The core of the executive government is the Cabinet, though in fact the Cabinet has no legal power and its existence is not mentioned in the constitutions of any of the four countries. It holds power because it is a committee, chaired by the prime minister or premier, of ministers who collectively control the party or parties which have the confidence of the lower house, and can usually be sure of the passage through that house of any legislation it wants. Constitutionally, Cabinet exercises its power through the Privy Council (called the Executive Council in Australia and New Zealand and the Canadian provinces) which does the bidding of the Cabinet. It exercises its policy and administrative power through ministers (not all of whom are necessarily in the Cabinet) who collectively control all the machinery of government administration and who must obey Cabinet decisions or lose office. Cabinets also have such specific power over legislation as Parliament grants to the Executive or Privy Council, typically covering such matters as when or whether to proclaim an act passed by the parliament, or granting power to make delegated legislation.
Cabinet has control over all government bills, which must be approved either by the full Cabinet or by a Cabinet committee delegated the necessary power. In the smaller parliaments, where party discipline and involvement tend to be tighter, the outline of a bill is usually considered by a government party committee and approved by the full parliamentary party before being introduced into the parliament. In these parliaments one might say that, as far as legislation is concerned, there is party government rather than Cabinet government.
Even when the government parliamentary party has no formal control over Cabinet actions, prudent prime ministers or premiers will always consider carefully the views of their supporters. Mrs Thatcher has said that she would have acted more decisively to cut government expenditure but for the fear of Conservative backbencher dissent.
There are other aspects of the executive government which must be considered. How many ministers should there be? How should they be selected and removed? What are their obligations? Is it desirable that they must be members of one of the houses of parliament? Can the executive government bypass the parliament in matters of defence and foreign affairs? Finally, there is the matter of the appointment of judges. There is supposed to be a separation of powers, but in fact judges are appointed by politicians.
The Privy or Executive councils, the legal source of the Cabinet’s power, are established in various ways. The Canadian Constitution Act of 1867 states that the executive government and authority of and in Canada are vested in the Queen, and delegated to the Governor-General. There is also a Privy Council for Canada, to aid and advise the Governor-General in the government of Canada. The Canadian Privy Council usually has more than a hundred members. It is not only composed of current ministers but, as Privy Councillors are appointed for life, it also includes all former Cabinet ministers. There are also some special appointments such as the provincial premiers appointed in 1967 as part of the centennial celebrations. Such a body would obviously be unworkable, so it almost never meets. The decisions of Cabinet are regarded as decisions of the Privy Council. If the Privy Council does meet-and it has met only three times since 1945-it is for ceremonial purposes. The first of the three meetings was to receive the King’s approval in 1947 of the marriage of his daughter Elizabeth, and the other two, in 1957 and 1959, were chaired by the Queen.
The Australian Constitution similarly provides that the executive power is exercised by the Governor-General as the Queen’s representative, and that there is to be a Federal Executive Council to advise the Governor-General. The Constitution further provides that the Governor-General, with the advice of the Executive Council, decides the number of government departments, appoints and removes the bureaucracy, and appoints judges to the Commonwealth courts.
New Zealand has had an Executive Council since 1841, fifteen years before responsible government. The Council was set up by the Governor using his prerogative powers. It was not mentioned in the New Zealand Constitution Act of 1852 nor, except in passing, in its modern replacement, the Constitution Act of 1986.
The Executive Councils of Australia and New Zealand are usually presided over by the Governor-General. An official deputy is appointed, always a minister. In Australia all ministers, assistant ministers and parliamentary secretaries are made members of the Executive Council, and once appointed remain members for life. In New Zealand membership is limited to those who are ‘for the time being Our responsible advisers’, that is ministers. Meetings of these Executive Councils are a formality. They are organised by the prime minister’s public servants and may, with the prior approval of the Governor-General, be held in his or her absence. The quorum is three.
The situation is even easier with the Privy Council in the United Kingdom. The Cabinet is regarded as a committee of the Privy Council, so separate meetings of that body are unnecessary. Since it is impotent as a body, membership of the Privy Council is generously bestowed. There are now more than 250 Privy Councillors, who serve during the life of the Sovereign who appoints them, and for six months after. All Cabinet ministers and all appeal judges are members. The judicial committee of the Privy Council consists of those councillors who are judges, and hears appeals from certain Courts, including Courts in the colonies. The judicial committee no longer hears appeals from Canada or Australia. The Privy Council includes some Commonwealth politicians, to whom the only benefit has been the use of the prefix ‘Right Honourable’.
Prime ministers, although technically only the chairmen of the Cabinets and first among equals, have enormous power if they choose to use it. They have to hold the various factions of their parties in balance, or at least neutralised, while at the same time trying to organise things so that the next election can be won, and possibly to move the affairs of the nation in a desirable direction. They decide who will be in the ministry, they dismiss ministers they do not want,[28] their policy decisions prevail while they maintain dominance of Cabinet, and they have enormous powers of patronage, such as honours, awards, political promotions and government appointments. Skilful selection of a particular person for a key job is a great source of prime ministerial influence on policy. The view is widely held that it was the failure of Edward Heath to use his patronage effectively that cost him the leadership of the Conservative Party.
A prime minister usually has his own department, with some expertise in all fields, and the Cabinet administrations report to him too. Whether a prime minister uses his power ruthlessly, or instead tries to be a conciliator and consensus-seeker, depends on his personality. Whatever their personal preference, no prime minister (or leader of the opposition) can escape from a presidential role during an election campaign. The media now focus on the party leaders to an extraordinary extent, and if attempts are made to bring forward other ministers or shadow ministers during election campaigns, they are usually virtually ignored, unless one of them makes a gaffe. As far as the public is concerned, the prime minister is almost the only figure in the government’s election campaign.
But a prime minister’s power is not unlimited. As Norman St John-Stevas wrote, ‘when things go well the prime minister can use his personal powers although he does not need to, when they go badly he needs to use them but they can no longer be invoked.’[29] Harold Wilson expressed it differently. ‘The prime minister’s task is to get a consensus of Cabinet’, he wrote, ‘or he cannot reasonably ask for loyalty and collective responsibility.’[30] Moreover, ministers have their own departments, with a great deal of expertise in their own fields-usually more than is available to the prime minister-and they may be getting advice which suggests that the prime minister’s wishes are unwise or unworkable. If a minister is resisting a prime minister’s wishes, the prime minister’s only weapon is to bring the matter before Cabinet or a Cabinet committee but, as St John-Stevas pointed out, it is by no means certain that the prime minister’s wishes will prevail. If that happens, the only remaining option for the prime minister, if he still wants to have his way, is removal of the minister, which may be very damaging politically. Besides, the minister’s replacement may accept the same departmental advice.
If a prime minister wishes to have a major reshuffle of the ministry, the usual method is to ask all ministers for their resignations. Reshuffles can be used to shift poor performers to less important portfolios, or to promote the better-performing ministers. In those parties where the selection of ministers is left to the prime minister, a reshuffle can be used to promote promising backbenchers, or to put unsatisfactory ministers (or ministers the prime minister finds incompatible) out to pasture on the backbench. Of course the prime minister again has to consider the likely reaction of his party. Even the strongest prime minister cannot always do exactly what he or she would wish.
Whether dictatorial or not, prime ministers have to keep the confidence of their Cabinets, because if they are disaffected the poison soon spreads to the party as a whole. The only antidote is electoral success, but if that seems to be in doubt a coup is almost certain. The manoeuvrings that removed John Gorton in Australia in 1971, David Lange in New Zealand in 1989 and Margaret Thatcher in the UK in 1990 all originated in the Cabinet. Perhaps the most dramatic error of judgement occurred in Queensland in 1987 when the National Party government was in disarray as a result of the revelations of a royal commission into corruption. Premier Bjelke-Petersen dismissed three ministers for disloyalty, but this provoked a party revolt in which Bjelke-Petersen lost the leadership. The National Party, still in disarray, lost the 1989 election.
The number of ministers is usually at the discretion of the prime minister or premier, but he operates under several constraints. The size of the ministry must be sufficient to appease the political ambitions of the government party members. There must be room, where necessary, for upper house ministers and ministers representing regions. There must be sufficient ministers to provide adequate political supervision of the bureaucracy in a world where the reach of government seems to be steadily increasing. On the other hand the ministry must not be embarrassingly large. This is a problem in tiny states or provinces such as Tasmania (population 459 659) and Prince Edward Island (population 137 800). In Tasmania, in 1990, the government party had thirteen members, of whom one was premier and eight others were ministers, and after providing a Speaker, a chairman of committees and a whip, there was only one backbencher to be whipped. A somewhat similar problem arose with the Army of Oz which, according to L. Frank Baum, had four generals, four colonels, four majors, four captains and only one private.[31]
A further constraint on a prime minister or premier is that the administrative structure of government is not easy to change. Setting up new departments is expensive, with many additional high-level bureaucrats to be provided, while reductions produce surplus bureaucrats who may have security of tenure. Reorganisation of the existing structure of departments tends to be slow and cumbersome, with a plethora of inter-departmental committees to resolve demarcation disputes. Finally, an incoming prime minister or premier may have to take into account election promises made about the structure of government. The result of the pressures is that the size of the ministry has been steadily increasing in all of the four countries we are considering. In sixteen of the twenty parliaments, all ministers are members of the Cabinet. In the four national parliaments the sheer number of ministers is felt to make this impractical, for a Cabinet of more than twenty or so members is clumsy and inefficient, though Canada put up with this until recently, and Australia did for three years when Whitlam was prime minister.
United Kingdom
In 1901 there were twenty ministers in the UK Cabinet, and 27 other ministers not in the Cabinet. Nearly half the ministers, including the prime minister, were peers. By 1946 the number of ministers was 67, though now less than a quarter were peers, and by 2000 the ministry had grown to 87, including only fourteen peers, all non-hereditary. Over the years, except in the special circumstances of the two World Wars, the size of the Cabinet has remained relatively stable, ranging between eighteen and 22.
