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The development of
the Westminster system
In all the four
countries being considered the most important change since 1867 has been the
growth of the party system. Nearly all members of the lower houses are now
elected as representatives of political parties. Party discipline in all the
parliaments has been greatly strengthened, and in some of the parliaments it is
almost unknown for an MP to fail to support the agreed party position-that is,
the position agreed by a majority of the parliamentary party. In some of the
parties, an MP may be expelled from the party for failing to support the party
line.
Nevertheless, there have been
differences in the ways the various parliaments have developed, and it is worth
looking at these before considering the performances of the various parliaments
in their key roles.
Three big
developments in the political system of the UK since Bagehot’s day have been
the emasculation of the House of Lords, the devolution of power to Scotland and
Wales (without any move towards the UK becoming a federation), and the loss of
sovereignty resulting from membership of the European Union.
The
House of Lords
The Lords turned
out to be far from the politically timid body that Bagehot had
described. In 1893 Gladstone’s
Liberals, aided by most of the Irish members, carried a bill to give home rule
to Ireland. The
bill was rejected by the Lords, but no action was taken against them, for it
could be said that they were reflecting popular opinion more accurately than
were the Commons.
The situation was very different in
1909. The Liberal government had become increasingly restive as the
Conservative-dominated Lords rejected or mutilated its bills. The Chancellor of
the Exchequer, Lloyd George,
skilfully manoeuvred the Lords into rejecting the 1909 budget. Two elections
were held in 1910, the first to give authority to force through the ‘people’s
budget’ (the Lords yielded), and the second to end such struggles between the
two houses. The Parliament Act of 1911 provided that bills which had passed the
Commons unaltered in three successive sessions would become law after two years
even if the Lords did not agree, and all power of the Lords over money bills
was effectively lost, being reduced to a mere one month’s ‘suspensive veto’.
The Lords very reluctantly agreed, but the alternative was the creation of
perhaps 400 or 500 new peers, who would
pass the bill. In 1949 the delaying powers of the Lords were further reduced
from two years to one and from three sessions to two, as a result of the Lords
delaying a 1947 proposal of the Attlee Labour Government to nationalise the
steel industry.
Of course there have been many
inquiries into the role and composition of the Lords. Russell
produced a reform scheme in 1869 and Rosebery in 1884 and
1888. The Lords themselves tried in 1907. The preamble to the Parliament Act of
1911 announced the intention of making the upper house elective, ‘constituted
on a popular instead of an hereditary basis’, and the Bryce Conference was
appointed in 1917 to produce a scheme, but nothing came of it. In 1968 an all
party plan was produced for a nominated upper house with a six-months
suspensory veto. Nominations were to be controlled so that the government of
the day had a narrow majority over the opposition, with the balance of power
held by Independents. In 1958 life peers had been introduced, a measure
advocated by Bagehot a century earlier. Before this change-and
it took some time to have an effect-the Lords met for only 60 days a year,
rarely for more than three hours a day, and only about 60 members attended at
all regularly. It seemed to be dying, peacefully, in its sleep. But the
influence of the life peers was eventually decisive. There were Labour peers,
and thus some party conflict. The ‘crossbench’ Independent peers played an
important role, and there were now ‘working’ peers, once almost a contradiction
in terms. The result was a much livelier house, prepared to challenge the
government-whether Labour or Conservative-where there was evidence of strong
public support. The quality of inquiries by the Lords also improved, as did the
pool of potential ministerial talent, the latter particularly important for a
Labour government, which could expect to find few supporters among the
hereditary peers.
In May 1997 the Labour Party, led by
Tony Blair,
won an overwhelming victory in the general election. The new Lord Chancellor
tried to modernise the dress of his office. ‘I feel that ... the days of
breeches, tights and buckled shoes should go’, he told a parliamentary
committee, but the House of Lords was still very conservative on matters which
seemed to erode its dignity and power. Eventually the Lord Chancellor was
allowed to jettison his half-pants, stockings and slippers in favour of
ordinary black trousers and well-polished black shoes, but when he was
presiding over the Lords he still had to wear his long, heavy robe and his
long, heavy wig.
One of the promises in the 1997
Labour manifesto was the removal of the right of the 758 hereditary peers to
sit in the House of Lords, but some negotiations were necessary to get the bill
through the Lords, for the Conservative Party opposed reform, the House of
Lords being one of their only effective forums of opposition. Eventually a deal
was struck with Lord Cranborne,
the Leader of the Conservatives, that 92 hereditary peers, elected by their
colleagues, would remain in the Lords as an interim measure. Lord
Cranborne was sacked by the leader of the
opposition, William Hague,
for negotiating the agreement.
This was only the first stage in the
Lords reform for, as Tony Blair
said, the government was ‘perfectly prepared to agree that in the first stage
one in ten hereditaries stays, and in the second stage they go altogether.’ A
royal commission was set up to make recommendations by December 1999 on
full-scale reform of the upper house. The Blair Government promised that a
reformed upper house would be in place by the next general election, but this
election was held in 2001, without the reform of the House of Lords being
completed.
The
House of Commons
Bagehot
thought that the effects of the 1867 Reform Act would take some time to become
evident, but in fact there were almost immediate changes. The 90 per cent
increase in the number of voters completely changed the relationship between a
member and his constituents. To gain the support of such a number of voters
there had to be a mass organisation, and the Conservative National Union was
formed in 1867 and the National Liberal Federation in 1877 to meet this need.
These new organisations had to offer the voters some policies, and to offer
some prospect of the promises being kept. This in turn necessitated a
disciplined parliamentary party which would support the government in
implementing the promises, and MPs began to be elected as representatives of a
party rather than as individuals. The change in voting patterns in the House of
Commons was dramatic. In 1860 in only 6 per cent of the divisions were there
party votes, normally defined as one where at least 90 per cent of a party
voting in a division do so on the same side.[6]
This rose to 35 per cent in 1871, 47 per cent in 1881 and 76 per cent in 1894.
By 1967, a hundred years after Bagehot wrote, party discipline
was taken for granted, and many thought that MPs were mere robots and that the
possibility of significant cross voting was negligible.
The House of Commons now consists of
659 members, from single member constituencies with roughly-equal numbers of
voters, the boundaries being drawn by independent commissioners. Yet it took a
long while to get there, and in all the changes the UK
lagged years behind the more developed of its colonies. It will be remembered
that in 1867 less than a third of the adult male population could vote, and
voting was in public. The secret ballot was introduced in 1872, and in 1884 the
electorate was increased from three to five million by enfranchising rural
workers, but voters still had to be householders. In the following year there
was an attempt to redistribute electoral districts so they would be equal on a
population basis and each have one MP. However, some universities and a score
of towns retained two MPs.
Electoral
systems
Women had a very
difficult time gaining the vote. From 1903 onwards the suffragettes fought with
increasing vigour, but the decisive event was the First World War. After the
success of women in performing jobs previously exclusively done by men, they
could scarcely any longer be regarded as incompetent to vote. The
Representation of the People Act of 1918 gave the vote to women over 30 who
were local government electors (or whose husbands were) and also effectively
gave adult male suffrage. These changes increased the electorate from eight
million to 21 million. Women were given the vote on equal terms with men in
1928, and as a result there are now more women voters than men. Until 1948,
second votes were possible for university graduates and for owners of business
premises, and in 1950 the last of the double-member constituencies were abolished.
The voting age was lowered to eighteen in 1969.
Since 1944 electorate boundaries
have been adjusted regularly by independent commissions with the intention of
ensuring equality of representation. The populations of Scotland,
Wales and Northern
Ireland have been falling in comparison with
that of England.
Because the distribution of seats between the four countries is done by act of
parliament and changes are always controversial, Scotland,
Wales and Northern
Ireland have been able to resist reductions
in their numbers of seats and are relatively over-represented while England
is under represented.
The voting has always been
first-past-the-post[7] and voluntary,
though there has been some recent pressure for proportional representation. In
its manifesto for the 1997, election the Blair Labour Government promised to
set up an independent commission ‘to recommend a proportional alternative to
the first-past-the-post system.’ This was done, and the commission reported in
October 1998, with a proposal which the commission described as ‘alternative
vote with top-up members’. Each elector would have two votes, the first for
choice of a constituency MP, the other either for individuals or a party list.
The commission envisaged that 80-85 per cent of the MPs should be constituency
members, the remaining 15-20 per cent should be the top-up members.
When the report was debated in the
House of Commons in November 1998, there was a great deal of criticism. The
Conservatives were strongly opposed to the whole idea, and the Labour Party had
a range of views. The only significant party strongly supporting the report was
the Liberal Democrats. Winding up for the government, George
Howarth said that ‘the people should make
the decision. It is appropriate that there will be a referendum at the right
time’. The right time has evidently not yet arrived.
Devolution
of power to Scotland and Wales
The 1997 Labour
election manifesto also contained promises to give Scotland
‘a parliament with law-making powers’ and Wales
an assembly to ‘provide democratic control of the existing Welsh Office
functions’. Referendums on these matters were held in September 1997. In Scotland,
60 per cent voted and of these 74 per cent were in favour of a Scottish Parliament,
and 63 per cent were in favour of that Parliament having the power to vary
taxes imposed by Westminster. The
Welsh voted a week later, and narrowly supported their new assembly. Only just
over 50 per cent of those eligible voted, and 50.3 per cent of these were in
favour of the assembly, a margin of less than 7 000 votes. The Blair
Government nevertheless decided to proceed with both the Scottish Parliament
and the Welsh Assembly, and the bills duly passed the UK Parliament.
Elections for the Scottish Parliament
were held in May 1999, for a single house. The 129 members were elected in two
different ways, broadly on the lines recommended by the Proportional
Representation Commission for the UK Parliament. The majority (73) were elected
by a ‘first-past-the-post’ system from constituencies which were broadly the
same as those for the UK Parliament, while the remaining 56 members were
elected by proportional representation, seven of them from each European
parliament constituency. Elections will be held every four years.
The powers of the Scottish Parliament
were ‘devolved’ from the UK Parliament, and in these areas the Scottish Parliament
is allowed to make laws for Scotland.
It can legislate on a wide range of matters of importance to the people of Scotland,
including law and order, local government, support for industry, education,
health and the promotion of tourism and exports. A devolution could of course
be revoked at any time by the UK Parliament if it was felt that the actions of
the Scottish Parliament were unacceptable, though this revocation might present
political difficulties. The main source of revenue of the Scottish Parliament
is a block grant from the UK Parliament, although it has the power to vary the
basic rate of income tax by up to three percentage points either side of what
is charged south of the border.
