LINK) which was launched in the House of Lords on 29 February 2012. This important publication, produced in response to the Government's Draft Bill on the Reform of the House of Lords, opposes the Government's desire for a "wholly or mainly elected" upper house and, instead, argues for a radical alternative. Other contributors include the Minister for Political and Constitutional Reform, Mark Harper MP, Lord Low of Dalston, Lord Wei of Shoreditch, Sir Stephen Bubb, The Bishop of Leicester (Convenor of the Lords Spiritual), the political philosopher Prof. Roger Scruton, Lord Adebowale and Phillip Blond, Director of ResPublica.
BICAMERALISM & REPRESENTATIVE DEMOCRACY: AN INTERNATIONAL PERSPECTIVE - PART ONE
by Rafe Heydel-Mankoo
The House of Lords has long suffered at the satirist’s hand and is routinely portrayed as an out-of-touch, undemocratic and anachronistic private club. These hackneyed stereotypes, now indelibly embedded in popular culture, have spurred many of the calls for Lords reform; yet they obscure a plain reality: the increasingly diverse House of Lords is more representative of British society than the elected House of Commons, is better suited to serve the wider public interest and, in common with many upper houses, it performs a role as democratically vital as the lower house, through its championing of the constitution and human rights, its legislative review and executive scrutiny, and its defence of political minorities and opposition.
Since the end of the Second World War, with two exceptions (in 1974 and 2010 no party was able to win a majority of seats), each UK General Election has resulted in a majority government in which the winning party secured less than 50% of the electoral vote. In the 2005 General Election, for example, the Labour Party won a majority government of 355 seats with a 35.2% share of the vote, whilst the Conservative Party secured 198 seats with 32.4% of the vote and the Liberal Democrats won 62 seats with 22% of the vote. So it is, that in our parliamentary system, a government that represents the will of approximately one third of the nation can secure a Commons majority and enact, perhaps deeply divisive, legislation based upon a manifesto that was rejected by the majority of the electorate. A crude majoritarian might consider such a result inherently undemocratic.
Fortunately, liberal democracy is far more sophisticated and complex; it balances the interests of the electoral majority against other important values, such as the protection of human rights, the promotion of social justice and equality, and respect for political dissent, opposition and the representation of minority opinions. In advanced democracies, these fundamental values, essentially moral in nature, enjoy protection beyond the reach of the majority’s will. Upper houses such as the House of Lords, comparatively free from party control and endowed with a long-term perspective untrammelled by the lower houses’ short-termism, tend to be far better guardians of these basic values – often functioning as defenders of the constitution and fundamental rights.
In an effort to bring a different perspective to the political process, improve the quality of legislation and check the potential for unfettered legislative populism, many states have created upper houses with a membership that differs significantly from that of their lower houses – in some cases specifically admitting, by appointment or quota, learned experts or individuals from historically under-represented communities. This enables some second chambers, including the House of Lords, to perform a democratic role and be representative of society in a manner that is unachievable in a popularly elected lower house. In countries such as at the UK, this representative role in no way challenges the supremacy of the lower house – the Lords’ relationship with the Commons is complementary rather than competitive.
Statistical analysis of the legislative process in overseas states suggests that bicameralism improves legislation and results in more predictable public policy that better reflects voter concerns, especially in countries where the policy originates in overtly partisan lower chambers. This research also demonstrates that legislation enacted by a bicameral legislature comprising two chambers composed of different majorities and reflecting different interests, is likely to be more democratic and more representative of society’s interests than legislation emanating from a unicameral state or a bicameral state with two chambers of similar composition.
This is logical: to secure a bill’s passage, a government will need to ensure that it appeals to a wider range of interests than might initially have been intended. Bills that successfully pass both chambers can be deemed to have attained the ultimate democratic accolade: a “supermajority”.
A lack of cameral consensus can also be democratic. The House of Lords is arguably most effective and representative of society when it is opposed to a government majority. Parliamentary conflicts generate increased interest from the media and the wider world, motivating concerned elements within society to engage with the issue at hand and make their views known (be it through public debate, community activism, signed petitions, or direct representation to a legislative member). Indeed, as I write this essay, the House of Lords has embarrassed the Government by defeating it three times over proposed welfare reforms. The democratic “will of the people” is clearly more effectively served when the critical review of the Upper House, and the public reaction arising from it, has the potential to cause the government to reconsider its position.
The arguments for bicameralism are compelling. Nevertheless, although the number of bicameral states is increasing (from 45 in the 1970s to nearly 80 today), unicameralism remains the majority legislative system in the world – accounting for approximately 60% of national legislatures.
The predominance of bicameralism in the majority of the national legislatures of the English-speaking world (most of which are modelled on the Westminster System), in 16 of the member states of the G20, and in the majority of the world’s 25 most-developed countries might perhaps explain why it appears much less of an anomaly than it is in reality.
Bicameral legislatures arose (and disappeared) in different countries for reasons that are largely dependent upon each state’s political and constitutional evolution. At their most basic representative level, however, bicameral legislatures share one common historic characteristic: the two chambers served different polities – lower houses existed to advance the interests of voters whilst upper houses represented specific (viz. established) elements in society. A more expansive, all-encompassing contemporary definition is impossible – myriad forms of bicameralism exist today, each with a different composition and division of power. Some upper houses are composed of elected members representing regional interests, others contain appointed members representing sectional interests, and some have a mixed membership. Some upper houses have an absolute veto over legislation whilst others, the majority, may delay a bill but lack the ability to formally block the lower house. Of the world’s 78 bicameral legislatures, 69 have upper chambers composed of less than 200 members and none, other than the UK, has a membership over 400.