In the Blair Government the 22 Cabinet ministers are mostly designated as secretaries of state, though there are exceptions-the Chancellor of the Exchequer, Lord Chancellor, President of the Council, Lord Privy Seal, Chancellor of the Duchy of Lancaster, Parliamentary Secretary to the Treasury (chief whip) and Chief Secretary to the Treasury, and there is also one minister. Two of the Cabinet ministers are peers, although neither is hereditary.
The great ministerial growth has been in the number of non-Cabinet ministers, usually described either as ministers of state or parliamentary under secretaries of state. The dilemma is that effective administration not only requires that the size of Cabinet be restrained but also that all major areas of government administration be represented there. In the UK, non-Cabinet ministers may attend Cabinet when business specifically concerning their departments is concerned, but that is not the same as having an influence on general policy. There were attempts to solve this problem by making a Cabinet minister responsible for several ministers outside the Cabinet, but there were difficulties over which minister was responsible to the Commons, and doubts about whether the Cabinet ministers concerned would have the necessary information to do their jobs effectively.
Such an ‘overlord’ system was introduced by Winston Churchill in 1951, but it was not liked by the Commons, particularly as all three overlords were peers. It lapsed in 1953. An informal system of co-ordination of non-Cabinet ministers by selected Cabinet ministers worked rather better, but the eventual answer was to create monster departments, each under a Cabinet minister, who may have the assistance of as many as four ministers of state, and one or more parliamentary under secretaries. With such large organisations there must be mini-Cabinet meetings of the ministers concerned, and the usefulness of a minister of state depends on the extent to which the Commons and other outside interests are prepared to accept a junior minister rather than insisting on dealing only with the Cabinet minister.
In 1901 there were seventeen ministers in the Canadian Cabinet, with three other ministers not in the Cabinet. The number of ministers had not increased by 1946, but rose steadily after that, reaching 39 by the 1990s, all in the Cabinet. Prime Minister Mulroney made some attempt to stem the flood, reducing the number to 35 in 1993, and his successor, Kim Campbell, made even bigger changes later in the same year (with an election pending) reducing the number of ministers to 25. The Liberals overwhelmingly won the election in October 1993, and the new prime minister, Jean Chrtien, took the radical step of adopting the ministerial system widely used elsewhere, with 22 ministers in Cabinet and eight secretaries of state who were part of the ministry, but not members of Cabinet. But even Chrtien could not hold the numbers down, and two years later they had increased to 25 Cabinet ministers and nine secretaries of state. Canada also uses parliamentary secretaries extensively, there normally being about 30 of them, and the prime minister rotates these positions among the backbenchers in order to give them a chance to show their quality. parliamentary secretaries may respond during question time, and may sometimes attend meetings of Cabinet committees.
In the first Australian Federal Parliament in 1901 there were seven ministers (intended to be one from each state, plus a prime minister) as provided in the Constitution. The Parliament has to authorise any increase, but has never made any real difficulty, though sometimes the prime minister has been reluctant to ask. When Alfred Deakin was prime minister in 1909 he had seven colleagues in a coalition ministry, so he did not hold a ministry himself. As prime ministerhe survived on a backbencher’s pay supplemented by voluntary contributions from other ministers (and on the salary he received as the anonymous Australian correspondent for the London Morning Post). Not all prime ministers have been so modest, and the number of ministers rose to nineteen in 1946 and 29 in 2000. There were also twelve parliamentary secretaries in the latter year. The number of ministers, as a proportion of the membership of the House of Representatives, has doubled since the First Parliament.
Since 1956 there has been a Cabinet of between eleven and eighteen members, except for the Whitlam years of 1972 to 1975, when all 27 ministers were in the Cabinet. A massive and rather clumsy reorganisation in 1987 reduced the number of government departments from 28 to eighteen, of which sixteen were major departments and the other two were minor ones, retained for political reasons. (One of the minor ministries is Veterans’ Affairs. Logically it should be part of Social Security, but the veterans would be deeply offended.) In the 2000 Howard ministry all the seventeen ministers responsible for major departments are in the Cabinet, and they are assisted by junior ministers, outside the Cabinet, who are responsible for designated areas of their responsibility. For instance, the Minister for Communications, Information Technology and the Arts (a Cabinet minister) is assisted by the Minister for the Arts. These junior ministers are accountable within their specific responsibilities, and answer questions on them. There are also twelve parliamentary secretaries, eleven of them assigned to Cabinet ministers. The other one is parliamentary secretary to the Cabinet.
Australia has had the smallest ministry of modern times. After Labor won the December 1972 election, there was a delay in announcing the final result while late votes were counted and preferences distributed, so there could be no immediate meeting of the Parliamentary Labor Party. In the meantime Gough Whitlam and his deputy Lance Barnard were sworn in as a two-man ministry, sharing 27 portfolios. This is not however the smallest recorded ministry. After King William IV dismissed Lord Melbourne in 1834, the Duke of Wellington formed a one-man ministry which lasted for three weeks until Peel, the prime minister-designate, returned from a Continental holiday.
New Zealand has followed the same pattern as the other national parliaments. Eight ministers in 1901, thirteen in 1946 and 25 in 1999. New Zealand has also adopted the idea of a Cabinet (twenty members after the 1999 election) with five additional ministersoutside the Cabinet, as well as one parliamentary under secretary.
The selection of the ministry is normally in the hands of the prime minister or premier, but here again he operates under constraints. If the government is a coalition-as all the non-Labor governments have been in federal Australia since the Second World War, for instance-there will have to be negotiations to decide how many ministers the junior coalition partner will provide, and what ministries are to be available to it. The leader of the junior coalition partner will usuallyinsist on deciding which members of his or her party will be ministers.
Of course prime ministers and premiers will be looking to select as ministers those with the most ability or promise, but they must reward their close supporters, for otherwise these people are liable to become their bitterest enemies. They must also recognise that their party will inevitably be divided into factions, whether formal or not, and it may not be wise to exclude a faction from the ministry, for it may create frustration and divisiveness. They must also consider whether their rivals are better kept in the Cabinet, where their disruptive activities may be constrained by the discipline of Cabinet solidarity, or given the freedom of the backbenches. The problem was well illustrated by an alleged remark of President Lyndon Johnson, who had a rather earthy turn of phrase. He was asked why he did not dismiss the head of the FBI, J. Edgar Hoover. ‘I would much rather have that man inside my tent,’ replied Johnson, ‘pissing out, than outside pissing in.’
In the Canadian and Australian federations prime ministers must try to see that all states or provinces are represented, for otherwise there will be strong local reactions. They must also see that there are sufficient women in the ministry, or there will be criticism from women’s groups. Fortunately the increasing number of highly talented women in the various parliaments makes it likely they will get there on merit rather than as mere tokenism. Finally, in nearly all of the bicameral parliaments a prime minister or premier must select sufficient ministers from the upper house, for most of the surviving upper houses have successfully maintained that there must be enough ministers in those houses to reward the political efforts of their members, to increase the pool of available ministerial talent, to answer questions and to handle government legislation. Whether these reasons are still valid will be discussed later.
A prime minister may of course consult anyone he chooses. The deputy prime minister would normally be consulted, though not perhaps when Mrs Thatcher was the prime minister and Sir Geoffrey Howe her deputy. In the United Kingdom, but not in the other countries, the chief whip has an influence, particularly on the selection of junior ministers. Then there may be important support-groups outside the Parliament who have favourites.
It is all very delicate and complex and, despite the enormous power and patronage it gives to prime ministers, some of them must look with envy at parliaments where the government party does the job itself. Although the leaders would have to live with the results, they might think that at least they would be spared the trouble, and the blame. There are eight parliaments in which one or both of the major parliamentary parties elects its ministry. These parliaments are the New Zealand House of Representatives and the seven parliaments in Australia-the federal Parliament and those of the six states. In most of them the Parliamentary Labour (or Labor) Party elects the ministry by exhaustive ballot, but in Canberra and in some of the states there are formal factions.
In Canberra, for instance, the 1990 Labor election victory resulted in the 110 Labor MPs and senators being split four ways-48 right-wing faction, 31 left-wing, 21 centre-left and ten unaligned. No faction had a majority, which created opportunities for some complex deals. The first task for the faction leaders after a winning election is to divide the ministerial spoils between the factions, and then put forward their nominations for the places. There may be some negotiation with the prime minister at this stage, if the balance of the ministry is wrong: too few senators, perhaps, or not enough women, or no one from a particular state. The faction leaders sometimes agree to let a non-aligned member in, but they certainly have more difficulty in gaining preferment. There may also be problems if there is an imbalance of talent between the factions. One right-wing backbencher said that as far as he could see the only way he could be made a minister was either to join the left-wing faction or to become a woman, and he was so keen to become a minister he was seriously considering the surgical operation. He later became a minister, still a right-winger.
The results of the negotiations between the faction leaders are rubber-stamped by the Parliamentary Labor Party, the Caucus. After the surprise Labor win in the 1993 election, the Caucus effectively gave Prime Minister Keating the power to choose his own ministry. Parliamentary secretaries are chosen by the prime minister.
When in opposition in the UK the Parliamentary Labour Party elects eighteen members of the Shadow Cabinet, and participates in the election of the Leader. At least four of the elected candidates must be women. The nineteen elected members of the Shadow Cabinet must, under the rules of the parliamentary party, form the basis of an incoming Labour Cabinet, provided they have retained their seats at the General Election, but otherwise ministers are chosen by the prime minister.
In Canada there is a long tradition of having ‘regional’ ministers, though what makes a region is not clearly defined. Sometimes it has meant a province, sometimes a group of provinces-the prairies or the Atlantic, for instance-and sometimes just part of a province such as Ontario or Quebec. The ministers have a portfolio responsibility, the regional responsibility being informal but sometimes very effective. In the past regional ministers have, at different times, been responsible in their regions for dispensing patronage, for the party organisations, and for influencing government expenditure and departmental programs. The Quebec regional minister (the Quebec lieutenant as he is usually called) is particularly important. In recent years in both the Liberal and Conservative governments the regional ministers have become the dominant members of the provincial caucuses, the party meetings of the MPs from each province. In addition to fighting for the interests of his region, both within Cabinet and directly with departments, a regional minister is expected to explain federal decisions to his region and to try to soothe any complaints.
