The Westminster Inheritance

Introduction

Britain’s Westminster system of representative and responsible government, as it was in the mid to late 1800s, was the most influential factor in the development of Australia’s system of government. The Westminster system of government evolved over centuries. It is the historical artefact of the parliament’s many victories over successive kings and queens for the right to make laws, to administer them, and to have them independently interpreted.

In this section, we have a look at some of the more significant events that shaped the evolution of the Westminster system of government in the United Kingdom. Of necessity, many events in this brief synopsis of the 800 plus year evolution of the Westminster system are ignored or treated cursorily.

Beginnings

In the earliest periods of recorded English history, the three (legislative, executive, and judicial) functions of government rested with the King and his Council of immediate advisers. The King was the supreme legislator, though always with the consent and counsel of the nobles. Similarly, the King was the supreme executive: the leader of the host in arms, the guardian of the “King’s Peace”. Finally, the King was the supreme judge. With the counsel and consent of his advisers, the King made the laws; the King administered the laws; and the King interpreted these laws.

What was true for the King in the twelfth century was also true for his representatives: judges, shire-reeves (or sheriffs), justices of the peace, and so on. Marriott (1938) notes that county-magistrates had to, for example, “try offenders against the law, relieve the poor, and set on work the lusty unemployed”. The functions of judges were as much financial (tax collecting) as judicial. Judges were both makers as well as interpreters of the law. There was no notion of a separation of legislative, executive and judicial powers.

Parliament

In these early times, legislation was enacted by the King, in the name and authority of the King, but with the benefit of advice from his Council. Parliament has its origins in these Councils of advisers. According to Quick and Garran (1901),

“From time immemorial the Crown has always been assisted by a consultative or advisory body under the fluctuating names of ‘The Michel Synoth,’ or Great Council; ‘The Michel Gemot,’ or Great Meeting; ‘The Witena Gemot,’ or Meeting of Wise men. In Latin it was variously styled the Commine Concilium Regni, the Magnum Concilium, and the Curia Regis Magna. Long before the Norman conquest, all matters of public importance were debated and settled by the King in the Great Council of the Realm.”

Magna Carta

With the signing of the Magna Carta (The Great Charter) on 15 June 1215 at Runnymede, King John (reigned 1199-1216) was required to consult the Great Council of the Realm so as to prevent unjust taxation; mercantile and trading relationships (clause 14). However, the original Magna Carta of 1215 was only in force for 2 months. The Pope annulled it at the request of King John.

In 1216, 1217 and 1225, the Magna Carta was modified and reissued by Henry III. In 1297, Edward I reissued the 1225 charter with minor changes. The 1297 charter was enacted by Parliament (which did not exist in 1215) and parts of the charter are still in force in the United Kingdom and Australia. A copy of the 1297 charter is on display at the new Parliament House in Canberra and a memorial to the Magna Carta can be found in the gardens near the old Parliament House.

The Great Council of the Magna Carta comprised the greater Barons and was subsequently to become the House of Lords. The Magna Carta also confirmed the practice of summoning community representatives to advise the King. This second group was the forerunner of the House of Commons. At that time their advice was only sought in respect of the financial necessities of the Crown. Unlike the Great Council, the advice of this second group was not sought on other legislation.

Representation to the second group was enhanced during the reign of Henry III (reigned 1216-1272) following the rebellion of his brother-in-law, Simon de Montfort. In December 1264 the King issued writs directing sheriffs to return two knights from each shire, two citizens from each city, and two burgesses from each borough. The parliament, which met on 20 January 1265, not only considered issues of supply, it also dealt with the business of the nation generally. The precedent of 1265, although not regularly followed for many years afterwards, laid the groundwork for a representative House of Commons which advises on the wider issues of state.

