democrat in the populist sense, he was, while Leader of the Legislative Council, Prime Minister of a caretaker Government for 16 days in 1925. As was rather more common for children of families with means in his era than now, he was sent to England for university education (St John's College, Cambridge) and call to the bar (Middle Temple), and his talents and force of personality were seen to be such that there were overtures to him to embark on a British political career. But he returned to his homeland and rendered much service until his death in 1936 at the age of 85. A perceptive writer commented[11] 'There was Toryism in him, but in many respects he was a Liberal. Indeed he was something of a Socialist'. One suspects that the presence, for many years in person and later in spirit, of Bell and one or two of his contemporaries helped greatly in preserving the Legislative Council well after the end of its useful life.

If Bell took a socialist position on some issues, it did not extend to confidence in the rising Labour Party. Distrust of that party's policies should it become the Government is generally accepted by historians as having been the motivation behind the Legislative Council Act 1914 of which Bell was the architect. This Act provided for the establishment by stages of an elective Second Chamber of 40 members (half the number of the House of Representatives). New Zealand was to be divided into four large electorates. Presumably the thinking was that a geographical rather than a population basis would tend to country rather than town dominance. The war and a coalition Government intervened. The commencement of the Act was postponed. After the war it could have been brought into force at any time by Proclamation. But no Government was ever willing to create an elected rival to the First Chamber. The Act remained a dead letter until the eventual abolition of the Second Chamber, although for all the remaining years of its existence the Legislative Council operated under the shadow of the possibility of its own dissolution at a stroke of a Government pen.

In principle the Labour Party was opposed to the Legislative Council as undemocratic. But when Labour came to power for the first time, in 1935, it began to find the Council a convenient avenue of political patronage. Apart from coalition Government during the second world war, Labour remained in power until 1949 and did nothing about the Council other than making appointments to it from time to time. Increasingly the Council acquired the reputation of a rest home for elderly politicians. The volumes recording its debates grew ever thinner, almost in inverse proportion to the activity of the House of Representatives, whose tendency to send up for rubber-stamping an accumulation of bills in the dying stages of sessions also militated against the effective functioning of the Council as a revising body. Nor did legislation of significance originate there. In the debate on his Abolition Bill in 1950 the new Prime Minister, SG Holland (later Sir Sidney Holland), was able to generate mirth by instancing, as typical of the Council's legislative initiatives, the introduction there in five successive years in the 1930s of an Alsatian Dog Bill. In each year that Bill lapsed.[12]

After the war the prospect of success at a general election opened up to the (conservative) National Party. Holland saw some risk that the Council might be used by Labour to thwart a National Government. This apprehension was the very reverse of that which had inspired Sir Francis Bell's Act. When National did achieve power, it was faced with a Council of 33 including 15 pledged Labour supporters and 27 in all opposed to the new Government. In the meantime Holland had also exploited the continued existence of the Council as an issue capable of splitting Labour ranks. While still in opposition, he promoted two Bills to abolish the Council as then constituted. He thus brought about the establishment of a parliamentary committee to consider and collect evidence on alternatives. It came to nothing except as an assembler of information, nor did the Bills themselves proceed. At that time it was thought that such power of amending the Act of 1852 as had been conferred by the Westminster Parliament on the New Zealand General Assembly did not extend to abolishing the Council. The Labour Government avoided the issue on that ground, but was manoeuvred into acquiring from Westminster full powers of constitutional amendment.[13] As far as I know, it has never been seriously doubted that Westminster then effectively delegated to the General Assembly the power to do away with one of its own constituent elements, whereas in the United Kingdom itself doubts of course exist about whether Parliament can legally abolish the House of Lords.[14]

At the general election of 1949 in New Zealand the National Party's manifesto stated 'The Legislative Council as at present constituted has failed in its purpose as a revisory Chamber and should be abolished. As the Government, the National Party will examine the possible alternatives to provide for some form of safeguard against hasty, unwise or ill-considered legislation'. After winning the election with 46 of the 80 seats in the House of Representatives, Holland took the precaution of virtually doubling the Legislative Council by advising the Governor-General to appoint 25 new members. Popularly known as the suicide squad, they accepted office on the understanding that they would do away with it. The Prime Minister introduced in the House a Bill providing simply for abolition of the Council without compensation for its members. In part the latter omission was remedied, however, by another Bill, granting superannuation to retired legislators.