Of course sometimes prime ministers or premiers look beyond their own party or established coalition. If a major party is in a minority but is trying to form a government, the offer of a ministry to a minor party may be an effective bait. Sometimes it can be used to induce a defection. In Queensland the National and Liberal parties had long been in coalition in government, but the coalition broke up just before the 1983 election, at which the National Party won 38.9 per cent of the vote and half of the 82 seats. The National Party premier, Sir Joh Bjelke-Petersen, offered two Liberal ex-ministers a return to the ministry if they would join the National Party. They did, and Bjelke-Petersen had his majority. (Both the Liberal renegades later went to jail for misuse of their ministerial allowances.)
There was a somewhat similar event in Newfoundland in 1971. After the election a coalition of Conservatives and the New Labrador party commanded 22 votes in the 42-member Assembly. Fifteen coalition members were made ministers and one was made Speaker, but two of the six members excluded from office deserted the coalition and joined the opposition Liberals, giving them a majority and themselves ministries.
In the early days of a hung parliament, it is usually fairly easy for a minority government to reach some sort of accommodation with those holding the balance of power, for a very early election would focus attention on the major parties at the expense of the minor parties and Independents, who would tend to be blamed for the instability. As time passes, this fear declines.
In all the parliaments, no matter what the method of selection of the ministry, the prime ministers or premiers allocate the portfolios. They may of course consult, they may have inner circles, and they may be under various pressures, but ultimately the decisions are theirs. The only ministerial post traditionally requiring a professional qualification is that of Attorney-General, who usually has to be a qualified lawyer, though this rule has been sometimes broken in the states and provinces. When the first Labor government was formed in the Australian Parliament in 1904 there were no lawyers in the Parliamentary Labor Party, so one was borrowed from the Liberals to be Attorney-General. In New Zealand, Labour Prime Minister George Forbes, who had no legal qualifications, doubled as Attorney-General between 1933 and 1935. There is no shortage of lawyers in the major political parties these days.
A minister must be a member of one of the houses of parliament. In the UK there is no legal requirement that a minister should be in either the Lords or Commons, but current political reality makes it inconceivable that any minister could long remain outside Parliament. Besides, a British prime minister has had a life peerage in his gift.
In Canada, and in the provinces, there is no constitutional requirement for a minister to be or become a member of one of the houses, but it is felt to be a political necessity. There have been 75 instances in Ottawa when ministers were appointed who were not at the time members of either house. Four subsequently became members of the Senate and the remainder stood for the House of Commons. Not all were successful. General A.G.L. McNaughton was Minister of National Defence for nine months in 1954-55, and stood for election twice, losing both times. He then resigned as a minister. The Canadian prime minister has the useful weapon of usually being able to create a vacancy by offering a compliant government party MP in a safe seat the chance to become a senator, but supposedly safe seats are sometimes lost in by-elections.
In Australia the Constitution provides that no minister of state can hold office for more than three months without being or becoming a senator or member of the House of Representatives. In the states of South Australia, Tasmania and Victoria the constitutions provide that ministers must be members of one of the houses. There is no formal requirement in the other states, except in Western Australia, where there must be at least one minister in the upper house.
The New Zealand Constitution Act of 1986 provides that no one can be appointed a minister or member of the Executive Council unless that person is a member of Parliament, but there is provision for someone to be appointed as a minister if that person was a candidate at the general election, and the minister is then given 40 days to become an MP. The reason for these arrangements is that the writs may not be returned for two weeks after an election and until the writs are returned there are no MPs. The Act also provides that ministers must vacate office within 21 days of ceasing to be MPs.
It should be noted that the requirement that a minister must be a member of one of the houses of parliament does not apply in many of the other countries which have responsible government but not the Westminster system. In the Netherlands, for instance, usually between a third and a half of the ministers are appointed from the Parliament, the remainder being specialists in the work of the ministry to which they are appointed, often civil servants or university professors. The prime minister is traditionally chosen from the parliamentarians, though there is no constitutional requirement for this to be so. The ministers answer questions and speak to their bills in both houses of Parliament, though they may not vote or move motions in either house. This widening of the ministerial pool is a very sensible arrangement which should be seriously considered by other countries with responsible government.
Looking at the European Union countries, the ministers who are chosen from the parliaments in the Netherlands, Sweden and Luxembourg must resign from the Parliament on appointment as a minister. This is workable in parliaments which use proportional representation, but in countries which use single member constituencies the by-elections could be very embarrassing for a newly-installed government, and might even cost its majority in the lower house.
Although there is no constitutional provision in the UK, Canada or Australia to prevent a prime minister being in the upper house, it is now inconceivable. Prime ministers in the House of Lords were common in the nineteenth century, and upper house prime ministers were not unknown in Canada and New Zealand. The last prime minister to be in the House of Lords was Lord Salisbury, who retired in 1902. There was some thought that Lord Curzon might become prime minister in 1923, but King George V chose Stanley Baldwin instead. As late as 1940 Lord Halifax was seen by some as an alternative to Winston Churchill. That era is now past, although since 1963 hereditary peers have been able to renounce their titles and status for life, and to stand for the House of Commons. Lord Home used this avenue to become prime minister in 1963.
Australia is a curious exception to the rule that a prime minister must be in the lower house, though only in a minor way. When Prime Minister Holt was drowned in December 1967, the Liberal Party chose Senator Gorton as its new leader, and therefore automatically Prime Minister. Gorton’s selection was possible because the death of Holt created a vacancy in a safe Liberal seat in the House of Representatives. Gorton was prime minister as a senator for three weeks until he resigned to contest the by-election. Parliament did not meet during this period.
The only other upper house prime minister this century was in New Zealand in 1925, but he lasted for only sixteen days.
One would have thought that it was also well established that the principal economic and finance minister, variously called the Chancellor of the Exchequer, Finance Minister or Treasurer, must be in the lower house, because in all the parliaments it is in the lower house that financial legislation must be initiated. New South Wales has broken this rule, and under the Carr Labor Government the Treasurer is in the upper house, an institution he affects to despise.
One method prime ministers may use to tighten their control of Cabinet is to set up formal Cabinet committees, and to chair such of them as they choose. Margaret Thatcher was not a great believer in formal committees, and often took key decisions after consultation with a small group of ‘true believers’, and their decision was imposed on the Cabinet or Cabinet committees. A Cabinet colleague, Francis Pym, records a typical event:
The 1981 budget was rigidly deflationary and thus highly controversial at a time of deep recession, yet the strategy behind it was never discussed in Cabinet and was only revealed to the full Cabinet on budget day itself. One can guess the reason: the Chancellor and the prime minister concluded that the Cabinet might well insist on some changes. But that is why the Cabinet exists-to make collective decisions on important issues that face individual Departments, and thus affect the government as a whole. Collective responsibility is based on collective decision-making. Margaret Thatcher is not the first prime minister to circumvent her colleagues, nor will she be the last, but this habit is not the sign of a happy or healthy government.[32]
Such concealment of the details of the budget from most of the Cabinet until the last possible moment is practised in virtually all the parliaments, though ministers are usually involved in earlier steps-the review of proposed expenditure being the most important one-which contribute to the preparation of the budget. budget secrecy is far from new. It is claimed that it began when Gladstone was Chancellor of the Exchequer under Palmerston. The two were always quarrelling, and Gladstone held his budgets back until the last moment so as to prevent Palmerston from persuading the Cabinet to alter them.
Under Blair, in 2000, there were eighteen Cabinet committees and thirteen sub-committees. These committees are a useful way of involving non-Cabinet ministers in the government administration, but it is important for the prime minister to keep in touch with what they are doing in key areas. Prime Minister Blair chaired no less than six of these committees, those on health performance and expenditure, constitutional reform, defence and overseas policy, Northern Ireland, the intelligence services, and the liaison consultative committee with the Liberal Democratic Party.
Until the 1993 election, won by the Liberals, all the Canadian ministers were in the Cabinet, which had 39 members under the Mulroney Government, far too many for efficient decision-making. Cabinet meetings were no more than broad political discussions, and there had to be a smaller group to supervise the administration. This was the 24-member priorities and planning committee which was the equivalent of the Cabinets in the other national parliaments. There were also two small, powerful committees for ‘operations’ and ‘expenditure review’.
With the smaller Cabinets now being used in Canada, it is appropriate for there to be a number of committees responsible to Cabinet rather than taking over its role. In the 1997 Liberal government there are four such committees, on Economic Union, Social Union, Special Committee of Council, and Treasury Board. None are chaired by the prime minister.
If a minister is unavailable, the head of his department may attend a Cabinet committee in his place. These public servants have the unusual but perhaps appropriate title of deputy minister.
In the 1998 Howard Coalition Government in Australia there were five Cabinet committees. In a press statement, Howard said that he had decided to make more use of the committee process for matters that did not need to come to the full Cabinet other than for final endorsement. He said he had also formed a General Administrative committee to free up Cabinet meetings for major policy decisions.[33]
Three of the committees were to be chaired by the prime minister-the National Security committee, the Expenditure Review committee and the Employment and Infrastructure committee. The two committees which the prime minister permitted others to chair were the Parliamentary Business committee and the General Administrative committee.
In New Zealand under the 1999 Labour government there were nine Cabinet committees and four ad hoc ones. The prime minister chaired the policy committee, the committee on ‘closing the gaps’ and the appointments and honours committee, as well as the ad hoc committee on intelligence and security.
Although the Cabinet can make the broad policy decisions when necessary, the detailed supervision of administration has to be left to the responsible ministers. The actual administration is in the hands of public servants (civil servants in the UK) who are generally politically neutral in all the countries we are considering, though of course they have their traditions and their prejudices. As Sir Kenneth Wheare put it: ‘what is really meant, perhaps, by saying that the official is not a party man is that he is not a one party man ... he offers his best services to the party in power, to the government of any party.’[34] Nevertheless the top appointments are in the hands of the minister, in consultation with the prime minister for important or controversial ones. There is sometimes a tendency to appoint individuals, possibly outsiders, who are thought to be sympathetic to the government’s objectives. This feeling is particularly strong if an incoming government has spent a long time in opposition.