Two Houses

The two Houses of the British Parliament we know today emerged sometime in the fifty years after Edward I’s “Model Parliament” in 1295. Under Edward I (reigned 1272-1307), the Parliament (then more of an event than an institution) comprised three estates that sat and voted separately:

  • knights sitting with the greater barons and religious leaders;
  • the clergy; and
  • the burgesses.

By the middle of the fourteenth century, the knights had detached from the greater barons and, along with the clergy, combined with the burgesses to form the House of Commons. Commons originally meant “communities” (and not “commoners” as is often thought) as members of the House of Commons were the community representatives of cities, shires and boroughs. The House of Lords comprised religious leaders (Lords Spiritual) and magnates (Lords Temporal), later known as “peers” - equal among themselves but with five ranks - Duke, Marquess, Earl, Viscount and Baron. Until the suppression of monasteries in 1539 the Lords Spiritual consisted of bishops, abbots and priors. Subsequently, only bishops sat in Lords; and Lords Temporal began to outnumber the Lords Spiritual. The number of bishops was limited in 1847, 1869 and 1920.

By the end of Edward III’s reign (1327-77) the power of Commons consolidated and three key principles of the Westminster system were established:

  • taxation without the consent of Parliament is illegal;
  • the concurrence of both Houses is necessary for legislation; and
  • Parliament could inquire into abuses of administration.

In 1407, the Statute of Gloucester established the principle that Parliamentary bodies may deliberate apart from the King.

“It shall be lawful for the Lords to treat among themselves, in the absence of the King, respecting the state of the realm, and about the necessary means to help. And in like manner it shall be lawful for the Commons to advise among themselves in respect of the before-mentioned state, and means, &c. Saving always that the Lords, on their part, shall not report to the King any matter resolved on by the Commons, and assented to by the Lords, before the Lords and Commons have come to one opinion and concurrence in such matter, and then in the wonted way and form, to wit, through the mouth of the Speaker.”

However, at this time, the King on petition made legislation. The actual wording of legislation was a matter for the King and his Council of close advises following the petition of Parliament. Commons became frustrated and aggrieved with this process as the King neglected petitions or ignored the exact terms of those petitions. By the reign of Edward IV (reigned 1461-70 and 1471-83), the practice had become established (albeit with the odd exception) that each petition contained in itself the form of a bill that set out in exact terms that which the Parliament desired to be law. It became impossible for the Crown to amend a petition thus presented. As a consequence, Royal assent to legislation was only given or withheld from the precise advice tendered to the King by his Parliament. And so emerged the practice of legislation by the King on a bill presented by Parliament.

It should be noted, however, the King (in Council) retained the right to make administrative ordinances and proclamations without the advice of parliament. Although Parliamentary Statute was accepted as law, it was not yet the sole source of written law. It was not until the Glorious Revolution of 1688 that the King lost the prerogative power to make ordinances or issue proclamations under his own hand, which had the binding force of law.

Civil war

Parliament grew in confidence and authority under the Tudor monarchs, particularly Henry VII (reigned 1485-1509), Henry VIII (reigned 1509-47) and Elizabeth 1 (reigned 1558-1603). Following the death of Elizabeth I, the thrones of England and Scotland were united with the ascension of the James VI of Scotland, who became James I of England in 1603, the first of the Stuart monarchs.

The 1600s were a politically turbulent time in England in which the conflict between the Crown and parliament came to the surface. James I had a difficult relationship with a demanding parliament. He believed in the Divine Right of Kings to rule and expressed surprise that his ancestors “should have permitted such an institution [parliament] to come into existence”. These difficulties continued under his son Charles I (reigned 1625-49). Charles I reluctantly agreed to parliament’s demands through the Petition of Right 1628 in the hope of additional parliamentary funds. Under the Petition of Right 1628, taxation without parliamentary consent, imprisonment without trial, and the billeting of soldiers and sailors on private persons was declared illegal. When the funds were not forthcoming, Charles dissolved Parliament for 11 years in 1629 and sought to rule through the Privy Council.

