Evolution of the Westminster System, a Power Struggle amongst Institutions

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This topic is within Principles of Public Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 54-77 (Chapter 2, sections 1-2).

English Constitutional History

Magna Carta

[1] The Magna Carta was a document signed by King John in 1215 which placed limits on the arbitrary exercise of monarchical power. It has been reaffirmed by every monarch since, and it seen as a precursor of the principle of the rule of law.

Parliament

[2] The origins of Parliament in England:

  • Anglo-Saxon Kings had been assisted by a council called the Witengamot.
  • The Normans, starting with William the Conqueror, held Great Councils, which consisted of the King and his tenants in chief (nobles etc)
  • In the 13th century, these became known as Parliaments.
  • Whilst they initially only consisted of the aristocracy, as time progressed they started including representatives of the commons, knights, clergy etc (Lords Spiritual, Lords Temporal, the Commons). This was done mainly when the King needed to raise money.
  • An exchange began to take place: the King would need to raise money, and the people would leverage this in order to make him enact a new law or alter an existing one. By the 16th century, statutes were given to the King to which he could assent or dissent.
  • After struggles in the 16th and 17th century between monarchs and parliament, the Glorious Revolution occurred and the Bill of Rights was passed.
  • The Bill of Rights effectively limited the power of the King and subordinated him to Parliament.

The Court of Star Chamber

[3] The Court of Star Chamber was established during the Tudor period. Its purpose was to remedy the defects of the established judicial system – it would prosecute those who did not get punished under the normal courts, but were believed to be deserving of punishment. The court was granted almost a complete freedom with regards to procedure, evidence, and punishment.

It was a repressive, tyrannical system which operated in secrecy. It was also influenced by political decisions because senior politicians sat as judges. The court became a way of the executive to enforce policies. However, it was extremely effective and very popular at the time.

Conflict between the King, Parliament and Common law

Lead-up to the revolution

[4] In the 17th Century, the Stuart monarchs were in constant conflict with Parliament and the Common-law. This was because the Stuarts, starting with King James I, believed in the divine right of kings.

  • The theory stated that a king was appointed by God and answerable only to him.
  • The King was above Parliament and the courts, whose powers were theirs only by the grace of the King rather than by any right.

Sir Edward Coke (Chief Justice, later a Member of Parliament) opposed this doctrine, contending that the rights of all were defined by the Common-law (precedents), not by the King.

  • Ultimately, Coke held that the King was legally limited by the Common-law – “the law was greater than the Crown ”.

Coke’s controversial decisions

Coke enforced his idea in Prohibitions del Roy (Case of Prohibitions)[5]:

  • “the King in his own person cannot adjudge any case…this ought it be determined and adjudged in some Court of Justice[6]
  • Cases are not determined by natural reason but artificial reason, which is achieved through much study of the law and experience as a judge. In other words, the King is not qualified to determine the law.

Coke also made a big ruling in the Case of Proclamations[7]:

  • “the King by his proclamation of other ways cannot change any part of the common law, or statute law, or the customs of the realm…The king by his proclamation cannot create any offence that was not an offence before”
    • The King is no longer empowered to make laws without Parliament.
  • “The law of the land is divided into three parts: common law, statute law, and custom. But the King’s proclamation is none of them…the king hath no prerogative but that which the law of England allows him”.
    • The King’s power is derived from the common-law and Parliament.

Coke tried to also introduce judicial review into the English system in Thomas Bonham v College of Physicians (Dr. Bonham’s Case)[8]:

  • Facts: the plaintiff, Bonham, brought a case of false imprisonment against the College of Physicians. He had a degree, and, upon seeking a licence, was denied. He continued practising, and was subsequently fined and imprisoned. The College argued that they have the power to decide who can practice (and imprison those who disobey) because of a Charter given by the King.
  • Coke CJ: The common law has the power to adjudge Acts of Parliament to be void if they are against common right and reason. Considering Bonham had a degree and he was practising safely, it would be absurd to fine Bonham for practising. The plaintiff wins.
  • Coke tried to assert the right of the judges to strike down laws which are ‘repugnant’ to the common-law.
  • This means that the common-law could judge acts to be entirely void, thus placing it (and thus the judiciary) above parliament.
  • However, later investigation undermined the precedents Coke used, and the practice of judicial review never eventuated in England.

Coke's downfall

[9] The judgments in the above three cases made Coke very unpopular with the King, as well as the Lord Chancellor Ellesmere. In addition, he had a life-long feud with Sir Francis Bacon, who held the position of Attorney-General.

  • Coke convinced eleven judges to ignore a summons on behalf of the Crown from Sir Francis Bacon, on the basis that his summons was illegal as all judges were bound by their oaths to delay no case.
  • The judges and Coke were finally summoned by the King, whereby the eleven judges sided with the King on the issue of his royal prerogative to delay.
  • However, Coke refused to agree with the King, thus greatly angering him.
  • At the request of the King, proceedings began against Coke for several offences, including speeches of high contempt, failing to give a satisfactory answer to the king, and so on.
  • Coke was suspended from office, and upon further refusal to edit his manuscript (so that his opinions against the royal prerogative would be taken out) was removed from all offices under the Crown in 1616, marking the end of his career as a judge.
  • However, Coke was later elected to Parliament.

