Improving New Zealand's democracy with an Upper House

A second chamber could help solve a number of issues that commentators are currently concerned about.

Photo by Leroy de Thierry on Unsplash

Yesterday’s article by Bryce Edwards regarding Jacinda Ardern taking to the international speaking circuit reminded me of my conversation with Lord Sumption last year about whether New Zealand’s democracy and law-making could be improved by the reintroduction of an upper house.

Edwards asked whether it was time to rethink the role of former prime ministers given that an increasing number of our former senior politicians have forsaken the traditional path of continued public service in favour of the more lucrative speaking circuit.

Jacinda Ardern cashes in on her time in public office

Edwards is not the only commentator to raise questions such as these. In a speech last year, Sir Geoffrey Palmer voiced related concerns about the fragility of our constitutional framework, stating: “In our system, the Executive is too big and too powerful. It dominates the Parliament too easily and there are not enough checks and balances in the New Zealand system. New Zealand is an executive paradise, not a democratic paradise.”

Of course some former politicians will always want to go into the private sector and maximise income generation - there’s nothing wrong with that. However, there doesn’t currently seem to be a satisfactory long term home for former senior politicians who want to continue to make a contribution to the political life of this country.

Equally, it’s long been acknowledged that our Executive is too powerful. MMP was, of course, a response to the Lange government going beyond its electoral mandate. That reform has introduced greater diversity into the House but has it improved Parliament’s law-making?

Some current MPs point to our select committee system as the mechanism by which bills are scrutinized and improved. Whilst that is undoubtedly true to an extent, those committees still have a majority of government MPs and therefore they still remain susceptible to the power of the Executive.

In addition to Palmer’s call for constitutional change, there are others in New Zealand who are calling for a radical “reimagining” of our constitutional framework to better reflect their interpretation of the Treaty of Waitangi. However, when it comes to constitutional matters, slow incremental improvement seems preferable (and more realistic) than radical change.

In an article last year, I argued that a second house could enhance our system of governance by addressing several of these problematic issues. It was a topic that I discussed with Lord Sumption when he was in New Zealand.

Whilst Sumption acknowledged that the UK system was “untidy” and that they would never start with their current set-up if they were at the drawing board again, he does however believe that it works pragmatically.

In his view, the actual effective core of the Lords is probably around 150 or 200 people out of its 800 members. But he believes that that group produces an enormous improvement in the quality of laws through a far greater degree of independent scrutiny than what occurs in the Commons.

Sumption observed that in his view, “The political pressures that divide the elected House are often inconsistent with producing technically workable legislation. And that’s something that you could improve with a second chamber.”

The House of Lords works, in his view, because the democratic legitimacy is the monopoly of the House of Commons. The House of Lords, therefore, is not in a position to undermine critical aspects of government policy, particularly if it was part of the mandate on which they were elected.

Sumption also observed that, “one of the great things about the House of Lords is that when our former Prime Minister or Chancellor of the Exchequer goes to the House of Lords, he or she is effectively relieved of the great burden of luggage that their career will have accumulated over the previous 40 years. And they become elder statesmen, who are really worth listening to.”

Turning his mind to New Zealand, Sumption considered that you must first think of some “animating principle” which drives the reform but that an upper house might work if it’s elected or appointed on completely different principles to the lower house.

In Sumption’s view, “I think that you could have a system in New Zealand under which you had an appointed house, but that the appointment was in the hands of an apolitical body rather like the system which we have in the UK for appointing judges, which has worked well.”

This would, in his view, allow for proper representation, for example, for Māori and other groups. It could also have a fair regional distribution and represent a full range of political and non-political sentiment.

“You would need to define whether it could effectively veto parliamentary bills that come from the lower house. But what its exact role was, it would have to be more than an advisory role, if it is to have any significance at all. Maybe simply the right to delay implementation for a year, which is effectively what the UK has, would be an answer to that. But there are lots of variants on these themes.”

In any event, in Sumption’s view: “You could have a system like that. And I see no reason why it shouldn’t work.”