Charles I had exhausted his dubious taxation powers by 1640 and was again forced to seek parliamentary funds to raise an army in his war against the Scots over the use of English liturgy in Scottish churches. This “short” parliament lasted less than a month before the king dissolved it because it would not support his war or grant him money. Later in 1640 after his defeat by the Scots, Charles I was forced to summon the “long” parliament, which abolished corrupt courts such as the Star Chamber (Act Abolishing the Prerogative Courts 1641) and the king’s questionable taxation arrangements (including the Act Abolishing Ship Money 1641). In 1642, the nation descended into civil war when Charles I effectively declared war on the parliament.

Oliver Cromwell defeated Charles I in 1647 and Charles I was executed in 1649. Between 1649 and 1660 England was a republic under the stewardship of Oliver Cromwell and his son Richard.

After the failure of the republic the son of Charles I, Charles II (reigned 1660-85), was invited to re-establish the monarchy. The Commons pre-eminence in financial matters was given an official basis in the passing of resolutions in 1671 and 1678 after attempts by the Lords to breach the convention.

On the death of Charles II, his brother, James II (reigned 1685-88), succeeded to the throne peacefully, in spite of his conversion to Catholicism in 1669. However, his active support for Catholicism alienated his subjects and led to his downfall. After three years, a group of seven peers invited Prince William of Orange to intervene. William was the husband of Mary, who was a protestant and the elder daughter of James II. In the face of William’s army, James II fled to France. This was the second revolution within 40 years.

The Glorious Revolution

In 1689 the Parliament declared that James II had abdicated by deserting his kingdom and invited William III (reigned 1689-1702) and Mary (reigned 1689-94) to the throne as joint monarchs. This “Glorious Revolution” established a new constitutional order, primarily through the Bill of Rights 1689 and the Act of Settlement 1701. It ended any notion of the divine right of monarchs to rule.

Under the Bill of Rights 1689, the King was forbidden from suspending or dispensing with laws passed by Parliament, or imposing taxes without Parliamentary consent. He was forbidden from establishing his own courts or acting as a judge himself. The King was not allowed to interfere with elections or freedom of speech, and proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself. (This is the basis of modern parliamentary privilege).

The King was required to summon Parliament frequently (the Triennial Act 1694 reinforced this by requiring the regular summoning of Parliaments). Parliament tightened control over the King’s expenditure; the financial settlement reached with joint monarchs deliberately made them dependent upon Parliament, as one Member of Parliament said, “when princes have not needed money they have not needed us”. Finally the King was forbidden to maintain a standing army in time of peace without Parliament’s consent.

The Act of Settlement 1701 required the King to join in communion with the Church of England. He could not leave England without parliamentary consent. English armies could not be used in defence of foreign territory without parliamentary consent. Judges were removed from royal punishment; the Houses of Parliament, with no royal pardon, could only impeach them.

As a result of these reforms, it became more or less automatic for Kings to select as advisers in respect of the executive functions of government those who could “manage” Parliament (i.e. members of Parliament). This theme will be further examined below in the discussion on the emergence of responsible Cabinet government.

Elections and representation in Commons

A uniform and general franchise for counties was first recognised in 1405. However, this was progressively eroded under the reign of Henry VI such that by 1445, “only freeholders of 40 shillings income shall take part in elections”, and “only notable knights and notable esquires and gentlemen of the country are to be elected, who might become knights (consequently possessed of £20 income from land), but not any yeoman thereunder”. Thus, the right to take part in elections for the representatives of cities, towns and boroughs depended up charters, writs, local customs and municipal constitutions. During the reign of James I (1603-25), it was resolved that where there was no charter or custom to the contrary, all male householders and not just freeholders were entitled to vote.

