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September 18, 2017 | by  | in Features |
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Should old acquaintance be forgot? The idiosyncrasies of New Zealand’s Legislative Council

The words of “Auld Lang Syne”, written by Scottish poet Robert Burns and traditionally sung at midnight on New Year’s Eve to farewell the old year, rang out through the modestly sized Legislative Council Chamber, echoing off of its grand Italian marble pillars and out into the wooden halls of Parliament. The 53 people singing were known as the “Suicide Squad” and on December 1, 1950, they voted the upper house of the New Zealand Parliament, the Legislative Council, out of existence. Together they stood and sang, knowing that while the title Member of the Legislative Council had become a legal anachronism in that moment, it had long been politically and socially irrelevant.

 

Last meeting of the Legislative Council. 1950.

Last meeting of the Legislative Council, 1950.

 

The Legislative Council had been the upper house of the New Zealand legislature for nearly 100 years. Its purpose was to examine the work of the lower house, the House of Representatives (what we now refer to as Parliament). It was supposed to methodically and carefully go over the lower house’s proposed laws, checking for errors and potential abuses of power. In essence, it was there to protect New Zealand from itself.

It was modeled off of the nominated British House of Lords¹ and was part of the new constitution proposed for New Zealand by the Colonial Office in London during the mid-1800s. The Colonial Office was a mix of former British diplomats, military officers, and career bureaucrats. Their backgrounds and geographic distance made it impossible for them to create a truly representative constitution — instead the Constitution and Legislative Council were methods of exerting British influence over the colony.

The members of the Legislative Council were appointed directly by the Governor, the British monarch’s representative. Governors were either former military men, or experienced colonial administrators, either of which was indicative of a loyalty to the Empire above all else. This meant that national politics would at least hypothetically be controlled in large part by colonial cronies and this control was reinforced by smaller provincial Legislative Councils, whose members were also appointed by the Governor.

The mid-1800s was a period of unmatched constitutional activity. The Colonial Office had to write nine separate constitutions for colonies with vastly different political, social, and economic conditions — from Jamaica to Australia, and all of the Empire in between. The man in charge of this intense legal task was the Secretary of State for War and the Colonies, Earl Grey. Grey was responsible for all aspects of the administration and governance of Britain’s expansive territories and colonies, from appointing Governors to deploying troops to quell rebellion, an immense task. His ruthlessness in the pursuit of order was well known, and as Colonial Secretary he oversaw the brutal suppression of the Matale Rebellion in Sri Lanka.

The constitution proposed for New Zealand provided for a three-tiered system of representative government. Citizens would elect local representatives, similar to city or regional councillors today. These elected representatives would then choose the members of the provincial Houses of Representatives — similar to modern Members of Parliament, except on a provincial, not national, level. These provincial representatives would then choose the members of the national House of Representatives. The direct influence an individual voter could have on the national House of Representatives was drastically limited, and the influence of the rich landed elites, who were generally sympathetic to Britain, was greatly enhanced; who were usually the only ones who could afford to participate in this elaborate rigmarole.

It was on the verge of coming into force when, on the advice of Governor George Grey (no relation), Earl Grey decided to suspend the constitution for five years due to doubts of its desirability. New Zealand was plunged into deep legal confusion — ironic given the great military lengths he had gone to in order to secure order in other colonies. Grey lost his position as Secretary for the Colonies soon after, and was replaced by Sir John Pakington. Pakington’s administration was incredibly weak, as it commanded roughly only 40% of the seats in the British House of Commons. Suspecting that his position would be short-lived, Pakington forced through a constitution for New Zealand in 1852 which contained a directly elected lower house, and an upper house whose members were to be nominated by the Governor on the advice of the Premier (what is now our Prime Minister).

The New Zealand authorities were not happy with the result and most popular opinion in New Zealand was against a nominated upper house. At the time, each province had its own legislature, and they made their anger known. The Nelson legislature declared that “One chamber only of elected members would be infinitely preferred to two [chambers] where one… was composed of Nominees.” The Southern Cross newspaper grumbled that “We are insulted when we are told that we cannot govern by ourselves.” The Wellington Independent newspaper perhaps summarised the feeling best, saying “One does not know whether to laugh or to cry, at the incredible folly and ignorance of those who projected it.” Nonetheless, the New Zealand authorities ultimately chose to accept the proposal, preferring any constitution to the state of legal confusion that had existed up until then.

Interestingly, Earl Grey also came out against the upper house. After watching the five years New Zealand spent without a constitution, and the political machinations Pakington went through to implement the new constitutional system, he had entirely changed his position. As he would recount only months after he lost his job, he had come to believe that a “single Legislature ought… under many circumstances to be preferred.” We can only assume that this preferred legislature would be directly elected, as our House of Representatives is now. This change of mind was too little, too late.

