Moderation or revision: comparing the Australian Senate and the House of Lords

As some may know, there is a joint committee of the British parliament examining the issue of House of Lords reform and giving the draft bill a look before it is finalised. On Tuesday, they had a chat with some Australian Senators by video-link which compared, amongst other things, the procedures and role of the Senate and Senators themselves. It’s an hour long (it’s possible a transcript will go up sometime in the next week or so), but I urge those who are interested in this or on voting systems to give it a watch. There’s a small amount of talking at cross-purposes and the odd bit of confusing terminology but it’s definitely worth it.

Of course, the Australian Senate and the House of Lords have a lot in common. They are both usually hung chambers with no government majority. Both have reputations as Houses of revision (though that’s not unusual in upper chambers). Both exercise a significant degree of self-restraint in pushing the government to their view.

Their method of selection is on paper very different – one elected by STV in halves for six year terms and the other appointed for life by party leaders and an independent appointments commission. In reality, I would suggest that the actual process of appointment/election of Senators and party Lords is not as different as might be thought. STV in the Australian Senate is effectively a closed list (because most people vote for the preferences the parties suggest), and the level of control given to the party in deciding who gets in is similar to the House of Lords – very little voter control exists over who within the party gets in.

Of course, the people have much more control over the proportions of parties in the Senate than they do in the House of Lords, but individual Senators and party Lords very much owe their position to their party rather than voters. Indeed, some on the committee have suggested a closed-list system *because* it is closest to what is done now.

After that point, they diverge. In terms of chucking people out and overall party control, the Senate is much more accountable to both parties and the people than the House of Lords. The Senate is almost wholly party political (if it has sizeable numbers of smaller parties) while the House of Lords has around 20% independent of party (and not that long ago it was nearly 30%). The Senate has only 75 active members, the Lords over 750. The Senate has a comprehensive and powerful investigatory and legislative committee system, the Lords a patchy but powerful investigatory-only committee system.

I came across a few interesting facts when glancing at the wonderful range of statistics available on their respective websites. Not all is directly comparable, and I had to do a small amount of conversion to get a reasonable comparison and it’s still not perfect (Australia uses calendar years, the UK sessions), but it’s still interesting and the trends are what matters more than any particular year.

For example, on taking an average of sessions from 1998-2010, the House of Lords passed roughly 2400 amendments to 22 government bills (which is 64.47% of the total government bills). The amendments agreed are 32.64% of the total proposed. The House rarely, if ever, defeats a bill – an average of 0.99% of bills.

In contrast, the Australian Senate on an average from 1998-2010 passed around 700 amendments to 38 government bills or packages of government bills (which is only 31% of the total government bills/packages – assume that if I’m talking about bills in Australia I’m including packages of bills as one bill to make it more comparable to the UK). The amendments agreed are 61.57% of the total proposed. The Senate defeats government bills at a rate of 6% per session (though this is halved if you ignore one outlying year).

Now, of course it’s pointless to compare volumes of amendments and bills – Australia is federal and as such many of the bills before the House of Lords would simply not be the responsibility of the Senate. Looking instead at amendments per bill, the Lords passes an average of 111 amendments per bill to the Senate’s 18.  Perhaps the Senate, with its power of veto, does not need to amend bills as much as the House of Lords but this is an incredible difference in numbers even considering that.

There is also the fact that in both chambers, most amendments are put down by the government – it’s important to note that this does not mean that the chambers are less powerful because most of these amendments are in response to backbench/non-government concerns.

The Senate also has its well-known and respected legislative committees. 40% of government bills are referred to a Senate committee. Of these, only a third of these were recommended for changes and not all of these changes were proposed amendments to be voted on in Committee of the Whole Senate. However, the success rate for recommendations was 57%, suggesting that where the Senate committees flexed their muscles, they had a good chance of succeeding. However, the committees only actually recommended amendments to less than a fifth of total government bills (albeit a third of those referred to them). Committee scrutiny is not routine and committees are mostly satisfied with the bills they receive.

The House of Lords does not really use its committees in the same way, so a comparison isn’t really viable.

Another thing to be considered is how long each chamber sat for. From the session starting in 1998 to the one ending in 2010, the House of Lords sat a total of 1715 days. From the session starting in 1998 to the one ending in 2010, the Australian Senate sat a total of 675 days. Both chambers sit an average of around eight hours per sitting. Now, not all time in the House is dedicated to government legislation, or even legislation as a whole, and the data isn’t detailed enough to give a definitive analysis, but the difference is humongous. Assuming the proportion of time spent on government legislation was the same (which it might well not be), the Senate sat two-fifths of the time to deal with three times the legislation. Whatever the specific data, I think it’s safe to say that the Senate does not spend as long considering government legislation as the Lords.