This system of representation in Commons, with all its restrictions and localised anomalies, lasted with little change until the Reform Act of 1832. (The ‘Reform Act of 1832‘ is the popular reference to the Representation of the People Act 1832, the Representation of the People (Scotland) Act 1832, and the Representation of the People (Ireland) Act 1832, with two other related Acts defining constituency boundaries). This was the first, and most controversial, of three electoral reform acts. It re-apportioned representation in Parliament in a way that was fairer to the newer cities of the industrial north, which had experienced tremendous growth but which had no parliamentary representation. It did away with the 56 smallest “rotten” boroughs that were large centres in the Middle Ages but by the nineteenth century were small decaying villages and it reduced the number of parliamentarians from other small boroughs. The Reform Act also regularised the system of eligibility to vote, and in the processes extended the right to vote to some in the middle classes.

The achievements of the Reform Act were very modest by today’s standards. After the Reform Act of 1832, only one man in five had the right to vote in England and Wales, one in seven in Scotland, and even fewer in Ireland. The 1867 Reform Act extended the right to vote still further down the class ladder, adding just short of a million voters and doubling the electorate. After 1867, one in three men (and no women) could vote.

In the United Kingdom, the secret ballot (originally known as the “Australian-Ballot”) was introduced in 1872, initially as a temporary measure subject to annual review. It became permanent in 1918. The Australian colony of Victoria was the first legislature in the world to introduce the secret ballot in 1856. South Australia (1856), New South Wales (1858), Tasmania (1858) and Queensland (1859) also introduced the secret ballot before the United Kingdom.

The 1884 Reform Act increased the electorate again, giving the vote to most British agricultural labourers. However, not all gained the vote: women and one-third of all men could not vote. This included soldiers in barracks, police officers and domestic servants. These men did not get the vote until 1918, when all men over the age of 21 years and women over 30 years who were ratepayers or married to ratepayers were given the vote. The Equal Franchise Act eliminated age and gender discrimination in 1928. (In contrast to the United Kingdom, South Australia in 1894 was the first legislature in Australia to extend the franchise to all women aged over 21 years of age, and the first in the world to allow women to stand for parliament).

In Britain, the last plural votes for university graduates and those owning business premises were abolished in 1948. The last double member constituencies were abolished in 1950. In 1969 the voting aged was lowered to 18 years. The House of Commons currently consists of 659 members, from single-member constituencies of roughly equal numbers of voters, the boundaries being drawn by independent commissioners.

The Triennial Act of 1694 ensured elections for the House of Commons would occur every three years. This was superseded by the Septennial Act 1716, which extended the life of the Parliament to seven years. Following the Parliament Act 1911, elections for Commons are now held every five years.

Reform of the House of Lords

The power of the House of Lords was significantly reduced via the Parliament Acts of 1911 and 1949 such that:

  • money bills approved by the Commons became law if not passed without amendment by the Lords within one month; and
  • other Public Bills, except one to extend the life of a Parliament, became law without the consent of the Lords, if passed by the Commons in two successive sessions, providing one year elapses between Second Reading and final passing in the Commons.

The Life Peerages Act of 1958 allowed for the creation of non-hereditary baronies. These life peers are able to sit and vote in the House of Lords.

In 1999 the Blair Government completed the first step in its reform of the House of Lords. The House of Lords Act 1999 provides that “No-one shall be a member of the House of Lords by virtue of a hereditary peerage.” However, it gives a transitional exemption (until the Parliament otherwise provides) for 92 of the 750 hereditary peers to retain their entitlement to sit and vote in the House of Lords. All peers will retain their titles and be allowed to pass them on, in addition they will also be given the right to vote in, and stand as candidates for the House of Commons. In the second stage of reform, (should it occur) the House of Lords will be made a more democratic chamber and the transitional provision for the 92 hereditary peers will be removed.

