The Development of Bicameral Parliamentary Systems
| Author: |
Alun A Preece MA, LLB (Camb), LLM (Qld)
Lecturer, University of Queensland T C Beirne School of Law
|
| Issue: |
Volume 9, Number 3 (September 2002)
|
Paper presented at the Australasian Law Teachers' Association annual conference hosted by Murdoch University School of Law, Perth,
Western Australia September 29 - October 2 2002
Contents
The Development of Bicameral Parliamentary Systems
(This article was partly written in 2001-2002 during periods when A.A.Preece was an academic visitor at the Law Program at the Australian
National University, Research School of Social Sciences.)
- Bicameralism is, for the purpose of this article, defined as that system of organisation of the legislative arm of the state into
a deliberative body having two chambers, which generally deliberate and vote upon proposed legislation separately. For the purposes
of this article, the common need for assent to legislation by the head of state, or some official acting on their behalf or its scrutiny
for constitutionality is not seen as constituting an extra chamber.
- The seeds of present day bicameralism are found in three places, two specific, the other of more general application.
- The first is the division of the English Parliament into the Lords and the Commons.
- The second is the constitution of Venice in the later Middle Ages, under which rule was by the Doge, Senate, and Consiglio Maggiore.
This bicameral model was later copied by Florence and other city states.
- The third is the medieval notion that society consisted of well-defined groups or classes who should be represented separately.
The latter concept has its origins in theories of balanced constitutions. These date back to Aristotle[1]
and other political philosophers of the ancient world finding expression in the medieval notion that society consisted of well-defined
groups or classes who should be represented separately. However, Sweden's example of multi-chamber medieval parliament evolving
into a bicameral legislature is very much the exception.[2]
- Consequently, it is the unique, and largely accidental, English route to bicameralism which has proved to be the model and inspiration
for almost all the bicameral legislatures of today, either directly or indirectly.[3]
As a result, the origin of most differences in powers and particularly financial powers between the two chambers in bicameral systems
can be traced back in some way to the development of the relationship between the House of Commons and House of Lords in medieval
England.
- Similarly, the characterisation of one chamber as the upper and the other the lower house largely derives from use of this terminology
in relation to the English Parliament. There it is probably attributable to the fact that the House of Lords was composed exclusively
of the upper echelons of society, the most elevated sections of the aristocracy and the higher clergy. Many other widespread distinctions
follow the English pattern. For example in many bicameral legislatures the furnishings are green in the lower house and red in
the upper house.[4]
- The origins of modern bicameralism are found in the division of the English Parliament into the Lords and the Commons, and the medieval
notion that society consisted of well-defined groups or classes who should be represented separately. Thus, in France, the States-General
consisted of three estates:
- the First Estate consisting of the Nobility,
- the Second Estate consisting of the Clergy
- and the Third Estate consisting of representatives of everyone else.
- In Sweden there were four estates in the Riksdag, Nobility, Clergy, Burghers and Peasants. There were provincial assemblies from
the 12th century superseded by a Council advising the King in 1280. The Riksdag of four estates existed from the 15th century until
1866, when it was replaced by bicameralism which endured until 1971.
- However, Sweden's example of multi-chamber medieval parliament evolving into a bicameral legislature is very much the exception. Most
medieval institutions of a parliamentary nature were abolished or fell into disuse towards the end of the Middle Ages, or during
the transition to the modern era centring on 16th century. This period saw the rise of nation states under absolutist rulers, fuelled
by the evolution by the late medieval scholars of the Renaissance of the doctrine of the divine right of kings.[5]
An example is the failure of the States-General to meet after 1614. The same is true of the medieval bicameralism of the city-states
such as Venice and Florence.
- Consequently, it is the unique and largely accidental English route to bicameralism, which has proved to be the main model and inspiration
for almost all the bicameral legislatures of today, either directly or indirectly. The United States copied Britain and many other
countries, particularly in the Americas, copied the United States. The seed of democracy had germinated in England through such
institutions as the Witenagemote which chose pre Norman Kings.[6]
To some extent the Witenagemote can be seen as the origin of the later House of Lords.
- Some explanation may be thought necessary as to why bicameralism exists at all, as there is no natural reason why should have emerged
in the first place. The emergence of a parliament can be explained comparatively simply. At the dawn of history, human society
consisted of small groups or larger tribes, in which two forms of rule could theoretically operate:
- the single ruler or a
- group of rulers forming a council.
- Similar considerations operated in the more sophisticated groupings of the earliest towns and cities. The latter led naturally to
a form of parliament as civilisation progressed, although there would always be a leader in the sense of someone being chosen to
preside over meetings of the council and to implement its decisions. In the former, the leader would tend to call together an assembly
if only as the most efficient means of propagating the leaders wishes more widely. Once in existence, the assembly would tend to
be seen also as a source of advice and consultation. However, these processes might be though to lead naturally only to a unicameral
parliament.[7]
- Furthermore, in monarchical systems the leader had to be originally chosen by some means. While the leader commonly held office
for life, a concept probably favoured because it is the most convenient method of reducing the frequency of disputes over succession,
the periodic need to choose a new leader was inevitable. A widespread concept of choosing a leader for a fixed term comes late in
constitutional development at least as far as leadership of a whole country is concerned. There are very few examples before the
formulation of the United States Constitution in 1787. By contrast the concept of fixed term office was widespread in parliaments or municipal councils at a much earlier stage.
