Scottish Office Publication

Checks and Balances in Single Chamber Parliaments

THREE - CHECKS ON UNICAMERAL PARLIAMENTS

This section summarises the range of mechanisms identified in the six jurisdictions which regulate the power of unicameral parliaments and the executives drawn from them. The countries with the check are indicated in brackets after each heading. The checks fall into three categories:

1. Constitutional Framework.

This category covers the major aspects of constitutional design which place checks on the powers of the branches of government, such as a federal or quasi-federal system, or an entrenched constitution.

2. Parliamentary Design and Procedure

This category covers the design and procedures of the Parliament, such as the provision of committees for scrutiny of legislation.

3. External Checks.

This category includes the range of other factors which play a role in keeping parliament and the executive honest and accountable. They range from the office of the Ombudsman through to the existence of an effective media and informed public debate.

1 - Constitutional Framework

Proportional Representation (Sweden, Denmark, New Zealand)

A proportional representation system has three beneficial aspects which enhance the checks on a unicameral parliament:

1. The list allows for a wider spread of candidates.

A proportional representation system which uses a list to distribute seats to ensure proportionality also allows the possibility of putting up candidates who are not interested in campaigning for a constituency and who otherwise might not stand for election. One of the alleged strengths of an appointed upper house is the ability to appoint people to the legislature who would not stand for election. The list arrangement has the potential to emulate this aspect. The quality of this check is highly sensitive to the rules for the drawing up of lists, the approach of the parties to the system, and how in particular the minority parties select list candidates, given that they are the most likely list candidates to be elected.

2. Tends to Produce Coalition Governments.

The tendency of proportional representation systems to produce coalition governments is not a certainty. However, the current political spread in Scotland suggests that the Scottish Parliament is unlikely to be dominated by a single majority party, with the consequential need for either a formal coalition or a minority government supported by another party or parties. The lack of an overall majority is a factor which should help to increase the importance of the Parliament in the system of government, enhancing its ability to provide a meaningful check on the Executive, both in passing legislation generally and in scrutiny of government measures in committee.

In terms of a check on the power of the parliament itself, an electoral system which tends to avoid the parliament being captured by a majority, also means that the powers of the parliament are constrained by the fact that no one party can act unilaterally in abuse of its powers.

The utility of a proportional representation system as a check on the powers of the parliament and the executive is heavily dependent on the behaviour of the parties themselves. Proportional representation can produce coalition governments of significant stability, as in Germany and Italy. The post-war history of Italy shows that these can lead to as much abuse and corruption as long lasting one party government. An electoral system on its own cannot necessarily curb abuse; it must always be assessed in terms of the political practices and culture of the jurisdiction.

3. increased democratic legitimacy.

Regardless of whether proportional representation produces a majority in the parliament or not, it still has the advantage of providing democratic legitimacy to the parliament by ensuring that the distribution of seats in the parliament more accurately reflects voters' preferences. Maintenance of democratic legitimacy is important as it helps support a culture of confidence in the parliament, which can be eroded when large portions of the electorate feel disenfranchised.

Number of Members (Sweden, Denmark, New Zealand, Quebec)

From a logistical point of view a larger Parliament allows for a better functioning committee system. It ensures that there are sufficient parliamentarians to staff conanittees and that members do not have to divide their time between a range of committees. A larger chamber is

in this respect a way of compensating for the members lost by the absence of a second chamber.

Defence of the Constitution and Human Rights

Protection of basic human rights and constitutional provisions falls into two broad categories:

1. Protection of the Functional Elements of a Democratic System.

The functional elements of representative democracy range from basic elements of the system,

e.g. the requirement for regular elections, to associated aspects, such as freedom of political communication and access to accurate information about the performance of government. These are important human rights which help to underpin the working of democracy. Sweden has entrenched key functional elements of the democratic system, for instance, it has had specially protected freedom of the press legislation for close to two hundred years.

2. Protection of Substantive Human Rights.

This category covers such rights as the right to a fair trial or the right to privacy i.e. rights which have a direct impact on individuals, not rights which are directly connected to the workings of the democratic system.

The balance between politically oriented and judicially oriented methods for protection of these two categories of constitutional provisions varies across jurisdictions. Broadly the protections also fall into two categories:

1. Politically Orientated (All jurisdictions)

This method is identified with countries, such as Sweden and the United Kingdom which traditionally have sought to protect human rights through the operation of the democratic system. The methods may vary, but tend to involve such things as pre-legislative scrutiny of legislation to avoid bills contrary to constitutional principle being passed. Where incompatibility is found subsequently in a court case these typically stop short of allowing the Court to overturn the legislation on constitutional grounds. The fast track legislation process in the UK Human Rights Bill 1998, set in process by a declaration of incompatibility, is a recent hybrid example of this method.

2. Judicially Orientated (All jurisdictions)

Judicially orientated methods principally involve the courts having the power to strike down legislation that they find breaches constitutional provisions. Swedish courts have started to develop this procedure. United Kingdom legislation will be subject to the halfway house of declarations of incompatibility under the Human Rights Act. But Scottish legislation which breaches a provision of the Scotland Bill 1998 (effectively Scotland's Constitution) or the European Convention on Human Rights, will be liable to be struck down.

The number of members a unicameral parliament has has a bearing on its ability to function well as a legislature. The Scottish Parliament's 129 members should allow for an appropriate range of permanent committees.

Special Commissions of Inquiry (All jurisdictions)

A general power in parliaments to set up independent commissions of inquiry has been significant in some jurisdictions, the notable case being Queensland where an inquiry led to the jailing of a Police Commissioner and four State cabinet Ministers, and brought to an end a prolonged period of one party rule.