As to any substituted form of Second Chamber, in moving the second reading of the Abolition Bill the Prime Minister disclosed[15] that he had 'reached the inescapable conclusion that there is not in sight a satisfactory alternative. I only wish that there were. I cannot find it, and I have searched everywhere'.

The Labour Party were in a cleft stick but suspicious that after the abolition the Government would contrive to have enacted a written constitution containing guaranteed rights capable of frustrating Labour policy when it regained power. They put much weight on the argument that the National Party manifesto had spoken in almost the same breath of abolition of the existing Legislative Council and examination of alternatives. It will be seen though that, closely read, the manifesto did not represent either that an alternative would be found or that abolition was conditional on finding one. In that respect the manifesto finds a striking parallel in the British Labour Party's manifesto of April 1997.[16]

The Prime Minister promised the setting up of a joint committee of the two New Zealand Chambers to undertake the examination of which he personally despaired, and in the end the Opposition did not vote against the Abolition Bill. A committee was indeed created, although for tactical reasons the Opposition declined the opportunity of being represented on it. After the abolition of the Upper House took effect on 1 January 1951, the members of the committee who had been Legislative Councillors continued to serve on it as co-opted members. The Legislative Council Abolition Bill was dutifully passed by the Council itself, albeit not before the imminence of the demise caused some of the suicide squad to entertain reservations about its desirability. The ultimate majority voting in favour of the Bill in the Council was 26 to 16.[17]

The Uniqueness of the House of Lords

A perusal of the reported debates in both the New Zealand Houses in 1950 brings out that a prevailing sentiment regarding the House of Lords was then, as I believe it still largely is, not aversion but envy. It was expressed thus by a Minister and lawyer, JT Watts, who said:[18]

'I have thought about the matter frequently, and my conclusion is that the desire of those who wish to see a bicameral system of one kind or another retained in New Zealand is brought about because of the great respect which we in British countries have for the British House of Lords. The House of Lords is the only second Chamber in any of the democratic countries which really works, really fulfils its functions, and really carries out its job. It is a perfect example of British compromise and adaptability to changing circumstances. It is because of our veneration and respect for that Chamber that many people have been led to think we could duplicate the same system here with the same effect. The House of Lords holds such a respect in the minds of the people, particularly the British working-people, that they would never permit the second-Chamber system in Britain to go. What is the history of the British House of Lords? What are the reasons for its present strong position in the British parliamentary institution? It is important to understand this in order to understand the desire of some people in New Zealand to see a two-Chamber system retained here. First, I think it is the ability of the British aristocracy to renew their vigour over the years from generation to generation. They are still a living force in the British system. Secondly, the British method of new appointments to the House of Lords, where men outstanding in the fields of science, in the arts, in public life, and in learning generally are sent to the second Chamber, where their experience and ability are available to the debates there for the forming of public opinion—
Mr CONNOLLY: Nine-tenths of them are never there.
The Hon. Mr WATTS: It may be that nine-tenths of those entitled to attend are not there, but the one-tenth that does attend serves a useful purpose, and has a great influence on British public opinion. Thirdly, the great ruling families have a tradition of service, the Derby family, the Devonshires, and many others. For generation after generation they have produced outstanding men who have given up their private lives and have entered into public life not for reward but in order to serve King and country. They have given great service to our British parliamentary system. Certainly the power of the House of Lords at the present time is very much circumscribed. We remember the fight that took place in 1910 and 1911 when the power of the House of Lords over financial matters was taken away. In spite of the fact that its powers are circumscribed, however, it has an immense influence on public opinion because of its integrity. But I say that we cannot duplicate that system here; search as we like we cannot find anything in New Zealand that would be comparable with the British House of Lords; there is nothing we can put in our second Chamber comparable to that, and no member who has spoken in this debate, no newspaper editorial that I have read, no article that I have read—none of these has suggested a single suitable alternative to our present two-Chamber system. We see in Australia and in the United States instances where the second Chamber thwarts the will of the people as expressed through their elected representatives. .

