[Charles I in parliament: ‘Attempted arrest of the five members’ by Charles West Cope]
Earlier this year we had a couple of pieces that raised issues about the parliamentary and party system in Australia (‘
President Abbott’ and ‘
Instant Experts’) and in June we had the 800th anniversary of
Magna Carta. Our system is known as a Westminster parliamentary system and incorporates a multi-party system (or sometimes a ‘dominant party’ system, as when the Coalition governed from 1949 to 1972). Some comments on those earlier articles raised questions about how effective our system really is and mentioned some of the quirks that seem contained in it. I thought that deserved some research as to how the system arose and how our constitution expresses it.
Of course the basis of our system is the English parliamentary system which operates in what is now a constitutional monarchy. England does not have a written constitution: instead, it has taken hundreds of years to develop some written and many unwritten rules (conventions) that determine
how Britain is governed.
Parliament developed in the 13th and 14th centuries largely through the desire of Edward I and his successors to wage war. This needed more money than they had from their own wealth [personal royal estates] and they had to levy "extraordinary" taxes, with Parliament's assent, to raise the funds. But each time the King requested assent to a tax from Parliament, it could ask a favour back … and often used the King's desperation for money to get what it wanted.
While the ‘lords spiritual’ (abbots and bishops) and the ‘lords temporal’ (originally earls and barons and later including dukes, marquesses and viscounts) had been called together before to grant taxes to the king, during the reign of Edward I (1272 –1309) it became more common to also call in the ‘knights of the shire’ (two from each county) and ‘burgesses’ (two from each city and town, or ‘boroughs’ as they were known). Those knights and burgesses were usually ‘elected’ but both the franchise and the election procedure varied from place to place. From 1327, under Edward III, that became the norm and from 1341 the Commons (or representatives of the ‘communes’) met separately from the Lords — although most government business still belonged to the Lords. The Commons exercised its power in 1376 when it impeached some of the monarch’s ‘corrupt’ ministers and did so again in 1388 in what became known as ‘The Merciless Parliament’. The Commons complained about being ignored in the king’s discussions with the Lords about taxes and in 1407 Henry IV formally affirmed the right of the Commons to initiate all grants of money — a power jealously guarded ever since.
Petitions to the monarch and the parliament was the common way to present grievances and they would be remedied by
a statute (an Act) of the parliament.
… petitioners began to submit their grievances first to the Commons and, based on these petitions, the Commons wrote draft statutes, known as Bills, to be presented to the Upper House.
In 1414, the Commons successfully insisted to Henry V that the King and Lords should not change the wording of any of the Bills submitted by the Commons without its agreement and that no Bill should become … a statute without their assent.
So by the early 1400s the presence of two houses in parliament, the Commons and the Lords, was firmly established and the Commons had gained clear and important roles.
The modern parliamentary system really starts with the
Bill of Rights in 1689 which was presented to William of Orange and Queen Mary when they jointly assumed the throne. After listing the crimes of the previous king, James II, the Bill stated, among other matters:
That the pretended power of suspending the laws or the execution of laws by regal authority without the consent of Parliament is illegal.
That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted is illegal.
That the raising or keeping of a standing army within the kingdom in a time of peace, unless it shall be with the consent of the Parliament, is against the law.
That election of members of Parliament ought to be free.
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
And that for the redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to meet frequently.
(A brief aside here: in England, it was tradition that the monarch was not above ‘the law of the land’ and that had been set in writing in
Magna Carta in 1215. So it was possible for an English parliament to assert that a monarch should not act illegally — something that could not be done in some other kingdoms.)
I think you will recognise the basis of our current parliamentary system:
- laws are made by parliament
- money can only be raised by, and spent with the consent of parliament
- free elections
- freedom of debate (the monarch cannot interfere and nowadays rules of slander and defamation do not apply, which is why we sometimes see politicians challenged to repeat a statement outside the parliament)
- frequent meetings of parliament
There were other matters relating to ‘cruel and unusual punishments’, no fines or forfeitures
before conviction, and the right of Protestants to keep arms, which were also to influence the American Bill of Rights a hundred years later.
About 60 years later (in 1748), the concept of the ‘separation of powers’ was spelled out by Baron de Montesquieu when he explained the difference between the executive, the legislature and the judiciary: his ideas drew on ancient Rome but also the system that was emerging in England. In those days it was highly relevant because the monarch (advised by his ministers, who were selected and appointed by the monarch) was still the ‘executive’. We need to keep that in mind because as the Westminster system evolved it actually fused, in practice if not in law, the legislature and the executive.
It was also in the 1600s that nascent political parties emerged although not yet formally organised as parties — more like-minded people grouping together, or factions. In England, they were the Whigs and the Tories and the grouping started over the
Exclusion Bill in 1678: there was one parliamentary group (the Whigs) trying to stop James succeeding to the throne after his brother Charles II and another (the Tories) wishing to continue the Stuart line of succession. By 1689, however, they actually agreed that a limited constitutional monarchy was preferable to the absolutism of ‘divine right’ that had been displayed by James II — although some Tories did support later attempts by the Stuarts to reclaim the throne. Over time, the Whigs evolved into the English Liberal party and the Tories into the Conservatives (still commonly referred to as the ‘Tories’).
The rise of parliament also gave rise to the role of a prime minister because monarchs realised that to achieve their aims they would need someone who could command a majority in (or had the ‘confidence’ of) the parliament — but that was to take a little longer to be formalised.