- Barring force of arms, conquest, or the operation of a hereditary principle, some sort of assembly of persons would be needed to make
the choice of leader. This could range from all citizens capable of bearing arms in Switzerland[8]
through assemblies of the greater nobles the Witenagemot of pre-Norman England[9]
to the Diet, which chose the Holy Roman Emperor in which rulers of the subordinate territories each had one vote.[10]
- Succession to the Papacy was also formalised into choice by a conclave of Cardinals, the hereditary element being ruled out by celibacy
of the clergy. The method of selecting the Pope by democratic election by a two-thirds plus one majority of cardinals has remained
essentially unchanged since it was instituted by Pope Gregory in the 11th century. This procedure was reputedly imposed largely to
counter nepotism in the Church.[11]
- Although the hereditary principle became well established in later medieval Europe at least at the level of the nation state the system
of choice by an assembly of the great nobles or magnates seems to have been preferred to the hereditary principle earlier in many
places.[12]
This was probably because the non-hereditary method gave the aristocracy greater influence. Indeed it was it was a desire on the
part of influential non-aristocratic elements to limit the power of the aristocracy in Denmark, which led to the monarchy becoming
hereditary in 1661. This also extended to membership of parliaments where nobles sat by hereditary rights. In the United Kingdom
the hereditary element in the British House of Lords has proved durable. A recent attempt at abolition by a government elected with
this policy as part of their platform resulted in a compromise whereby the hereditary element continues to be represented by ninety
of their number that they elect.[13]
- England, unlike most continental European countries, did not develop parliamentary institutions along the lines of three or more estates
in the medieval period. This was because the English Parliament emerged in the 13th century, from earlier assemblies, such as the
Witenagemot and assemblies of major barons or tenants in chief,[14]
as a single assembly. The origin of the English Parliament is usually dated as 1265, that being the year of the Parliament summoned
by Simon de Montfort which for the first time included two elected representatives of each of the boroughs and cities. This was
in addition to the two representatives of each of the shires, the major nobles and the higher clergy. Representatives of the shires
had also been summoned previously in 1213 and 1254, while the major barons and higher clergy had always been part of national councils.
In 1295 there was a further development in the inferior clergy also gained representation in that part of the composition of Parliament
that eventually became the Commons.
- Accordingly, representation was based on broadly the same principles as the three estates of France or the four of Sweden mentioned
above. The crucial difference was that, after some initial division for the purposes of voting taxation on their respective membership,[15]
they met as one body, and continued to do so until the division into Lords and Commons occurred.
- The evolution of Parliament was complex and long. The Parliament of 1265, and even those of the early 14th century, looked nothing
like the later institution. Nevertheless, Parliament did take on a greater role in English government under Edward I (1272-1307).
The writs of summons to the Parliament of 1295 of bishops, barons and representatives are evidence about the nature and function
of the developing body.
"The King to the venerable father in Christ Robert, by the same grace archbishop of Canterbury, primate of all England, greeting.
As a most just law, established by the careful providence of sacred princes, exhorts and decrees that what affects all, by all should
be approved, so also, very evidently should common danger be met by means provided in common. You know sufficiently well, and it
is now, as we believe, divulged through all regions of the world, how the king of France fraudulently and craftily deprives us of
our land of Gascony, by withholding it unjustly from us. Now, however, not satisfied with the before-mentioned fraud and injustice,
having gathered together for the conquest of our kingdom a very great fleet, and an abounding multitude of warriors, with which he
has made a hostile attack on our kingdom and the inhabitants of the same kingdom, he now proposes to destroy the English language
altogether from the earth, if his power should correspond to the detestable proposition of the contemplated injustice, which God
forbid. Because, therefore, darts seen beforehand do less injury, and your interest especially, as that of the rest of the citizens
of the same realm, is concerned in this affair, we command you, strictly enjoining you in the fidelity and love in which you are
bound to us, that on the Lord's day next after the feast of St. Martin, in the approaching winter, you be present in person at Westminster;
citing beforehand the dean and chapter of your church, the archdeacons and all the clergy of your diocese, causing the same dean
and archdeacons in their own persons, and the said chapter by one suitable proctor, and the said clergy by two, to be present along
with you, having full and sufficient power from the same chapter and clergy, to consider, ordain and provide, along with us and with
the rest of the prelates and principal men and other inhabitants of our kingdom, how the dangers and threatened evils of this kind
are to be met.[16]
Witness the king at Wangham, the thirtieth day of September." [17]
(1295)
- The summons indicates that the representation would comprise the Bishop (or Archbishop) himself plus the Dean of the Bishops Cathedral,
a proctor and two clergy to represent the Chapter and the Archdeacon(s), and the purpose was to raise money for a war in France.
- Summonses just like this were sent out to the two archbishops and eighteen bishops, and, with the omission of the last paragraph,
to seventy abbots. Accordingly, the total clerical representation would have been:
- Higher clergy - 90 Archbishops, Bishops and Abbots.[18]
- Other clergy - 20 Deans, 20 proctors, 40 clergy
- Plus however many Archdeacons there were (this number would have to exceed 20), as each Cathedral Chapter, headed by a Dean would
have had at least one Archdeacon, and whatever other representation, if any, emerged from monasteries under these descriptions.