I wanted to get data on government defeats in the Lords and in the Senate, but that data is difficult to find online for the Senate. In the Lords, the government was defeated on average 39 times per session between 1998 and 2010. When amendments are pushed to a vote, the government could expect to win somewhere around 60% of the time. Of those government defeats in the Lords, a total of around 40% were considered by University College London’s Constitution Unit as a win for the Lords at the end of the session.

I could find data for 1996-2001 on Senate defeats. On average, the government was defeated 10 times per calendar year. When amendments are pushed to a vote, we don’t know precisely how often the government won. Of government defeats in the Senate, a total of 78.8% were considered by Dr Meg Russell, using the same method as for the Lords above, to be a Senate win (including draws).

Of course, this is simply the tip of the proverbial iceberg. Governments who know they will get defeated in the upper chamber if they try to pass something will often not introduce it in the first place. The Senate does not often act but when it does, as shown by its significant chance of winning when it chooses to push an issue, it is a force to be reckoned with. The House of Lords often acts to defeat the government, but the government knows it has a decent chance of winning against the House of Lords and so chances it more often. It’s far from powerless, but it is undoubtedly less powerful.

The most interesting thing for me is that while the Senate is undoubtedly a chamber of ‘moderation’ as one of the Senators said, I’m not sure it is a chamber of revision in the UK sense of the word. The Senate may moderate policy, but it does not do line-by-line scrutiny like the House of Lords does. The Senate may be more powerful, but it does not exert that power as often – two-thirds of bills go unamended (double that of the House of Lords) and of those that are, over five times fewer amendments are passed than in the Lords.

Many of the flaws in legislation in the UK are uncovered through the legislative process as interested parties argue their case to the government, MPs and the Lords who then argue their case to the House. The House of Lords prides itself on improving the effectiveness of the bills before it rather than altering the intent of the policy per se. The government has a tendency to ignore concerns about the effectiveness of its legislation until the House of Lords threatens to defeat the government on the issue upon which the legislation is amended. In the Senate it’s not just that the government amends their bills to meet Senators’ concerns on these issues, it’s simply far less likely to be amended at all. The potential time for consideration of bills is only 39% that of the House of Lords. Coupled with the fact that Senators don’t go through the bill line-by-line or even clause-by-clause it does seem that the style – and depth – of scrutiny is very different.

Either the Australian government takes much more time and effort to alleviate concerns about the effectiveness and drafting of its measures through consultation with interest groups and Senators before it reaches the Senate (which would surprise me given that the Australian government publishes at least triple the amount of legislation that the UK government does), or, as I suspect, the Senate prides itself on moderating broad policy rather than improving the specific technical effectiveness of legislation.

It appears to me that the Senate does have a serious policy impact but is a limited technical scrutineer of legislation, whereas the House of Lords has a more limited policy impact but is a serious technical scrutineer of legislation. Ideally I think we would all like a chamber of parliament that does both, or at least a parliament that does both, but I’m not convinced the Senate or the Lords fit that bill and I’m not sure their lower Houses are able to fill in the gaps of their scrutiny for either of them.

It could be that I’m wrong and the Australian government simply produces much, much more technically efficient and effective legislation, but I see no reason why that should be the case.

For those interested in seeing pre-legislative scrutiny at work or just the issue of second chamber reform, the series of evidence sessions is listed below along with the witnesses and, where available, the transcripts:

Written evidence received by the committee
10th October: Minister for Political and Constitutional Reform Mark Harper MP (transcript)
17th October: Minister for Political and Constitutional Reform Mark Harper MP (transcript)
24th October: Professor Vernon Bogdanor of King’s College London, the Institute for Government Director the Right Honourable Peter Riddell, Master Treasurer Professor Dawn Oliver of Middle Temple (transcript)
31st October: Dr Meg Russell of University College London’s Constitution Unit, Dr Alan Renwick of the University of Reading, and Professor Sir John Baker and David Howarth of the University of Cambridge (transcript)
7th November: Minister for Political and Constitutional Reform Mark Harper MP (transcript)
14th November: Chief Executive of the Electoral Reform Society Katie Ghose and Professors John Curtis and David Denver (thoroughly recommended, if only for the fact they’re quite entertaining) (transcript)
21st November: Peter Facey and Alexandra Runswick of Unlock Democracy and House of Lords Appointments Commission chair Lord Jay of Ewelme and secretary Richard Jarvis (transcript)
22nd November: Australian Senators Ursula Stephens, Michael Ronaldson and Lee Rhiannon (transcript)
28th November: The Archbishop of Canterbury and Andrew Copson of the British Humanist Society and Elizabeth Hunter of THEOS, a Christian think tank

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