No doubt those remarks are tinged with out-of-date romanticism. Yet outside the United Kingdom itself there remains, I think, a widely-held view that the House of Lords is a Second Chamber that, by and large, works well and rightly enjoys prestige and even affection. Certainly there can be few observers anywhere who would defend the ability of backwoodsmen to vote or the continued existence of an inbuilt Conservative majority. But the hereditary peerage has played a major role in the evolution of Britain. It still constitutes a distinct estate of the realm, although lacking the influence of (to take only one example) some powerful figures in the so-called fourth estate. A modern democracy is a much more complex organism than one concerned only with implementing the policy, as it stands from time to time, of the political party which has secured a majority of seats at the most recent general election. The principle of one person-one vote is vital but does not and cannot reflect all the realities of power in a democracy. Rather, it is an ultimate check and source of parliamentary power.

I suggest that there will be justified surprise and ironic comment elsewhere in the world if the United Kingdom now breaks with its distinctive and successful history by denying any voice at all in the legislative process for representatives of the hereditary peerage as such. So dramatic a change would be unBritish and a needless sacrifice. Coming from an essentially egalitarian country, I nevertheless venture to say these things.

The Aftermath of Abolition in New Zealand

The New Zealand constitutional story after 1950 has significant implications. The committee established in that year conducted an extensive inquiry and did not report until 1952.[19] It was chaired by RM Algie (later Sir Ronald Algie), then a Cabinet Minister but formerly a professor of law and ultimately Speaker of the House of Representatives. The report is a full and thoughtful paper with the characteristics of his handiwork. Although the committee's terms of reference related to an alternative to the abolished Council rather than to the issue between bicameralism and unicameralism, the report naturally discusses the role of a Second Chamber and covers much of the same arguments of principle as have been deployed in the Carnarvon study[20] and contributions to the present seminar. It is a truism that the crux of the problem lies in balancing irreconcilables: elected government on the one hand and a degree of independent legislative scrutiny on the other. The Algie report states[21] 'Writers and publicists have declared in some numbers that the perfect Second Chamber does not exist and that it is beyond the wit of man to create it'.

Assuredly the wit of New Zealand man has proved unequal to the task. The Algie report is studded with references placing great weight on the paramountcy of the ballot box. The committee, although constituted solely of Government representatives, would not have been so short-sighted as to suppose that their party's electoral popularity would last for ever; but deference to the views of the Prime Minister[22] may well have contributed to the tenor and the conclusion of the report. The report recommended a Senate comprised of 32 members nominated by the parties holding seats in the House of representatives, in accordance with their proportions of those seats: to hold office for three years, with eligibility for reappointment - the three years corresponding approximately to the term of the House of Representatives itself: and with power to delay legislation for two months only.

To propose two months was to end with a whimper. Altogether the body recommended by that report would seem likely to be but a pale replica of the House of Representatives. Any appeal that it might have to people possessed of the attributes desirable in members of a senate would be extremely limited. The report has languished unimplemented.

In the 1960s a group called the Constitutional Society for the Promotion of Economic Freedom and Justice, usually classified as right-wing, twice petitioned the House of Representatives for a Second Chamber and a written constitution. They proposed 20 senators elected on a geographical basis, including a lone Maori senator, and 16 other senators nominated by the

19 parties in proportion to their seats in the House of Representatives. There was opposition from some academic lawyers and political scientists, who in those days tended to be opposed to bills of rights or other restraints on the popular Chamber. Vigorous though the arguments were before the committees of the House, the public seem to have been mainly apathetic. In 1961 the committee was content to record its finding[23] in 11 words - it 'has carefully considered this petition and has no recommendation to make'. The Society, feeling perhaps that careful consideration had been an exaggerated description, returned to the attack and on the second occasion at least provoked a report[24] of a little over three pages.