Consequently, the total representation of lower clergy was well over a hundred.
"The king to his beloved and faithful relative, Edmund, Earl of Cornwall, greeting. Because we wish to have a consultation and meeting
with you and with the rest of the principal men of our kingdom, as to provision for remedies against the dangers which in these days
are threatening our whole kingdom; we command you, strictly enjoining you in the fidelity and love in which you are bound to us,
that on the Lord's day next after the feast of St. Martin, in the approaching winter, you be present in person at Westminster, for
considering, ordaining and doing along with us and with the prelates, and the rest of the principal men and other inhabitants of
our kingdom, as may be necessary for meeting dangers of this kind."[19]
Witness the king at Canterbury, the first of October. (1295)
- Similar summonses were sent to seven earls and forty-one barons. This produced a total representation of 48.[20]
Consequently, one cannot fail to be impressed by the numerical domination of the clerical representatives among those components
of the 1295 Parliament which forty odd years later became the House of Lords.
"The king to the sheriff of Northamptonshire. Since we intend to have a consultation and meeting with the earls, barons and other
principal men of our kingdom with regard to providing remedies against the dangers which are in these days threatening the same kingdom;
and on that account have commanded them to be with us on the Lord's day next after the feast of St. Martin in the approaching winter,
at Westminster, to consider, ordain, and do as may be necessary for the avoidance of these dangers; we strictly require you to cause
two knights from the aforesaid county, two citizens from each city in the same county, and two burgesses from each borough, of those
who are especially discreet and capable of laboring, to be elected without delay, and to cause them to come to us at the aforesaid
said time and place.
Moreover, the said knights are to have full and sufficient power for themselves and for the community of the
aforesaid county, and the said citizens and burgesses for themselves and the communities of the aforesaid cities and boroughs separately,
then and there for doing what shall then be ordained according to the common counsel in the premises; so that the aforesaid business
shall not remain unfinished in any way for defect of this power. And voti shall have there the names of the knights, citizens and
burgesses and this writ.
Witness the king at Canterbury on the third day of October."[21]
(1295)
- The representation of each English[22]
shire by two 'knights' and each borough by two 'burgesses' continued unchanged until the passage of the Great Reform Act of 1832.[23]
Given that England had 36 counties and a greater number of boroughs,[24]
the representatives of the latter were more numerous and neither these representatives nor the lower clergy greatly outnumbered each
other.
- Accordingly, representation was based on the same principles as the three estates of France or the four of Sweden mentioned above.
The crucial difference was that, after some initial division for the purposes of voting taxation on their respective membership,
they met as one body, and continued to do so until the division into Lords and Commons occurred. The adoption of this procedure was
strongly facilitated by the English Kings long standing practice of holding plenary sessions of earlier assemblies which his council,
the magnates and prelates attended. When they were joined by the knights of the shires and burgesses these stood at the lower end
of the hall, the layout being almost exactly as occurs today in the State Opening of Parliament in the United Kingdom.
- The origin of bicameralism lay in unofficial meetings of the representatives of the shires, boroughs and cities, discussing what collective
right of reply they should make to some difficult question or demand with which they had been confronted by the higher powers represented
in the Parliament. A 'speaker' would be chosen to convey their views in the full Parliament, as they would not speak individually
in the presence of their betters. Initially those attending these meetings were careful to keep no written records. The first record
of a separate session of the Commons, as this group came to be known, in the Rolls of Parliament is of a session in 1332. However,
the division into the House of Lords and the House of Commons, may be regarded as permanent from 1339.
- The clergy were reluctant attenders at these Parliaments, preferring to tax themselves separately in their convocations of Canterbury
and York. In the 14th Century they ceased to attend entirely for two hundred years until forced back in as Lords Spiritual at the
Reformation,when their right to tax themselves in Convocation was abolished.[25]
- The accidental circumstance of the absence of the clergy, during this crucial formative period, appears to have been essential to
the evolution of a bicameral legislature, as it removed one of the three estates. Virtually all other European constitutions evolved
systems based on three or more estates. Even in England there was at one time the possibility that lawyers and merchants would have
formed two separate sub-estates.[26]
- The Norman conquest brought about a more formally hierarchical feudal structure, with the King at the top of the pyramid, with originally
about 170 tenants in chief holding the land directly of him.[27]
- Tenants in chief held land mostly on the military tenure of knight service, through lesser mesne lords down to the free tenants and
ultimately the unfree tenants or villeins obliged to work the soil and yield up a share of its produce. This eventually brought
with it a system of manorial courts with jurisdiction over each lord's manor or fiefdom. The lord enjoyed the privilege of being
unable to be sued in the Lord's own court as did the King as lord in the Royal Courts, hence the birth of the legal concept of sovereign
immunity. However, there were no special privileges attaching to the nobility, or any particular level of the nobility, as a class
beyond this and the rights attaching to feudal tenures, which included the inability of the tenant to deny the lord's title.[28]
- Initially, the hundred and shire court's remained assemblies of freemen but the royally appointed Sheriff who presided over the shire
court became far more powerful and influential than the presiding officers in Anglo-Saxon times. This brought into being the concept
of assemblies of freemen. As these rapidly became unwieldy given the numbers involved as the feudal system expanded, the concept
of representation was born.
- Compared to others the English feudal system conferred comparatively few privileges on the Nobility. Apart from the right of the
greater magnates to sit in the House of Lords, and earlier in the Witanagemote, their status derived entirely from their landholdings.