Wales
too has a single house, the Welsh Assembly, with 60 members elected for a four
year term. It is chosen on a similar system to the Scottish Parliament, with 40
members elected from constituencies by the ‘first-past-the-post’ system, topped
up with four members elected by proportional representation from each of the
five European Parliament constituencies. The Welsh Assembly however has very
much less power than the Scottish Parliament. It cannot pass acts dealing with
Welsh matters, which remain the responsibility of the UK Parliament. It does
have a secondary legislative capacity, being able to draw up different orders
and statutory instruments to those which apply in England,
but these will have to be in conformity with the acts passed by the UK Parliament.
Really what the Welsh Assembly has done is to take over the administrative
functions of the Welsh Office in Westminster, and with an annual budget of over
seven billion pounds a year will take decisions on issues such as education and
the health service in Wales, agriculture, transport and roads and the
environment. The size of the annual block grant is decided by the UK
government, and the Welsh Assembly has no power to vary taxes, an open
invitation when voters are fretful to pass the blame to London
for providing too little cash.
Northern Ireland Parliament
There was some
feeling that these constitutional changes, particularly the establishment of
the Scottish Parliament, were a dramatic breakthrough. In fact, Britain had
already had 50 years’ experience of a similar parliament. A parliamentary
system modelled on Westminster was
established in Northern Ireland
in 1921, following the separation of the Irish Free State.
There were two houses, a Senate with 26 members and a House of Commons with 52
members. There were two ex-officio senators, the Mayors of Belfast
and Londonderry, and the remaining 24 were elected by
the Commons by proportional representation. The 52 members of the Commons came
from single member constituencies. The powers of the Northern Ireland Parliament
were similar to those now given to the Scottish Parliament. Most powers were
transferred to the Northern Ireland Parliament, but Westminster
kept control over such matters as constitutional and security issues, law and
order, policing and relations with the European Union.
The Northern Ireland Parliament
lasted for 50 years, but in 1972 the level of sectarian violence persuaded the
Heath Government in London to prorogue the Northern Ireland Parliament and
impose direct rule. There were sustained efforts to restore self-government to Northern
Ireland, which eventually achieved something
in June 1998, when a 108-member Assembly from eighteen six-member
constituencies was elected. There were delays in restoring self-government, but
in December 1999 power was returned to the elected Assembly, with a ten-strong
Cabinet voted in by the Assembly, and containing three ministers from each of
the Unionists and the Irish-nationalist Social Democratic and Labour Party, and
two each from the pro-Irish and militant Sinn Fein and the hardline Ulster
Unionist Party. Unfortunately this lasted for only a very brief time before
problems over disarming the militants caused direct rule from London
to be reimposed, but after three months, when the IRA had agreed to disarm,
self-government was restored. But the IRA proved very reluctant actually to
give up their weapons, and the situation remains uncertain. The Northern
Ireland problem is religious, and religious
wars are always the most difficult to solve.
There is no serious pressure towards
the United Kingdom
becoming a federation. There seems to be no desire in England,
except possibly in the north-east, for the establishment of regional
parliaments. The Irish are encouraging moves towards independence for Scotland
and Wales. Dublin’s
motive seems to be a belief that if those two countries become independent
countries in the European Union, it will become almost impossible for England
to retain control of Northern Ireland.
But independence is a long way off for Wales.
It is too early to say how
effectively the Scottish Parliament and the Welsh Assembly will work, but it
seems certain that if they do not satisfy their constituents the pressure will
be for the devolution of more powers, not the return of the present powers to Westminster.
Scotland may
move towards becoming an independent country in the European Union, though
whether they would then retain the British monarch as their head of state is
very doubtful.
Heads
of state
Looking at the
performance of the British heads of state, Queen Victoria’s successors have
been much more meticulous in observing the limitation of the rights of the
monarch to the right to be consulted, to encourage and to warn. There have been
no occasions on which a prime minister’s or Cabinet’s request for a dissolution
has been refused, a discretion which Bagehot thought rested
with the sovereign. George V
was prepared to agree to Prime Minister Asquith’s
request for the creation of perhaps 500 peers in 1911, though it is far from
certain that Edward VII,
had he survived, would have been so acquiescent.
This is not to say that there has
not been a need for royal decisions, for the selection of a prime minister was
difficult if no party had a majority: there were no less than eight minority
and two coalition governments during Victoria’s
reign. The Labour Party has always had an elected leader, but the Conservative
leader was, until 1964, supposed to ‘emerge’. On one occasion no one did
clearly emerge as leader of the Conservatives. In 1923 Conservative Prime
Minister Bonar Law
resigned, mortally ill, too ill to be consulted about his successor. The party
was split between Stanley Baldwin and Lord Curzon.
Although there was much consultation, the final selection was King
George V’s,
and he chose Baldwin, finally ending
any thought that a prime minister could come from the House of Lords. On other
occasions, such as Macmillan’s succession to Eden,
or Douglas-Home’s succession to Macmillan, although the royal
prerogative was used, in fact the process of consultation and elimination had
resulted in a single name emerging.
Election
of parliamentary leaders
The Conservative
method of choosing party leaders was, though, a confusing and in fact
undemocratic process, and was replaced by the formal election of a Conservative
parliamentary leader by the party members in the House of Commons. To win on
the first ballot a candidate had to obtain a simple majority of the number of
Conservative MPs and have a lead of
at least 15 per cent over his or her nearest challenger. If a winner did not
emerge from the first ballot a second ballot was held, for which fresh
nominations were called. Two leaders (Heath and Thatcher) were
removed by this system.[8] In the Labour
Party, until 1982 the parliamentary party had elected the leader. In that year
the responsibility was transferred to an electoral college of MPs (30 per
cent), party members (30 per cent) and block votes from the trade unions (40
per cent). After a bitter fight the block votes from the trade unions were
eliminated by the Labour Party Conference in 1993, and a one-member-one-vote
system introduced, with voting by mail. Something nevertheless had to be done
to weight the votes, for there were four million trade unionists paying the
political levy[9] as compared with
270 000 individual party members and only a few hundred MPs at Westminster
and in the European Parliament. The final solution was that the votes would be
weighted so that a third came from trade unionists (voting as individuals), a
third from local party members and a third from the MPs and MEPs.[10] The first leader to be elected under
this system was Tony Blair.
The
European Union
Before we leave
the United Kingdom
to look at developments in Canada,
Australia and New
Zealand, it is necessary to mention one
change which has limited the sovereignty of the UK Parliament. On 28 October
1971 the House of Commons approved the terms for entry into the European
Economic Community (which has been known since 1993 as the European Union). In
effect they were voting to join an embryo federation, with the federal
government having designated powers, which could be expanded by agreement, and
the member nations retaining the remaining powers. There is a parliament, but
there certainly is not responsible government. Citizens of any EU country have
the right to live and work and be educated anywhere within the Union,
and are entitled to medical treatment there.
The EU now has fifteen members, and
has membership applications from twelve more countries, ten of them from
Central and Eastern Europe; the other two are Cyprus
(the Greek part only, at the moment) and Malta.
Five of them have been short-listed, and may join as early as 2004. And when
the twelve have been dealt with, there will be another queue of similar length.
Before membership negotiations can start, the EU has to be satisfied that the
applicant has met the political requirements of ‘democracy, the rule of law,
human rights and ... protection of minorities’. Turkey would like to join the
EU, and has had a preliminary agreement since 1963, but as it has not yet met
the political requirements, membership talks have not yet begun.
As far as the sovereignty of the UK Parliament
is concerned, European Union membership means that EU laws can override British
laws in areas within the EU’s powers, and disputes over law-making powers are
decided in the EU’s own court of justice, thus limiting the traditional
sovereignty of the UK Parliament. The UK Parliament has no direct power over
proposed EU legislation, but committees of the Lords and Commons examine drafts
of important proposed laws and make recommendations to their respective houses,
who in turn may give advice to the UK
minister who will be attending the EU Council of Ministers. The amendment of UK
laws rendered inappropriate by EU legislation is left to the government, which
usually does it by statutory instrument, as authorised by the European
Communities Act of 1972. As an additional measure, to avoid problems in the courts,
which would be interpreting human rights under local law, the EU Convention on
Human Rights has been incorporated into English and Scottish statute law.
The UK Parliament has no direct
influence on EU policies, and the European Parliament, based in Strasbourg,
has proved to be not very effective, although its members have more practical
opportunity to influence the content of European legislation than the members
of the UK House of Commons has over its legislation. Its influence on the EU’s
budget, too, is much greater than the UK Parliament has over its national
budget. Prime Minister Tony Blair
has proposed a second chamber, where the European Union nations would be
equally represented, so as to prevent the major nations dominating the smaller
ones, but there is no sign of this second chamber being set up.
European Union voters have shown
little interest in voting for the European Parliament, and the MEPs are
surprisingly unreliable in their attendance at parliamentary sessions, particularly
as weekends approach.
The bureaucracy, the European
Commission, is based in Brussels,
and has 16 000 professional staff. The commissioners who head it are
nominated by national governments, but are supposed to be independent. The
European Commission has the sole right to propose legislation for the EU,
though it is for the Council of Ministers and the European Parliament to decide
what is enacted. The European Commission was becoming very corrupt in the
1990s, and the European Parliament, using one of its few effective powers,
managed to have the sixteen commissioners removed.
The governments of the EU member
countries have become more involved as the power of the European Commission was
restrained, particularly as the EU moved into new areas such as a common
currency and foreign and defence policy. The European Council is composed of
the heads of government of the member countries, with the chairman chosen from
among them on a six-month rotating basis. The Council provides only broad
guidelines. Detailed policy aspects are dealt with by councils of ministers
comprising appropriate representatives of the member nations, the membership
depending on the subject matter: thus trade ministers discuss trade, farm
ministers agriculture, and so on. Some policies are decided by a majority vote
of member countries, others require unanimity. There is a General Affairs
Council of Ministers, made up of foreign ministers, which is supposed to
co-ordinate the activities of the various councils of ministers, but it does
not work very effectively.
The question of whether member
countries should have power of veto over EU policies is very divisive in Britain.
The Blair Labour Government says that there is a good case for reducing the
policy areas in which governments have a veto. It is hard enough, it is argued,
to achieve unanimity among the present fifteen countries. Achieving it among
twenty could prove impossible. For instance, the Blair Government suggests that
European court procedures, transport, and even changes to the EU’s fundamental
treaty, should be decided by majority voting, though issues such as economics
and defence and foreign policy should be subject to national veto. The
Conservatives, on the other hand, oppose the extension of majority voting and
the enlargement of common policies. They also want member countries to be able
to opt out of new EU legislation.