The committee of 1964 rejected the petition, adopting the view that 'today most second chambers are very weak and some are held in very low regard'. Second Chambers, they noted, had offered no resistance to Hitler, Mussolini or Stalin; whereas in France between the wars the Senate was prominent in overthrowing the Government and thereby weakening the Third Republic. The committee thought that the evidence of hasty and ill-considered legislation since the abolition of the Legislative Council was 'slight indeed' - I must return to that aspect - and that any deficiencies in the legislative process would be better dealt with by improvements in the working arrangements in the House of Representatives. They had in mind especially further clerical and research assistance for members, while not regarding it as within their function to make a recommendation on these matters; the nature of this suggestion may cast an illuminating light on their approach to the constitutional issue.

The rather brusque reception given to the Constitutional Society's case suggests two lessons. First, a predominantly elected Second Chamber tends to be seen as a rival to an elected First Chamber. Secondly, a unicameral legislature is not an obviously suitable body for determining whether it should be replaced by a bicameral legislature.

As to hasty legislation, whatever may have been the position in 1964, there do appear to have been some glaring instances since. Thus in 1982, acting pursuant to the interventionist economic philosophy then prevailing in New Zealand, the Muldoon Government introduced a wage and price freeze, not by parliamentary legislation but by regulations issued under the Economic Stabilisation Act 1948 (since repealed), an enactment which reproduced certain wartime emergency powers. Literally construed, the Act could have been thought to have handed over control of the whole economy of the nation to the executive. The Court of Appeal, by a majority of four Judges to one, rejected that construction.[25] The regulations were held invalid insofar as they purported to override the State Services Conditions of Employment Act 1977, whereunder remuneration and conditions of employment in the state services were to be prescribed by tribunals under that Act, 'notwithstanding anything to the contrary in any other enactment'. The judgment was delivered on 14 December 1982. On the following day the Government introduced in the House of Representatives a Bill validating the regulations retrospectively and providing that regulations under the Act of 1948 might override a whole range of specified statutes. On 16 December 1982 this Bill was enacted, having passed through all stages in the single Chamber and received the Governor-General's assent on behalf of the Queen, given in accordance with the Government's advice.[26]

And at this very time controversy surrounds the passing in similar fashion, under claims of budget urgency, of two Bills announced on Thursday 14 May 1998 and given their third reading in the single Chamber at or about 6 pm on Saturday 16 May 1998. Saturday is not a normal sitting day. One of these, the Social Welfare Amendment Act (No 5) 1998, reduces sickness benefits to the level of the unemployment benefit ('the dole') and replaces the latter with a community wage: recipients will have to make themselves available for work or training; and domestic purposes beneficiaries with school-age children are required to seek part or full time work. The president of the National Council for Women is reported[27] to have said that the public had been denied the opportunity to make submissions on important legislation: 'Good law making needs thoughtful consideration by Parliament and careful scrutiny from the public. This legislation has had neither'.

The other allegedly urgent measure was the Copyright (Removal of Prohibition on Parallel Importing) Act 1998, forced through at the same speed. It allows importers to bring into New Zealand brand-name goods (such as clothing, cars, compact discs, pharmaceutical drugs) although they do not hold licences from the manufacturers or other copyright holders. The aim is to reduce prices to New Zealand consumers. It is a step in a struggle in progress internationally. The United States Ambassador immediately reacted very unfavourably. Apparently the New Zealand Government has taken a calculated risk of trade repercussions.

