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The Right Honourable Sir Francis H. D. Bell, P.C., G.C.M.G., K.C.,: His Life and Times

Chapter XI. — Legislative Council Reform

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Chapter XI.
Legislative Council Reform.

Should the Council be elective?—Bell's efforts checked—A barren victory—Political complications—The Act still dormant.


The first large policy measure launched by Bell after the Reform Government took office was a Bill designed to reform the constitution of the Legislative Council. This was unfortunate; for Bell had only recently become Leader of the Council and had not yet established the remarkable personal ascendancy he achieved as time went on. He was a newcomer who had still to win the confidence and goodwill of the Council. Moreover, the Bill was unpalatable to the Councillors personally, for it invited them to sacrifice their comparative security of tenure under the nominative system for all the vicissitudes of popular election. It is true, each Councillor would be allowed to work out his existing term of office, but that afforded only a temporary comfort. Bell assumed that they would be convinced by the force of his logic and the strength of his arguments. He was still too much of the advocate and too little of the diplomat. Had he foreseen that for years he would page 94carry this measure like the Ancient Mariner's albatross tied round his neck, it might have quenched his zeal for reform.

He had induced Massey to include this proposal in his election platform, and at a later date he said that he had joined the Government for the express purpose of advocating it.


The Legislative Council is not a body which has ever aroused any great political interest on the part of the electors. At most times they have regarded it with an amused or cynical tolerance, as a refuge for old politicians, and as a useful channel of patronage for the Ministry of the day; nevertheless, it has always contained a sprinkling of men of ripe political experience, including ex-Cabinet Ministers, ex-High Commissioners, and some eminent lawyers. Yet any Prime Minister will acknowledge that he has a pigeon-hole always crammed with letters urging for the most varied reasons the claims of the writers or their friends to seats in the Council. A Minister in the House of Representatives, when embarrassed by some suggested amendment to his Bill, will often escape for the time being by promising to have it considered in the Legislative Council, in the hope that before that stage is reached his critic will have forgotten the whole matter. Sometimes, however, under the leadership of a distinguished law draftsman, such as Sir Francis Bell, really valuable amendments are made in Bills that have come up from the House of Representatives.

"There is hardly a Bill that comes up from the other House," said the Hon. Mr. Triggs in 1920, page 95 "that is not materially improved by a few touches from Bell's master hand."

On one occasion, while I was a Minister, I sent up a Bill to the Legislative Council and received the following whimsical reply from Sir Francis Bell:

"Dear Stewart,—I have made several amendments to your Bill and had it approved by the Legislative Council. Except the Lords amend your Bills, you labour in vain that build them."

To understand the object that Bell had in view it is necessary to recall a few points in the history of the Council. Under the original Constitution Act of 1852, in spite of the protest of Sir George Grey, the Legislative Council was made to consist of nominated members appointed for life.*

From time to time efforts were made to modify this principle. For example, in 1883, the Whitaker-Atkinson Government tried to provide for the election of the Legislative Council by the direct vote of the people in two electorates, each Island being one electorate, and a proportional system of voting being used. This was rejected, and in 1885 Whitaker brought in a Bill for election of members to the Council at a joint session of members of both Houses. The Bill was carried by the Council, but rejected by the House of Representatives. Finally, in 1891, Ballance carried a measure

* It is interesting to find that in the first Parliament Sir Dillon Bell supported a motion to make the Council elective:

"I fear that if we go hand in hand with the House of Representatives we shall gain credit for no enlightenment or ability of our own. But if we throw out their measures we shall be treated as factious obstructionists. If I am right it is a political blunder to have set up an institution at work which at the threshold of its existence can neither command respect nor attachment and must submit to be treated to indifference if not with worse feelings."

page 96providing that members of the Council should be nominated by the Government for a term of seven years only.

When Massey announced his policy in the Wellington Town Hall at the 1911 election he said:

"The system of appointment for a term of seven. years is unsatisfactory, for although it has been shown that a man may be independent when appointed, yet in the course of two or three years he loses his independence and becomes a subservient supporter of the Party in power. What we want is to democratize the members of the Legislative Council."


Accordingly, about a month after Massey's Government took office, the Budget set out details of the proposal. It was pointed out that, of the life members appointed before 1891, only seven now survived, and there were thirty-two members appointed for fixed terms. The principle objection to life appointees was that "they were not sufficiently impressed with the importance of political changes desired by the constituencies and advocated by members elected to the House of Representatives." But, in the opinion of the Government, the 1891 method "was still more unsatisfactory in its results. After a trial of twenty-one years that method stood condemned." It was therefore now proposed to substitute direct election by the vote of the people. There were to be two constituencies—the North Island and the South Island—each returning twenty members on the system of proportional representation; the existing nominated members were to hold office until the expiry of their terms.

