A Tale of Two Legislative Chambers

Can the British House of Lords and Canadian Senate be fixed?

It’s been an exciting summer for fans of parliamentary reform in the Anglosphere. On July 26, a British tabloid published front-page photos of Lord John Sewel, a 69-year-old member of the House of Lords, wearing an orange bra and little else as he allegedly used cocaine with sex workers. He resigned from the Lords two days later and now faces criminal investigation. On the other side of the Atlantic, the ongoing trial of Canadian Senator Mike Duffy in connection with an alleged bribery and expenses scandal threatens to foil Prime Minister Stephen Harper’s bid for a fourth term. The scandals have raised an old question for both countries: What should be done with these troublesome upper chambers?

We start first with Britain’s ancient second house. Few modern democracies have less democratic legislative bodies than the House of Lords. In theory, its members are the “Lords Spiritual” and the “Lords Temporal” of the British realm—archaic terms for high-ranking clergy and landowning nobles. In practice today, most of its membership consists of “life peers” like Sewel. They are appointed by British prime ministers, serve for life, and receive the title “baron,” but their descendants don’t inherit it. The Lords also still seat 26 Church of England bishops and 92 hereditary peers from the aristocracy, to the British left’s constant scorn. None of its members are elected.

Another obvious flaw is its size. “With 781 members entitled to vote, the Lords enjoys the dubious title of the world’s largest legislative chamber outside China,” The New York Times noted Saturday. (The National People’s Congress, whose stamp is only slightly more rubbery than the Lords’, seats a whopping 2,987 delegates.) Some of its members rarely participate in Lords business but enjoy its privileges nonetheless. According to The Telegraph, 20 peers claimed over £1.6 million in expenses without voting or contributing to debates.

Despite these problems, nobody quite knows what should be done with the House of Lords. Major reforms first began in 1911, when a constitutional crisis ended the Lords’ power to veto Commons legislation. Tony Blair’s government stripped most of the hereditary nobles of their seats in 1999, thereby giving non-hereditary “life peers” like Sewel control of the chamber. Until 2009, the House of Lords also acted as the de facto supreme court of the United Kingdom before Parliament established an actual SCOTUK. Further reforms largely stalled under the Cameron government, except for a 2014 bill that allowed for Lords members to resign, retire, or be removed for criminal behavior.

Most of the British electorate agrees that something should be done about the Lords. A 2012 Ipsos-MORI poll found that 79 percent of British voters supported “the idea of House of Lords reform.” But everyone has a different opinion on what “the idea” should be in practice. In the most recent set of election manifestos, Labour proposed replacing the Lords with an elected “Senate of the Nations and Regions” to address regional and democratic concerns. Liberal Democrats suggested a smaller, partly elective second chamber. The Scottish National Party called for full abolition. The Conservatives, who won an outright majority, simply noted that an elected House of Lords was “not a priority” for the current government.

Things aren’t much better across the Atlantic in Canada’s Senate. A 2012 investigation into parliamentary expenses implicated four senators for improper claims, three of whom received criminal charges. After the revelations became public, Harper’s then-chief of staff Nigel Wright gave Senator Mike Duffy a $90,000 personal check to help cover the expenses. Duffy is currently on trial for bribery and fraud in relation to the expenses, and the scandal now threatens Harper and the Conservatives’ re-election campaign.

Compared with Britain’s House of Lords, the Canadian Senate has all of the scandal but none of the grandeur or history. It has a regionalist element like its American counterpart: 105 seats are allocated to specific provinces, with Quebec and Ontario each holding 24 seats. Senators are appointed to those seats by the Canadian prime minister and serve until the mandatory retirement age of 75. Unlike the Lords, the Senate can block legislation, not merely delay it.

Because of its undemocratic nature and habit for scandal, public opinion is strongly against the Senate’s current form. 45 percent of Canadians support reform and another 41 percent support abolition, according to an Angus Reid Institute poll in April. Past constitutional amendments would have made it an elective body or allowed provincial legislatures to select candidates for appointment. Liberal leader Justin Trudeau supports a non-partisan Senate and expelled all Liberal senators from his party in January 2014. The left-leaning New Democratic Party, which currently leads in most polls for the October election, wants to abolish it altogether.

Bicameralism is ultimately a balancing act against the popular will, so it’s not surprising that upper houses arouse some resistance. “If a second chamber dissents from the first, it is mischievous; if it agrees, it is superfluous,” quipped the Abbé Sieyès during the French Revolution. Some British and Canadian constitutional thinkers defend their respective upper houses as providing a “sober second look” to legislation from the people’s chambers. In 2008, Gordon Brown’s government scrapped a proposal to detain alleged terrorists for 42 days without trial after the Lords overwhelmingly rejected it. Canada’s Senate also largely exists to balance the country’s disparate regional interests, especially in the less populous Western and maritime provinces.

So, what is to be done? For some countries, the easiest answer to the upper-house question is to stop asking it. Greece, Portugal, South Korea, Sweden, Turkey, and other countries abolished their second chambers; Israel, Lebanon, and Ukraine never created one after independence. The rest of the Anglosphere seems to have achieved a stable legislative structure to balance popular and regional will. Each of the 50 American states gets two federal senators, regardless of size. Australia elects 12 senators from each of its six states and two senators from its two autonomous territories. Strict unicameralism isn’t alien to the Westminster system, either: New Zealand abolished its upper Legislative Council in 1950, and most Canadian provincial legislatures consist of a single house.

Despite popular sentiment, reforming either the British or Canadian upper house would be an uphill battle. Britain’s Conservative government already ruled out major reforms for the House of Lords until the next election in 2020. The Supreme Court of Canada unanimously ruled in 2014 that major reforms to the Senate must be approved by seven provinces containing more than half of Canada’s population. (The balancing scheme prevents either a minority of provinces or a minority of Canadians from changing the constitution.) Full abolition of the Senate would require unanimity from all ten provinces, the court added.

Even if reform proponents could easily impose their will, they still lack any consensus on what those reforms would look like. Would an elective upper chamber resolve the undemocratic tension, or would it decrease the legitimacy of the British and Canadian Houses of Commons by creating two popular mandates? Would abolition solve the upper-chamber question once and for all, or would it remove a vital check on the lower chambers’ power? Until British and Canadian reformers decide these ends, the means won’t really matter.