In November 2001, following the Royal Commission on the Reform of the House of Lords, the Blair Government issued a White Paper on further House of Lords reform. The key government proposals are:

  • The principal function of the House of Lords should continue to be to consider and revise legislation, to scrutinise the executive, and to debate and report on public issues.
  • The House of Lords should remain subject to the pre-eminence of the House of Commons in discharging its functions.
  • No group in society should have privileged hereditary access to the House. Membership of Lords should be separated from the peerage, which would continue as an honour.
  • House of Lords membership would be largely nominated, and should broadly represent the main parties voting strength as reflected in the previous general election, including a significant minority of independent members as well as members elected to represent the nations and regions within the UK.
  • There should be a statutory Appointments Commission to manage the balance and size of the House, to appoint the independent members, and to assure the integrity of those nominated by political parties.

In early 2003, proposals for further reform were still being debated and explored by the Joint Palriamentary Committee on House of Lords Reform.

Cabinet

Responsible Cabinet government came to maturity in Britain during the nineteenth century. While executive authority and power remain vested in the Crown, its use or exercise was usurped by a committee of parliamentarians (the Cabinet) who are chosen by, answerable to, and which may be dismissed by the popularly elected house of parliament. By convention, the Crown only ever acts with, and in accord with, the advice of the Cabinet. The Crown is, therefore, not responsible for its actions; rather the Cabinet is responsible to the House of Commons for the monarch’s actions, and the Commons is responsible to the people through elections for its selection, scrutiny and retention of the Cabinet. Under the system of responsible government, the Queen reigns, but it is the Cabinet which rules and governs the nation.

Just as Parliament evolved from the ancient Councils that advised Kings, so did the Cabinet form of executive government. The Privy Council, first named as such during the reign of Henry VI (reigned 1422-1461), was the council of confidential advisers who were in constant attendance upon the King and assisted him in policy decisions and in the administration of the business of the Kingdom. At that time, the Privy Council was essentially a subset of the Great Council (or House of Lords). According to Quick and Garran (1901), “It represented the unity of the executive Government”.

As the size of the Privy Council grew, the executive functions of government fell to a subset of Ministers who administered the functions of State. Membership of the Privy Council also came to include an increasing proportion of commoners. The forerunner of the modern “cabinet” was occurred during the reign of Charles II (reigned 1660-85) when the King took to consulting a confidential sub-committee of the Privy Council in reference to important parliamentary and executive business. The term “cabinet” emerged as a sub-set of senior ministers adopted the practice of withdrawing from the Privy Council chamber to a small room - the cabinet - to agree on policy. They subsequently returned to the King to make a unanimous recommendation.

As noted above, following the Glorious Revolution and Settlement of 1688-1701 it became efficient to ensure that the King’s advisers on the executive functions of government were also able to manage the legislative functions. As a result, Ministers were increasingly drawn from the Parliament. The importance of the two political parties of the time - the Whigs (small-l liberals) and Tories (conservatives) - grew under William III and Mary and their successor, Anne (reigned 1702-1714). While the monarch could choose ministers from both parties, it came to be accepted that the ministry should always reflect the relative strength of the parties in the House of Commons. The first all-party ministry was appointed in 1696.

The importance of Cabinet grew immensely under George I (reigned 1714-27) who could not speak English and spent much of his time in Hanover (Germany). George I rarely attended Cabinet meetings. He turned the meetings (and thus the management of executive government) over to Sir Robert Walpole, who became the King’s first, or prime, minister. Walpole thus became the first leader of the House of Commons to preside at Cabinet meetings. (Though most Prime Ministers were peers for over a century after Walpole). By the time of George III (reigned 1760-1820) the practical power of the King to choose his own ministry had declined.

From George I until the Reform Bill of 1832, Cabinet maintained a position between King and Parliament. It had real executive power, it administered the functions of State, but it could not do anything disapproved of by either the King or the Parliament.

The Reform Act of 1832

The passage of the Reform Bill of 1832 was achieved after a lengthy and bitter conflict between the then Prime Minister (Lord Grey) and William IV (reigned 1830-37). William IV was not a supporter of Lord Grey’s Whig Government.

