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Published online by Cambridge University Press: 28 March 2014
The publication of the report of the royal commission on the Reform of the House of Lords, A House for the Future, provides an occasion to look at second chambers and bicameralism in Anglo- American democracies. This limited focus is not for want of subject matter: the Inter-Parliamentary Union reports that of 178 parliamentary democracies in 1996, 58 were bicameral. Nor is the subject of second chambers, while never popular, a neglected area of inquiry at present. In fact, more has been published on the topic in the past four years than at any time in recent memory. The reason for focusing on Anglo-American countries is that they are the democracies where upper chambers are being transformed today. In response to events unique to themselves, Canada, Australia and the United Kingdom have of late looked beyond responsible government as traditionally defined and begun to examine the role of their second chambers. The United States warrants inclusion because it is the founder of the theory of modern bicameralism.
1 Royal Commission on the Reform of the House of Lords, A House for the Future, London, The Stationery Office, January 2000, p. 2. (Cm 4534) (hereafter Report).
2 Russell, Meg, Reforming the House of Lords: Lessons from Overseas, The Constitution Unit, Oxford University Press, Oxford, 2000.CrossRefGoogle Scholar
3 Patterson, Samuel C. and Mughan, Anthony (eds), Senates: Bicameralism in the Contemporary World, Columbus, Ohio State University Press, 1999 Google Scholar
4 Sharman, Campbell, ’The Senate and Good Government’, in Papers on Parliament, 33, Canberra, Department of the Senate, 05 1999, p. 169 Google Scholar. Five of Australia’s six states have elected upper houses; three have adopted proportional representation as their electoral scheme. None of Canada’s ten provinces has an upper chamber, although five once did; Quebec was the last province to abolish its Legislative Council in 1968.
5 The history of proposals for Senate reform is longer and more complex than this statement suggests. The first suggestion appeared in 1874, and proposals continued to resurface at intervals thereafter. The floodgates opened in the 1960s, when the federal government unveiled the first of a series of mega-constitutional reform packages in which reform of the upper chamber was one part. Ever since, Senate reform has been tied to change to other parts of the Constitution. For a discussion of these proposals, see Stilborn, Jack, Senate Reform in Canada — A Discussion Paper, Ottawa, Parliamentary Research Branch, Library of Parliament, 28 07 1999 Google Scholar.
6 Ibid., p. 61 citing Canada West Foundation, Taking a Look: Public Opinion in Alberta and Canada on Senate Reform, September 1998 (available at www.cwf.ca), p. 9.
7 ‘What to do about the Canadian Senate?’, Edmonton Journal, 12 November 1999, A22. In addition to Stilborn, op. cit., note 5, see Stilborn, Jack, Comments on Twenty-Four Senate Reform Proposals Provided for Analysis, Ottawa, Parliamentary Research Branch, Library of Parliament, 5 07 1999;Google Scholar Audcent, Mark, The Senate Veto, Opinion of the Law Clerk and Parliamentary Counsel, Senate of Canada, 24 09 1999;Google Scholar A Review of Senate Committee Studies, Ottawa, Parliamentary Research Branch, Library of Parliament, December 1999; Senator Serge Joyal, Legal, Constitutional and Political Imperatives to Senate Reform, Ottawa, February 2000.
8 New Zealand would be included in this discussion if it had not abolished its upper house in 1950. See Jackson, W.R., The New Zealand Legislative Council: A Study in the Establishment, Failure and Abolition of an Upper House, Toronto, University of Toronto Press, 1972.Google Scholar
9 See ‘Governor Ventura’s Remarks on a Single-house Legislature,’ 17 August 1999 (available at [email protected]).
10 Tsebelis, George and Money, Jeannette, Bicameralism, New York, Cambridge University Press, 1997, p. 16 CrossRefGoogle Scholar (emphasis in original).
11 Report, op. cit., p. 2.
12 Russell, op. cit., p. 15.
13 See Lusztig, Michael, ‘Constitutional Paralysis: Why Canadian constitutional initiatives are doomed to fail’, Canadian Journal of Political Science, 27 12 1994, pp. 747–71Google Scholar. Senator Joyal maintains that, as regards the Senate, ‘political deal-making & inevitably leads to a lack of a coherent institutional design in the final agreement’. Serge Joyal, op. cit., p. 21.