End of the conflict - the Glorious Revolution & Bill of Rights

[10] The Petition of Right of 1628 was drafted by Coke, and gave parliament control over taxation. However, tensions between parliament and the king (now Charles I, James' successor) continued and both struggled for supremacy (to be the ultimate authority in England). Eventually the differences became irreconcilable and Charles I was executed in 1649. The period that followed was known as the Interregnum, in which Parliament (headed by Oliver Cromwell) ruled in the absence of a monarch. Unfortunately, the Interregnum ultimately failed to produce a stable alternative to monarchical rule, and Charles II was invited back to the throne, thus restoring the monarchy.

However, his successor James II once again overstepped his boundaries. The dominant nobles effectively ousted James II from power and invited William of Orange (Dutch noble, married James’s daughter) to the throne. William’s accession to the throne was conditional upon his assent to the Bill of Rights (1688), which further limited the power of the monarch and effectively placed him below the Parliament and the common-law.

The Act of Settlement

[11] The Act of Settlement 1701 was another landmark act which cemented the new relations between Parliament and the King. Its chief points were:

  • The King’s pardon under the Great Seal[12] would not be a bar to an impeachment by Parliament
  • Judges are to hold office during good behaviour instead of at the king’s pleasure.
    • They are to be removed or have their salary altered upon address by both houses of Parliament and charges of misconduct proved in Parliament.
  • The King must be of the Church of England.
  • If the King was a foreigner, England is not obligated to defend his foreign interests.
  • The king may not leave England without parliamentary permission.
  • Any person that is employed under the king or receives a pension from the king be allowed to sit in the House of Commons.

The Act of Settlement 1701 ultimately signified that it is Parliament, and not the King, who is the supreme law-making body in England.

Limited Government

[13] The government’s powers are limited by its purpose. The limitation of government power is symbolised by the rule of law, parliamentary supremacy and the separation of powers.

The limitation of government power is exemplified in Entick v Carrington[14]:

  • “if it is the law, it will be found in our books. If it is not found there, it is not the law.[15]” – State powers are specified by written statutes (made by parliament). They cannot be implied.
  • Reinforces rule of law, separation of powers, parliamentary supremacy.

The limitation of government power and the protection of individual liberties was also demonstrated in Sommersett’s Case[16]:

  • There is no positive law which supports slavery.
  • It is “outrageous, and is inconsistent with the notion of the rule of law”.

Responsible and Representative Government

[17] The road from the Glorious revolution to the modern system of responsible and representative government was still long. Gradually, the Privy Council declined in practical power and the King’s ability to choose his own ministers declined and finally extinguished. The Reform Acts of 1832 and 1867 enlarged the franchise, and abolished certain constituencies. The effect was that the Crown was no longer able to have the same influence over the Parliament as it was able to even after the Revolution. As the representative system developed, so did the system of responsible government develop, and finally, the Crown was reduced to a ceremonial role.

End

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References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. Textbook, p. 54
  2. CF Padfield, British Constitution Made Simple (WH Allen 4th ed, 1977, pp. 17-20) in Textbook, pp. 59-60
  3. Frederick Marcham, A Constitutional History of Modern England, 1485 to the Present (Harper & Brothers, 1960, pp. 35-8) in Textbook, pp. 63-4
  4. Goldwin A. Smith, A Constitutional and Legal History of England (Scribners, 1955: repr Dorset Press, 1990, pp. 304-310) in Textbook, pp. 65-6
  5. (1607) 12 Co Rep 63
  6. (1607) 12 Co Rep 63, 63-4
  7. (1611) 12 Co Rep 74
  8. AD Boyer, “’Understanding, Authority, and Will’: Sir Edward Coke and the Elizabethan Origins of Judicial Review” (1997) 39 Boston College Law Review 43 in Textbook, pp. 67-8
  9. Goldwin A. Smith, A Constitutional and Legal History of England (Scribners, 1955: repr Dorset Press, 1990, pp. 311-13) Textbook, pp. 68-69
  10. Textbook, p. 72
  11. Goldwin A Smith, A Constitutional and Legal History of England, (Scribners, 1955: repr Dorset Press, 1990, pp. 369-70) in Textbook, p. 74
  12. The Great Seal was the was the seal which the king used to symbolise his approval on royal documents such as charters, pardons or legislation. Wax would be melted and the seal would be pressed onto the wax, leaving an impression which was authenticated the king's approval.
  13. Textbook, p. 74
  14. (1765) 19 St Tr 1030
  15. (1765) 19 St Tr 1030, 1066
  16. (1772) 20 St Tr 1
  17. Patrick Parkinson, Tradition and Change in Australian Law (LBC Information Services, 3rd ed 2005, pp. 101-2) in Textbook, p. 77.
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