An alternative approach, sometimes used in tandem, is for ministers to appoint policy-makers to their personal staffs. Unfortunately, after a party has spent a prolonged period in opposition, such individuals tend to be zealots often with no experience or understanding of public administration. The disastrous administrative experiences in Australia of the Whitlam Labor Government, which gained office in 1972 after the Labor Party had been 23 years in opposition, are a fascinating case study.
Although the loyalty of public servants to their (temporary) political masters is rarely in question, there is no doubt that their primary loyalty is to their own service. In the career of a public servant, the senior public servant in a department is much more important to his juniors than is the minister. Departments usually have their own traditions and their own agenda, and their assessment of a minister is largely based on how successful the minister is in implementing their agenda, and obtaining the necessary funds from Cabinet. Their agenda will always include increased power for the department, and almost never the reduction of staff or the shedding of responsibilities. If the minister has his own priorities, his ideas will be loyally investigated, but there is nothing so slow moving as a public servant who thinks the minister is making a mistake. One reforming minister in the UK claimed that ‘the greatest danger for a radical minister is to get too much going in his department. Because, you see, departments are resistant, departments know they last and you don’t.’[35]
One way of circumventing public service delays, and at the same time reducing effective accountability to parliament, is to set up non-departmental agencies. These are used for many purposes: quasi-judicial functions, such as conciliation and arbitration of industrial disputes, adjudication of disputes arising out of departmental administration or disputes over human rights and so on; policy advice; scientific and cultural activities; and business enterprises, known by many names, such as nationalised industries and crown corporations. They are usually statutory bodies-set up by an act of parliament-whereas government departments are established by order of the Privy or Executive Council. From the point of view of ministerial responsibility to parliament it would be preferable to keep all the agencies within the departmental structure, but the desire to remove some activities from direct political control has led to the proliferation of non-departmental agencies. There is an extraordinary range of statutory authorities. They have even been found inside departments, and departmental public servants have been statutory authorities. The level of official ministerial control is laid down in the relevant act, and may range from the right to give general directions or to give directions only in certain specified matters, to no mention of the matter in the act, or a specific prohibition in the act against any ministerial intervention. Nevertheless the minister retains the power of appointment and replacement (subject to the act) and weak managements are sometimes unnecessarily compliant with ministerial wishes. Agencies know where their funding comes from, and may tend to pursue ministerial enemies while neglecting the transgressions of ministerial friends.
Parliamentary control is patchy. Some non-departmental agencies are not even required by their Act to report to parliament, and a substantial number of government bodies are neither departments nor statutory authorities. As Professor Sawer put it:
legislatures are free to make whatever provision they choose in statutes establishing and regulating quangos, even to engaging in low comedy like that of the Queensland parliament, which created a ‘Fish Board’ of four members and declared it to be a ‘Corporation Sole’.[36]
Parliament does have the power to demand that any directions given by the minister should be tabled in the parliament, and to question the agency through the minister. If the agency receives public funds, questions may be asked during estimates debates and possibly by the Public Accounts Committee. Select or standing committees may investigate its activities, or the opposition may raise its problems during debates. But such supervision is sporadic, and unless there has been a widely publicised administrative fiasco the minister can usually head off any serious investigation, with the support of the government party. In general, these non-departmental agencies are a great source of unsupervised executive power.
Governments sometimes acquire shares in public companies, usually all shares, sometimes just a controlling majority. In 1989 the Australian Senate Standing Committee on Finance and Public Administration identified 208 government controlled companies, 55 associated companies, and Commonwealth involvement in 58 companies limited by guarantee and 67 incorporated associations. Even then, the committee was not sure that it had identified all the companies in which the government had an interest.
Ministers have substantial power and patronage at their disposal in making appointments to the boards of such companies, but their power of direction is limited by the responsibility of the board under company law. A special case sometimes occurs when a government business is privatised. Although the government must keep out of the day-to-day running of the privatised company-otherwise the privatisation would be a farce-circumstances may well arise when its behaviour needs to be controlled in the interests of the community, such as when a strategic asset seems likely to fall under foreign ownership or control, or when a company is contemplating a change of direction which would have damaging social consequences. A technique which has been used is for the government to retain a ‘golden share’, whose terms of issue are set out either in special legislation or in the company’s articles of association. Typical examples, from United Kingdom and New Zealand experience, are the right to determine the policy of the corporation, and the right to veto changes to the articles of association. The power to use the golden share rests with the government. parliament is not consulted.
Defence and Foreign Affairs are two important areas in which parliament has tamely acquiesced in the Cabinet continuing to exercise powers which traditionally were held by the sovereign and Privy Council, but which the development of responsible government should have rendered obsolete.
Defence
There can be little doubt that the decision to declare war, or to order military forces to start fighting, is the most serious a nation can take. Yet the decision is made by the Executive. Except in Canada, there is no statutory need for the approval of the legislature. Sometimes, but by no means always, the legislature is asked to approve the decision, but this is often after substantial military risks have been taken, and funds committed far in excess of those voted by parliament.
The Gulf War is a good example. Iraq occupied Kuwait on 2 August 1990 and the UN Security Council promptly imposed sanctions on Iraq, and later authorised the use of force to implement the sanctions. Britain sent ground, air and naval forces in support of both objectives, and Mrs Thatcher refused to rule out the use of defensive force even if not authorised by the Security Council. The House of Commons was in summer recess, and it was more than a month before the House met to consider the matter. This meeting was not initiated by the government, but was held at the request of the leader of the opposition. The actions of the government were then overwhelmingly supported. In late November the Security Council authorised the use of ‘all necessary means’ to force Iraq to withdraw from Kuwait if it had nor done so by 15 January, and this was debated by the House twelve days later. The government was again overwhelmingly supported, as it was in a further debate of 15 January, the day hostilities began. (All three votes were technically on motions to adjourn the House, but no one was in any doubt about the real issue.)
Australia made the decision in August 1990 to commit three ships to the Gulf blockading force, in advance of the UN Security Council decision. The decision to commit the naval force was not even made by the Cabinet, it was made by the prime minister and a few of his Cabinet colleagues. These ships were engaged in blockade duties almost immediately, and in active war operations from 15 January. On 21 and 22 January Parliament debated the issue, and each house passed a resolution in favour of the commitment-a week after the fighting started, though the commencement date had been known for more than six weeks. The Parliament would not have been recalled even then but for the fact that the procedures of the Senate allow for its recall at the request of a majority of senators, and this had been done. Prime Minister Hawke, not prepared to have the Senate get all the publicity, recalled the House of Representatives too.
Of course a parliament has other methods of disciplining a government which is fighting an unwanted war. The lower house could dismiss the government, or the parliament could refuse to pass the necessary appropriations or reject bills or regulations concerned with the war. Party discipline would prevent the former, and although the House of Lords and the Canadian and Australian Senates could obstruct any legislative actions of the government it is inconceivable that they would do so in such circumstances, for the victims would be the country’s servicemen on active duty, obeying government orders.
It is certainly true that parliament can have no useful role in the control of military operations. This is best left to a small group, whether called a War Cabinet or not, and the prime minister must be its leader. The Falklands campaign was a superb example of such a system working well. But although parliament must not attempt to interfere in the detailed direction of military operations, it must insist that an executive government which is responsible to it must seek its approval before committing the nation to war or putting its armed services in a position where involvement in war is likely. Of course if a surprise attack is launched, a Pearl Harbor for example, the government would have to take the necessary action, but it must also seek parliamentary approval as soon as practicable. If this is not done, responsible government is meaningless.
Canada is the only one of the four countries to have taken the appropriate steps. The National Defence Act authorises the government to commit the armed forces to active service, and provides that parliament must meet within ten days of this power being exercised. The Emergencies Act provides that the declaration of an emergency (a crisis in public welfare or in law and order, or war) is effective the day it is issued, but a motion to confirm the declaration must be introduced into each house within seven sitting days, and there are provisions on the length of the emergency, and provisions that all orders and regulations made under the Act must be introduced into each house within two days of being issued.
In the case of the Gulf War, the government moved a motion in the House of Commons on 24 September 1990, condemning the Iraqi invasion of Kuwait and supporting the UN measures against it. On 27 November the House of Commons voted to support armed intervention by UN forces, to which Canada had made a contribution. On 15 January 1991, the day the ultimatum to Iraq expired, the House of Commons was recalled to debate a government motion reaffirming support for armed intervention by the UN force. The Parliament was thus involved, and gave its prompt approval to every step taken by the government.
Foreign Affairs
The executive government must be responsible for the day-to-day conduct of foreign affairs, but the parliament must be involved if the government enters into long-term international commitments; this involvement must include the negotiation of the treaty, with the states or provinces involved if their rights would be affected, as well as the final ratification of the treaty. There are an increasing number of these international commitments, on issues such as the International Labour Organisation and the United Nations conventions on human rights, environmental standards, and trade. Certainly the government must negotiate and approve the signing of international treaties, but there is no reason, in administration or logic, why the parliament should not be involved in the negotiation of treaties and why the ratification of such treaties should not be made by the parliament rather than the government. This is not done in any of the four countries. Parliament will of course have to pass any legislation which is necessary to implement treaties, but treaties often give substantial power or responsibilities to the government without any necessity for legislation.
The Australian High Court has held that as long as there is a bona fide treaty the federal Parliament has the legislative power to implement that treaty, regardless of the effect on the powers of the states. Moreover, it used to be held that a treaty does not have any local effect until it is incorporated by statute, but treaties are having an increasing effect on the interpretation of local law. In Australia, for instance, the courts assume that the Parliament will intend to act in accordance with Australia’s obligations under international law when it enacts legislation. In the famous Teoh case in 1995 the High Court held that ratification of a treaty gave rise to the ‘legitimate expectation’ that the government would act consistently with the terms of the treaty even if those terms had not been legislated into Australian domestic law.