I am not here concerned, of course, with the merits or demerits of these pieces of legislation. It is the modus operandi that must be open to criticism, especially as regards the parallel importing legislation - the others had at least received some advance publicity as to their policy. To call what was enacted democratic in any true sense would seem inappropriate. The tyranny of an elected majority and party discipline are seen in practical operation. It is further to be noted that the two Acts of 1998 have been passed in this way notwithstanding that the House of Representatives is now elected by a system of proportional representation.

New Zealand currently has a system of proportional representation (MMP, Mixed Member Proportional) embodied in the Electoral Act 1993 and carried on a referendum of the whole electorate. The system was recommended in December 1986 by the Royal Commission on the Electoral System under the chairmanship of Mr Justice JH Wallace (now Sir John Wallace). In broad outline, an elector votes for a constituency member and a party. The eligible parties share the list seats in proportion to their shares of the total vote. At the general election of 1996 there were 65 constituencies, including five for electors of Maori descent who had opted to go on the Maori roll, and 55 list seats.[28] As had been widely predicted, a coalition Government resulted.

The question of a Second Chamber had not been within the Royal Commission's terms of reference and has never been submitted to a referendum. Nevertheless the Commission did devote a section of their report to the question,[29] concluding that, although they shared the concerns of many who supported a Second Chamber, the reintroduction of one would be very difficult to achieve. In their view, an enlarged House of Representatives, with members elected by the MMP system, was the best way of making Parliament responsive to the needs and interests of minorities.

In harmony with the opinion of the Royal Commission, it can safely be said, in my opinion, that the likelihood of a reintroduction of a Second Chamber in New Zealand in the foreseeable future is negligible. The mood of the people as a whole is that, for a country of less than four million inhabitants, there are already too many parliamentarians. The public perception of politicians is against anything that would lead to a proliferation in their numbers. The general thinking, which is understood to be shared by some political leaders, is more in the direction of reducing the size of the Legislature. In terms of population, however, New Zealand can be no analogy for the United Kingdom.

Still, even in New Zealand there persists a substantial body of informed opinion favouring a Second Chamber. In one form or another the idea surfaces quite regularly. But, in addition to the public cynicism just mentioned, a great difficulty is that, as often as responsible thought is given to it, so often does a new conception of the composition of a Second Chamber emerge. As has been seen, the Algie committee recommended a Chamber nominated in accordance with party strengths in the lower House. The Constitutional Society favoured a system combining direct and indirect election. A Christchurch law practitioner who has made a study of the subject[30] favours direct election by the people on a basis of regional proportional representation. Perhaps optimistically, he considers that this would limit the power of party organisations. An editor of the New Zealand Law Journal and former Chief Human Rights Commissioner suggests[31] an unexpectedly large Chamber: up to 50 proportionately elected members, being 'those with the highest number of votes within their party who did not get elected into the House of Representatives'; with another 40 or more appointed to represent various interest or vocational groups (cf. Ireland). Tot homines...

All these disparate solutions may be said to lack something in practicability; but their common concern of principle should not be written off on that account. It is a concern entertained also by experienced senior politicians. Sir Geoffrey Palmer, a former Labour Prime Minister, now a highly successful parliamentary and political consultant as well as an emeritus law professor, has favoured a Bill of Rights, proportional representation in the House of Representatives, and an improved committee system there, over a Second Chamber as an effective check.[32] Whether he retains this confidence now that New Zealand has had the experience of both a Bill of Rights (essentially interpretative)[33] and proportional representation, I do not know. Sir John Marshall, a former National Party Prime Minister, advocated[34] a senate on the lines of Sir Francis Bell's Act of 1916. And currently the most prominent supporter of a Second Chamber is Mr James Bolger, who has been both a National Party and a coalition Prime Minister and since ceasing to hold the latter office has been appointed New Zealand Ambassador in Washington. He authorises me to say that the gist of his reasons is that proportional representation, while certainly giving minority parties better representation in the single Chamber, does not provide any check or brake on (in the phrase that has become a cliche) hasty or ill-considered legislation. A coalition Government can still bring about radical changes in legislation with startling speed and without any kind of independent review or sounding of informed public opinion. The Acts in May 1998 already mentioned seem to show that he is right.