As was to be expected from its rushed beginnings and lack of popular support, the Legislative Council did not find much success. It was intended to be full of elder statesmen, serving life terms and carefully deliberating on the issues. Instead, 50% of the initial Council appointees had already left by 1857. Members of the Council and the public alike complained that the appointees to the Legislative Council were there purely because they were friends of those in charge. One of the Council’s most distinguished members, former Premier Frederick Whitaker, said that “There is nothing I am aware of which secures that the appointments shall be made from the motive of doing that which…  would be best for the colony…” The effect of all this was to severely harm the credibility of the Council, making it seem like a weak and illegitimate cousin of the “real” legislative body — the House of Representatives.

 

The Legislative Council chamber of the House of Representatives, Parliament Buildings. -1920. Jeremy Veniamin Garvitch.

The Legislative Council chamber of the House of Representatives, Parliament Buildings. 1920. Jeremy Veniamin Garvitch.

 

Nevertheless, the Council lurched on, dysfunctional and disrespected, until serious reform began to be considered. In the 1911 election, both the Liberal and the Reform Parties, who dominated New Zealand politics, promised to change how the Council worked. The Reform Party ultimately won, and declared the Council would move from its current system of appointments to being directly elected on the basis of proportional representation, a revolutionary change. However, as the reform efforts were winding their way through the political process, disaster struck when World War 1 came roaring onto the scene. This would prove to be the death knell of the Legislative Council. Reform efforts were halted, to never again be restarted, dooming the Council to irrelevance and eventual abolition.

In the mid-1950s both National and Labour, the new political giants, committed to abolition. However, as a former colony, only the British Parliament could amend the New Zealand Constitution Act 1852, which had introduced the Legislative Council. So began a long legislative process, where both the New Zealand and British Parliaments passed legislation in unison, ultimately giving New Zealand the right to amend its own constitution. Finally, the New Zealand Constitution Amendment Act 1947 was passed, and the real work could begin. Prime Minister Sidney Holland swept to power in the 1949 election and began appointing members of the so-called “Suicide Squad” to the Council. These appointees promised to support the abolition, and they fulfilled that promise on December 1, 1950, when the Legislative Council Abolition Act 1950 passed the Council with a majority of ten votes — a landslide victory.

As a result, New Zealand has continued for 67 years without an upper house, a situation unlike most of the Commonwealth, where systems with upper and lower houses are still the norm. While every party in Parliament is either opposed or indifferent to reintroducing an upper house, the newest entrant to the political scene — The Opportunities Party (TOP) — is trying to shake things up.

TOP are proposing a return of an upper house, having correctly diagnosed the problem that there are practically no limits on Parliamentary power, and it is entirely possible for a particularly authoritarian government to violate the rights of New Zealanders. While short of specifics about how members would enter the new upper house, their website suggests that it would be a “mixture of appointment and elected members.” In other words, a combination of the system for our old Legislative Council and our current House of Representatives. Part of the purpose of this would be to ensure the representation of a Māori voice, to uphold the requirement of the Treaty of Waitangi for tino rangatiratanga.

However, what TOP does not specify is how they would avoid their proposed upper house having the same fate as the Legislative Council of becoming a rubber-stamp to legislation, and serving as a political pipeline for politicians to enter the better liked and more prestigious lower house. Much of the power of upper houses around the world, from the Senate in America to the House of Lords in the United Kingdom, stems from the long tradition, prestige, and history they possess. It seems only through these qualities that they can affect public opinion.

Their policy gives no power to veto proposed legislation, only the power to recommend changes. These recommendations would be easily overridden by a more powerful and better respected lower house. As a result, an upper house could neither ensure the Treaty was upheld, nor limit excess of power.

TOP’s desire to institute an upper house is to instill a less political and partisan element to our legislative system. However, any appointees would likely still have a political slant as the government in power tries to ensure outcomes favourable to them, and those members who were directly elected would likely still join one our existing parties to gain access to publicity, resources, and support. Indeed, partisanship plagues upper houses the world over, one need only glance at the US Senate to see proof of that.

There are many ideas floating around as to how the problems of not having an upper house could be addressed. The highly respected New Zealand jurist Sir Robin Cooke suggested that the Courts do and should have the power to stop Acts of Parliament which severely violate fundamental rights. Former Prime Minister Sir Geoffrey Palmer has proposed a codified Constitution which would establish a number of restrictions on the power of Parliament, from empowering the Courts to establishing guidelines on how Parliament can behave in various situations. But almost all draw the line at actually proposing an upper house. In the vein of “Auld Lang Syne”, the old year has passed and the Upper House has been gone and old long since.

 

  1. The House of Lords still exercises considerable influence in British politics. In 2015, the House of Lords vetoed a bill passed by the popularly elected House of Commons that would have cut welfare payments — ironically managing to simultaneously electrify the liberals who have traditionally denigrated the House of Lords, and enrage the conservatives who have kept it alive until this point. To this day, the House of Lords often challenges the decisions of Britain’s elected MPs.

 

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