To avoid this confusion, action should be taken as a matter of course to pass an Act to bring the wording of a ratified treaty on such matters as human rights into Australian domestic law. If Australia is not prepared to accept the obligations of such a treaty it should not be ratified in the first place, or if it has been ratified Australia should withdraw its ratification, or at the least declare some reservations.
By no means all international agreements are ‘treaties’ subject to ratification. It only applies when a formal requirement for it is written into the treaty. This is normally done when a treaty has significant political content or when national legislation would be needed to implement it.
In the UK new treaties subject to ratification ‘lie upon the Table’ in each house for 21 days before ratification, though the government has the discretion to waive this rule if it thinks this desirable. This ‘Ponsonby’ rule began in 1924, was then abandoned but restored in 1929, and since 1997 explanatory memoranda have accompanied all treaties that are laid before the Parliament. The explanatory memorandum describes the contents of the treaty, and then goes on to list the arguments for and against the UK becoming party to it.
Ponsonby’s 1924 announcement included the undertaking that ‘if there is a formal demand for discussion forwarded through the usual channels from the opposition or any other party, time will be found for the discussion of the treaty in question.’ If the opposition front bench does not make such a request, a backbencher may be able to secure a debate in private members’ time. As a result of these provisions, some controversial treaties are debated, but many are not, and in any case the decision on ratification remains with the government, not the Parliament. Some treaties have an express requirement for parliamentary approval, and these of course cannot be ratified by the government without such approval, but such treaties are rare.
In Canada the provinces are actively involved with the federal government in treaty negotiation because, under the Canadian Constitution, the provinces have powers with which the federal government cannot interfere. If a proposed international treaty deals with such a matter, a provincial official or minister may head the negotiating delegation. The federal Parliament has no formal rights in treaty negotiation or ratification, but the practice has developed for the government to move resolutions in each house to seek approval for ratification of the most important treaties. Sometimes the resolution includes referral to a committee and a report from it before the vote on ratification is taken. The committees most likely to be involved are the Standing Committee on External Affairs and International Trade and the Standing Committee on Aboriginal Affairs and Northern Development. Committees may also be consulted by a minister during the negotiating phase. The decisions on ratification, and whether the Parliament should be consulted at any stage, still rest with the government.
It is also accepted in Canada that the provinces are able to enter into international agreements of less than treaty status, usually cultural agreements. Quebec has entered into several agreements with France, and the Canadian provinces which border the US may enter into cultural agreements with their neighbouring states.
In Australia, Prime Minister Menzies announced in 1961 that the government would present to both houses the texts of treaties which had been signed, or to which accession was contemplated, but this promise began to lapse by the late 1970s. Until that time the approval of the federal Parliament was normally sought for the ratification of treaties when federal legislation would be needed to implement them, but this too began to lapse. Treaties began to be tabled in bulk every six months, including many which had already been signed or ratified. The government began to view the negotiation and ratification of treaties to be purely an executive function, an attitude which was clearly expressed by the Labor Minister for Foreign Affairs and Trade, Senator Evans, who said in 1994 that ‘tabling treaties is not intended to be an exercise in ascertaining Parliament’s views about whether or not Australia should become a party.’
In 1996 the new coalition government went some of the way to solving the problem, by setting up a Joint Standing Committee (one with members from each house) to consider the possible effects of all treaties on state, territory and federal laws, and the method of implementing the treaties. Treaties must be tabled in Parliament at least fifteen sitting days before the government takes action, except in cases of urgency. Fifteen sitting days means an elapsed time of between one and three months, and the government has agreed that the fifteen sitting days could probably be increased if really necessary. Each treaty must be accompanied by a ‘National Interest Analysis’, which is similar to an explanatory memorandum, and describes the impact on Australian citizens, the cost of implementing the treaty and any necessary changes to Commonwealth or state/territory law. When tabled in Parliament, the text of proposed treaties and the draft National Interest Analysis are automatically referred to the Treaties Committee for review. The committee invites comments from anyone with an interest in the subject matter of the proposed treaty, and conducts public hearings.
The federal government consults with state and territory governments during the negotiation of proposed treaties. There is a Treaties Council (comprising the prime minister, premiers and chief ministers) and a commonwealth-state-territory Standing Committee on Treaties. The Treaties Council has met only once, in 1997, and it is said that the meeting was very brief, being conducted in a lift while the prime minister, premiers and chief ministers were moving to their lunch room. The Standing Committee on Treaties, on the other hand, does some useful work, but too many of the premiers do not see why their parliaments should be involved, and seem to think that all the power that is needed is to be able to veto the ratification of a treaty, without having any involvement in its development. And they are most unlikely ever to be given such a power.
The Joint Standing Committee on Treaties writes to all state and territory governments seeking their views on treaties it is considering. The Standing Committee also seeks the views of the state parliaments, but this has little effect because only Victoria has a committee dealing with treaties, and without such a committee the request from the Joint Standing Committee on Treaties is lost among all the other paperwork.
Although this is a considerable improvement on what went on before, and the government has occasionally accepted recommendations of the committee, there are still problems. The National Interest Analyses need improvement, being made more analytical rather than simply describing the terms of the proposed treaty. And the state parliaments need to set up proper arrangements for considering proposed treaties when they are forwarded to them by the Joint Standing Committee on treaties.
Except in the case of minority governments, the government will always have a majority on the Joint Standing Committee on Treaties, and party discipline being what it is, the majority is unlikely to make recommendations which would seriously upset the government. In any case, there is no federal parliamentary vote on the ratification of treaties, and the input of the states and territories is advisory only. The federal government still makes the decision on ratification, and may do so before the treaty has been considered by the Joint Standing Committee.
New Zealand partly followed the Australian example in the following year. New Zealand signs between 30 and 40 treaties a year, and about a third are referred to the Foreign Affairs, Defence and Trade Select Committee, accompanied by a National Interest Analysis, modelled on the similar documents presented to the Australian Parliament. The select committee may refer the treaty to another select committee if it thinks that is appropriate. The Minister for Foreign Affairs said in 1998 that ‘the government will not ratify a treaty until the select committee has reported back to the House [with a copy of the treaty and the National Interest Analysis], or 35 days have elapsed since the treaty was tabled.’ But the final decision on ratification still rests with the government.
It is true that it is well established, in both legal and constitutional practice based on the sovereignty of Parliament, that international agreements, even when ratified, have no internal legal effect unless Parliament has transformed their provisions into domestic law, but the effects of an international agreement may nevertheless be enormous. Australia has an additional problem because of the possible effects of international agreements on the Commonwealth Constitution. The Constitution divides political powers between the Commonwealth and the states, and amendments to the Constitution are supposed to be made only by national referendum. However, the High Court has ruled that if the federal government enters, in good faith, into an international treaty which obliges it to do certain things within Australia, then the federal Parliament is entitled to the necessary power to implement the treaty even though it is denied that power by the Constitution. There are limits to this power. Any laws passed by the parliament under such a power must do no more than give effect to the treaty or agreement, and must not breach express or implied limitations in the Constitution. Substantial changes can nevertheless be made, and such amendment of the Constitution by the government without the formal approval of the Parliament or the people is a gross anomaly.
Executive federalism
Another method by which a government makes laws which effectively bypass the parliament occurs in the federations of Canada and Australia. The Canadians call the system ‘executive federalism’, by which the governments in Ottawa or Canberra reach an agreement with the governments of the provinces or states, and then present a bill to the various parliaments with the warning that the bill must be passed unaltered, otherwise the whole agreement will be wrecked. Though sometimes muttering darkly, the parliaments agree.
In Australia, the federal and state parliaments do not even have the chance to consider one important area of government finance, its borrowing. By a 1927 constitutional amendment, power over such borrowing was given to a Loan Council made up of the members of the federal and state governments.
It can be seen that the various parliaments have yielded, had taken away, or failed to claim, a large part of their legislative responsibilities. The Cabinet is the winner. The loser is responsible government.
Membership of the ministry imposes certain obligations. The ministry must maintain a solid profile, expressed in rather cynical form by Lord Melbourne after Cabinet discussion of the corn laws in 1841:
Bye the bye, there is one thing we haven’t agreed on, which is, what we are to say. Is it to make our corn dearer or cheaper, or to make the price steady? I don’t care which, but we had better all be in the same story.
The advice the Executive or Privy Council gives to the head of state must be unanimous. Ministers should not criticise the actions of other ministers or express private views or speak about a ministerial colleague’s portfolio without first consulting that colleague, must loyally support any Cabinet decisions, must not publicly disassociate themselves from any government decision, and must not announce a major new policy in their own area of responsibility without prior Cabinet approval. If a minister does so, Cabinet must either endorse the new policy or the minister must resign.
Of course ministers do sometimes break these rules. What action is taken depends on the prime minister, but something should be done, for a Cabinet cannot be publicly bickering and remain effective. How soon the prime minister takes action depends both on his personality and the political standing of the offending minister. Much more common are unattributable ‘leaks’, information passed to the news media by the minister or his staff. Such leaks are always self-serving, either in terms of publicity for the minister, or damage to his rivals, or publicity for policies the minister is trying to sell to Cabinet. Such leaks are difficult to control, for proof of the culprit’s identity is very difficult, though there may be deep suspicions.
In Britain there have been at least two occasions when the principle of Cabinet solidarity has been breached. The Wilson Labour Government permitted seven dissenting Cabinet ministers to campaign outside Parliament against the Labour Party line in the referendum on the terms of British membership of the EEC, though a junior minister, Eric Heffer, was forced to resign for speaking against the terms in the House of Commons. Cabinet ministers were again openly campaigning against each other in 1977 on the method of election to the European Parliament. These are the only modern examples, but there were earlier ones. Four ministers joined the National government in 1931 on condition that they could dissent on tariff policy. The revised Prayer Book in 1928, votes for women before the First World War and the secret ballot in the nineteenth century were all matters on which ministers could vote as they wished. Labour Cabinet ministers have also voted in the party National Executive Committee against policies decided by Cabinets of which they were members, and from which they did not resign. James Callaghan summed up the Labour attitude when he said that: ‘I certainly think that the doctrine [of collective ministerial responsibility] should apply, except in cases where I announce it does not.’
