Martin Keegan

Yesterday the conflict between Lords and Commons over the liberty of innocent people who are likely to commit criminal offences was defused when one of the sides backed down.

This article currently has no structure; you'd do best to come back in a few days when I've fixed it up

In the United Kingdom, the Upper House lacks the democratic legitimacy of the Lower House, as it is not elected by the people. On various occasions, e.g., in 1832, 1909 and the 1940s, conflict between the two Houses has not been able to be resolved; in the first case, the King sided with the Prime Minister and threatened to appoint enough new peers to make the balance of views in the Upper House the same as that in the Lower House, at least with regard to the question of the Great Reform Act. In 1909, the same royal threat was made, and the Upper House conceded the Parliament Act, which limits the Upper House to delaying legislation. The maximum delay was reduced in 1949, following another crisis. Parallel to this, the Salisbury Convention of 1945 provided that the Lords would not oppose legislation declared in a successful electoral manifesto; under the Convention, an election must intervene between proposal and implementation of legislation opposed by the Lords; under the Acts, it is two or one prorogations of Parliament. In all cases, it is impossible to get knee-jerk legislation through Parliament against the opposition of the Lords (a similar situation obtains in the Netherlands where the process for constitutional amendments must span a dissolution of the Parliament).

Since the 1940s, the House of Lords has changed: appointed life peers were created from 1963, and the number of hereditary peers was substantially reduced in 1999. This weakens the argument against the role of the Lords, as it is now much less unrepresentative; its deficiency is in democratic legitimacy. What it is in effect substituting for is a written constitution, or rather a Bill of Rights; the Lords constitutes the only effective check on legislative power.

It was disheartening to hear the Government this week claiming that since the Lords ultimately had to give in to the Commons, it should do so immediately. Given that the only useful power of the Lords is to delay legislation, this is equivalent to arguing that the Upper House should have no useful power at all, or at least exercise none. Furthermore, it is to argue that no effective check should exist on the Government's legislative power.

Outside the United Kingdom, there are many countries (Canada, Australia, New Zealand, etc.) lucky enough to have inherited its constitutional traditions, and moreover to have incorporated more democratic elements therein. In a country such as Australia, the Upper House is in theory democratically elected, and a legislative stalemate can result from the two houses being controlled by opposing parties, both with a legitimate claim to power. Into this mess is therefore dragged the Governor General, who represents the Queen and has the power to dismiss and appoint Prime Minsters, and dissolve Parliament. According to who is ahead in the polls, at any time either the Opposition or the Government will favour dissolving Parliament and calling a new election. Under Westminster constitutional theory, this may only be done by agreement between the Government and the Governor General (or Monarch, in the case of the UK). A crisis will therefore result in any of the following circumstances:

• the Government refuses to request a dissolution during a crisis involving inability to get its financial legislation through the Upper House (Australia 1975)
• the Governor General refuses to grant the Government's request for a dissolution (Canada 1926)

The second situation is liable to dissolve switftly into the first: given sufficient party discipline, the only people who'll be willing to co-operate with a Governor General are people who are about to lose the any potential election and who don't control the Lower House.

In 1975 in Australia, the Governor General fired the Prime Minister and appointed the Opposition Leader to his office instead. The Opposition Leader requested a dissolution, which was granted, and went on to win the consequent election. Before the dissolution was announced, however, he led a minority government completely at the mercy of the Lower House, and lost motions of confidence. The legitimacy of accepting requests from a Prime Minister who has already lost a confidence vote is deeply questionable, but if the Australian practice is to be followed as precedent, then one of the more fundamental rules of the Westminster system is something different from what it is generally supposed to be.

It is not the case that it is only the person who controls a continuing majority in the Lower House who may call an election; in fact this only obtains when there is no crisis threatening the stability of government. In such circumstances of crisis, there may exist another possibility: if the Government is unlikely to be re-elected, and the Opposition and the Governor General concur, then the Governor General can get away with sacking the Prime Minister, installing the Leader of the Opposition in his place, granting a request for an election, and ignoring any adverse motions in the Lower House. History has shown that the deposed Government will not be able to keep the election centred on the procedural or constitutional illegitimacy of its overthrow, and lose the election on the substantive grounds of the original crisis.

It is inevitably the Governor General whose opinion is decisive of whether the crisis is sufficiently serious to justify this course of action, which necessarily involves some skullduggery. If he gets it wrong, the Government will probably be re-elected and he will have to resign, and probably leave the country. This is what happened in Canada in 1926 when the Governor General refused to dissolve Parliament on the request of the (original) Government, which was re-elected.

I have avoided writing "Monarch or Governor General" here, as I suspect this analysis does not apply to the UK itself: the Queen is politically different from the Governors General whose powers are modelled upon hers, in two ways: the UK's constitution has divergently evolved more quickly than other Westminster-style systems, and the Queen is held in a different sort of esteem by virtue of being an hereditary monarch, so any political interventions will be received differently by the public. The Queen in the UK simply has less power, but greater esteem, than a Governor General somewhere in the Commonwealth. Our point of departure for this comparison was what happens if the Governor General misjudges the crisis and the Government is re-elected: he can resign. Were the Queen to get it so wrong, the Monarchy could not survive in its then form. Even getting it right would lead to the deposed Government's party harbouring a permanent grudge against the Monarchy, and so it is a manoeuvre which could probably only be performed once.