The EU became a single market on 1 January 1993, and the Maastricht
Treaty, negotiated in 1991 and finally ratified in 1993, was intended to move
towards a common currency by 1999, the establishment of an EU bank, and the
formulation of common foreign and defence policies. The new currency, the euro,
was introduced for electronic and paper transactions in 1999, and in 2002 notes
and coins will replace national equivalents. When monetary union was
introduced, eleven member countries joined but Britain
stayed out, together with Sweden,
Denmark and Greece.
Greece wanted
to join, but was delayed until it could meet the economic criteria. Public opinion
in Sweden and Denmark
seems to be swinging in favour of joining the monetary union. Prime
Minister Blair has promised a referendum
before the next election, but this may not happen if public opinion remains
strongly against joining. Governments do not like the humiliation of losing
referendums. Britain
may find itself the solitary outsider, though it might be joined by several of
the EU applicant countries.
The development of common foreign
and defence policies has not moved as fast as monetary union, but after NATO’s
war in Kosovo the leading EU countries began to feel strongly that they should
possess a capability for collective military action which was independent of
NATO, and did not necessarily depend on the military leadership of the United
States. British Prime
Minister Tony Blair
has declared his support for this, departing from the previous British position
that such moves should be resisted for fear of damaging NATO. There have also
been formal moves for the development of a common foreign and security policy
for the EU, though this will take some time to be effective, with ancient
national prejudices to be overcome. It will not be easy, for Britain and France
are used to being in a position of power, as both permanent members of the UN
Security Council and as nuclear powers, and will not yield their influence
easily, particularly as an increasing number of EU members, such as Sweden,
Finland, Ireland and Austria, are becoming neutral.
As an indication of the declining
power of the European Commission, the EU governments handled monetary union
themselves, instead of consigning it to the European Commission. So they wrote
the rules for the new currency, and set up a new independent central bank to
manage it. Governments have reserved to themselves the development of the EU
defence structure, and the common foreign and security policy.
The Scottish government has followed
the example of other autonomous regions of the EU by establishing an office in Brussels,
to represent Scottish interests on devolved matters, and to ensure the
implementation in Scotland of EU obligations which concern such matters. Westminster
is beginning to find out what it is like to be a provincial parliament.
In the new
dominion of Canada
several constitutional problems emerged over the years: the status and method
of amendment of the Constitution; disputes over the status of the Province
of Quebec; the composition and role
of the Senate; and the removal of the power of the British Privy Council to
interpret the Canadian Constitution.
The
Constitution
The Constitution Act 1867[11] (usually referred to as the BNA
Act) was an Act of the UK Parliament, and could be amended only by that body.
Unlike New Zealand
from 1857 onwards, the Canadian Parliament had no power to amend the national Constitution.
It was not that the British made any difficulties. If a proposed constitutional
amendment was passed by the Canadian Parliament (House of Commons, Senate and
Governor-General) the necessary new Constitution Act was passed at Westminster
without delay, or much interest. On no occasion did a Governor-General refuse
to approve, or Westminster fail to
enact, a constitutional amendment passed by the two Canadian houses. In 1949
both the UK and
Canadian parliaments passed the BNA (No.2) Act which gave the Canadian Parliament
the power to amend the Constitution in matters lying solely within federal
jurisdiction.
Yet the position remained anomalous,
particularly as the Statute of Westminster in 1931 had made Canada
otherwise completely independent. The UK Parliament grew increasingly uneasy
about the exercise of its remaining power. What if one or more of the
provincial governments objected to a constitutional amendment requested by the
Canadian Federal Parliament? After all, the Constitution was supposed to be a
pact between the federation and the provinces. How many provinces had to object
before the UK Parliament should take notice? When the Trudeau Government first
approached the UK
government to have the Canadian Constitution amended and ‘patriated’, eight of
the ten provinces lobbied Westminster MPs against the proposal. It seems
certain that the UK Parliament would not have passed the necessary act, but the
issue was resolved by the Canadian Supreme Court, which ruled that constitutional
convention required that there must be substantial support among the provinces
for such a change to the Constitution to be accepted. Trudeau
was forced to modify his proposals, and managed to get the final version
approved by nine of the ten provinces, Quebec
of course being the dissenter. It was with some relief that the UK Parliament
passed the act and relinquished the remainder of its power over the Canadian Constitution.
The Constitution Act of 1982
contains several amending formulas, depending on the subject matter. Typically
a constitutional amendment has to be passed by the House of Commons and
authorised by at least two-thirds of the provincial legislatures, representing
at least half of the total population of all the provinces, but some amendments
have to be unanimous, some can be agreed by a majority of provinces, and others
which affect only some of the provinces may be agreed by the legislatures
concerned. A provincial legislature can exclude its province from the operation
of a constitutional amendment which affects the powers of provinces. The Senate
was given only a 180-day suspensive veto over constitutional amendments, though
it retained all its existing rights over other legislation. The Constitution
Act also incorporated a Charter of Rights and Freedoms.
The successful formula was the
result of the accord signed by the federal government and the provinces, with
the exception of Quebec, in
November 1981.
Quebec
Quebec
was the second of the constitutional problems of the dominion. It was not easy
to incorporate a province of largely different language, religion and social
attitudes, particularly as the province did not wish to be assimilated. There
were ‘two nations warring in the bosom of a single state,’ as Lord Durham put
it. The original confederation settlement had given a unique status to Quebec,
permitting it to preserve its own civil law and to retain the use of the French
language. The other original provinces received no such special privileges,
though provinces which later joined the confederation were sometimes able to
make special deals. Manitoba, for instance, received a guarantee of the
protection of religious education and the French language, and special land was
set aside for the Mtis (the offspring of French fur-traders and native Indian
women).
The Meech Lake Accord was an attempt
to induce the province of Quebec
to accept the Constitution Act of 1982, by which Quebec
is legally bound, despite refusing to ratify it. Quebec
produced five proposed constitutional changes, which, if accepted, would persuade
it to accept the whole Constitution. The proposed changes covered the special
status of Quebec, a provincial
veto on constitutional changes affecting a province, a voice for the provinces
in Supreme Court and Senate appointments, increased power for the provinces
over immigration, and limits on federal spending in areas of exclusive
provincial jurisdiction. These conditions were agreed by Prime
Minister Mulroney and all the provincial
premiers at Meech Lake
in 1987, and were passed overwhelmingly by the House of Commons. However,
ratification required unanimous agreement by the provincial legislatures, and
in 1990 Manitoba and Newfoundland
refused to do so, basically because they did not agree with the special
advantages for Quebec and
francophones.
After the collapse of the Meech Lake
Accord, another attempt was made to hold Quebec
in the federation by reforming the Senate and offering other baits to Quebec.
In July 1992, under the Charlottetown Agreement, the other provinces offered Quebec
a ‘Triple E Senate-Elected, Equal, Effective’. Each province would elect eight
senators, and there would be no ministers in the Senate. The Senate would have
only a 30-day suspensive veto over money bills, but Ontario
(which, like Quebec, would have
had to accept a reduction in the number of its senators from 24 to eight) also
insisted that a 70 per cent Senate majority be required before ordinary
legislation could be rejected. Whether this is compatible with an effective
Senate is very debatable. The baits for Quebec were provisions that Quebec
would be recognised as a ‘distinct society’ with some special privileges, that
federal legislation dealing with French culture and language would have to be
approved by a majority of French-speaking senators, and the giving to each
province of a veto over any future changes to federal institutions, thus
returning to Quebec a veto power it had lost in 1982. There was also
recognition of the inherent right of aboriginal self-government. The Quebec
government was involved in the constitutional negotiations, for the first time
in two years, and accepted the Charlottetown
offer, though it insisted on more seats in the House of Commons to compensate
for the lost senators.
The agreement was put to the voters
in a non-binding referendum. A major problem was that the referendum asked the
voters to approve 50 pages of proposals covering everything from Senate reform
to aboriginal self-government. Many voters had to find only one proposal they
disagreed with in the 50 pages of the document for them to be persuaded to vote
‘no’. The referendum was defeated, both nationally (with 54 per cent of the
voters against the agreement) and in six of the ten provinces (including Quebec).
The idea of a constitutional amendment was dropped.
Of course the Quebec
problem did not go away. In October 1995 there was a referendum in Quebec
province on the question: ‘Do you agree that Quebec
should become sovereign after having made a formal offer to Canada
for a new economic and political partnership ... ?’ The referendum was narrowly
defeated by a vote of 50.6 per cent to 49.4 per cent. There was an
extraordinarily high participation rate of 94 per cent of eligible voters. It
may be, though, that the result of this referendum did not really represent the
number of Quebec voters who
wanted to secede from the Canadian federation. There was considerable
misrepresentation in the ‘yes’ campaign about the consequences of secession. A
poll conducted at the end of the campaign revealed that 80 per cent of the
Quebec voters who were planning to vote ‘yes’ were under the impression that
Quebec would continue to use the Canadian dollar after secession; 90 per cent
thought that economic ties with Canada would be unchanged, and 50 per cent
thought that they would be able to use Canadian passports. More than 25 per
cent of ‘yes’ voters believed that Quebec
would continue to elect members to the Parliament in Ottawa.
Of course none of these would have automatically continued after secession.
After the referendum, Prime Minister
Chrtien kept a promise he had made during the referendum campaign, and
introduced a package into the Parliament which included recognition of Quebec
as a ‘distinct society’, and giving a veto over constitutional changes to four
regions (Quebec, Ontario, the Western Provinces and the Atlantic Provinces).
The package was passed, though Quebec
dismissed it as meaningless, and British Columbia
successfully campaigned for its inclusion as a fifth veto area.
The legal right of Quebec
to secede was challenged in the Supreme Court in 1997. The government of Quebec
boycotted the proceedings, so the Supreme Court appointed a ‘friend of the
court’ to argue Quebec’s case. In
its judgment the Supreme Court ruled that Quebec did not have the right to
secede unilaterally under either the Canadian Constitution or international
law, but it also ruled that should a future referendum in Quebec produce a
clear majority on a clear question in favour of secession, then the federal
government and the other provinces would have a duty to enter into negotiations
with Quebec on constitutional change.
The momentum for secession seems to
be failing. In the Quebec
election in November 1998, although the Parti
Qubcois won government, the Liberal Party,
which is opposed to secession, won a larger share of the vote. Premier
Bouchard admitted after the election that
the voters ‘are not prepared to give us the conditions for a referendum right
now.’ So far there have been no further referendums.