The principle of Cabinet solidarity emerged at this time as a tactic for managing the King. Cabinet maintained its solidarity against the King, who could otherwise play off one minister against another or dismiss individual ministers. For a ministry to survive as a whole, and to have an opportunity to promote consistent policies, it was necessary that it stick together, and, if threatened with attack by the monarch, should resign collectively. The King would then have to find another prime minister who could ‘manage’ the parliament and equip himself with another team - no easy task when the King had just alienated a sizeable proportion of the talent in Parliament by dismissing them from office.

Since it became increasingly difficult for kings to maintain the support of Parliament without accepting the ministry shown by parliamentary process to have the confidence of the Parliament, the flexible Westminster system gradually began to impose democratic elements on the government of the country. Today, the principle of Cabinet solidarity has more to do with maintaining a united public image than managing the monarch.

As a result of the conflict over the Reform Act, the principle was established (with Queen Victoria’s occasional aberration aside) that no Cabinet could maintain itself in power unless it had the support of a majority of the House of Commons. The most successful way to gain and maintain the required majority is through a political party. Hence, Cabinet government and the strength of political parties in England developed simultaneously.

Another key development in the doctrine of responsible government occurred in 1913. According to Winterton (1983), the last English attempt to argue that the Monarch has a duty to “preserve the constitution” was made during debate on the Home Rule Bill. Although conservatives argued then that the King retained a reserve power to dismiss Ministers and dissolve Parliaments, the King did not exercise any reserve power. Consequently, it is believed that under the doctrine of responsible government within the United Kingdom, it is neither the function nor the role of the Crown to preserve the Constitution. The remedy against an abuse of the Constitution lies with Parliament and ultimately the people, not the Crown.

Given the statements of successive Governors-General since Kerr’s exercise of the reserve power in 1975 (and the flaws which have been subsequently identified in the capacity of a caretaker Prime Minister without the confidence of the House of Representatives to guarantee supply), it can be argued that any independent vice-regal power to “preserve” the Australian Constitution has atrophied.

Today the Privy Council has many members, some from Commonwealth nations other than the United Kingdom. Appointment to the Privy Council is for life, and it confers the honorific of, “The Right Honourable”. However, the firm practice is that the sub-committee of Privy Councillors who are currently members of Parliament and who have the confidence of the House of Commons only advises the Crown on matters of executive government. This sub-committee is called the Cabinet. Each member of Cabinet is a member of Parliament and a member of the Privy Council. In Britain, although junior Ministers and Parliamentary Secretaries are always members of Commons or Lords, they are not usually members of the Privy Council.

In spite of the conventions of responsible government, it is always worth remembering that the royal prerogative powers of the Crown have diminished little since the seventeenth century. However, while these prerogatives remain significant in power and belong to the Crown, because of the conventions of responsible government, they are now exercised almost exclusively at the command of the Cabinet. Cabinet has thus usurped the monarch’s royal prerogative powers. Cabinet members are also the key Ministers of the Crown responsible for the administration of the Civil or Public Service. They are individually and collectively responsible to the Parliament for their exercise of the monarch’s powers. The elected Houses of Parliament are, in turn, responsible to the electorate for keeping Ministers accountable for their exercise of the monarch’s powers.

In this regard, Davis (1997) makes an interesting observation about the evolution of Cabinet and the conventions of responsible government:

“The institution we know as Cabinet thus emerged in a different time to resolve local and specific problems. It proved a politically useful forum for making decisions, and thus endured. Yet this eccentric evolution leaves Cabinet in an ambiguous position. Cabinet was not created by the Parliament but by the executive. Over time its lines of accountability to Parliament have grown, while responsibilities to the monarch have become more notional than real. Yet Cabinet is not formally part of the Parliamentary system, and has no standing in the Australian constitution. It is an administrative arrangement only, adopted to maintain coherence in government. As one British author noted, ‘the Cabinet is not based on a constitution, or a set of rules, but on precedent and practice firmed into custom and convention’.”

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