There were none of the special privileges from taxation enjoyed, for example, by the French aristocracy right up to the eve of
the revolution which broke out in 1789. English feudalism, while the most perfect and complete example in Europe in the period
immediately after the Norman conquest, paradoxically was the first to wither and die.[29]
- Initially the House of Lords was immeasurably the more powerful house. Early in the reign of Edward II, dissatisfaction with his
conduct of the government led to the Ordinances of 1311. These asserted inter alia that the king should not leave the Kingdom or
levy war without the consent of the baronage in parliament. In the case of such absence with consent, a guardian of the realm should
be chosen by the common assent of the baronage in parliament. Similarly, the chancellor two chief justices, treasurer and other
great officers of the crown, should be chosen by the counsel and assent of the barons in parliament. Only the House of Lords was
to have a say in these matters. A fascinating link to the present is similarity of the latter provision regarding appointments
to the need for Senate confirmation of major presidential appointments in the United States.[30]
- The right of the House of Commons to concur in legislation of national importance was affirmed by the Statute of York in 1322[31]
- It was not enough for bicameralism of initially arise, it also had to maintain itself to survive to the present day. Its survival
is attributable to other unique features of the English social and legal landscape at this time.
- One of the features of the division of Parliament into two Houses in England which proved essential to its long survival was the division
of the nobility between the two Houses. For the House of Lords contained only the higher nobility, the major magnates.[32]
- The lesser nobility were represented in the House of Commons as the knights of the shires. This strengthened the Commons so that
it gained a significant voice as early as the mid to late 14th century, and made it strong enough to win the Civil War of the 17th
century.
- Another factor was the confinement of the privilege of nobility in two ways. Firstly, the only privilege was a seat in the House
of Lords. There was none of the unjust exemption from taxation found in countries such as France. All freemen were entitled to
marry anyone or to aspire to any office in the land. Secondly, the privilege was confined to the actual holder of the noble title.
A baron's sons were commoners. Even the eldest son, who was heir to the title under primogeniture, was a commoner until and unless
he succeeded his father. . Consequently, there was far less of a division between the aristocracy and most prosperous non-aristocrats
than in most other European countries .
- Increasingly, sons of members of the House of Lords as commoners, or lesser aristocrats, whose title did not entitle them to membership
of the House of Lords would be members of the House of Commons. The closeness or identity of social class between some members
of both Houses meant that political alliances were very likely to form between members of both Houses. This is essential for successful
bicameralism, which cannot succeed or operate efficiently if the two houses are structurally destined to be at enmity. Hence the
decline of the medieval multi-chamber parliaments elsewhere where they were rigidly differentiated on a class basis as in France.
- For an explanation of the comparative lack of aristocratic privilege, one must delve into the origins of English law. It really
starts in pre-Norman Anglo-Saxon times. Prior to the Roman conquest in 43 A.D. various tribes occupied the land. Although there
is evidence of a comparatively advanced civilisation, for the times, in terms of everyday domestic life going back several thousand
years[33]
before that there is no evidence of any organised legal system. Accordingly, beyond the obvious existence of tribal chieftains no
great variations of legal status based on hierarchy could have existed. The Roman law that came with the Romans also departed with
them, so there was no significant impact of it in Anglo-Saxon times except through the canon law of the re-established church after
the 6th century. In pre -Norman times seems there was a society lacking great differentiation of legal status based on caste or
class, at least compared to other countries at that time. There were slaves, although these were almost exclusively prisoners of
war or persons whose status had been degraded as a form of punishment.[34]
- There were some privileges attaching to the Status of a Thegn or Royal Thegn or to freemen as opposed to those obliged to work the
soil and yield up a share of its produce, and the Church has some immunities. However, the King was more of a first among equals
than a pre-eminent overlord, being seen more as "the King of the English" than the "King of England". Appeal was possible from Hundred
Court to Shire Court and from there to the King. Both these courts were founded as the assembly of all freemen rather than being
dominated by a lord.
- Also, unlike some other parts of Europe, such as France, where following the decline of the Roman Empire the Romanised population
and Germanic elements lived under different systems of personal laws, England had no history of different personal laws. The legal
division of England between the Danelaw in the North East and the rest, after Viking invasion and settlement was territorial; not
based on tribe or race. The legal traditions in some other parts of the British Isles, such as Wales, were also at this time based
far more on notions of reasonable equality under the law than was the case in many other places
- That the English Parliament itself did not succumb to the pressures to absolutism at the end of the Middle Ages is the result of a
number of special factors.
- Parliamentary institutions had become stronger in England than elsewhere. It is likely that bicameralism of the legislature played
a fundamental role in this. The division into Lords and Commons, by concentrating those sympathetic to authoritarian rule into the
upper house was probably crucial in enabling the Commons on behalf of parliament as a whole, to effectively challenge royal power
in the 17th century.[35]
- Geographic isolation meant that authoritarianism could not be effectively imposed from outside.[36]
- The peculiar character and wide education of Henry VIII, who was the English Monarch best placed to follow the authoritarian road,
meant that despite his extreme measures he chose to follow an entirely constitutional path, obtaining parliamentary sanction for
all his measures. During his reign Parliament at his behest was called upon inter alia to:
- formalise the break with Rome;
- declare the King Supreme Head of the Church of England;[37]
- drastically reform property law;[38]
and
- change the succession to the Crown three times; finally giving him power to determine the succession to the Crown by his will.[39]
- Although Parliament was during his reign largely subservient to Henry VIII,[40]
its passage of legislation making such fundamental constitutional changes was bound to increase in the longer term the standing and
stature of Parliament to huge degree. Furthermore, the very extravagance of Henry VIII brought about an increase in parliamentary
influence to the consequent need to summon it more regularly to vote taxes, or raise money for the King by other legislative means.