The Senate
The original
composition of the Senate had been in part an attempt to soothe Quebec’s
fears. One of the key figures of confederation, George
Brown, said that Quebec
had ‘agreed to give us representation by population in the lower house, on the
express condition that they could have equality [with Ontario]
in the upper house. On no other condition could we have advanced a step.’[12] Although the Quebec representation
(originally 24 out of 72 senators) has been maintained, its influence has been
reduced as new provinces have joined or been created, and have been granted an
entitlement to Senate positions. Manitoba
was created in 1870, British Columbia
joined in 1871 and Prince Edward Island
in 1873, Alberta and Saskatchewan
were created in 1905, and Newfoundland
joined in 1949. The Senate now has 104 members, so that Quebec’s
representation has dropped from one-third to less than a quarter. Not that it
matters much, for the Senate has become almost totally ineffective and is
another unsolved constitutional problem.
In the early days of confederation
the Senate did exercise a significant legislative role. There were five
senators in Macdonald’s first cabinet, and senators have held most important
cabinet posts, including the prime ministership. But since the early days the
Senate’s importance has greatly diminished. The reason is of course the
non-elective character of the Senate, which has usually led it to back away
from any direct confrontation with the Commons. The Senate’s lack of prestige
has been exacerbated by its highly party political nature. Senators appointed since
1965 retire at 75, but before that they were appointed for life. The
appointments are in the gift of the prime minister, and prolonged rule by one
party causes serious imbalances in the Senate, since appointments are usually
made to reward loyal party service. Worse still, from the point of view of
Senate prestige, the prime minister sometimes does not even bother to fill
vacancies.
Under the Meech Lake Accord, new
senators were to be chosen from lists of names provided by the provinces. There
was a vacancy for a senator from Alberta,
and that province held a Senate election in October 1989 in an attempt to speed
up reform of the Senate. The winner was appointed to the Senate, but after the
collapse of the Meech Lake Accord Prime Minister Mulroney announced that he
would not be bound by such elections in future. Alberta
did not happily accept this, and in 1998 the provincial government announced
its intention to elect two ‘senators in waiting’, available to fill Alberta
vacancies in the Senate as they arose. A vacancy arose just before the election
was due, and Liberal Prime Minister Chrtien,
who had never supported the concept of the election of senators, named a
replacement without waiting for the election. The premier of Alberta
regarded this as a ‘slap in the face for Albertans’, but in fact it is
unrealistic to think that the Constitution can be changed by piecemeal acts by
individual provinces.
Although the Senate is under severe
criticism, it is not because it does nothing. It provides occasional ministers,
usually because there is not a suitable member of the Commons from a particular
province. The Senate reviews complex bills, and sometimes suggests amendments.
It conducts public inquiries, many of them useful, and it helps to watch over
delegated legislation. But in the mid-1980s things changed dramatically. In
1984 the Progressive Conservatives under Brian
Mulroney were swept into power in Ottawa,
after more than half a century of Liberal rule, broken only by the very short
term of John Diefenbaker
and the even shorter one of Joe Clark.
As a consequence there was a substantial Liberal majority in the Senate, and
this majority was used when the Mulroney government
endeavoured to pass a bill to ratify the free-trade pact with the USA.
The Liberal-dominated Senate refused to pass the bill until there had been an
election on the issue. This was held, the Mulroney Government was returned with
a comfortable majority, and the bill was re-introduced and speedily passed by
both houses.
Things became even more dramatic a
few years later, when the Mulroney Government introduced a bill to implement a
goods and services tax. When it reached the Senate it was referred to its
Standing Committee on Banking, Trade and Commerce. The committee toured Canada
hearing witnesses, who of course were largely opposed, as voters nearly always
are when new taxes are proposed. The Liberal senators on the committee saw a
wonderful opportunity to exploit the political situation, and the committee, by
a majority, duly recommended the rejection of the tax bill.
The Mulroney Government clearly had
to do something about the Senate, for not only was the Goods and Services Tax
Bill held up, but so were two other important tax bills. There were fifteen
vacancies in the Senate, and Mulroney filled them with
Progressive Conservative supporters. Even then his party was still in a
minority in the Senate, which had 46 Conservative senators, 52 Liberals and six
senators not supporting either of the major parties.
Mulroney then used
the deadlock-breaking power, by which he could ask the Queen of Canada to
authorise the Governor-General to appoint either four or eight more senators.
He chose eight, and as they were of course nominated by him, the Progressive
Conservatives gained an effective majority in the Senate. The three bills were
duly passed, after an astonishing filibuster by Liberal senators.
These events brought Senate reform
to the forefront of the political debate, but there were still great
difficulties, for there was no general agreement on what should be done. Nearly
everyone agrees that there should be a Senate. Nearly everyone agrees that it
should be elected. Everyone agrees that its original role as protector of
property interests is no longer desirable. Everyone agrees that it should have
no power to remove a government. But there agreement stops. What are to be the
Senate’s powers? Are provinces to be represented equally, or on a population
basis? Would a suspensive veto enable the Senate to perform a useful role? Are
senators to be elected by voters or by provincial parliaments, and what is to
be the method of election? Should there be a requirement for two majorities,
both overall and of francophones, for legislation dealing with linguistic
matters? It will be a long time, it seems, before there will be sufficient
agreement for a constitutional amendment to have any chance of success.
In the
abortive Charlottetown Agreement, it was proposed that senators should be
elected, with the same term as the House of Commons. There were to be six
senators from each province and one from each territory, with the possibility
of additional senators from the aboriginal peoples. Elections could be either
by the voters or by provincial legislatures.
According
to a government pamphlet:
the Senate would be able to block key appointments,
including the heads of key regulatory agencies and cultural institutions. It
would also be able to veto bills that result in fundamental tax policy changes
directly related to natural resources. In addition, it would have the power to
force the House of Commons to repass supply bills. Defeat or amendment of
ordinary legislation would lead to a joint sitting process with the House of
Commons. At a joint sitting a simple majority would decide the matter.[13]
These Senate
reforms sank with the rejection of the Charlottetown Agreement.
The
Privy Council
The other
original constitutional problem has disappeared. Since the various Constitution
Acts were enacted by the UK Parliament, appeals on constitutional matters lay
with the judicial committee of the Privy Council in London,
via the Canadian Supreme Court, after its establishment in 1875. In a
federation, the division of powers between the various governments is a
frequent source of dispute, and in the early years the Privy Council showed a
remarkable bias towards the provinces, creating some surprising consequential
powers to add to the specific powers given to the provinces under the 1867
Constitution. Nevertheless on one occasion at least the Privy Council had a
benign influence, when in 1929 it overturned a decision of the Canadian Supreme
Court which held that women were not ‘persons’ under the Constitution, and
therefore could not be appointed to the Senate. The first woman senator was
appointed in 1930.
The ‘patriation’ of the Canadian Constitution
in 1982 ended appeals to the Privy Council.
The
Governor-General
The
Governor-General, in the beginning, exercised power over foreign affairs and
international trade on behalf of the British government, but it was a sign of
the times when the first prime minister of Canada,
Sir John Macdonald,
was one of the British negotiating commission which signed the Treaty of
Washington in 1871. By the 1870s Canada
was imposing protective tariffs and trying to negotiate trade agreements with
the United States.
The British declaration of war in 1914 automatically involved Canada,
but the war changed things. The Imperial War Conference of 1917 decided,
largely at Canadian insistence, that after the war there should be ‘a full
recognition of the dominions as autonomous nations of an Imperial
Commonwealth’, and that the
dominions and India
should have ‘an adequate voice in foreign policy’. Canada
signed the Versailles Treaty as an independent nation and became an inaugural
member of the League of Nations. As early as 1920 the
right to separate Canadian diplomatic representation was established, though it
was not until 1926 that the first legation (in Washington)
was opened, to be followed by one in Paris
in 1928 and another in Tokyo in
1929. At the 1926 Imperial Conference it was declared that the dominions and Britain
were equal in status, bound together only by an allegiance to the Crown, an
arrangement which was formalised in 1931 by the Statute of Westminster.
Governors-General have generally
been punctilious in following the principles set out by Bagehot,
with two notable exceptions. In 1873 Lord Dufferin
was prepared to dismiss the prime minister (Sir
John Macdonald)
over allegations of electoral bribes. The crisis was averted when the prime
minister resigned. In 1926 Lord Byng
refused a request for an election by Prime Minister Mackenzie
King, who had lost the confidence of the
House of Commons. Byng commissioned the leader of the
opposition to form a government, but this collapsed after three days and an
election was unavoidable. Unfortunately for Byng, Mackenzie
King won the election.
Since 1952 the Governor-General has
always been a Canadian. The Governor-General is the representative of the
Queen, but the selection is made by the Canadian prime minister, the Queen
merely rubber-stamping the name put forward to her.
Federal
elections
Seven provinces
have joined the federation since 1867, an expansion not without pain. There
were two civil wars between the English-speaking settlers and the Mtis in what
is now Manitoba in 1879-80 and in what is now Saskatchewan in 1885. As new
provinces joined, or the population increased, the number of members of the
House of Commons was increased from 181 in 1867 to 301 in 2000. The total
number of members is now determined by parliamentary commissions which review
the decennial census figures and adjust electorate boundaries and the number of
electorates accordingly, with the proviso that no province should have fewer
MPs than it has senators.
Most Canadians have always voted in single
member constituencies, on a first-past-the-post basis. The last two-member
constituencies were abolished in 1966. Some of the provinces tried, but abandoned,
preferential voting (the single transferable vote). The secret ballot was
introduced federally in 1874, but until 1917 the federal franchise was
determined by the various provinces, except for the 1885-1898 period. This of
course resulted in variations between the provinces, though in all provinces in
the early days the vote was confined to adult males who met income or property
requirements, which meant that only about 15 per cent of the population could
vote. The franchise restrictions were gradually lowered and women were given
the vote in four provinces in 1916-17. Women in the armed forces and close
female relatives of servicemen were given the federal vote in 1917. In 1920 the
electoral law, now under federal control, was changed to universal adult
suffrage with a minimum voting age of 21. The voting age was lowered to
eighteen in 1970.
The maximum
federal parliamentary term is five years. This provision is entrenched in the Constitution
with the proviso that ‘in time of real or apprehended war, invasion or
insurrection’ the Parliament may, provided there is a two-thirds majority in
the House of Commons, extend the life of the House indefinitely.
There are many unusual features
about Canadian elections. The long-term stability of the two main political
parties, the Conservatives and the Liberals, is remarkable. They were there in
the early days of federation, and are still there, though the Conservatives
were nearly wiped out in the 1993 federal election and have still not
recovered. Then there is the remarkable turnover of members of the House of
Commons, there being, by international standards, very few ‘safe’ seats. A
study has shown that only 23.6 per cent of seats in the Canadian House of
Commons are secure for a particular party, compared with 77 per cent in Britain.
This estimate seems much too high for Canada,
for in the 1993 election the Progressive Conservatives retained only two of
their 157 seats, and the New Democrats only nine of their 44.