William III (William of Orange) had tried selecting ministries comprising people from different factions (both Whigs and Tories) but soon realised he was better off appointing a unified group. Thus by 1710 Queen Anne could dismiss a Whig ministry and appoint a Tory ministry.
The ministers were still selected by the monarch (most often from the Lords but could include members of the royal household or royal family) but found that to convince parliament of the financial requirements, the power for which had rested with the Commons since 1407, they needed to attend the Commons frequently and were given a reserved seat at the front which became known as the ‘Treasury Bench’ as they were led by the Lord Treasurer (a title the British prime minister still theoretically holds).
A development in those early years (in 1713) was what in Britain was ‘Standing Order 66’ which states that the Commons will only vote regarding money on the motion of a Minister of the Crown. That was intended to prevent ‘ill-conceived’ money bills being introduced by any member of the parliament and continues to this day (now Standing Order 48 in the British parliament).
Robert Walpole is often recognised as the first prime minister in England (1721 – 1742) but he was still selected by the monarch — although ‘elected’ to parliament from a ‘
family parliamentary seat’. He was able to manage the parliament in a way that set the example for the future. At first, the term ‘prime minister’ was an insult implying that the person was placing himself above the monarch as ‘head of government’ — even Walpole denied he was a prime minister. It was Walpole, however, who began conducting most of the business of government in the Commons rather than the House of Lords.
Cabinet government came to the fore during the reigns of George I, II and III largely due to historical accident. (The ‘cabinet’ was an informal name given to the group of ministers that met with and advised the monarch — technically it was a committee of the
Privy Council.) George I Duke of Hanover was German, could speak little English and
took little interest in English political affairs:
After 1717, George rarely attended Cabinet meetings. This allowed the Cabinet to act collectively and formulate policies, which, provided they were backed by a majority in the Commons, the king was usually powerless to resist.
George II, although initially active in politics (he was the last British monarch to lead his forces in battle), largely withdrew in the last ten years of his reign (1750‒60) and
Pitt the Elder effectively ran the government. George III tried to govern as a monarch, being his own ‘prime minister’, and appointing and sacking ministers but then suffered mental debility for the last ten years of his reign (1810‒20) which again left effective governance in the hands of the cabinet. The American War of Independence (during George III’s reign) also contributed. When England lost that war there was a parliamentary vote of no confidence in the then ministry which led to the Marquess of Rockingham
reasserting the prime minister’s control over cabinet:
Rockingham assumed the Premiership “on the distinct understanding that measures were to be changed as well as men; and that the measures for which the new ministry required the royal assent were the measures which they, while in opposition, had advocated.” He and his Cabinet were united in their policies and would stand or fall together; they also refused to accept anyone in the Cabinet who did not agree. King George threatened to abdicate but in the end reluctantly agreed out of necessity: he had to have a government.
Although Rockingham was not prime minister for very long, his stance set a basic principle for cabinet government — ‘cabinet solidarity’, which included the prime minister having the cabinet he wanted, not one selected by the monarch. And also the concept that a ‘party’ was entitled to bring to government the ideas it had pursued while in opposition.
Opposition had been a dangerous business during the 1600s as it was seen as traitorous, as opposing the monarch and his government. That idea had waned during the 1700s and in 1826 the term ‘His Majesty’s Opposition’ was first used. Although originally used partly in jest, it became part of the system, recognising a two-party system in which it was constitutionally possible to oppose the government without being a traitor: reflecting this, in the UK the phrase ‘Her Majesty’s
Loyal Opposition’ is now common.
Although it seems to have been the practice for some time, the convention that ministers should be drawn only from the members of parliament, including the Commons, and not just be selected by the monarch became entrenched from the broadening of the electoral franchise early in the 1800s and particularly the Reform Act of 1832. That Act eliminated the ‘rotten boroughs’ which had allowed people to buy their seat in parliament and monarchs to place ‘their’ people in such seats. Among the problems with ‘boroughs’ was that the right to return members to parliament was traditionally granted by the monarch, so by 1832 their distribution had not kept up with the distribution of the English population — new industrial centres like Manchester and Birmingham had no parliamentary representation. With representation spread more evenly across the country after the Reform Act,
public opinion, particularly as expressed at the polls, mattered.
It is significant that Lord Melbourne suggested that it would be impossible to carry on government without the rotten boroughs which the Act of 1832 swept away, so little could he realise the essential character of the new system which was being created. It is significant also that he never fully appreciated the new position; when he resigned in 1841 after an unsuccessful dissolution, regarded by him and the Queen as an appeal by the latter to the people to return her ministry to authority, he advised the Queen to state that she had only parted with her ministers in deference to the opinion of Parliament, though she still had confidence in them. Naturally she did not realise any more than her retiring Premier that in the nature of things the verdict of the electors deprived her of the right to feel confidence in ministers of whom the voters had disapproved, that it was no longer a question of personal integrity or sagacity in a minister, but of his right to represent the will of the people, as expressed by the suffrages of the electorate. [emphasis added]
So after six hundred years of evolution, by the 1840s the essential elements of the Westminster parliamentary system were in place, including a parliamentary party structure. Later broadening of the franchise, during the later 1800s and early 1900s, reinforced those changes and also led to more organised political parties as it became necessary to engage more and more of the population for elections.
Then came Australia …
Any thoughts or questions so far?
Come back next Sunday as Ken continues the story of how we ended up with the system we have and focuses on the federation of Australia and the form of government we inherited from England which relies not just on our Constitution but many of the conventions described above.
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