In Australia the Liberal and National[37] Party coalition governments sometimes have difficulty in presenting a united front. National Party leaders have several times openly criticised Cabinet policy. McEwen attacked the 1967 decision not to devalue the currency, and his successor Doug Anthony did the same in 1971. No action was taken by the prime minister against either. In the 1999 referendum on whether Australia should become a republic the coalition government did not take a stance, although Prime Minister Howard was openly opposed. Ministers could campaign on either side, and sometimes came into angry conflict with each other.
Labor ministers have always been permitted to speak at party conferences, and can if they wish challenge Cabinet decisions there. During the 1972-75 Whitlam Government, ministers were entitled to speak on any subject at meetings of the parliamentary party (the caucus). A minister defeated in Cabinet could take his case to the caucus and try to organise a reversal. Great confusion and acrimony resulted. The next Labor government, that of Hawke, elected in 1983, was much more tightly disciplined, and ministers did not take part in debates in caucus, except on matters which concerned their ministerial responsibilities. They did, however, retain their right to have frank discussions at meetings of their factions, including the right to criticise Cabinet decisions.
In New Zealand both National and Labour Party ministers may speak frankly at their caucus meetings, sometimes breaching Cabinet solidarity in the process, but in practice they do not often speak outside their ministerial responsibilities. In the National Party government elected in 1990 Winston Peters was the sole Maori in the Cabinet. He seemed to think that this gave him the right to criticise the policies of his colleagues, particularly the economic policy. Peters had substantial community support, not only among the Maoris, and Prime Minister Bolger took some time to discipline him. He was eventually dismissed in October 1991. He left the Nationals and formed his own party, called the New Zealand First Party. He held the balance of power after the 1996 election, and joined in a coalition with the Nationals, being given the post of Treasurer. He lasted rather longer this time, but was eventually dismissed again, this time for walking out of a Cabinet meeting.
Apart from being shifted by the prime minister, ministers may of course lose office by death, loss of their parliamentary seats, resignation or dismissal. Dismissals of ministers are rare. Ministers are usually given the option of resignation, which they prefer to take. Since 1970, although many ministers resigned under pressure or lost office in a re-shuffle, the only two actual dismissals in the UK were those of Barbara Castle in 1976, when she refused to resign voluntarily in order to permit the incoming prime minister (Callaghan) to reorganise his Cabinet; and Keith Speed, the Parliamentary Under-Secretary of State for the Royal Navy, who was dismissed in 1981 for publicly criticising cuts in the Defence estimates. (In fact the cuts would have destroyed the aircraft-carrier and amphibious strength of the Royal Navy, but fortunately had not taken effect before the Falklands War broke out in the following year. The cuts were later reversed.)
There have been no dismissals in Ottawa, but they have been fairly common in Australia and New Zealand. Two Australian ministers were dismissed by Whitlam in 1975. Clyde Cameron refused to resign when he was requested to do so, in order to shift him to a lesser portfolio, so he was dismissed. He then accepted the lesser portfolio. The deputy prime minister, Jim Cairns, was dismissed for misleading the Parliament, and also because one of his staff had a conflict of interest. Whitlam himself was dismissed by the Governor-General later in the year for refusing to ask for an election when he was unable to obtain supply from the Senate. In 1978 Malcolm Fraser dismissed Senator Withers as Minister for Administrative Services because he committed ‘an impropriety’. Actually what he did was to suggest a name for an electorate to a royal commission inquiring into a recent electoral redistribution in Queensland. Withers was undoubtedly unlucky, but Fraser was anxious to preserve an image of ministerial integrity after the turmoil of the Whitlam years. There was another dismissal, though it was not strictly a ministerial dismissal. Senator Sheil had been named as Minister for Veterans’ Affairs in 1977, but he made some favourable statements about apartheid in South Africa which were contrary to government policy, and he was dismissed before being sworn in.
There have been six ministerial dismissals in New Zealand since 1970. In 1988 the conflict over economic policy between Lange and his reformist finance minister, Roger Douglas, was coming to a head. In November Lange dismissed a Douglas supporter, Richard Prebble, the Minister for State-Owned Enterprises, for public disloyalty. Prebble had claimed that Lange was irrational and dictatorial, and that he was acting unconstitutionally. Douglas himself was dismissed a few weeks later. Two other dismissals involved Winston Peters. The final dismissal was of the Immigration Minister, Tuaraki John Delamere, a Maori who was found to have been authorising residency papers for Chinese migrants in exchange for their investment in Maori businesses or land. This was a considerable embarrassment for the ruling National Party government, for it occurred shortly before polling day in the 1999 election, but it actually made little difference, for the Nationals were heading for defeat anyway.
Resignations are much more common than dismissals. Some resignations are genuinely voluntary, on grounds such as age or ill-health, or because the minister wishes to pursue business interests or accept an interesting non-parliamentary appointment. Such resignations are common in the UK, with no less than 59 between 1970 and 2000. Of course some resignations are forced by the prime minister, the alternative being dismissal. Very occasionally proffered resignations are refused. In deciding what to do about resignations prime ministers have to consider a number of factors: the image they wish their government to project, and whether the behaviour of the minister will damage it; their own standards of acceptable ministerial behaviour; party support for the erring minister, and whether removal would be more damaging than retention; and the professional competence of the minister.
Different prime ministers view these factors differently. The only offence from which there seems no comeback is the deliberate misleading of the parliament. The problem was summed up in the removal of British War Minister Profumo, who had to go ostensibly because he misled the House of Commons, but actually because of the political damage caused by the revelation of his association with a prostitute called Christine Keeler, who was also being used by the Soviet Naval Attach. A contemporary poem ran:
Now see what you’ve done, said Christine.
You’ve upset the whole party machine.
To lie in the nude is not at all rude,
But to lie in the House is obscene.
The problem of ministerial responsibility, and whether the minister has a duty to resign if there has been some mistake made by a subordinate, was dealt with in the 1976 report of the Royal Commission on Australian Government Administration: ‘There is little evidence that a minister’s responsibility is now seen as requiring him to bear the blame for all the faults and shortcomings of his public service subordinates regardless of his own involvement, or to tender his resignation in every case where fault is found.’ The best known ministerial resignation over departmental failings was as a result of the Crichel Downs affair in England, but it has been claimed that the resignation of the minister, Sir Thomas Dugdale, was actually because of disagreement with government policy. Ministers must answer to Parliament for what their departments have done, and if mistakes have been made they must reveal what action has been taken against the offenders and to prevent a repetition. But these days that is where ministerial responsibility ends, unless the minister wants to go.
The removal of a minister with its implied admission of a ministerial mistake may be more politically damaging for a government than the mistake itself. In fact since 1970 in the four countries we are considering only four ministers have resigned directly as the result of the shortcomings of their department. Three were in the UK, where the Foreign Secretary, Lord Carrington, the Lord Privy Seal and a minister of state, resigned because of the bad advice given by the Foreign Office on the events leading up to the Argentinian occupation of the Falklands. This seems extreme, for clear and timely intelligence assessments have never been one of the strong points of the Foreign Office. Besides, the performance of the Defence Minister, John Nott (who offered to resign but was kept on), was very much worse. In Canada, the Minister for Fisheries and Oceans, John Fraser, in 1985 resigned from the Mulroney Conservative Government over a controversy surrounding the sale of tainted cans of tuna.
Of course, if a minister or his department are not performing well, there may be embarrassing pressure applied by questioning and criticism in the House, and that may result in the prime minister either moving the minister to another portfolio or sending him to the backbench. Ministers cannot deliberately distance themselves from decisions taken in their departments, though some try. If a minister is patently incompetent, or not taking the necessary action to see that administrative mistakes are corrected, then he may have to go. But whether he goes or not will depend of a weighing of the political costs and benefits. Such removals are very rare in New Zealand, where it is almost unknown for a minister to be sacked for mere incompetence. (In fact it has happened only once in the past 30 years, in 1978.)
Censure motions have not been effective in causing the removal of a minister. There have been no such censure motions carried in the lower houses of any of the four countries in modern times. It is true that the Australian Senate, which is not normally controlled by the government, has several times passed motions of censure of Senate ministers, but there has been no result. On one occasion the House of Representatives immediately passed a vote of confidence in the minister, on party lines. On the other occasions the censure motion was simply ignored. There can be no doubt that ministers depend for their survival on the lower house, and the censure of the Senate, though perhaps of interest, has no political effect.
Resignations over the collective responsibility of Cabinet
The collective responsibility of Cabinet requires that a minister must resign if he or she cannot accept the decisions or policy of the Cabinet or prime minister. The most dramatic resignations have occurred in the UK. They are the most numerous, too, for there have been no less than seventeen such resignations between 1970 and 2000 over issues such as entry into the EEC, Northern Ireland policy, single-parent policy, attitude to the European Union, agricultural policy and dissatisfaction with the prime minister. Four of these resignations were very dramatic. In 1985 the Secretary of State for Defence, Michael Heseltine, was in dispute with the prime minister over the method of providing additional capital for the Westland Helicopter Company, and he resigned in January 1986. Prime Minister Thatcher weathered the storm over her handling of this affair, as she did in 1989 when the Chancellor of the Exchequer, Nigel Lawson, resigned because he found Cabinet policy (in reality, Mrs Thatcher’s policy) unacceptable. In the following year the Minister for Trade, Nicholas Ridley, wrote an article in The Spectator saying that Germany was seeking to dominate a federal Europe, and that surrendering British sovereignty to the European Union was little better than handing it over to Hitler. This was completely contrary to Cabinet policy, and despite being a long-time supporter of Mrs Thatcher, he had to go. The fourth such resignation, that of her deputy, Sir Geoffrey Howe, later in the year, on her attitude to the European Union, was fatal for her and she was deposed. In 1995 her successor, John Major, was challenged for the leadership by the Secretary of State for Wales, John Redwood. Redwood resigned from the ministry in order to conduct his campaign against Major, but he was easily beaten.
