The Constitution Act provided that the Queen might authorise the Governor to make such appointments to the Upper House, the Legislative Council, as she thought fit. As, however, interference by the Imperial Government in the appointment of Legislative Councillors was largely precluded by New Zealand's remoteness, the Governor's Instructions authorised him to make appointments without prior approval. The development of Ministerial responsibility in the exercise of this power was quite closely parallel to its development in other spheres. Appointments were being made on Ministerial advice by 1867. In 1868 an Imperial Act confirmed all previous appointments and placed the appointing power in the hands of the Governor. By the 1890s the convention was well established that in this, as in other matters, the Governor could not reject Ministerial advice.

The Act of 1852 had authorised the appointment of not less than 10 Legislative Councillors. No upper limit was fixed. The Bill originally introduced in the Imperial Parliament had provided that the Council be limited to 15 members, but this limitation was removed during its progress. Members of the Council were to hold their seats for life, though they could resign or be disqualified by bankruptcy, loss of citizenship, treason, or certain criminal offences. Governor's Instructions in 1855 fixed an upper limit of 15 councillors. The limit was raised to 20 in 1861 and removed completely in the following year. In 1866 the Council attempted to protect itself by passing a Bill limiting the membership to 38, but the Bill was dropped by the House of Representatives. A similar Bill was passed in 1868, but it met the same fate.

In 1891 the Legislative Council Act provided that all future appointments were to be for seven years, with eligibility for reappointment. This provision, combined with Ministerial responsibility for appointment and with the absence of any limit on the size of the Council, was all that was needed to accomplish its emasculation. Until the 1890s the Council had shown little hesitation in using its powers to amend or reject Bills passed by the House of Representatives. But a chamber which could be “packed” by men of the Government's choice and whose members were dependent on the Government for reappointment was not in a position to show the same independence. By 1947, when the National Party Opposition first introduced a Bill for the abolition of the Council, there was one proposition about which there was no disagreement: namely, that the Council had ceased to play a useful role in the process of government in New Zealand. It was in fact extremely doubtful whether it had done so for the past half century.

The Council had been under criticism for many years before 1947. A reform measure had been passed in 1914 providing for a Council of 40 members to be elected by proportional representation together with three Maori members who were to be appointed. The operation of this Act was postponed in ensuing years by Legislative Council Amendment Acts, the third of which, in 1918, provided that the Act would be brought into force at any time not less than a year after a Proclamation by the Governor-General for that purpose. Such a Proclamation was issued in January 1920, but was cancelled before it became effective. Until its abolition in 1950, therefore, the Council was a body whose constitution could be radically changed without its own consent. In spite of continued criticism of the Council, however, the Act of 1914 was never brought into operation. Moribund, the Council dragged out its existence until 1950 because it provided a useful form of political patronage.