It is true that abolition of the House of Lords is evidently not under serious consideration. The Labour Party manifesto specifically stated that the legislative powers of the House would remain unaltered. What is proposed is reform of the House. What the manifesto did not and could not assure, and what may be impossible of attainment if 'reform' leads to more party politics, is the existence of a revising Chamber of the highest quality, acting not to thwart the popular will but to subject the output of the first Chamber to expert, measured and to a degree independent scrutiny: To be the place also where legislation of a constitutional or technical nature may occasionally be appropriately introduced. Observing the House at work in these ways over the last two years has been a privilege. The standard and objectiveness of debate may well be unsurpassed anywhere. While, when the Conservative Government was in power, one was not always enamoured of its ability to marshal a majority to reverse defeats in the House, it is the case that on all sides, not merely the cross benches, partisanship is generally remarkably subdued. The pervading characteristics are knowledgeability, moderation and good humour. If a weapon is used, it is more often the rapier than the bludgeon.

As a Labour peer, Lord Bruce of Donington, said[35] towards the end on 21 May 1998 of the third reading debate on the European Communities (Amendment) Bill, 'It only goes to show that in our collective capacity we are capable of examining a Bill and its implications in far greater detail and with a good deal more expertise than is frequently exhibited in another place'. He went on to refer favourably to contributions from hereditary members of the House, making in that context the claim '... we have preserved a sense of humour'. One hopes that when the House is reformed all the features touched on by Lord Bruce will be among those preserved.

Possible lessons

Despite the obvious differences between the United Kingdom and New Zealand, the New Zealand experience with the Legislative Council may not be without relevance to the proposal to shear the House of Lords of one of its constituent parts and other proposals in the manifesto. Perhaps that experience suggests five lessons.

(i) One touch of nature that does make the whole world kin is the tendency to procrastinate, to defer indefinitely a difficult decision. Destruction can be relatively simple; creation is a different matter. New Zealand drifted into a unicameral legislature by default and, if we may judge by the newspaper editorials of the day, against the weight of public opinion. Because it has been too hard to devise an acceptable alternative, an unsatisfactory half-way solution has been perpetuated. The parallel with the United Kingdom if House of Lords 'reform' is attempted to be worked out in stages is plain. It is reinforced by the impression that of the approximately 25 participants in this All Souls seminar, all closely interested in seeking an answer, probably no two would agree on the essential elements in a scheme of reform.

a) An Upper House of nominated members, appointed for life and without limit on the number of appointments, can result in unacceptable conflicts with the elective House and unseemly threats of swamping. Such was the situation in which New Zealand found itself in 1891.
b) An Upper House of nominated members appointed for limited terms may become largely useless and without public respect. Such was the situation for most of the last 60 years of the Legislative Council's life.
c) Provided that it is not dominant, some hereditary component is a valuable asset. Any difficulties in arranging for representation of the hereditary peerage, by periodic election within their ranks or otherwise, are trivial by comparison.
d) Upper Houses wholly or predominantly elected inevitably become rivals for power with the Lower House. That is basically why sundry proposals for reform in New Zealand have not been implemented.

As I have recognised, criticism is easy but constructiveness hard. Accordingly suggesting a goal becomes a challenge not befittingly to be declined. My best shot at a suggestion is that the House of Lords should have substantial representation of the main political parties, with no one party dominant; that there should be a limited representative hereditary element (the Labour Party manifesto does not appear to exclude this); and that there should be politically non-committed cross-bench peers in something like the present numbers. While this is not essential to the suggestion and might not appeal to the political parties, no harm to the wellbeing of the state would ensue if from time to time the cross-benchers happened to hold the balance of power. Like some other spheres of human action, politics may be too important to be left entirely to the professionals.