In Canada the resignations have been much less dramatic than in Britain. There have been six such resignations over Cabinet policy since 1970, one during the 1968-72 and two during the 1974-79 Trudeau Liberal governments, two under Mulroney between 1984 and 1993, and one under Chrtien in 1996. Eric Kierans resigned in 1971 because of disagreements with the government’s economic policy, Jean Marchand in 1976 over the handling of a strike by air-traffic controllers, James Richardson in the same year because he opposed the official language policy, Suzanne Blais-Grenier after publicly criticising the government for permitting the closure of a Montreal oil refinery, Lucien Bouchard because of a proposal to amend the Meech Lake Accord, and Sheila Copps, the deputy prime minister, in 1996 because of a broken campaign promise. She resigned her seat too, but was re-elected in a by-election.
Malcolm Fraser resigned as Australian Minister for Defence in 1971 because Prime Minister Gorton became involved in a dispute between Fraser and the Army. This resignation caused a challenge to Gorton’s leadership, and Gorton was replaced as prime minister in a coup by William McMahon in March 1971. The Parliamentary Liberal Party very unwisely elected Gorton as Deputy Leader. As Gorton was deeply resentful of McMahon and some of his collaborators, the situation was very unstable. McMahon’s opportunity came a few months later, when Gorton wrote a series of newspaper articles on his political contemporaries, including Cabinet colleagues. He also referred to the damage caused by Cabinet leaks, which was clearly aimed at the prime minister, who was not known as ‘Billy the Leak’ for nothing. McMahon had his grounds, and required Gorton to resign. In 1977 the Attorney-General, Robert Ellicott, resigned because he considered Cabinet decisions were compromising his legal independence as the First Law Officer. In 1979 Eric Robinson, the Minister for Finance, resigned because he was unable to give Prime Minister Fraser his unqualified support, but reconsidered his position and rejoined the ministry four days later. Andrew Peacock resigned in 1981 because he found the level of interference by Fraser unacceptable. In 1989, during the Hawke Labor Government, the Minister for Telecommunications and Aviation Support resigned because he opposed a Cabinet decision to build a third runway at Sydney Airport.
In New Zealand in 1982 Derek Quigley publicly criticised the National Party Cabinet for excessive intervention in the economy. Prime Minister Muldoon offered Quigley the alternatives of a public apology to his Cabinet colleagues, or resignation. He resigned. In 1997 Christine Fletcher resigned because of concern over Prime Minister Bolger’s leadership.
Resignations for personal errors
Since 1970 there have been a number of resignations of ministers for personal errors or misjudgements associated with their ministerial offices. In the UK in 1986 Leon Brittan directed the selective leaking of parts of a letter from the Solicitor-General in order to discredit and force the resignation of a colleague, Michael Heseltine, during the Westland helicopter affair, and Edwina Currie resigned in 1989 after making some remarks about the risk of salmonella infection in eggs which infuriated the egg producers and many of her parliamentary colleagues. She resigned, she said, because it was the best course in all the circumstances. She did not retract or apologise for her remarks about eggs.
In Canada under Mulroney there were three such ministerial resignations, two (in 1986 and 1987) because of conflicts of interest, and the other in 1985 for an alleged violation of the Canadian Elections Act. In 1996, under the Liberal government of Jean Chrtien, the Defence Minister, David Colonnade, resigned because of the impending release of a letter he had written to the Immigration and Refugee Board on behalf of a constituent, a letter which was in breach of the secret ethical guidelines for ministers. Although he accepted the resignation, Chrtien said that Colonnade would return to the Cabinet, though he did not say when. In 1998 the Solicitor-General, Andy Scott, resigned because of ‘a personal error’.
In Australia there have been seven such ministerial resignations, one during the 1972-75 Whitlam Labor Government (for misleading the Parliament), one during the 1975-83 Fraser Coalition Government (for failing to take proper action against a minister who was caught trying to smuggle a TV set through customs) and two during the Hawke Labor Government (one for breaching Cabinet confidentiality, and the other for misleading the Parliament). In the Keating government in 1993 Minister Ros Kelly took control in her office of a thirty million dollar program intended to provide recreational facilities, and used it for blatantly electioneering purposes. When asked by the Auditor-General for details of the program, she said they had not been kept. Proposals, she said, had been entered on a ‘great big whiteboard’ in her office, and were erased after a decision had been made. She eventually resigned, defiant to the end. In the first Howard Government the Assistant Treasurer James Short, and the Treasurer’s Parliamentary Secretary resigned because of a conflict of interest when they made administrative decisions concerning companies in which they held shares. In 1998 the Minister for Administrative Services resigned as a result of his inadequate supervision of the abuse of travel allowances by his ministerial colleagues.
There has been only one such resignation since 1970 in New Zealand, though in 1956 a minister was criticised for carrying on a business as an importer while at the same time being the minister responsible for import licensing. He offered to resign, but instead was transferred to a different ministry. In 1996 Denis Marshall resigned as Minister for Conservation because of the tragic mishandling of an incident at Cave Creek.
Resignations because of unacceptable personal behaviour
Ministers may also be forced to resign because of revelations of unacceptable personal behaviour, not related to their ministerial responsibilities. Conservative ministers in the UK have a surprising propensity for being involved in sex scandals. Lords Jellicoe and Lambton in 1973 and Cecil Parkinson in 1983 all had to resign because the revelations in the media of their sexual transgressions had made them political liabilities. Of course there was not always a sexual element in such resignations. Reginald Maudling, the Home Secretary, resigned in 1972. He was involved with an architect who was under police surveillance, and resigned because he was responsible for the police force. Lord Brayley, a junior minister, resigned in 1974 after embarrassing inquiries were made into a company with which he had been involved. In 1993 Michael Mates, the Northern Ireland Security Minister, resigned because of improper links with Asil Nadir, a tycoon who broke bail and fled to Cyprus. The year 1994 was busier for the sexually active. One minister resigned because he had an affair and his wife committed suicide, and an assistant whip had a gay affair with a 20 year old; he was unlucky because the law to reduce the age of consent to eighteen had passed the House but had not yet been promulgated. In the same year two junior ministers in the Major Government resigned over allegations that as backbenchers they had received money for asking parliamentary questions on behalf of Mr Mohammed Al-Fayed, the owner of Harrods.
The pattern was much the same in the Blair Government. In 1998 the Secretary of State for Wales (and nominee for the leadership of the new National Assembly of Wales) resigned after he was robbed at knife point and had his car stolen in what turned out to be a well-known gay cruising area. Later in the same year Peter Mandelson, the Minister for Trade and Industry and an influential figure in the Blair Government, resigned after it was revealed that he had taken a housing loan of 373 000 from another minister, who was himself under fire as an associate of the disgraced tycoon Robert Maxwell. Mandelson was too important a figure (at least in the prime minister’s eyes) to remain out of office for long, and he took over the difficult task of Secretary of State for Northern Ireland in late 1999, only to be forced to resign again a year later.
There were an unusual number of ministerial resignations for unacceptable personal conduct in Canada-four under Trudeau and five under Mulroney-but things have quietened down under the Chrtien Liberal Government. The resignations under Trudeau involved a minister who was convicted of contempt of court, another who signed the husband’s name on a document to obtain an abortion for a woman with whom he had had an affair, a third who attempted to influence a judge who was trying a constituent, and the fourth for tax offences. The five under Mulroney were also dramatic. In 1985 the Minister of National Defence, Robert Coates, resigned because he had placed himself in ‘a compromising situation’ during a visit to West Germany. The others resigned for diverse reasons: land speculation; trying to influence a judge; a conviction on a drinking and driving offence; and for being involved in a number of embarrassing incidents.
In Australia there have been eleven such resignations since 1970. In 1976, soon after the Fraser Government took office after the dismissal of Whitlam, the Minister for Posts and Telecommunications, Victor Garland, was charged with committing electoral bribery offences. The Chief Magistrate of the ACT dismissed the case, and Garland returned to the ministry. The next was more serious, for it involved Phillip Lynch, who was Treasurer and deputy leader of the Liberal Party. An inquiry in Victoria had linked him to improper land speculation, and although a legal opinion found that Lynch had done nothing illegal a further report expressed doubt about the propriety of some of Lynch’s deals. Lynch was returned to the Cabinet, but with a lesser ministry. He remained deputy leader of the Liberal Party. The third case also involved a deputy leader, this time of the National Party. Ian Sinclair was charged with forging his father’s will for his own benefit, but was eventually acquitted and immediately reinstated in the Cabinet. Another resignation was for attempting to smuggle a television set through customs; the minister concerned was not reinstated.
One minister in the Hawke Labor Government, Mick Young, set what was probably a record by resigning and being reinstated no less than three times. He was very influential as Federal Secretary of the Labor Party, which probably explains his survival. He left Parliament in 1988 after being cleared of yet another charge, but soon afterwards resigned as Federal Secretary of the Labor Party when he accepted a part-time consultancy with Qantas airlines.
In 1992 Graham Richardson, the Minister for Transport and Communications in the Keating Labor Government, was forced to resign when it was revealed that he had put pressure on the President of the Marshall Islands to help a relative who was facing trial over alleged fraudulent business dealings. In 1994 a minister in the Keating Government, Alan Griffiths, resigned because of alleged criminal offences. An inquiry subsequently cleared him, though it did say that in one respect his conduct was improper.
In 1996 the incoming Liberal prime minister issued a Guide on Key Elements of Ministerial Behaviour, but it has not been very effective in controlling ministerial behaviour. In 1997 a minister, Geoff Prosser, had to resign because of improper business dealings. He continued to be a major retail landlord, and this clearly conflicted with his responsibilities as Minister for Small Business and Consumer Affairs. Things got worse later in the year when there were revelations of abuse of travel allowances, which involved both backbenchers and ministers, and two National Party ministers resigned, as well as the Minister for Administrative Services, who was responsible for the supervision of the use of the allowances. The resignations were becoming very embarrassing for the government, and after the 1998 election Howard issued a revised Guide. More importantly, he ceased to enforce the Guide so sternly, and several ministers who appeared to be in clear breach of the Guide were not forced to resign.
There has been only one such resignation in New Zealand, in 1999 when the Minister for Tourism resigned because of a scandal over ‘golden handshakes’.