- A few weeks after the execution of Charles I on 30 January 1649, the House of Commons voted that the House of Lords was "useless and
dangerous". However, the House of Commons fared little better, being shortly converted to a Representative, before the Rump Parliament
itself was dissolved by Oliver Cromwell in 1653. Later that year the Instrument of Government instituted a unicameral parliament.
However, a second house was restored even before Cromwell's death.[41]
After his death, General Monk persuaded the reassembled Long Parliament to restore the House of Lords. Accordingly, the flirtation
with unicameralism lasted but a few short years.
- However, despite the Restoration of 1660, the revolutionary period had permanently established the predominance of the House of Commons
in the parliamentary and governmental process. Bicameralism in England so came to be regarded as the natural system that it was
not even mentioned in the crowning glory of the triumph of English constitutionalism, namely the Bill of Rights and Revolution Settlement
of 1688/89.
- The 1295 Parliament would have comprised 138 members of the higher aristocracy and clergy; the element that a little over a generation
later became the House of Lords. Approximately two-thirds of which were clergy. The remaining members would have amounted to about
250-300, with clergy amounting to somewhat less than a half of these. So the element which later became the Commons were about two
thirds of the total. By 1999, when all but 90 hereditary peers were removed from the House of Lords, their numbers had swelled
to about 800. Meanwhile, the House of Commons had 650 members.
- In 1714 the arrival of the non-English speaking George I hastened the development of Cabinet Government and the concept of reliance
on a parliamentary majority developed. Probably one reason why the Commons developed more power and influence than the Lords was
that the greater difficulty of finding a majority favourable to the King's desires in Commons which led to more attention being given
to winning support there.
- The legislative powers of both Houses were essentially equal in 1689,although the House of Commons was seen as the initiator of the
vote of supply for the Government. Accordingly, the principle was established that budgetary measures must originate in the House
of Commons, and could not be amended in the Upper House. For two centuries the Lords did not exercise their right to reject, as opposed
to their lack of right to amend, a budget until the rejection of the Lloyd George budget in 1909 which led to the restriction of
their powers under the Parliament Act 1911.
- The co-equal legislative powers of the two Houses, subject only to the exclusive right of the Lower House to propose and amend money
Bills, being understood to be the position m the 1890's, is exactly reflected in section 53 of the Australian Constitution. Interestingly, the restriction of the powers of the Lords to reject money Bills, contained in the Parliament Act 1911, was essentially
copied in relation to the Upper House in New South Wales in 1919.
- However, certain conventions developed regarding the veto of legislation by the House of Lords. Towards the end of the reign of Queen
Anne the House of Lords narrowly rejected the terms of the Treaty of Utrecht, ending the long war of the Spanish succession against
the France of Louis XIV. Following this, passage of the legislation was achieved by the creation by Queen Anne of the necessary,
fairly small, number of Tory peers. This precedent was to have momentous consequences more than a century later.
- While the years 1710-1714 were a time of particularly sharp political division, generally in the eighteenth century sharp disagreements
were rare since each House of Parliament largely represented the landed interests. However, by 1832, the House of Commons had become
unrepresentative of the great new towns and cities produced by the Industrial Revolution, and pocket[42]
and rotten[43]
boroughs had proliferated, hence the presentation of the Great Reform Bill in 1831. This Bill was rejected by the Lords, but after
a general election had confirmed a Commons majority for the Bill, the House of Lords was forced to pass it by the threat of mass
creation of sufficient Whig peers to secure its passage.
- Accordingly, it became the convention that the House of Lords' veto could be overcome by a successful appeal to the people on the
issue at a general election. This procedure was followed in 1909-1911 to pass first the 1909 budget, drawn up by Lloyd George as
Chancellor of the Exchequer, and subsequently the Parliament Act 1911, two elections in 1910 being necessary to effect this process.
After the rejection of the budget and its subsequent election, the Government of the day decided to put an end to the veto of the
House of Lords once and for all through the Parliament Bill. King George V required a further election before he would consent
to force this through.
- On the other hand, the other major exercise of veto power by the House of Lords, the rejection of the second Irish Home Rule Bill
in 1894, was initially a victory for the Upper House. On that occasion the Government did not immediately call an election on the
issue but was soundly defeated a year later in 1895 so the veto was regarded as having been endorsed by the voters.
- It is highly significant that the Australian Constitution was framed after the English convention was developed but before the enactment of the Parliament Act 1911. The provisions in section
57 of the Australian Constitution for resolving deadlocks between the two Houses appear to be a translation of the current British convention on the matter. An election
is required before the Senate can be overridden. Of course, with an elected Upper House there can be no exact parallel to the threat
to create peers, so the joint sitting is substituted as a means whereby the House of Representatives, being more numerous, is likely
to prevail.