The resultant parliamentary
inexperience of many Canadian MPs has a significant effect on all the
activities of the House of Commons. The bulk of MPs (over three-quarters) is
likely to have served less than seven years, and the proportion of new MPs in a
parliament averages about 40 per cent, with a peak of 68 per cent in 1993.
After the 1993 election, the new prime minister, Jean Chrtien, delayed the
first meeting of the new parliament on the grounds that ‘200 members are brand
new ... and have to do their homework to be ready ... The same thing is true
for the cabinet.’ This a very different pattern to that of the other countries
we are considering. In Britain,
70 per cent of MPs are likely to have served for at least ten years, and the
proportion of new members after an election is rarely greater than a fifth.[14]
The longevity of governments is also
unusual. The Conservatives ruled from 1867-73 and 1878-96, and the
Liberals from 1896-1911 and 1935-58. This was perhaps a factor in the
development of widespread political patronage. In 1871 Prime Minister
Macdonald claimed that there was a
constitutional principle that whenever an office was vacant it belonged to the
party supporting the government. This principle is still adhered to, though
since 1910 with less rigour. It was still a major issue in the 1984 election,
when the Liberals were ousted by the Progressive Conservatives. Finally,
perhaps the most unusual of all is the failure to develop a nationwide party
system. Parties tend to be based in particular provinces or groups of
provinces, with very little strength elsewhere. A group such as the Bloc
Qubcois can be formed to represent the interests of a particular province,
and may be strong enough to become the official opposition for a time. A
government may have no MPs at all in half the provinces. This does not make for
national unity.
Provincial
upper houses
There are no
surviving upper houses in the Canadian provinces, which has removed an
important restraint on the behaviour of provincial governments. The heads of states, the
lieutenant-governors, are appointed by, and responsible to, the federal government. On joining the
dominion, the provinces had various parliamentary structures. Each, of course,
was given a lieutenant-governor appointed by the federal government. All had
elected lower houses, called legislative assemblies. Of the four original
provinces, Nova Scotia and New
Brunswick were authorised by the BNA Act of 1867 to
retain their existing structures, which contained nominated upper houses called
legislative councils. On their partition in 1867 Quebec
and Ontario took different paths.
Ontario chose not to have an
upper house in order to eliminate resistance to the Cabinet, and for reasons of
economy. Quebec chose to have a Legislative
Council, primarily to protect the English-speaking minority.
Of the provinces to enter the
Confederation after 1867, British Columbia
(1871) had never had an upper house. Manitoba was granted an upper house by the
Act creating the province and admitting it to the Confederation, while Prince
Edward Island was the only province to have an elected Legislative Council,
which it retained. Alberta and Saskatchewan,
created in 1905 and joining the dominion at the same time, have never had upper
houses. Newfoundland proved
reluctant to join the dominion of Canada.
It had been annexed by England
in 1583, was granted responsible government in 1855, and had an upper house. In
1869 the voters rejected the idea of joining the Canadian Confederation:
Hurrah for our native isle, Newfoundland.
Not a stranger shall hold an inch of
its strand.
Her face turns to Britain,
her back to the gulf-
Come near at your peril, Canadian wolf!
Economic reality eventually forced a
modification of these views. Newfoundland
became bankrupt in 1933, responsible government was suspended, and for sixteen
years the country was governed by an autocratic commission, aided by British
subsidies. Responsible government, without an upper house, was restored in 1949
so that Newfoundland could join Canada.
There are now no provincial upper
houses. The reasons for abolition have been their lack of prestige caused by
party political appointments, the dislike of governments at having their will
frustrated, and economy. Abolition was by no means always easy, for the Legislative
Councils had veto power over the legislation necessary to abolish themselves.
Success was achieved in various ways. In New Brunswick
and Nova Scotia the
government-appointed legislative councils had unlimited numbers, and it was
possible for the government to ‘swamp’ the councils by appointing new members
pledged to vote for abolition. In Manitoba
sufficient members of the Council were bribed, by being offered comparable
salaries elsewhere in the government service. In tiny Prince
Edward Island the two houses were merged into a
single Assembly. The rights of property were protected by having two members
from each electoral district, an assemblyman and a councillor. Voters for the
assemblymen had to have a small property qualification, designed merely to deny
the vote to transients, whereas to vote for a councillor required substantial
property. These property requirements have only recently been removed. The last
Legislative Council to disappear was that of Quebec.
There had been intermittent smouldering disputes with the Quebec
government, and the Legislative Council was abolished in 1968 by the simple
expedient of offering councillors annual pensions equal to their salaries.
Lieutenant-governors
Lieutenant-governors
are appointed by the federal government for a five year term, and are expected
to heed its instructions. By the BNA Act of 1867 the federal government could
veto any provincial bill within a year of its passage. As Sir John Macdonald
put it in 1873: ‘if a bill is passed which conflicts with the Lieutenant-Governor’s
instructions or his duty as a dominion officer, he is bound to reserve it,
whatever the advice tendered to him [by the provincial government] may be.’
Seventy provincial bills have been vetoed since 1867, the last being in 1961.
The power of veto in fact became increasingly difficult to use, as advocates of
provincial rights managed to focus the debate on the question of interference
by Ottawa in local matters.
Disputes over jurisdiction are now settled by the Supreme Court, and the power
to veto provincial legislation has become politically unusable.
In the early days after
Confederation, lieutenant-governors often took an active role in politics, in
such ways as refusing assent to bills and dismissing ministers. They no longer
do so, but between 1867 and 1903 five provincial governments were dismissed,
and before 1945, 27 provincial bills were refused assent. Lieutenant-governors
may refuse a request for a dissolution from a premier who has lost the support
of the Legislative Assembly if another leader is likely to have the support of
the Assembly. Such refusals were fairly common in the early days, but
lieutenant-governors have been more wary since the furore over Governor-General
Byng’s action in 1926, and there have in
fact been no refusals of requests for dissolutions since that date.
Electoral
systems
The provincial
electoral systems have gradually changed to universal suffrage for all those
aged over eighteen. The electoral districts in all provinces are organised with
a strong rural or remote area bias. In the 1999 election in New
Brunswick, for instance, one riding had 13 786
eligible voters while another had only 3444. In 1995 the province
of Ontario adopted the federal
electorates for the provincial parliament, reducing the number of seats from
130 to 99 by means of the ‘Fewer Politicians Act 1996’. The federal electoral
system has a strong rural bias, and a rural vote in Ontario
is worth as much as six urban votes. The number of registered voters in 1996 in
the largest riding was 129 108 and the smallest 19 406.
The development of responsible
government in the provinces has been caustically criticised by Professor
Mallory, who has written that:
the chaotic politics of British
Columbia, which has never cheerfully accepted a two
party system on national lines, has modified from time to time the normal
operation of cabinet government. In British Columbia,
as in Manitoba, coalition
governments have eroded the clear lines of collective responsibility which
cabinet government requires. In the prairies the powerful impact of agrarian
reform movements with their distrust of party politicians and firm belief in
constituency autonomy has undermined party discipline and authority of
cabinets. In the Atlantic provinces,
politics still wears the raffish air of the eighteenth century. The scent of
brimstone hangs about the hotel-rooms and caucus-rooms of politicians who have
yet to receive the gospel of political reform. In Quebec,
even among French Canadians, the phrase ‘boss-rule’ is in common currency. Ontario
has had, within the last twenty years, a regime at once radical, demagogic and
corrupt, in which it was difficult to distinguish the sober lineaments of the
British cabinet system.[15]
This was written
in 1957, but the situation does not seem to have changed very much since then.
The Liberals, the Reform Party and the Progressive Conservatives have not been
organised nationally, and give virtually no assistance or direction to their
provincial organisations. This has led to the emergence of provincial parties.
In Quebec the separatist Party
Qubcois is a potent force. In Alberta
there was an extraordinary 36 year dominance by the Social Credit Party from
1935 to 1971, but the party has since virtually disappeared, winning only 0.8
per cent the vote (and no seats) in 1986. A Social Credit Party (the Socreds)
survived in British Columbia
until the 1990s, ruling that province almost continuously from 1952, but has
since almost disappeared, and since then the battle has been between the New
Democrats and the Liberals.
The Progressive Conservatives and
the Liberals contend for power in Ontario and the Maritime Provinces, though
there are special features. In Prince Edward Island,
policy differences are hard to find, for ‘each has advocated and opposed
everything, depending on whether it was the party in power or in opposition at
the time.’[16] New
Brunswick politics tend to concentrate on
personalities rather than issues. One successful Progressive Conservative
premier who had lasted for four terms was defeated in 1987 because of
allegations of a liking for drugs and parties with young boys, the Liberals
winning all 58 seats. It is difficult to make responsible government work if
there is no opposition.
The great change
in Australia
since Bagehot’s day has
been the federation of the six colonies. Australia
is one of the few countries to achieve a federation by negotiation rather than
as the result of violence. Responsible
government was adopted, although the Constitution never actually said so. As Australia
became effectively independent of the UK,
there was increasing pressure to become a republic, but this question is still
unresolved.
Federation
conferences
The first timid
step towards Australian federation was taken by the UK Parliament in 1885 when
it set up the Federal Council of Australasia. This had two representatives from
each self-governing colony and one from each crown colony, but it had no
executive powers and no revenue, and was of very limited effectiveness. A
contemporary wrote that it was little more than a debating society. Neither New
South Wales nor New
Zealand ever joined it and South
Australia was a member only from 1888 to 1890.
Perhaps it may have helped the federal idea but by 1890 it was clear that an
Australian federation would not grow from the Federal Council of Australasia.
The Council met for the last time in January 1899 and thereafter disappeared
unmourned.
In 1889 the veteran premier of New
South Wales, Sir
Henry Parkes,
proposed a national convention to devise a scheme of federal government, which
he thought ‘would necessarily follow close on the type of the dominion
government of Canada.’
Such a conference was held in Sydney
in 1891, with delegates from all six Australian colonies and observers from New
Zealand, and a draft Constitution was
produced, composed largely by Sir Samuel
Griffith. The Canadian model was
substantially modified. There was to be a House of Representatives representing
the people, and a Senate (with equal powers except over some money matters)
representing the states. The states were to have equal representation in the
Senate. Specific powers were given to the federal Parliament, some were given
concurrently to the federal and state parliaments, and all remaining powers
left to the states-the opposite to the Canadian model. There was deliberately
no mention of responsible government. Griffith
wanted the matter left open.
After success, anti-climax.
It is not necessary here to trace the events of the next few years and to try
to apportion blame between the various forces which delayed federation: the
decline of the political power of Parkes, the rise of the Labor Party, the
devastation wrought by the economic depression of the 1890s and the resentment
of the colonial parliaments at being asked to approve a constitution in whose
drafting most of them had had no hand.