According to the Inter-Parliamentary Union, approximately 60% of upper houses have direct elections, with the remaining 40% primarily comprising appointed or indirectly elected members. Further upper house variations are caused by the influence of political parties, the method of appointment or election of members, and their term of office -- a majority of these chambers have terms that last 4 – 5 years, whilst less than 18% have terms in excess of 7 years.
The ability of bicameral legislatures to more fairly reflect the interests of disparate elements of the nation accounts for their overwhelming predominance in federal states – as the United Kingdom now displays “quasi-federal” characteristics this is of particular relevance. Federal democracy is partly based on the principle that, to be truly representative of society, the state must balance the will of the majority against regional minority interests. To enable this, many federations, most of which cover large geographic areas, allocate a disproportionate number of upper house seats to less-populated regions (the United States and Australia accord all states equal representation in their senates, despite huge variations in the size of state populations). One could argue that this violates the basic principle of majoritarian democracy, yet it is an essential characteristic of federalism, providing a political forum for the advocacy of issues (i.e. agriculture, fisheries, natural resources, etc.) that may be of vital importance to less-populated, largely rural, regions of the country but which would not be accorded due attention in the population-based lower house, which might have a stronger inclination to reflect urban/industrial concerns. Without this counter-balanced democratic representation, many federations would cease to exist.
Aside from regional interests, a number of states, both federal and unitary, have established strict quotas to guarantee upper house representation for specific segments of society, including those that have been historically under-represented (most notably, women). These quotas may be established via constitutional entrenchment (such as in Afghanistan and Senegal), by the enactment of electoral legislation (such as in Bolivia and France) or by the voluntary agreement of political parties (as in the United Kingdom and Poland).
Among states with guaranteed female representation in the upper house, the percentage of seats allocated varies considerably: party electoral lists for the Argentinian and Brazilian senates require that women comprise
30% of candidates, whereas in Mexico and Spain this figure rises to 40% – Belgium requires gender parity.
Strong regional concentrations of minorities will often yield upper house representation from different ethnic, linguistic and religious communities; nevertheless, a growing number of bicameral countries are utilising their upper houses to more fairly reflect national diversity. For example, to match the approximate ratio of Dutch-speakers to French-speakers, 25 of Belgium’s 40 directly elected Senators (out of a total of 71) are elected by the Dutch electoral college and 15 are elected by the French electoral college; Malaysia’s head of state is constitutionally empowered to appoint representatives from racial minority groups; and Ethiopia’s constitution guarantees that each of its historic “nations, nationalities and peoples” shall be represented in the upper house by at least one member and by one additional representative for each one million of its population. In 2010, Pakistan, which already has reserved seats for technocrats and women, announced plans to enact an amendment to its constitution that would reserve four seats in the upper house for non-Muslims. Prior to this, guaranteed religious representation was limited to Muslim scholars.
Several states also allocate upper house seats to eminent leaders from specific fields of endeavour; the justification for their appointment is predicated on the belief that their professional expertise will aid in the creation of better laws and policies. Representatives of civic society and experts in fields such as medicine, agriculture, education, business, industry, and arts and culture, add value to the legislative process by providing invaluable insights into their sectors – their presence enhances the ability of the upper house to be broadly representative not only of society, but also of many of its constituent parts.
In India’s upper house, 12 of its 250 representatives are selected by the head of state for their expertise in arts and literature, science, or social services. In Italy, 315 elected senators are complemented by a further seven who are appointed for life, these include those appointed for outstanding contributions to society, science, the arts or literature. Of Malaysia’s 70 senators, the elected king appoints 44, of whom 40 must have “rendered distinguishable public service or have achieved distinction in the professions, commerce, industry, agriculture, culture or social service” or, as mentioned supra, are representative of racial minorities.
The selection processes for the upper houses of Ireland and Thailand are particularly noteworthy for the
incorporation of elements of civil society. In the 1930s, the creators of Ireland’s current constitution were
greatly inspired by a contemporary Roman Catholic philosophy of social stability and integration that stressed the importance of inter-vocational cooperation. 43 of the 60 senators in Ireland’s upper house are therefore elected (via electoral college) from a pool of candidates whose professional experience has made them eligible for nomination to one of five specialised “Vocational Panels”: Adminstrative (public administration, social services and the voluntary sector), Agricultural (includes fisheries), Cultural and Educational, Industrial and Commercial, and Labour.
Similarly, approximately half of Thailand’s 150 senators are appointed from a group of candidates nominated by various sectors, including the public, private, professional and academic. In its consideration of nominees, and whilst aiming for a fair balance of seats per sector, the selection committee assesses candidates’ on their sector-specific skills and experience, as well as their interdisciplinary capabilities and the overall value that they can add to the legislative process.
Part Two may be read HERE.
This essay is taken from ResPublica's landmark report "Our House: Reflections on Representation and Reform in the House of Lords", (available for download at this LINK) which was launched in the House of Lords on 29 February 2012. This important publication, produced in response to the Government's Draft Bill on the Reform of the House of Lords, opposes the Government's desire for a "wholly or mainly elected" upper house and, instead, argues for a radical alternative. Other contributors include the Minister for Political and Constitutional Reform, Mark Harper MP, Lord Low of Dalston, Lord Wei of Shoreditch, Sir Stephen Bubb, The Bishop of Leicester (Convenor of the Lords Spiritual), the political philosopher Prof. Roger Scruton, Lord Adebowale and Phillip Blond, Director of ResPublica.