At the time of the revision of this paper (April 1999) a Bill to abolish the sitting and voting rights of hereditary peers is proceeding through the Houses of the United Kingdom Parliament. But a White Paper of January 1999 Modernising Parliament: Reforming the House of Lords, presented to Parliament by the Prime Minister,[36] included the following passage:

11.For all these reasons, the Government will act immediately to end the hereditary right to be a member of Parliament. A Bill to achieve this aim is being introduced. But if the cross- bench peers promote an amendment for the interim retention of 1 in 10 of the hereditary peers, 75 out of the existing 750, plus some hereditary office holders, until the second stage of House of Lords reform has taken place, the Government is minded to accept that amendment at an appropriate time as a prudent and sensible route towards the early termination of the right of all hereditary peers to sit and vote in the House. The Government is minded to take this view because those promoting the amendment have advocated it on the grounds that it would enable the first stage of reform to be agreed consensually, and without any threat of deliberate frustration of the programme of a government with a huge popular majority. Such a degree of flexibility, where it promotes the smooth evolution of our consititutional arrangements, is very much in the British tradition of reform. If there is consenus, the Government will make every effort to ensure that the second stage of reform has been approved by Parliament before the next election.

And an amendment enabling the retention of 92 hereditary peers has now been passed in the Lords. That appears to reflect political bargaining and its consequences, the details of which although fascinating at closer quarters would not be of the same interest in New Zealand. Up to a point, it happens to accord with a suggestion that I had ventured to submit in the House of Lords,[37] that 100 hereditary peers, to be elected by the peerage from time to time, should be retained in the House. So far, however, the proposal outlined in the White Paper and implemented by the amendment is no more than an interim one. If it became more permanent, it might save the United Kingdom from an act of folly born of an uncharacteristic attitude of unwillingness to compromise and willingness to jettison a valuable legacy from a great history.

In the meantime there has been set up a Royal Commission under the chairmanship of Lord Wakeham, formerly Conservative Leader of the House of Lords, to examine the Parliamentary aspects of reform in more detail. The tenor of the White Paper appears to be that the Government favours for the House of Lords a mix consisting mainly of nominated members and members elected directly or indirectly; with the 'right combination' being such that there will not be enough elected members to threaten the pre-eminence of the House of Commons. It is much the same dilemma as has confronted New Zealand. We in New Zealand may wish the United Kingdom better fortune in seeking a solution that has eluded us.

* This is a revised version of a paper delivered at a Seminar in All Souls College, Oxford, 22 May 1998.

[1] Troilus and Cressida, III, 3, 169.

[2] Philip A Joseph, Constitutional and Administrative Law in New Zealand (The Law Book Co Ltd, Sydney 1993), p 99.

[3] Sections 14,15, and 26.

[4] The Treaty of Waitangi is often seen as New Zealand's founding document. Morally that is so. How far it is legally so is outside the scope of the present paper. Arguably the status of the Treaty is evolving and the question is more open than was once orthodoxly thought: see

generally New Zealand Maori Council v Attorney General [1987] I NZLR 641; New Zealand Maori Council v Attorney-General [1994] 1 AC 7; and Joseph, Constitutional Review Now in [1998] NZ Law Review 87.

[5] Sections 14(2) and 10(2) of the Act of 1986.

[6] It is discussed by the present writer in "The Suggested Revolution against the Crown" in Essays on the Constitution, edited by Philip Joseph (Brooker's, Wellington, 1996).

[7] Andrew Stockley, "Bicameralism in the New Zealand Context" (1986) 16 VULR 377 at 390.

[8] Ibid at 391.

[9] WK Jackson, The New Zealand Legislative Council (University of Otago Press, Dunedin, 1972), p 69; quoted in Joseph, Constitutional and Administrative Law in New Zealand op

cit 389.