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Bell personally directed the drafting of the greater part of the Bill, and launched it in the Legislative Council in a speech which was described as "strikingly comprehensive, admirably lucid, and logically most convincing."*

Throughout the country the basic principle that the members of the Legislative Council should be elected and not appointed was received with favour. The main argument alleged against it was that the constituencies were too large, and that poor men would not be able to compete for election. But in reply to this Bell quoted the experience of Australia with regard to elections to the Senate.

Although the Bill was obviously distasteful to the members of the Legislative Council, they had no desire to come to an open clash with a new Government and a new leader deeply in earnest. The second reading was carried by a large majority—24 to 8. But on going into Committee the Council passed a resolution that, while they approved of the principle of election, they would not proceed further until next session, in order to give the electors an opportunity of considering the proposals.


Thus the first major policy measure introduced by Bell was temporarily side-tracked, and in the course of the next few years this ill-fated reform was to cause him endless vexation. After the rebuff by the Council, Massey, at Bell's suggestion, took the matter up in the House of Representatives, which passed a series of six resolutions affirming the main proposals of the Bill.

* Otago Daily Times, August 23, 1912.

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On that occasion Massey strongly supported proportional representation as the only means of doing away with "parish-pump politics and professional politicians"; and he expressed the belief that in time this system would be applied to the Lower House—a view which met with acceptance on all sides. But in 1916 he began to speak of "the great technical difficulties about elections by proportional representation"—"I had no idea," he said, "how difficult it was until I consulted an expert who visited the Dominion about two years ago," and, not many years later, as a result of watching Australian experience, Massey became violently opposed to proportional representation.*

In the same session of 1912, to provide for the contingency that it might become necessary to swamp the Council in order to carry the reform, Massey also secured the passage of a Bill providing for appointment to the Council for three years; but this Bill was rejected by the Council. The fight was resumed the following year, but again the measure for the reform of the Legislative Council was rejected by that body. There upon Massey exercised his power under the existing law and made a number of appointments to the Council for seven years. It was known that the majority of these appointees were in favour of the Bill, which accordingly became law in 1914.


Thus, after a three years' struggle, Bell succeeded in getting on the statute-book his reform of the Legis-

* On my return from Australia in 1922 I quoted to Massey the saying there current that proportional representation is a form of "political cannibalism," and with his usual vigour he soon had a pamphlet prepared and issued entitled, "Political Cannibalism," strongly denouncing proportional representation.

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Council, and for the moment he seemed to have triumphed. But his troubles were not yet at an end, and new difficulties soon arose owing to the fact that 1914 was election year. Now the Act had declared that after it came into force no new appointments to the Council could be made by the Government. But what would happen if Massey were beaten at the General Election? Obviously the new Government's hands would be tied if it were opposed to the Act, because even though the Lower House repealed it, the majority of the Council, having already taken their share in passing it, would presumably resist the attempt of the new Government to repeal it. To meet this contingency it was provided that the Act should come into force on June 1, 1916, which would allow time for a new Government to legislate during the session of 1915 and to use its power of appointment to the Council if it wanted to repeal the Legislation. At the election held in December, 1914, the Reform Party managed to get back to office, but only by a majority of one or two. This narrow margin combined with the fact that the World War had broken out in August, 1914, gave rise to a new and unforeseen difficulty. For the War involved matters of such grave moment that it became necessary to create a National Government, in which the Cabinet was composed of an equal number of Opposition and Government members, with Massey still remaining as Prime Minister. Sir Joseph Ward, whose Party was opposed to Legislative Council reform, took the opportunity of making it one of the conditions of taking office that the Bill should not come into force during the existence of the National Government. In pursuance of this compact the Act was again postponed page 100till 1920 on the assumption that an election would take place in 1918. But this assumption proved unfounded, and the National Government lasted until the end of 1919.


In order to get over these repeated tinkerings with the legislation, in 1918 Bell provided that the Act should come into force by Order in Council at a date not less distant than twelve months from the issue of a Gazette notice. The object of this amendment was that, if after the National Government was dissolved, any Government was returned to office which favoured the Act, it could put through an Order in Council bringing it into force. If, on the other hand, a Government hostile to the reform came into power, it could leave the Act dormant or repeal it.