Federation was recovered from the
grave, or perhaps from limbo, largely by the activities of the Australian
Natives Association[17] and the
Federation Leagues. A conference of premiers in 1895 agreed that federation was
‘the great and pressing question’. More importantly, they agreed to a procedure
that would make the convention they proposed likely to be effective. The
lessons of 1891 had not been forgotten. The convention was to consist of ten
representatives from each colony directly chosen by the electors, and they
would have the duty of framing a draft federal constitution. The convention
would then adjourn for not more than 60 days so that there would be an
opportunity for changes to the draft constitution to be proposed by interested
people. The constitution finally agreed by the convention would then be put to
the voters of each colony for acceptance or rejection by direct vote, and if
passed by three or more colonies would be sent to the Queen, with the request
that the necessary act be passed by the UK Parliament. Colonial parliaments
would not be able, by mere inaction, to stop the process after it had begun.
In a series of conventions in Adelaide,
Melbourne and Sydney
in 1897-98 the constitution, largely based on the 1891 draft, was finally
hacked out. Responsible government was extensively discussed by the
conventions. Most delegates wanted it, but some doubted whether it was
compatible with a federation and a powerful Senate. The smaller colonies were
insisting on a strong Senate, and they also wanted responsible government,
though one delegate did say that he would rather kill responsible government
than federation. It was implicit in the arguments of those fighting for the
combination of responsible government and a strong Senate that the Senate would
restrict its use of its power so as not to imperil responsible government. In
the event, there was no mention in the draft constitution of responsible
government-or a Cabinet, or a prime minister-the only clue being the provision
that a minister must be or become a member of one of the houses of Parliament.
The Constitution
What emerged was
a House of Representatives of 75 members, elected for three year terms, and
apportioned among the states on a population basis (excluding Aborigines),
though each state had to have a minimum of five MPs. The provision continues to
this day and Tasmania has always
fought against an increase in the number of Representatives, because it diminishes
Tasmanian influence. Even now, when there are 148 Representatives, Tasmania
is over-represented with five MPs.
The senators were elected on a
state-wide basis for six year terms, with half elected every three years. The
state-wide electorate was a change from the 1891 draft, by which senators were
to have been selected by state parliaments, the system generally in use at that
time in the United States of America.
State-wide elections were not universally adopted there until 1913, when the Seventeenth
Amendment to the US Constitution was ratified.
The powers of the two houses were
almost identical, except in financial matters where the Constitution provided
that appropriation and taxation bills must originate in the lower house. The
Senate, although it could reject bills for the ordinary annual services of the
government, could not amend them. It could only request that the
Representatives make amendments. It was soon established, in the First Parliament,
that the Senate could press its requests after rejection by the House of
Representatives. The distinction between requests and amendments became almost
invisible.
The Constitution was passed by
referendum in Victoria, South
Australia and Tasmania.
It also had a majority in New South Wales, but the New South Wales government
had inserted a new condition-a minimum number of affirmative votes-which was
not met. New South Wales then
used the opportunity to press for some changes to the draft Constitution, which
were considered at a special premiers’ conference in January 1899. Eight
changes were agreed, on matters such as adjusting the arrangements for solving
deadlocks between the two houses over legislation, easing the way for
Queensland to join the federation, and permitting the federal Parliament to make
financial grants to any state ‘on such terms and conditions as the parliament
thinks fit’. This last change, although it was not realised at the time, paved
the way for the financial dominance of the federal government over the states.
The referendum on the revised Constitution was passed in all states except Western
Australia, which did not put it at this time.
To be sure, there were still
difficulties. A delegation had to visit Britain
to discuss objections raised by the imperial government. After all, the Australian
Constitution was to be an act of the UK Parliament, and eyebrows were raised
there at giving the new Australian Parliament power over ‘external affairs’.
Surely this was a matter for the imperial government. They had some reason for
concern, too, for only seventeen years earlier, in 1883, Queensland had
actually annexed the eastern half of New Guinea, to forestall what it saw as
German (or possibly French) expansion in the south-west Pacific. Westminster
had first rather huffily annulled the annexation, and then agreed to accept
Papua, the south-eastern portion, as a protectorate. The Germans soon seized
the remainder of the eastern half of the island.[18] But the imperial spirit was changing,
and the British government eventually agreed to all the powers being sought,
the only significant change being over the right of appeal to the Privy Council
in certain cases. Western Australia
tried fruitlessly to induce the British government to insist that if Western
Australia entered the federation as an ‘original
state’ it should be allowed to levy its own tariffs for five years. This
proposal was resisted by the other colonies, and by a referendum in September
1900 Western Australia finally
decided to join as an original state on the terms laid down in the Constitution.
The Constitution, after enactment,
proved much more difficult to amend than its authors had expected. Unlike the
BNA Act of 1867 and the New Zealand Constitution Act of 1852, the method of amendment
was laid down in the Constitution itself. Amendments could be made only if
passed in a referendum approved by an overall majority of votes and by a
majority of votes in a majority of states (four out of six). There have been eighteen
attempts to amend the Constitution, with 42 questions being submitted to the
voters. Nearly all were to give increased power to the federal Parliament, but
only eight have been successful. The successful ones were Senate elections
(1906), state debts (1910), state borrowings (1928), social services (1946),
Aborigines (1967) and Senate casual vacancies, referendums and the retiring age
of judges (1977).
Australia
is not unique in making infrequent amendments to its Constitution. Since 1901
the US Constitution has been amended nine times compared with Australia’s
eight times. The only amendments to the US Constitution which gave increased
power to the federal government were the Sixteenth and Nineteenth Amendments,
which gave power to impose income tax, and power to enforce Prohibition. The
latter power has since been withdrawn.
As the Australian Constitution was
an act of the UK Parliament it could, in theory, have been amended by that Parliament.
Such action was never taken, though in 1916 the wartime Australian government
passed a resolution in the House of Representatives asking the UK Parliament to
extend the life of the Australian Parliament. The idea was dropped when it
became evident that the Senate would not support it. In 1933, during the Great
Depression, Western Australia
voted to secede from the federation in a referendum organised by the state
government. The federal government took no notice, and a request to the UK Parliament
was pigeon-holed by being referred to a committee of the two houses, which
(after two years) declared itself incompetent to consider the Western
Australian petition.
In fact, decisions by the High Court
have made greater changes to the Constitution than have been achieved by
referendums. The High Court has given the federal government control over
taxation, tying the states to the chariot wheels of the federal Parliament (as Prime
Minister Deakin once wrote, anonymously).
The interpretation of the external affairs power by the High Court, by which
the negotiation of an international agreement gives the federal Parliament the
necessary power to implement the agreement, even in areas which are state
powers under the Constitution, also has the potential for enormously increasing
federal power. There have been some restraints on the use of this power since
the establishment of the Joint Standing Committee on Treaties in the federal Parliament
in 1996. These matters are discussed in more detail in Chapter 4.
The unwritten understanding about
restraint in the use of Senate powers was put to the test on a few occasions.
There were successful attempts in 1974 and 1975 by the Senate to force the
government to a premature election by threatening to block supply, though in
each case the technical grounds for the election were deadlocks between the two
houses over other bills. There were similar actions by the legislative councils
of Victoria in 1947 and 1952, South
Australia in 1912 and Tasmania
in 1949. These events are discussed in more detail in Chapter 8.
The number of members of the House
of Representatives is determined by the Parliament, with a constitutional
proviso that the number of Representatives must be as nearly as practicable
twice the number of senators. An attempt in 1967 to remove this ‘nexus’ was
rejected at a referendum, despite being supported by all the major parties. The
original Parliament comprised 75 representatives and 36 senators. This was
increased to 125 representatives and 60 senators in 1949, and 148
Representatives and 76 senators in 1983. The six original states have
maintained equal numbers in the Senate. Two senators from each of the Northern
Territory and the Australian
Capital Territory were added in 1975.
Electoral
system
The voting for
the First Parliament was necessarily done under state legislation and one of
the early tasks of the new federal Parliament was to lay down its own rules.
All non-Aboriginal adults, male and female, were given the vote, after some
displays of male chauvinism. But, after all, women already had the vote in South
Australia and Western Australia
and attempts to achieve it had been made in all the other states except Queensland.
Preferential voting was introduced in 1918 and the vote was made compulsory for
non-Aborigines in 1924. The voting age was lowered to eighteen in 1973.
Although it is much used, the
description ‘compulsory voting’ is not strictly accurate. It is compulsory to
register, to attend at a polling place (or apply for a postal vote), and to
receive a ballot paper. What is written on the ballot paper is up to the voter.
Racism was evident in discussions on
Aborigines, with remarks like ‘halfwild gins living with their tribes’ being
made. The final compromise was to give Aborigines the vote in states where they
already had it, which did not include the states (Queensland,
Western Australia and South
Australia) where most of them lived. All Aborigines
were given the right to enrol in 1962, but enrolment was not made compulsory.
It was not until 1984 that the voting rights and responsibilities of Aborigines
were made the same as the rest of the community.
At normal Senate elections, each
state elected three senators (increased to five in 1949 and six in 1983). There
was an early proposal for proportional representation in the Senate, but this
was howled down as an instance of ‘new-fangled notions for which the great majority
of the people of the Commonwealth have no knowledge’, although proportional
representation was already in use in Tasmania,
for the lower house. First-past-the-post voting was rapidly adopted, to be
changed in 1919 to preferential voting. This change did nothing to stop the
radical swings in party numbers in the Senate, and sometimes overwhelming
majorities: 35 to 1 in 1919, 33 to 3
in 1934 and again in 1946 are examples. The solution finally adopted in 1949
was proportional representation, which has had the predictable result of making
the major parties evenly balanced and making it possible for minority groups to
gain Senate seats. Indeed, in the first 50 years of proportional representation
in the Senate, the government has had a majority for only twelve years, and it
seems unlikely that in the foreseeable future any government will have a Senate majority. This creates obvious
problems, and, as we shall see, opportunities.
The
Governor-General
The position of
the head of state was clarified in 1973 with the statutory declaration of Elizabeth
II as Queen of Australia.
The early appointments of governors-general were made by the UK
government, and were English or occasionally Scots. They were never Welsh or
Irish. They were rarely of the first rank, though perhaps rather better than
suggested by Hilaire Belloc:
Sir! You have disappointed us!
We had intended you to be
The next Prime Minister but three
...
But as it is! ... My language fails!
Go out and govern New South Wales!
Since the 1930s
the appointment of the Governor-General has rested with the federal government,
and the Governor-General is now always an Australian. At one time an exception
might have been made for a royal appointment, but that now seems inconceivable.