- An interesting sidelight on this matter is that the powers of the Canadian Senate . originally contained in the British North America
Act 1867 (UK), were equal to those of the House of Commons, save that money Bills had to origmate m the Lower House. The lack of
restriction on amending money Bills m the Senate may have stemmed from the lesser prominence of this convention in 1867 than its
significance a generation later.[44]
- Alternatively, the lack of any procedure for removing deadlocks may have stemmed from a lack of perceived need owing to the appointed
nature of the Senate or from the strong visibility of the United States example, where there was no formal constitutional procedure
for resolving deadlocks.[45]
The example of the United States may also have influenced the approach taken to the issue of the amendment of money bills. What
is fascinating is that in 1982 the powers of the Canadian Senate were in some respects reduced to a delaying power somewhat similar
to that of the House of Lords by the new constitutional arrangements established by the Canada Act 1982.
- English bicameralism has spread in two ways:
- English and later British settlement overseas and colonisation carried with them this tradition and /or it was set up directly in
these territories by legislation of the Imperial Parliament at Westminster either as a matter of British policy or at the request
of the colonists.[46]
As a result, for example the American colonies established two house legislatures from time of the 17th century settlement. Later
in Australia, the British Government firstly set up Legislative Councils to advise the Governors of the various Colonies in most
cases then granted responsible government through a Legislative Assembly.
- Many countries copied British constitutional arrangements, because, particularly after the 1688 Constitutional Settlement had endured
very successfully well into the 18th and 19th centuries, they were seen as the world's best practice. It was at this time that
constitutionalism and democracy were beginning to replace absolutism in a substantial number of other European countries.
- This reproduction of British arrangements applied in three ways:
- Countries setting up constitutional democracy for the first time looked to Britain as the exemplar.
- Former British colonies seemed to copy Britain's arrangements, at the time that their constitutions were formulated, particularly
closely.[47]
- Finally, the most prominent of these former colonies, the United States, once its independent democracy became firmly established,
itself became a leading model for other countries to emulate.
Sometimes there was a multistage process. For example, in Federal systems such as the United States and Australia, initially colonial
legislatures were set up in the States, copying the bicameral English or British model. On independence, the colonies became states,
and their bicameral arrangements were influential in drawing up the relevant parts of the federal constitutions, when federation
took place. [48]
- As a result of all these forms of influence bicameralism spread far and wide. By contrast, very few legislatures divided into three
or more chambers emerged after the end of the Middle Ages.[49]
- Copying of the relationship between the two houses in regard to financial measures was also frequent.[50]
For example, the adoption of the constitutional requirement in the United States that all "Bills for raising Revenue" should originate
in the lower house,[51]
this being understood to be the constitutional position in Britain in the late 18th century.[52]
Another example is the limitation in Australia of the Senate's powers over financial legislation to rejection, with provision for
the calling of an election to resolve differences.[53]
- The clergy were reluctant attenders at these Parliaments, preferring to tax themselves separately in their convocations of Canterbury
and York. In the 14th Century they ceased to attend entirely for two hundred years until forced back in as Lords Spiritual at the
Reformation when their right to tax themselves in Convocation was abolished.[54]
- The accidental circumstance of the absence of the clergy during this crucial formative period appears to have been essential to the
evolution of a bicameral legislature as it removed one of the three estates.[55]
- This clerical absence was also very significant in bringing about the origination of the House of Commons predominance in finance
matters. This was because their absence from taxation deliberations, when combined with the main source of taxation of the great
lords lying in their automatic direct feudal obligations to the crown as tenants in chief,[56]
left little for the House of Lords to do in the field of finance. For example, in 1344, after the permanent division of parliament
into the House of Lords and House of Commons in 1339, the knights and burgesses made separate grants of taxation to fund the war
against France, while the lords merely promised to follow the King in person and granted nothing.[57]
- As early as 1309, prompted by the weakness and unpopularity of Edward II, the House of Commons had granted the king a subsidy conditional
upon redress of grievances.[58]
The establishment and development of this principle, that grant of taxation was to be conditional on redress of grievances, also
tended to cement the dominant role of the House of Commons in financial matters. As the House of Commons was the only representative
body, the House of Lords consisting not of representatives by of members who sat in their own right ex officio as leading magnates
or prelates, it could not act as effectively in transmitting demands for redress. Once upper houses become elected representative
bodies, this argument for predominance of lower houses in control of finance ceases to operate.[59]
- Initially grants of taxation were made without condition as to how the money would be spent. The first unequivocal instance of an
appropriation of supplies occurred in 1353, when a tax on wool was granted to be applied solely for the purposes of the war.[60]
By the 17th century the principle that the House of Lords should not even amend financial legislation was so well established that
in 1671 the House of Commons declared by resolution that according to their ancient rights and privileges the Houses of Lords should
never be granted such a right. In 1678 the Commons were even firmer declaring that the grant of all aids and supplies to the Crown
were the sole gift of the Commons and bills granting such should not be altered or changed by the Lords. Of particular significance
was the fact that these resolutions were passed by the Cavalier Parliament (1661-1679) elected at the restoration and so was probably
the most conservative body in temper regarding the powers of the Commons elected in many centuries.