14 Report, pp. 19–23. Hereafter citations of the Report are noted directly in the text.
15 According to Gordon S. Wood, at the beginning of the Revolution, American republicans were not predisposed to reject the concept of virtual representation; republicanism presumed ‘a transcendent public good’ superior to any particular interests. The grounds for their complaint lay in the belief that in an empire, the interests of mother country and colonies were ‘inherently’ disparate. Representation in the American Revolution, Charlottesville, University Press of Virginia, 1969, pp. 10–11 and 7.
16 See Wood, op. cit., pp. 43–4. This paragraph is based largely on a reading of Wood and Morgan, Edmund S., Inventing the People: The Rise of Popular Sovereignty in England and America, New York, W. W. Norton, 1988 Google Scholar. See, for example pp. 267, 255f.
17 Kantorowicz, Ernst H., The King’s Two Bodies: A Study in Medieval Political Theology, Princeton, Princeton University Press, 1957, p. 382.Google Scholar
18 The L. Buckwold, Hon. Sidney, ‘The Canadian Senate: Between Past and Future’, Reid, in G. S. (ed.), The Role of Upper Houses Today, Hobart, University of Tasmania, 1983, p. 152.Google Scholar
19 Reference re Legislative Authority of Parliament of Canada in relation to the Upper House, [1980] 1 S.C.R. 54 at 67.
20 Audcent, op. cit., p. 11.
21 Russell, op. cit., p. 20.
22 The Australian Constitution, Melbourne, Constitutional Centenary Foundation, 1997, p. 36.
23 Young, William H., Ogg and Ray’s Introduction to American Government, 11th edn, New York, Appleton Century-Crofts, Inc., 1956, pp. 226–9.Google Scholar
24 Russell, op. cit., p. 286.
25 Marsh, Ian, ‘Opening up the Policy Process’, paper for presentation to ‘Representation and Institutional Change: A Conference to Mark 50 Years of Proportional Representation in the Senate’, Parliament House, Canberra, 5 and 6 August 1999, pp. 5–6 Google Scholar (hereafter conference citation, Representation and Institutional Change).
26 Marian Sawer, ‘Dilemmas of Representation’, Representation and Institutional Change, p. 10.
27 The contribution of parliamentary committees to the deliberative process is discussed by Uhr, John, Deliberative Democracy in Australia: The Changing Place of Parliament, Melbourne, Cambridge University Press, 1998 Google Scholar. For a concise description of Senate committees, see Parliament of Australia (Senate), Senate Brief No. 4 (December 1998), ‘Senate Committees’ (available at http://www.aph.gov.ca/senate/pubs/briefs/brief4.htm).
28 Cairns, Alan, ‘The Charter, Interest Groups, Executive Federalism and Constitutional Reform’, Smith, in David E., Courtney, John C. and MacKinnon, Peter (eds), After Meech Lake: Lessons for the Future, Saskatoon, FifthHouse Publishing, 1991, pp. 13–31.Google Scholar
29 Joyal, op. cit., p. 57.
30 Ackerman, Bruce A. ’The Storrs Lectures: Discovering the Constitution’, Yale Law Journal 93 (1984), pp. 1013–72 at p. 1042.CrossRefGoogle Scholar
31 See Senate of Canada, Amendment to the Constitution of Canada, Term 17 of the Terms of Union of Newfoundland with Canada (Thirteenth Report), Standing Senate Committee on Legal and Constitutional Affairs, 17 July 1996. The reform of Newfoundland’s church-run school system proved to be complicated: the Senate refused to endorse the government’s first motion; a new provincial government came to power; a second provincial referendum on the matter followed; and the government introduced yet another motion. Throughout these events, however, the Senate held fast to its concern that the voice of affected minorities be heard.
32 Russell, op. cit., p. 52.
33 See Galligan, Brian, A Federal Republic: Australia’s Constitutional System of Government, Melbourne, Cambridge University Press, 1995, pp. viii and 14 CrossRefGoogle Scholar. For a dissenting view, see AlanJ. Ward, ‘Australia and Parliamentary Orthodoxy: A Foreign Perspective on Australia’s Constitutional Reform’, Australian Senate Occasional Lecture Series, Canberra, 18 June 1999.
34 Harry Evans, ‘Accountability versus Government Control: The Effect of Proportional Representation’, Representation and Institutional Change, p. 5.
35 proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on Senate Reform, 18 October 1983, 30, p. 26.