Learning from Down Under: Review and Scrutiny in an elected upper house

With news today that after months of petty infighting amongst the parties the Prime Minister may now shelve plans for Lords reform, we look at one of the main arguments used by those against reform: that an elected Lords would challenge the primacy of the commons.

On the question of powers for the House of Lords the only way to predict how an elected upper house might interact with the lower house is to judge from international experience.

On this point the closest upper house to the model proposed in the Lords Reform Bill is the Australian Senate.

In Australia there are two houses, the lower house is the House of Representatives which is elected by the Alternative Vote which tends to produce a single party majority government, and the Senate which is elected by the proportional Single Transferable Vote system. MPs serve 3 year terms whereas Senators serve 6 year ones, half being elected at each federal election. States also enjoy equal representation in the senate and, according to the Australian constitution, the Senate enjoys almost co-equal powers with the exception that it cannot initiate or amend money bills (although it can block them and suggest amendments to the House).

Yet, in Australia, the Senate enjoys a universal reputation as a ‘House of Review’, a chamber which scrutinises legalisation despite the fact that it almost always has an opposition majority due to its electoral system and could, therefore, act to obstruct the government of the day.

The reason for this is that the Senate is seen as less democratically legitimate, primarily because its term is twice as long as that of the House of Representatives, and Senators from major and minor parties accept this position. As justification for voting for the Australian Labor Party’s sales tax rise in 1993, Senator Kernot, a leader of the Australian Democrats (a former minor party with some strength in the Senate) argued that

“It comes down to our view about the legitimate role of the Senate. Is it a House of Review? Is it a House of Government? Where do our rights begin and end?… Who has the right to dictate the economic direction of this country? Is it our right? If we want to take on that right, why do we do not face an election every three years as the House of Representatives does?”

Superior legitimacy is also conferred on the House of Representatives because it is the House from which the government is primarily drawn and which gives confidence to that government. Governments claim to have a mandate which allows them a ‘general right to govern’ and this is generally accepted by Senators.

The Australian system has therefore become one in which the functions of a parliament have divided between their two houses – a house of government and one of scrutiny, a situation perhaps comparable to the UK. Yet, the Senate may provide superior scrutiny to the UK. One of the Senate’s greatest tools of scrutiny is its committee system which, because the government lacks a majority, is seen as providing superior scrutiny. In comparison Lords committees are rather anaemic, with questions over how far an unelected House can go in terms of providing democratic scrutiny.

Where the Senate does act in an obstructive way it is usually on accountability procedures, such as legislative deadlines, access to information and ministerial answers to questions. In this way it seeks to ‘keep the government honest’.

In doing so the Senate retains the key functions of a ‘House of Review’ within the context of a Westminster political system.

In this context when we compare the Senate to the proposed House of Lords, it is difficult to see how the Lords could create an issue of primacy with the Commons With fifteen year terms and [anything else that reduces it’s legitimacy?] the Lords would be even less democratically legitimate than the Senate, even if it is more legitimate than now.

Election may actually turn the Lords into a true ‘House of Review’, between a rubber stamp, which it too often is now, and the fully empowered chamber its critics fears. After 100 years of waiting, it’s time to find out.

The Electoral Reform Society has been campaigning hard for an elected upper house. Find out more about our work to reform the Lords.