The governors-general have generally followed Bagehot’s principles, with four
notable exceptions: the refusal, in 1904, 1905 and again in 1908 of a prime
minister’s request for a dissolution after being defeated in the House, the
Governor-General believing, correctly in each case, that an alternative
government could be formed. Even more dramatic was the dismissal of Prime
Minister Whitlam in 1975, because he would
not recommend a general election when the Senate refused to pass his budget.
Australian
independence
Australia
gradually moved to an independent foreign policy, though the Statute of
Westminster was not ratified until 1942. As late as 1939 Prime
Minister Menzies could say: ‘Great
Britain is at war; as a result Australia
is at war.’ As with New Zealand,
the Second World War dramatically changed such attitudes.
The Australia Act 1986 and corresponding state and UK
Acts, passed at the request of the state and federal parliaments, removed any
residual power the UK Parliament had to make laws affecting Australia,
any residual executive power, and any remaining avenues of appeal from
Australian Courts to the Privy Council.[19]
The
republic issue
The question of Australia
becoming a republic was first publicly raised by a prime minister when Paul
Keating, who had just taken over the office
from Bob Hawke,
raised it in a speech of welcome to the Queen at a parliamentary reception in Canberra
in February 1992. Keating spoke of Australia
being ‘necessarily independent’, and his words were interpreted as giving, as Liberal leader John
Hewson put it, ‘a tilt in favour of
republicanism in front of the Queen’. Keating was of Irish descent, and had no
great regard for British
institutions.
Keating’s
proposal was for a minimal change, with the president exercising the power of
the Governor-General. He wished the prime minister to have the right to select
the president, though his selection would have to be agreed by both houses of Parliament.
In a speech to Parliament in 1995 he proposed a national referendum during the
next Parliament, aiming for a republic to be achieved by 1 January 2001, the centenary of federation.
Although he was personally opposed
to a republic, as the leader of the opposition John
Howard had to respond to Keating’s campaign.
He promised that the next coalition government would set up a convention to
consider the republic issue, and if they recommended a republic the matter
would be put to a referendum.
With the victory of the Coalition in
the 1997 election, a Constitutional Convention was held in February 1998 to
consider the question of Australia
becoming a republic. There were 152 delegates, half elected by a voluntary
national postal-ballot and the other half nominated by the government, 36 of
them non-parliamentary. The convention considered three questions: whether Australia
should become a republic; if so, which republican model should be put to the
voters; and the time frame of any change.
The convention supported, in
principle, the idea of Australia
becoming a republic. The method of election of the president they recommended
was controversial. In the proposal to be put to the voters, anyone could be
nominated for the post. The prime minister, after discussions with the leader
of the opposition, would put forward a single name to a joint sitting of the
two houses of Parliament, where it would have to be agreed by a two-thirds
majority of the joint sitting.
The powers of the president were not
defined, being left as they were for the Queen and Governor-General in the
existing Constitution. Of course these are sweeping powers, most of which the
president was not expected to use except on advice from the government.
The question of the dismissal of the
president was also the subject of debate. The Republic Advisory Committee, set
up by Prime Minister Keating, reported that they had encountered an almost
universal view that the head of state should not hold office at the prime
minister’s whim, and that he must be safe from instant dismissal to ensure
appropriate impartiality, but because of the fear that the president might use some of the enormous powers he
would have under the existing Constitution, the proposal put to the voters was
that the prime minister should be given the power of instant dismissal of the
president, the president’s position then being taken by the senior state
governor until a new president could be elected. The prime minister’s action
would have to be approved by the House of Representatives within 30 days. It
should be noted that the approval of the prime minister’s action would have
come from the House of Representatives, normally controlled by the government,
not by a joint sitting of both houses who appointed the president. Even if the
House of Representatives disagreed with the dismissal the dismissed president
could not be reappointed. He could stand for re-nomination, but it is
inconceivable that the prime minister who dismissed him would nominate him.
In all the existing republics with a
separate head of state and head of government, none gives the head of
government the power to dismiss the president.
The convention recommended a
referendum in 1999 on the proposed changes to the Constitution, and that if the
changes were accepted the republic should come into effect on 1 January 2001. Although
public-opinion polls showed that the voters were in favour of a republic by a
narrow majority,[20] this did not
necessarily mean that all the republicans wanted this republic. With the well-established difficulty in amending the
Constitution, the republican objectors believed they would be stuck with the republican
model being presented, and that it would prove impossible to amend. The main
objection was the method of selection of the president, which many republicans
thought should be by nationwide vote. Some objected to the failure to set out
clearly the powers of the new president, and others objected to the power given
to the prime minister to dismiss the president. Still others objected to the
failure to tackle the problems that had emerged with the 100 year-old Constitution,
feeling that if the opportunity was not seized when making the major transition
to a republic the chance would be lost for ever. These republican objectors,
plus the royalists and the many voters who did not understand the issues but
had the stalwart habit of voting no on such matters, were enough to reject the
proposed republic.
The referendum failed with a 54.87
per cent ‘no’ vote, losing in all six states and in one of the two territories,
the Australian Capital Territory
being the odd one out. It was interesting that there was a clear correlation
between the average education-level of voters in an electorate and the voting
for a republic in that electorate, the better the average education the higher
the ‘yes’ vote. For instance, in John Howard’s electorate the voting was strongly
‘yes’, despite the fact that Howard was opposed to the republic, while in Kim
Beazley’s electorate the voting was strongly ‘no’, despite the leader of the
opposition’s campaign in favour of the republic. Rural and regional electorates
showed little interest in Australia
becoming a republic.
It seems that the republican issue
is dead for the moment. But with the strong support in the community for a
republic, it seems certain that the issue will not lie down. When leader of the
opposition, Kim Beazley,
suggested an indicative referendum on a republic, followed by a new convention
to develop the necessary constitutional changes, a second plebiscite to
determine the preferred republican model and mode of appointment of the head of
state, and finally a constitutional referendum based on the outcome of the two
plebiscites. This might work if the convention is given plenty of time to work
out the constitutional changes, and consults frequently with the community (by
indicative referendums if necessary) to ensure the model being produced has
majority community support. After all, it took seven years and four conventions
to produce the present Constitution.
It will not be
necessary to trace the political histories of the states. All that is needed is
a sketch of the background to events which have influenced or illuminated the
development of responsible government, so that events discussed in later
chapters can be seen in perspective.
Unlike the Canadian provinces, five
of the six states have upper houses. Queensland
is the exception, and most of the time has been an excellent example of an
elective dictatorship. Tasmania
is the only one of our twenty parliaments to use proportional representation
for the lower house, which has caused inevitable instability in government.
State
constitutions
Even after the
Statute of Westminster was ratified by the Commonwealth in 1942, the Australian
states continued to be excluded from its provisions. The Colonial Laws Validity
Act and certain other UK Acts still applied to the states, and continued to do
so until the passage of the Australia Act in 1986.
Unlike the Canadian provinces, only
one of which has an entrenched written constitution-and that an incomplete
one-all six Australian states have written constitutions. In four of the six
states amendments are made by referendum, after the terms of a proposed
amendment have been agreed by the Parliament. In the other two states
amendments are totally in the hands of the Parliament.
Upper houses
At federation all
the states had two houses of parliament. Queensland
abolished its appointed upper house in 1921 by ‘swamping’ the Legislative Council
with new councillors who would vote for its abolition. Swamping was used after
the abolition proposal had been five times defeated in the Council, and a
referendum had also failed. New South Wales
also made attempts to abolish its upper house, but failed three times, in 1925,
1930 and 1959. So five of the six states still have upper houses.
The upper houses had been seen largely
as defenders of the rights of property, with legislative councillors either
appointed by the government or elected by voters with a substantial property
qualification. The property qualification for voters in upper house elections
has been abandoned in all states, South Australia
being the last to do so, in 1973. All upper houses are now elected by the same
voters who choose the lower house. New South Wales
held on for some time with an appointed upper house, only changing to an
elected model in 1933. Proportional representation was used, but even then they
would not trust the ordinary voters, preferring to have the current members of
the two houses as the electorate. It was not until 1978 that a change was made.
Now the New South Wales
Legislative Council consists of 42 members, with fourteen elected by state-wide
proportional representation at each election for the lower house.
Electoral
systems
One of the most
difficult electoral problems in all the states has been the heavy concentration
of the populations in the capital cities. In most states more than half of the
population are resident there. The country voters, who regard themselves as the
real wealth-creators, feel threatened by this city dominance, while a secondary
problem is the enormous area of some remote electorates. The improvement in
communications has reduced this second problem, and all the states except
Western Australia and Queensland now have reasonably numerically-equal
electorates for the lower house.
Queensland
is a special case. Not only does it have no upper house, but until 1992 it had
an electoral system so skewed that a vote in western Queensland
was worth four times as much as one in Brisbane.
The result was a quarter of a century of dictatorial rule by the rural-based
National Party, first in coalition with the Liberals, later on its own.
Parliament met as infrequently as possible, and was used as a rubber stamp,
denied even such fundamental scrutiny bodies as a public accounts committee.
Since 1909 Tasmania
has had proportional representation for its lower house. Until 1989 this did
not have the usual effect of giving the balance of power to minor parties and
Independents, but the rise of the environmental movement caused a change, and
there was a succession of minority governments. The Tasmanian government
proposed to reduce the total number of MPs, ostensibly for economy reasons but
really to reduce the number of minor party members and Independents in the
lower house. In November 1993 Liberal Premier Ray
Groom introduced a measure to reduce the
size of the lower house from 35 to 30 and the upper house from nineteen to
fifteen.[21] The bait for MPs was a 40 per
cent increase in their salaries. The lower house passed the bill, but the upper
house rejected the new scheme, though the members were prepared to accept the
pay rise.
After this failure, there were
several inquiries into whether the number of parliamentarians should be
reduced, and if so, how. To the surprise of many, in July 1998 Liberal Premier
Rundle, who had been heading a minority government, announced that he would
recall Parliament for a special two-day session to pass an act reducing the
number of assemblymen from 35 to 25 (that is, five from each electorate instead
of seven) and reducing the upper house from nineteen to fifteen members, to be
achieved over three years. The passage of this Act was to be followed by an
election, which was in fact eighteen months early. The Act was formally passed
by both houses, and the election results partly justified Rundle’s action. With
only five members from each electorate instead of seven, the quota of votes
required to be elected was increased from 12.5 per cent to 16.7 per cent. The
Greens (the environmental party) had held four seats, and the balance of power,
in the previous Parliament. They were reduced to one seat, and lost the balance
of power.
To dramatise the intention to
eliminate the minor parties, the cross benches were actually removed from the
lower house at the time of the election. The one Green who did manage to be
re-elected brought a folding chair into the chamber so that she would not be
obliged to sit with either government or opposition. The trouble for Liberal
Premier Rundle was that it was the Labor
Party, not his Liberals, who gained the absolute majority, with fourteen seats
out of 25.