Some Cabinets have extra-parliamentary bodies to worry about. In the UK a Conservative prime minister appoints the party chairman, and, while in government, has little to fear from the party organisation. In opposition things may be more tumultuous, over such issues as the policy towards the European Union. The annual conference of the Labour Party tends to be unruly, and often politically damaging. The conference elects the National Executive Committee by a complicated system which results in the unions largely determining its membership. The NEC is powerful, with a network of a score of advisory committees which, although they have no direct power, may significantly influence the parliamentary leadership on legislation and electoral policy.
In Canada the party leaders of the Progressive Conservatives and Liberals combine the roles of party chairmen and parliamentary leaders, and party policies are what they declare them to be.
In Australia the extra-parliamentary organisations of the Liberal and National parties have very little influence on policy, which is the hands of the parliamentary leadership, though committees of the parliamentary party may have a considerable influence on the detail of election policies. The Labor Party platform is considered at biennial conferences and is binding on the parliamentary party, though like a religious tract it is sometimes open to varying interpretations. If the parliamentary leadership wishes to change policy on a matter covered by the platform, it has to go cap-in-hand to the conference. The Labor Party is now split into formal factions, and policy changes are usually achieved by deals between the factions rather than by the conference as a whole. In the Australian Democrats the full national membership decides by secret ballot such matters as the parliamentary leadership and party policies.
The National Party organisation in New Zealand, which does include some MPs, produces a political platform, but this is not binding on the parliamentary party, and a ruthless leader such as Muldoon simply ignores it. Since 1961 the parliamentary party has had control of Labour policy. A committee has been established so that party office-bearers can be consulted, if the parliamentary leader wants to. This is in accordance with the expressed wishes of the National Executive, which has pointed out that ‘the functions of such a body, it must be emphasised, would be consultant and advisory only-as the MPs elected by the people cannot be subjected to any extra-parliamentary fetter.’ It was because of this parliamentary power that the 1984-89 Lange Government was able to introduce revolutionary economic changes-a consumption tax, deregulation and privatisation-which would have been unthinkable to an earlier generation of Labour stalwarts.
Much is made of the separation of the executive and judicial powers, but judges are in fact appointed by the government (in Australia technically by ‘the Governor-General in Council’) and may be dismissed on an address by both houses of Parliament. In Canada the federal government appoints the nine-member Supreme Court, though there is a requirement that three of the nine judges should be from the province of Quebec. The federal government also appoints not only the 31 member Federal Court, but also the judges of the major provincial courts-a total of about 800 appointments. The failed Charlottetown Accord would have required the federal government to name judges from lists submitted by the provinces. By no means all the present appointments are acclaimed. A 1985 report by a special committee of the Canadian Bar Association referred to cynicism, uproar and public dismay and outcry over many of the appointments. Some provinces, in order to avoid unwelcome appointments, temporarily reduced the sizes of their courts, awaiting a change of government in Ottawa. Though it is most blatant in Canada, in all the countries being discussed patronage sometimes results in sub-standard judges being appointed, or politically biased appointments being made to courts dealing with constitutional matters.
There is no obviously better method of appointment in current use. In the United States, judges in state courts are usually elected, mostly by popular vote but sometimes by the state legislature. Few would find this a desirable option, democratic though it is. Presidential choices for the Supreme Court have to be confirmed by the Senate, and candidates have to be prepared for prolonged questioning by the Judiciary Committee. These hearings are relatively new. For the first century and a half there were none, but since 1925 they have gradually become automatic, and increasingly intrusive. The process has become highly politicised, and again would not commend itself to many outside the United States. There are judges representing various community groups-a black judge, a female judge, a Jewish judge-and a president would be taking serious political risks if he did not propose a similar replacement. When President Nixon was seeking political support from the southern states, he nominated a southerner for the Supreme Court. His choice was criticised as being a below average lawyer, but one of Nixon’s supporters, Senator Hruska (Rep., Nebraska) argued that below average lawyers had a right to representation on the US Supreme Court. ‘There are a lot of mediocre judges and people and lawyers,’ he said. ‘They are entitled to a little representation, aren’t they, and a little chance?’[38] Senator Hruska did not convince the Senate of this, but it does seem that the legal stature of proposed judges is less important to the Senate than their attitudes on controversial issues such as abortion.
Turning to this problem in the Westminster-style countries, it is difficult enough to persuade the top lawyers to leave their lucrative practices to become judges. It would be much more difficult if they had to face a public inquisition on their suitability by a parliamentary committee. But judges have to be chosen some way, and it would certainly not be acceptable for a court to be self-perpetuating. Under the Australian Constitution, the appointments to the High Court are made by the Governor-General in Council, that is, by the government, usually in fact by the prime minister and the Attorney-General. The principal role of the High Court is the legal interpretation of the Constitution, and its decisions may be very important to the states. In the past 80 years High Court decisions have been very centralist and have steadily increased the power of the federal government at the expense of the states, and it is understandable that the states should wish to have some influence on appointments to the Court. Under an act passed in 1979 the federal Attorney-General is required to consult with the attorneys-general of the six states before an appointment is made to the High Court, but the final decision rests with the federal government. This process gives no effective power to the states. The original concept of the High Court was that there should be five judges so that nearly every state could be represented, but in fact the High Court started with three judges, all three from New South Wales or Queensland, and two of the states (South Australia and Tasmania) have never had a High Court judge.
In 1983 Queensland proposed a solution to the problem which seems fair. According to the Queensland plan, when a vacancy occurs on the High Court bench, the federal Attorney-General should ask the six state attorneys-general for suggestions, and should also forward to them the names of any he has under consideration. For an appointment to be made, there would have to be support from at least three of the six states. Such a scheme would be in accord with the principles of federation. It would be desirable for such a change to be incorporated in the Constitution, for an act could always be altered by a strongly centralist government.
Having appointments to the High Court formally approved by four independent authorities would help to reduce the likelihood of inappropriate appointments being made on political or personal grounds. A British Lord Chancellor said that his
first and fundamental duty is to appoint solely on merit the best potential candidate ready and willing to accept the post. No considerations of party politics, sex, religion, or race must enter into my calculations, and they do not. Personality, integrity, experience, standing and capacity are the only criteria.[39]
One could wish that all judicial appointments were made on this basis, but they certainly are not. One Australian prime minister had a strong preference for appointing judges from his state and of his religion, with some unfortunate results. In 1960 the NSW Labor Government appointed the retiring leader of the federal (Labor) opposition (a former High Court judge) as Chief Justice of New South Wales. According to a judge of the NSW Court of Appeal, when he was appointed he was suffering from advanced senility: ‘He plainly could not manage the job. He was old and ill, uncomprehending and inarticulate, incontinent and barking mad.’[40] He lasted for two years.
Fortunately, even when appointments are blatantly political, the appointed judges often perform in a much more unbiased manner than they were expected to. As a rather cynical former Australian federal minister put it: ‘once you put them there, they start thinking they got there on merit.’[41]
Although the Cabinet is not mentioned in any of the written constitutions, it remains the central feature of responsible government. In fact Bagehot preferred to use the expression cabinet government rather than responsible government, but there has been a dramatic change in the direction of its responsibility. Except when there is a minority government, the Cabinet ministers are collectively and individually responsible not to the lower house of parliament, but rather to the government party. We no longer have responsible government, in Bagehot’s sense, but party government.
The responsibilities and the methods of selection and removal of ministers are broadly similar in all four countries, and there is little they can learn from each other. Australian ministers could learn from ministers in other parliaments, particularly Westminster, to show more respect for their formal responsibility to the Parliament and to be more courteously answerable to it.
There are some problems which no parliament has yet tackled, and one-the use of the defence power-which only Canada has done anything about. It is an anachronism for the national parliaments to leave to the government the declaration of war or the giving of orders to the military forces to commence fighting. Canada has taken effective action, with its National Defence Act and its Emergencies Act, to control the government’s behaviour in committing the military forces to action. All the national parliaments should follow the Canadian example. Similarly, although the formal negotiation of treaties must necessarily be left to the government, parliaments should insist on appropriate involvement in the negotiations and establish that ratification of a treaty requires parliamentary approval. None of the parliaments has yet taken effective action in this area, nor have they in improving the method of selection of judges.
In every parliament the number of ministers has multiplied enormously, there typically having been a threefold increase in the past century. Yet the pool from which ministers are chosen has not grown commensurately, in some cases not at all. This problem of the quality of the ministerial pool is studiously ignored by all the parliaments. Six of the twenty parliaments being studied use upper house members to increase the size of the ministerial pool, but this does little to solve the problem of ministerial quality, and creates other problems. As will be argued in Chapter 8, the presence of ministers in upper houses seriously damages the performance of those houses as legislatures.
It is now well established that a prime minister or premier cannot be in the upper house, except possibly for a brief transitional period. This has been a substantial change in the Westminster system of responsible government, as described by Bagehot. In Bagehot’s day, and for half a century afterwards, British prime ministers were as likely as not to be in the House of Lords. The reason for the change was that a prime minister in the Lords could not be personally answerable to the House of Commons, and by the early years of the twentieth century this was no longer acceptable. Surely the same argument applies to the lack of answerability of other ministers in upper houses.
Removing ministers from upper houses of course does nothing to solve the problem of ministerial quality. If one does not want to be limited to choosing ministers from the ranks of government supporters in the lower house, why not follow the Dutch and Swedish examples and fill some ministerial vacancies with highly qualified individuals from the community? After all, it has never been a requirement in the UK that ministers be elected to the Parliament (the House of Lords is not elected[42]). Nor is it a requirement that new ministers should have served an apprenticeship in the Parliament, for there are numerous examples of new MPs moving directly into the ministry. What is important is that ministers should be personally answerable to the parliament, able to present their proposals and handle any questions on their ministerial performances. This personal answerability to the parliament is much more important than voting membership of it.
Bringing in some outsiders as ministers will meet strong opposition from MPs, for the possibility of ministerial office is regarded as one of the rewards of electoral victory. But it is possible to make the change, for several countries have done it, and the overall quality of their ministries has risen markedly as a consequence.
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