- While conditional grants were important in the early phase of assertion and development of parliamentary control of finance, in more
recent times it has been the practice in the United Kingdom to legislate separately for the grant of taxation and appropriation of
expenditure. Australia has entrenched this distinction in its Constitution.[61]
This eliminates the procedure of tacking unrelated items into finance measures, which is a major part of the political process in
the United States. There in recent years presidents and those among the state governors who do not already enjoy this privilege
have earnestly desired a line item veto, in addition to their general powers of veto, which would enable them to defeat 'pork-barrelling'
measures tacked into budgetary measures.
- Despite its important role in theories of mixed and balanced government, that bicameralism that exists in the world today seems to
be very much the product of a combination of accidental circumstances existing in the England of the 14th century. It later spread
widely through copying of the English model. Consequently the advantages which it has brought to government in some countries over
the past few centuries are attributable to its spontaneous formation in England where it was able to grow as a result of a uniquely
fluid social structure.
- Attacks on bicameralism in England, which began with the Chartists in the late 1830's and made significant headway only in the 20th
century, came too late to prevent this happening. The Parliament at Westminster has been described as the 'Mother of Parliaments'
because it has given birth to so many. Perhaps, it is even truer that its bicameral system has been the mother of present day bicameralism.
[1]
See discussion in Aristotle's Politics.
[2]
When the system of four estates was replaced in Sweden by a bicameral parliament in 1866, it essentially copied the model derived
from the British model and its imitators.
[3]
The United States copied Britain and many other countries, particularly in the Americas, copied the United States.
[4]
Australia and its States are an example.
[5]
Interestingly, this doctrine was evolved not directly for this purpose, but to improve the position of late medieval princes against
the claims of the pope to be their overlord.
[6]
The concept of the monarchy being theoretically elective, but in practice chosen from the 'royal family', was not unique to England
but existed in Scandinavia. For example, in Sweden the monarchy was elective until 1544 and in Denmark until 1661.
[7]
The word Parliament itself is derived form Norman French meaning discussion, so that in the Middle Ages the English Parliament was
for a long time seen as calling representatives together for a discussion rather than as an institution.
[8]
From 1291, which still exists as the annual meeting in a few Cantons.
[9]
Traces of the original elective procedure are still to be found in the modern coronation ceremony.
[10]
Hence the use of the term Elector to describe the rules of the many German States. An example of how the system operated was that
following the Peace of Westphalia in 1648, the King of Sweden enjoyed three votes in the diet based on the Swedish possessions in
Pomerania gained in the preceding 30 years war.
[11]
As was Pope Gregory's enforcement of celibacy of the clergy.
[12]
For example, in Sweden the monarchy did not become hereditary until 1544, and in Denmark not until 1661.
[13]
House of Lords Act 1999(UK), s.2.
[14]
Tenants in Chief were those who held land directly of the King under the feudal system, for practical reasons they probably only
ever met in 1086 and 1116, see Taswell-Langmead's Constitutional History, 11th edition (1960) at 127-128.
[15]
See Taswell-Langmead's Constitutional History, 11th edition (1960) at 142.
[16]
This indicates the deliberative purposes of the assembly
[17]
Internet Medieval Source Book: http://www.fordham.edu/halsall/sbook.html
from summonses in E. P. Cheyney, trans., University of Pennsylvania. Dept. of History: Translations and Reprints from the Original
Sources of European history, published for the Dept. of History of the University of Pennsylvania., Philadelphia, University of Pennsylvania
Press [1897]. Vol. 1, No. 6, pp. 33-35.
[18]
These would have ended up in the House of Lords when bicameralism emerged.
[19]
Internet Medieval Source Book: http://www.fordham.edu/halsall/sbook.html
from summonses in E. P. Cheyney, trans., University of Pennsylvania. Dept. of History: Translations and Reprints from the Original
Sources of European history, published for the Dept. of History of the University of Pennsylvania., Philadelphia, University of Pennsylvania
Press [1897]. Vol. 1, No. 6, pp. 33-35.
[20]
Again these would have ended up in the House of Lords when bicameralism emerged.
[21]
Internet Medieval Source Book: http://www.fordham.edu/halsall/sbook.html
from summonses in E. P. Cheyney, trans., University of Pennsylvania. Dept. of History: Translations and Reprints from the Original
Sources of European history, published for the Dept. of History of the University of Pennsylvania., Philadelphia, University of Pennsylvania
Press [1897]. Vol. 1, No. 6, pp. 33-35.
[22]
In 1536 Henry VIII's Act of Union of England and Wales granted one representative to each of the 13 Welsh Counties and 14 Welsh
Boroughs. This smaller representation was not unreasonable given the smaller average size of Welsh Counties and Boroughs.
[23]
The only other changes being the addition of one member from each Welsh county and borough in 1543, two members for each of the
Ancient Universities of Oxford and Cambridge in 1604, 45 members and 16 peers from Scotland as a result of the Union with Scotland
in 1707 and 28 peers and the appropriate number of members from Ireland as a result of the Union with Ireland in 1800.
[24]
Also, new boroughs could, and were regularly, easily be created by grant of a Royal Charter; whereas new counties were never created
(until well after the Great Reform Act of 1832).
[25]
By 25 Hen.8 c.19 Convocation was forbidden to enact constitutions or canons without the king's licence.
[26]
Taswell-Langmead's Constitutional History, 11th edition (1960) at 151.
[27]
The idea of an assembly of tenants in chief was a precursor of the House of Lords.