It was now generally believed that the Reform Party was becoming lukewarm about the merits of this proposed new system, and one Legislative Councillor maintained that by this further postponement they were really officiating at the funeral of the reform of the Legislative Council. He gave the Reform Party credit for its earlier enthusiasm, and said:

"It is remarkable that a Party, which is supposed to be the Conservative Party, stood for the most radical reform within the constitutional history of the country, and that the Liberal Party was the Party that was undermining by its opposition this great principle of constitutional reform."

Some time before, Mr. McCombs, M.P., an ardent advocate of proportional representation, described the Act as "the greatest electoral reform ever effected by any page 101Government in New Zealand, doing away as it did with the power of patronage which had been so evilly used by every party in power in this country."


The subsequent history of the Act can be briefly told. In 1920 the Council passed a resolution that, in its opinion,

"it would be against the public interest to allow the Legislative Council Act, 1914, to be brought into operation, thereby making a drastic change in the Constitution at a time when there are many urgent problems pressing for solution,"

and urged the Government to pass legislation to give effect to the resolution. Bell stoutly resisted this proposal to hamstring the legislation which was so dear to his heart, and which he had fought for so many years to obtain. He admitted that Mr. Massey had always wanted to have a nominated element sitting with elected members of the Council, but he emphasized the fact, that, immediately after the National Government had been dissolved in 1919, both Massey and himself had declared that the Act would be brought into force by Proclamation at the end of the session. This Proclamation had been actually issued, and the date was fixed for the Act to come into force, so that it would require legislation to alter that position. But by now Bell's colleagues had gone completely cold on the whole proposal. The final act in the drama was short. Massey said he had promised that each House should have a full opportunity of reconsidering the Act and that there was no time to do so that year. A Bill was accordingly passed to provide that the Act should not page 102operate without a further Proclamation. Bell had the melancholy task of putting this Bill through the Council, which received it with open arms.


It is clear from Bell's speeches that his real reason for supporting the reform was that he anticipated the day when extremely radical or revolutionary legislation might be forced through by the appointment of new members to the Council, whereas if the Council were elected by proportional representation there would always be in the Council a large number of men who would be prepared to resist any revolutionary process. He said:

"I believe sincerely and confidently that the only effective protection of all that which a second Chamber is intended to provide is the protection by a second Chamber elected by the people, and representative, by reason of the proportional system, of the will of the whole people."

But with obvious exasperation he added:

"Of course, those of you who will not consider; who will not read; who will not understand the principle and methods or results of proportional representation, to those my words pass like the idle wind which they regard not."

Bell wanted the Council to be a real force and power in the State, with the duty of checking hasty legislation.

"So long as the Council is nominated, that cannot be its power, for it is in the power of the administration of the day to pass its measures over the head of any recalcitrant majority. The old limiting personal power of the Governor has practically page 103disappeared by the extraordinary curtailment and limitation successively from Downing Street of the Governor's rights."

He argued that from nominated Chambers all power is passing because of the power of the Government to swamp any existing opposition.

"The power of the House of Lords has passed already, but in New Zealand, if we substitute an elective Council, power becomes vested in the country."

On an earlier occasion he said:

"There may come a time—it may not be far off— such as came in France—there may be a time when for the moment the country runs riot and mad when a programme of absolute confiscation may be put forward. I am not speaking of merely social reform. I am speaking of the possibility of a Party being in power which may propose that which is advocated in front of the Post Office every day in the week here … I want to see here established a Senate with power to impose at least delay—when, as I believe it is quite possible, that occurs."*

Thus Bell's long sustained effort ended merely in the placing on the statute-book of a measure which has remained a dead letter. In truth, it never aroused any widespread public interest, and successive Governments have been reluctant to abandon so handy a form of patronage as the power of appointment to the Second Chamber. Even the Labour Party, which at one time urged the wisdom and propriety of the proposal, has not only left the legislation embalmed in obscurity, but after its accession to office in 1935 it signalized the

* Hansard, 1914, Vol., 168, p. 791.

page 104occasion by appointing a large number of new members to the Council. All these new-comers were of its own political views, with the exception of the late Speaker of the House of Representatives, Sir Charles Statham. Up till the time of his death, Bell considered that it was not only a mistake but a breach of faith to the electors to leave the Act inoperative. He saw in it the only safe constitutional check or balance against violent swings of the political pendulum, and the erratic oscillations of democratic opinion.

It is possible that a Legislative Council elected on Bell's plan might have failed to provide the safeguards he looked for. It is well known that the Australian Senate, which is elective, proved in its earlier years more radical than the House of Representatives; though in later years the position was reversed.

"To devise a good Second Chamber," says Marriott, to give it powers of revision without powers of control … to erect a bulwark against revolution without interposing a barrier to reform, this is a task which has tried the ingenuity of constitution makers from time immemorial."