[10] The Government were alleged not to be above exploiting the conflict. The legislation of 1893 extending the parliamentary suffrage to women has often been trumpeted as an example of enlightened social progress in New Zealand. So it was; but the Prime Minister (Richard John Seddon) and a number of his colleagues were understood to be privately against it, and to have supported it expecting that a reactionary Legislative Council would incur the opprobrium of killing it. According to legend, when the Council endorsed the Bill the Prime Minister, in an alcohol-stimulated fury, seized the Leader of the Council by the throat, in a parliamentary corridor. If so, no disciplinary proceedings seem to have been taken.

[11] Alan Mulgan in "The Life and Times of Sir Francis Bell: A Review" (1937) 13 NZLJ 276.

[12] 1950 NZPD 540-1.

[13] The New Zealand legislature passed the New Zealand Constitution Amendment (Request and Consent) Act 1947 and the Statute of Westminster Adoption Act 1947. The Westminster Parliament passed the New Zealand Constitution (Amendment) Act 1947.

[14] See, for instance, the differing views expressed in (1979) 95 LQR 36 and 386 by Peter Mirfield and George Winterton respectively.

[15] 1950 NZPD 544.

[16] 'The House of Lords must be reformed. As an initial, self-contained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute. This will be the first stage in a process of reform to make the House of Lords more democratic and representative. The legislative powers of the House of Lords will remain unaltered.

The system of appointment of life peers to the House of Lords will be reviewed. Our objective will be to ensure that over time party appointees as life peers more accurately reflect the proportion of votes case at the previous general election. No one political party should seek a majority in the House of Lords. A committee of both Houses of Parliament will be appointed to undertake a wide-ranging review of possible further change and then bring forward proposals for reform.'

[17] 1950 NZPD 1630.

[18] 1950 NZPD 709.

[20] Appendix to the Joumal of the House of Representatives 1952, I-18.

[21] Second Chamber, some remarks on reforming the House of Lords, the results of an informal study undertaken by the Earl of Carnarvon, Lord Bancroft, the Earl of Selborne, Viscount Tenby and Douglas Slater, 1995. Published by Douglas Slater, PO Box 9060, London SKI I 5ZA.

[22] Op cit n 19, at l8.

[23] A political scientist remarked acidly that he enjoyed a somewhat simplistic view of constitutional arrangements. WK Jackson in "The Failure and Abolition of the New Zealand Legislative Council" (1973) 54 Parl 17; reproduced by Mai Chen and Sir Geoffrey Palmer in their Public Law in New Zealand, Cases, Materials, Commentary and Questions (Oxford University Press, Auckland, 1993), pp 709-714. Lady Balfour of Burleigh has

[24] reminded this Seminar that Holland's reputation for adroitness was enhanced by his party trick of taking off his waistcoat without removing his coat, but the relevance of this to the present debate appears minimal.

[23] Appendix to the Journal of the House of Representatives, 1961, 1-2A.

[24] Appendix to the Journal of the House of Representatives, 1964, 1-14.

[25] Combined State Services Unions v State Services Co-ordinating Committee [1982] NZCA 88; [1982] 1 NZLR 742.

[26] See Chen and Palmer, op cit 914-20.

[27] The Dominion 18 May 1998.

[28] For some further particulars of the system, see Tairoa v Ministry of Justice [1995] 1 NZLR 411. That case was concerned with the manner in which the Maori option had been publicised. As forecast at the end of the judgment, more Maori voters have since come to appreciate the advantages for Maori of the Maori roll, with the result that there will be a sixth Maori seat at the general election in 1999.

[29] The report is subtitled 'Towards a Better Democracy' (H3,1986). The relevant section is at pp 280-282.

[29] RJ O'Connor [1991] NZLJ 6.

[30] PJ Downey [1990] NZLJ 341.

[3] 2 Unbridled Power (Oxford University Press, Auckland, 2nd ed. 1987).

[33] New Zealand Bill of Rights Act 1990, introduced by Sir Geoffrey Palmer himself.

[34] New Zealand Herald 4 January 1982, quoted in Palmer op cit 237. 35 589 HL Deb 1837.

[36] Cm 4183

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