It has not only been Tasmania
that has had minority governments in the 1990s. Four of the other five states
have had that experience, Western Australia
being the only exception. Perhaps the most interesting was Queensland.
In the July 1995 election the Goss Labor Government’s majority was reduced to
one, with 45 of the 89 seats. The Labor government was paralysed when the Court
of Disputed Returns declared that in a seat in Townsville, held by a Cabinet
minister, there had been voting irregularities and that there was to be another
election for that seat. The government lost the seat, and the situation in the
Parliament was 44 Labor, 44 Liberal-National Coalition, and one Independent.
The Independent supported the Coalition, and the government was out. The
situation was reversed after the June 1998 election, when the Labor Party won
44 of the 89 seats and formed a government with the support of an Independent
(a different member to the one who decided the issue in 1995).
State
governors
State governors
are now appointed by the Queen of Australia on the advice of state premiers,
though until the passage of the Australia Act 1986 the state governments had the
curious practice of approaching the Queen of Australia through the UK
government.
The state governors, anyway this
century, have generally followed Bagehot’s principles. There
has been only one occasion when a Governor has refused a premier’s request for
an election. This occurred in Victoria
in 1952. The upper house had blocked supply, and the Governor refused the
premier’s request for an election because supply was not secure. The leader of
the opposition was then made premier and he too was refused an election. The
original premier was then reinstated, and granted an election, supply having
been passed.
In 1926 the Governor of New South
Wales, Sir Dudley de Chair, refused the request of Premier Jack Lang for the
creation of a new batch of life members of the Legislative Council so that they
could vote to abolish it, four of a previous batch having changed their minds
after receiving life appointments. The Governor relied on his royal
instructions which included the direction that ‘if in any case he shall see
significant cause to dissent from the opinion of the [Executive] Council, he
may act ... in opposition to the opinion of the Council.’
More controversial was the 1932
decision of another Governor, Sir Philip
Game, to dismiss the same premier because ‘I
cannot possibly allow the Crown to be placed in the position of breaking the
law of the land.’ In fact, this action was the culmination of a period of
disastrous financial mismanagement by Lang, with government cheques being
dishonoured, the budget for 1931-2 still not passed by the lower house, the
government surviving through temporary supply bills, and ministers lining up at
the Treasury for their salaries because the government did not dare to use the
banks for fear the federal government would seize the funds. Game was in
frequent contact with the Dominions Office in London, but personally took the
decision to dismiss Lang. Game used the authority given in Letters Patent
issued in 1879, but still in force: ‘The governor may, so far as we ourselves
lawfully may, upon sufficient cause to him appearing, remove from his office
... any person exercising any office ... in the State.’ Game was lucky that the
opposition won the ensuing election.
State
governments
It cannot be said
that Australian state governments are generally held in high regard. At the
start of the last decade of the twentieth century a royal commission in
Queensland had recently ended, having revealed widespread corruption in the
National Party government, with three former ministers already having been
sentenced to jail, and with more former ministers (including the former
premier) awaiting trial. In Victoria
and South Australia royal
commissions had been appointed to investigate disastrous losses by state-owned
banks. In Western Australia
another royal commission was uncovering corrupt business involvement by the
state Labor government, and extortion of hefty party donations from businesses
seeking contracts with government agencies. In Tasmania
yet another royal commission was investigating an attempt to bribe a Labor MP
to change sides. It was a very depressing picture. The state parliaments
concerned had obviously been unable, or unwilling, to restrain gross abuses of
power by governments which were supposed to be responsible to them.
There was a very interesting state
election in Victoria
in 1999, which showed that the voters could respond effectively to abuses of
power. The Liberal state premier, Jeff
Kennett, had been very successful in
restoring and developing Victoria’s
economy, but he was becoming increasingly arrogant. Worse still, he was dismantling
the checks there should be on any democratic government, sharply restricting
the powers of the Auditor-General to investigate government activities. He was
narrowly defeated in the election, despite two very effective terms in office.
New Zealand
New
Zealand does not have an entrenched
constitution, for it can be amended by a vote in the House of Representatives.
It is also the only one of our four national parliaments to have abolished its
upper house. It was a world leader in the development of democratic voting
systems, and has now adopted a partly-proportional system for the election of
its MPs. There is no serious move in New Zealand
towards republicanism.
The
Constitution
The New Zealand
Constitution Act, passed by the UK Parliament in 1852, was amended in 1857 to
give the New Zealand Parliament power to amend or repeal all but 21 sections of
the Act, though any bill taking such action had to be reserved for Crown (that
is, UK
government) approval. These entrenched sections were gradually whittled away by
amending acts of the UK Parliament, until full powers of amendment, without
reservation, were given to the New Zealand Parliament in 1947.
A Constitution Act which can be
amended by a unicameral legislature by a simple majority is of course not
entrenched. There has been an attempt to entrench provisions covering such
matters as the life of parliament, the electoral redistribution provisions, the
adult franchise, and secret ballots. By an Electoral Act passed in 1956 these
important provisions cannot be repealed or amended except by a 75 per cent
majority of the House of Representatives, or by a majority of the electorate at
a referendum. Despite the Act being passed unanimously, these provisions are
not fundamentally entrenched. No parliament can bind its successor, unless it
is prepared to enact a complicated double entrenchment procedure.[22] Such entrenchment as there is comes
from fear of the wrath of voters at a subsequent election.
Before the passage of the 1956 Act,
parliament had no such inhibitions. The abolition of the provincial governments
in 1876 was probably inevitable. They were altogether too parochial, and in any
case it is unlikely that any federation will survive unless provincial rights
are effectively entrenched in the constitution. The provincial governments were
replaced by a ‘confused multitude of road boards, rabbit boards, drainage,
harbour, hospital and education boards, borough, country and city councils.’[23]
There was a slow movement towards
full responsible government in the early days. The New
Zealand government took over complete
responsibility for Maori affairs after the Maori wars, with some reluctance
because the New Zealanders did not want to pay for the wars. Foreign affairs
and overseas trade lagged far behind. There were attempts, in 1868-73, and
again at the first Colonial Conference in 1887, to give the New
Zealand government the right to negotiate
trade agreements with foreign countries, initially with the United
States. The proposals were firmly rejected by
the British government, although there was a minor concession so that tariffs
could be negotiated with the Australian colonies.
The
upper house
Originally the
members of the upper house, the Legislative Council, were appointed for life,
but this was reduced to seven years in 1891, and in 1950 the Legislative Council
was abolished, the necessary support being obtained by the usual technique of
‘swamping’. It was not clear whether the abolition was to be temporary or
permanent. ‘Let’s see how we get along’, said Prime Minister Holland.
Over the next decade there were many proposals to re-establish an upper house,
but there was no agreement on its composition or its powers. Worse still, there
was very little public interest. Attention shifted to trying to make the
unicameral system work better.
Voting
systems
There have also
been substantial changes to voting rights. The secret ballot was adopted in
1869, though not for the Maori electorates until 1937. In 1879 the term of
parliament was reduced from five to three years and the property qualifications
for voters were abolished. Nevertheless plural voting continued, for ownership
of property entitled an adult man to be placed on the electoral roll in every
electorate in which he owned property. This multiple voting-later changed to a
choice of where to vote-was finally abolished in 1893. In the same year women
were given the vote. The only women to have the vote before the New Zealanders
were those of the American State
of Wyoming, the Isle
of Man, and the tiny British colony of Pitcairn Island.
In the case of Pitcairn Island, the vote was granted in
1838 under the island’s first constitution, and the voting age for both sexes
was eighteen.
It was not until 1919 that women
were permitted to be MPs, but since then women have advanced further than in
any other country. In the year 2000 the prime minister, the leader of the
opposition, the Governor-General, the Chief Justice and the Attorney-General
were all women.
Until recently, voting has been
voluntary and first-past-the-post, and typically over 90 per cent of electors
now vote. In the elections of 1908 and 1911 there were provisions for a second
ballot where no candidate gained an absolute majority on the first ballot. But
by the 1980s New Zealanders were becoming concerned at the lack of
representation of substantial minor parties in their single house. For
instance, in 1978 the Social Credit Party won 16 per cent of the vote but only
one out of 92 seats and in 1984 the New Zealand Party won 12.3 per cent of the
vote without winning a seat. A royal commission in 1986 recommended that New
Zealand adopt the West German Additional
Member System, which it called the Mixed Member Proportional System, usually
shortened to MMP. In 1993 a referendum was narrowly carried to adopt this
system, which was first used in the 1996 election. The consequences of the
adoption of this system will be described in Chapter 3.
Foreign
policy
In foreign
affairs New Zealand
has been less innovative. The first overseas post, in London,
was opened in 1871. From the 1880s until the First World War New Zealand
pressed ineffectively for imperial federation. A loose federation it would
certainly have been, for the New Zealanders wished to retain their autonomy.
Their real aim was to have some influence on British foreign policy. The idea
of having a foreign policy of their own was not yet an option they would
consider. New Zealand
was an original member of the League of Nations, and
occasionally took an independent stand on such matters as sanctions, but
remained essentially a political satellite of Britain.
The change of New Zealand’s
title in 1907 from colony to dominion made no real difference, although New
Zealand began timidly conducting its own
foreign policy in 1935. It was not until 1942 that New Zealand opened its first
legation in a foreign country (in Washington) and an embryo Foreign Affairs
Department was set up in 1943, though negotiation of foreign commercial
treaties had started in the 1920s. The 1931 Statute of Westminster, which gave
formal independence to New Zealand,
was not ratified by the New Zealand Parliament until 1947.
Since the Second World War New Zealand
has pursued an independent but pro-Western foreign policy. New
Zealand was reluctant to join the ANZUS
Treaty with Australia
and the United States
unless Britain
also joined, and other signs of New Zealand’s
former dependence occasionally surfaced. The dramatic banning of visits by
nuclear-powered or nuclear-armed ships, which caused New
Zealand to be suspended from membership of
the ANZUS Treaty, was out of character, though it is now generally accepted in New
Zealand. As Britain
moved into the European Community New Zealand argued for
favoured treatment because of a special economic relationship with Britain.
This was successful for a time, but New Zealand
is favoured no longer, and is now facing the problem of having First-World
living standards while the exports to finance these living standards have to
come largely from primary products for which the traditional markets have
substantially disappeared.
After this brief historical
background on responsible government in our four chosen countries, it is time
to turn to a more detailed examination of how it has actually worked in modern
times, from 1970 until the end of the century. Let us look first at how these
parliaments have performed what Bagehot regarded as their
fundamental duty: choosing a government.
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