Wednesday, February 10, 2010

Belshaw's World - crisis in the Westminster system

Note to readers: This post appeared as a column in the Armidale Express on Wednesday  3 February 2010. I am repeating the columns here with a lag because the Express columns are not on line. You can see all the columns by clicking here for 2009, here for 2010.

I have avoided getting involved in the topic so beloved by some Express correspondents, the pros and cons of a republic. However, in this column I want to address some constitutional issues that presently worry me, so I need to make my own position clear up front.

I am a supporter of constitutional monarchy and of the Westminster system.

The central problem faced by republicans is that they have failed to address the key question of just what the Australian system of Government might look like under a republic.

The minimalist position put forward at the referendum by Prime Minister Howard simply took the Queen out of the loop, attempting to leave everything else unchanged.

This position was rejected by the combination of those supporting the current system with those opposed to it but who wanted an elected president.

The debate has not advanced since.

Bluntly, any particular republican model put forward to a referendum is likely to be defeated since there is no national consensus on what the relationships should be between Head of State, Parliament and the Executive. Those like me who support the current system will always be able to point to the gap between the current working system and the risks of any alternative.

You might think that this would make me happy and indeed at one level it does. Sadly, however, there are threats to our current constitutional system that both monarchists and republicans need to think about in terms of our future.

Canada is presently facing something of a constitutional crisis following the decision of the Governor-General on the advice of the minority PM to prorogue Parliament until later in 2010.

Prorogue means that that Parliament is actually terminated. Everything on the books at that point including legislation under consideration is relegated to history. When Parliament resumes, it is a new Parliament starting with a blank sheet so far as business is concerned.

The Canadian PM's move is highly unusual and is actually the first technical step that would be required to create a dictatorship. You see, the existing Government continues in power until the new Parliament is formed.

The conventions dictate that that continuing Government should act in caretaker mode. However, there is no legal constraint on what the Government might do so long as formal Parliamentary approval is not required. Proroguing Parliament without an election is a most unusual and potentially very dangerous step.

In some ways the Westminster system rests upon a glorious illusion.

I say illusion because the victors always write the history. In the case of the Westminster system, its history was written by Whig lawyers and historians who wished to present political events in a certain way.

I say glorious because in so doing they articulated a set of constitutional principles and a working constitutional model that was carried round the world.

The first step in the story was the rise of Parliament as a control over Executive Government, in this case the king. Later, during the so-called Glorious Revolution, Parliament established that it had the power to actually appoint the king. The king continued as the head of Executive Government, but Parliament had the power to remove as well as control over the supply of money.

Later still, Executive Government shifted to those members of Parliament controlling a majority in the House of Commons. The concept of Prime Minister and Cabinet had arrived. The monarchy became a figure head, if still with certain reserve powers.

In all this, Parliament retained its centrality as a check on Executive Government.

The form of the Westminster system varies from country to country depending on the date of establishment. However, in all cases history, precedents and conventions are important in determining the way the system actually operates.

Today we live in a period of unparalleled executive power that will override anything considered to be against the national interest, overriding history, precedents and conventions as required.

The divine right of kings has been replaced by the divine right of Executive Government.

This is why many Canadians have reacted with outrage at what they see as a further attack on the centrality of Parliament. Australia could well take a lesson from the Canadian experience.

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