Recall (British Columbia)

This procedure which allows voters to dismiss a member of parliament between elections is a potentially potent check on parliament in so far as it increases the accountability of individual parliamentarians to the electorate.

Initiative (British Columbia, New Zealand)

This measure allows citizens some input into the legislative agenda, either to propose new measures or overturn old ones. It may be limited to certain types of legislation, for instance excluding financial bills, and may provide for binding or non-binding referenda.

Constitutional Arrangements Unique to the Jurisdictions History (All jurisdictions)

The Treaty of Waitangi/Te Tiriti o Waitangi in New Zealand, or the case law concerning indigenous title in Australia are examples of arrangements unique to the jurisdiction's constitutional history. They are important within their jurisdiction because they constitute basic elements of the constitutional order. Due to their historical nature they may also have a valence which even if they are not strictly enforceable (as in the case of the Treaty of Waitangi in certain instances) can have significant political effect in terms of constraining the powers of the jurisdictions' parliament and executive. In some cases the constraint can also turn out to have hard legal consequences as the Queensland government found in respect of the Mabo case.

Distinction Between Legislature and Executive (All jurisdictions)

All the jurisdictions surveyed draw the members of their executives from their parliament. This has an impact on the dynamic of the separation of executive and legislative power. One jurisdiction, Sweden, achieves a slightly sharper distinction between legislature and executive

by drawing the ministry from the Rikdsdag, but once selected, replacing the ministers as voting members with substitute members. The Scottish Parliament will also have a novel input in the make-up of the Scottish Ministry, in that the First Minister must obtain the Parliament's approval of his or her Ministry before it is confirmed.

Federal Constitutions and Quasi-Federal Arrangements (Queensland, Quebec, British Columbia)

A federal system itself places checks on the parliaments which operate within it. These include checks inherent in the federal arrangement: i.e. the allocation of different powers to different levels of government; and those connected to the substance of the federal constitution, such as the Canadian Charter of Rights and Freedoms. The Scottish Parliament will be operating in a quasi-federal system, in which one guardian of the Scottish Constitution will be the Parliament at Westminster. Both types of federal system checks will apply to it: statutes its passes will be challengeable if ultra vires and it will also be constrained by the European Convention on Human Rights.

Second Chambers (No jurisdictions)

In two of the jurisdictions surveyed problems encountered with their unicameral parliaments have led some to suggest the re-introduction of a second house. However, both these jurisdictions New Zealand and Queensland moved to unicameralism without any significant consequential reforms, such as a change to the voting system or an improvement in the parliamentary committee system. In New Zealand re-introduction of a second chamber was suggested by the Prime Minster as an alternative to changing to a proportional representation system. Since the change to MMP there has been no impetus for a second house. In Queensland the calls for a second house have also accompanied a range of other constitutional reforms, including the possible introduction of a bill of rights.

2 - Parliamentary Design and Procedure

Parliamentary Committees (All jurisdictions)

In all the jurisdictions surveyed the existence of a comprehensive committee system both to review legislation and initiate investigations of their own accord is a significant factor in ensuring a legislature operates well as a check on the passage of new laws and the review of current ones and government practices.

Minority Procedural Rights (Denmark, Sweden)

In both Denmark and Sweden the powers of the majority in the parliament are tempered by special procedural rights in a minority of the parliament's members. Such a scheme would be one way to maintain a check on the power of either a majority or a coalition in a parliament elected by proportional representation. Minority rights provide an effective check on both the majority in the parliament but also on the government drawn from that majority. The matters in respect of which a minority has special rights can be limited as appropriate, for example to relate only to certain types of legislation.

Provision for minority procedural rights might require an amendment to the Scotland Bill: their provision in Standing Orders might be said to amount to a derogation from the Parliament's authority as currently formulated in the Bill.

Pre-legislative Scrutiny (All jurisdictions)

Various types of pre-legislative scrutiny are used in all the jurisdictions, from the specialised Law Council in Sweden to the work of parliamentary committees. The Scotland Bill contains a number of pre-legislative safeguards and in general such arrangements are a useful factor in producing quality legislative outcomes. In some systems, such as Quebec (the Jurists) or Sweden (the Law Council) there is also ongoing scrutiny of legislation.

Parliamentary Questions (All jurisdictions)

A classic executive accountability mechanism in Westminster systems is provided by parliamentary questions or special debates. Question times allow for the querying of ministers and government members on government policy and assist the minority of the parliament in keeping a check on the majority.

Presiding Officers (Sweden in particular, but all jurisdictions to some extent)

A number of the jurisdictions give the parliament's presiding officer a role in checking the constitutionality of legislation and if necessary halting its passage. The Scottish Parliament's Presiding Officer will have some significant oversight powers in relation to checking that bills are within the Scottish Parliament's competence.

3 - External checks

Ombudsman (All jurisdictions)

This Swedish institution has now permeated the world and appears in some form in all the jurisdictions. A version of the Westminster model is required by the Scotland Bill. The office provides for accountability of government administration on an individual level. Some Ombudsmen can also launch investigations of their own initiative, which introduces a further independent voice of review.

Auditors (All jurisdictions)

Auditors now perform two useful accountability functions. First they carry out the classic financial audits but also now can carry out wider ranging reviews of the economy, efficiency and effectiveness of government programmes. As such they provide a further check on the actions of the executive and associatedly the legislature which establish the legislative framework for those programmes.

Conclusion

The parliaments which abolished their upper houses and did not at the same time carry through other reforms to introduce checks on the majority in the legislature (and the executive), notably New Zealand, and Queensland, have all in recent years had to redress this omission. This has included a range of measures such as, introduction of proportional representation, parliamentary committees and Bills of Rights. Parliaments such as Denmark and Sweden, which switched to unicameralism and introduced reforms contemporaneously have not faced such problems.