To recap, to call an election requires the concurrence of either both the Prime Minister and the Governor General, or, all four of the Governor General, the Opposition, the electorate and some crisis as recognised by the Governor General. Interestingly this incentivises the Prime Minister to get rid of the Governor General if a crisis is in the offing ...

To what extent is the democratic legitimacy of the Westminster system undermined by this additional emergency route for getting rid of Prime Ministers? It is obviously right and democratically justifiable that the Lower House can make and unmake Prime Ministers. It would appear that this power is ineffective as against a Prime Minister appointed in a crisis for the purpose of immediately requesting a dissolution, but remains good against any non-transient holder of the office. It just happens to be a little-known consequence of the well-known features of the Westminster system that the Governor General or Monarch can dissolve the legislature against its own wishes.

The sorts of crises in which these powers would be used will tend to be in reaction to use of the Government's executive rather than legislative powers. (Vice-) Royal Assent can be refused to legislative enactments, though this may be ineffective without the dissolution tactic. The last time Royal Assent was refused in Britain was around 1710; the last time the British Prime Minister was dismissed was also in the eighteenth century, and this predated universal suffrage. The use of these reserve powers in other Westminster systems has been much more recent.

Modern party discipline entails that simply dismissing a Prime Minister is ineffective; the Lower House must additionally be dissolved.

Nothing has so far been said about the sorts of crises which have triggered dismissals and dissolutions in practice. Three examples seem to exist, and constitute in actuality the circumstances participants in other crises have avoided in potentiam, and are thus of much wider import. They are as follows.

The Canadian Governor General in 1926 refused to dissolve the Lower House, dismissed the Prime Minister and appointed a minority government which necessarily could not govern and lost the subsequent election. This led to a separation, across the various countries concerned, of the rôles of Governor General qua ambassadorial representative of the British Government and qua representative of the Crown, with important consequences for Irish constitutional evolution. The circumstances under which the British Crown will refuse dissolution have since been published in a pseudonymous letter to The Times, and following them would have avoided the mess in Canada.

In 1932, the Governor of New South Wales dismissed the Premier, Jack Lang. He had proposed to repudiate sovereign debt (largely owed to financiers back in the UK), ignore the Federal Constitution, and run an independent macroeconomic policy without NSW actually being an independent country, and in furtherance of all this had removed Government deposits from the banks to protect them from federal confiscation, causing cheques drawn against his Government to bounce. It is a pity that his actions in any way harmed Britain, as this of course opened up the Governor to accusations of bias. Lang was demolished at the ensuing election.

Most seriously, in 1975 the Whitlam Federal Government of Australia was dismissed by the Governor General, Sir John Kerr. Whitlam had not been able to get the Upper House to pass the legislation necessary for authorising government taxation and expenditure, and this would shortly have caused the Federal Government to default on its debts. Kerr dismissed Whitlam, installed the Leader of the Opposition as Prime Minister on condition he let the financial legislation through the Upper House and request a dissolution, both of which occurred. Kerr violated a number of conventions to achieve this, most notably not consulting Whitlam's ministry on these actions, and ignoring the results of a motion of no confidence against the new Government in the Lower House, and agreeing to meet its Speaker when he had already determined to dissolve it.

Whitlam lost the election, which he could not keep on the procedural issue of the unfairness of the way he was dismissed. The injustice of the case however consists in the fact that the fourth element (of Governor General, Opposition, people and crisis) was a crisis manufactured entirely for the purpose of bringing down his Government; he had lost control of the Upper House only when the Governor of Queensland, acting on the advice of its Premier, appointed an Opposition-leaning senator to fill a casual vacancy. (The Premier in question narrowly escaped jail in a corruption scandal, and maintained himself in power through having a unicameral Parliament, and extensive gerrymandering).

An Upper House partaking of democratic legitimacy thus constitutes a formidable threat to Westminster-system governments. In the UK, the Upper House is not democratic, though there are proposals to make it so. The more fatuous of these contemplate fixing its composition so that the political parties have numbers in proportion to the votes or seats they won at the previous election to the other house, which would have the effect of nullifying almost all disagreement between the Upper House and the Government of the day; it were better to do away with it entirely. It is encouraging that some supporters of a unicameral British Parliament have had second thoughts this week. More relevantly, the Parliament Act should be relaxed if the House of Lords becomes more democratic, but any relaxation of the exclusive power of the Commons over financial legislation must be resisted, lest Britain expose itself to the problems Australia experienced in 1975.

Much as I disagree with what was done to Whitlam, I think in principle it is right that the Lower House should not exclusively control when it goes to election. The Governor General cannot do much more than that, e.g., indefinitely appoint some Prime Minister not accountable to people and Parliament. Parliament will respond within hours, people within whatever short number of weeks the election campaign lasts. It is an unfortunate concomitant of the tactic that the Opposition leader gets dignified as a caretaker Prime Minister during the election campaign, which may affect the outcome.

I fear "reform" of the Upper House may be a subject of the coming election here in the UK.

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