[28]
This principle carries over into the law of landlord and tenant to this day, whereby denial of the landlord's title brings about
an automatic forfeiture of a lease.
[29]
By the early 15th century, most persons were holding as tenants in chief of the Crown, or had commuted feudal dues into monetary
payments.
[30]
United States Constitution, Art II, s2 (2).
[31]
15 Edw2.
[32]
G. M. Trevelyan: History of England Longmans, Green & Co.Ltd. 1926, at 195; Taswell-Langmead's Constitutional History, 11th
edition (1960) at 152-3.
[33]
At Scara Brae in the Orkneys internal latrines with stone pipe work and quite sophisticated stone furniture has been found.
[34]
Taswell-Langmead's Constitutional History, 11th edition, p.13.
[35]
In 1642, when Charles I raised his standard at Nottingham to presage the start of the Civil War he was joined by approximately one
third of the Commons and two thirds of the Lords.
[36]
For example, the failure of the Spanish Armada in 1588, which had been designed to return England to the catholic fold which, incidentally,
would have meant the demise of parliamentary independence. See also the explanations given for the development of democracy in some
countries rather than others by James Q Wilson in Democracy for All? Commentary, 109(3) (March 2000)
http://www.Commentarymagazine.com.
[37]
Act of Supremacy 1534.
[38]
See Statute of Uses 1535, Wills Act 1540, and legislation paving the way for dissolution of the monasteries, which greatly reduced
Church landholdings for as much as one third of the Land in England to about a tenth.
[39]
The final part of his will was ignored in 1603 when James I acceded in spite of Henry VIII's stipulation that his line be exclude
in favour of the junior Suffolk Line, see Taswell-Langmead's Constitutional History, 11th edition (1960) at 330.
[40]
However, there was reluctance to pass some legislation, notably the Statute of Uses in 1535.
[41]
On 3 September 1658.
[42]
So called because they had so few voters that they were in the 'pocket' of some individual.
[43]
Where for some reason such as control of a borough by a clique, or the general operation of a corrupt practice, in some cases openly
selling the seat to the highest bidder, the member was not properly representative.
[44]
In fact, it was only late in the 19th century as the Whig element in the aristocracy gradually faded away, that a strong conservative
majority appeared in the House of Lords.
[45]
These are resolved by procedural rules which establish a conference committee consisting of equal members of both houses, whose
agreed version of the legislation, if any, must be put to a vote in each house.
[46]
As in the case of enactment of the Commonwealth of Australia Constitution Act 1900, following a series of Constitutional Conventions in the Australian Colonies in the 1890's.
[47]
This 'snapshot' theory has been expounded in more detail by the author in relation to Australia, New South Wales, Canada and the
United States in a contribution entitled: The British Influence on the Australian Constitution to the book: Republic or Monarchy? Legal and Constitutional Issue 1994, University of Queensland Press particularly at 138-143.
[48]
Very considerable discussion took place at the Australasian Federal Convention in the 1890's on the form of the Senate as a basis
for federal representation. See Constitutional and International Law Perspectives (University of Queensland Press 2000, ISBN 0
7022 3160 6) Chapter 2: N. Aroney
Federal representation and the framers of the Australian Constitution, extensively citing the convention debates on the need for a n upper house to represent the States.
[49]
The only recent example of a tricameral legislature is that which operated in the Republic of South Africa in the 1980's. This
replaced the bicameral legislature set up in 1909 under the South Africa Act 1909 (UK), and itself gave way to a single chamber
legislature which was elected in 1994 after the dismantling of apartheid. Many would question whether this was a genuine attempt
at democracy as opposed to a last desperate attempt by the leaders of the white minority to cling to power. There was a chamber
each for the Whites, Coloured and Indians respectively. However, matters wer so organised that the Whites had ultimate control.
[50]
Discussed in detail by the author in The British Influence on the Australian Constitution one of the Chapters in the book: Republic or Monarchy? Legal and Constitutional Issue 1994, University of Queensland Press
[51]
United States Constitution, Art I, s 7.
[52]
The United States did not adopt the limitations on upper house powers declared in the resolutions of 1671 and 1678 of the Commons
mentioned above, but this may have been because sufficient colonial legislatures has been established in the mid 17th century there
and had established different traditions
[53]
Australian Constitution, ss 53,57.
[54]
By 25 Hen.8 c.19 Convocation was forbidden to enact constitutions or canons without the king's licence.
[55]
Virtually all other European constitutions evolved systems based on three or more estates. Even in England there was at one time
the possibility that lawyers and merchants would have forms two separate sub-estates, Taswell-Langmead's Constitutional History,
11th edition (1960) at 151.
[56]
Persons who held land directly of the Crown as Lord rather than from some lesser lord.
[57]
Taswell-Langmead's Constitutional History, 11th edition (1960) at 152.
[58]
Taswell-Langmead's Constitutional History, 11th edition (1960) at 155.
[59]
This argument has recently (20 February 2001 see report in The Times) been advanced by Lord Sattchi when introducing a private members
bill to change the rule in the Parliament Act 1911 that the House of Lords may not amend financial measures. This has occurred little
more than a year after the drastic reduction of the hereditary element in that House.
[60]
Taswell-Langmead's Constitutional History, 11th edition (1960) at 160, quoting Rotuli Parliamentorum, ii, 252, no 35.
[61]
Section 54 provides that an act appropriating moneys shall contain no other provision.
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