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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