Jeffrey Denys Goldsworthy AM FASSA is an Australian academic and legal philosopher. He is known for his work in philosophy of law , as well as constitutional theory and interpretation.
68-529: In the Westminster system used in many Commonwealth realms , the King-in-Parliament (Queen-in-Parliament during the reign of a queen) is a constitutional law concept that refers to the components of parliament – the sovereign (or vice-regal representative ) and the legislative houses – acting together to enact legislation. Parliamentary sovereignty is a concept in
136-460: A governor-general ) formally appoints as the head of government whoever commands the confidence of the lower or sole house of the legislature and invites him or her to form a government. In the UK, this is known as kissing hands . Although the dissolution of the legislature and the call for new elections is formally performed by the head of state, the head of state, by convention, acts according to
204-420: A semi-parliamentary system . The Westminster system has a very distinct appearance when functioning, with many British customs incorporated into day-to-day government function. A Westminster-style parliament is usually a long, rectangular room, with two rows of seats and desks on either side. Many chambers connect the opposing rows, either with a perpendicular row of seats and desks at the furthermost point from
272-556: A Personal Chair at Monash University Faculty of Law from 2000 to 2016. He was the President of the Australian Society of Legal Philosophy from 2007 to 2014. He is known for work on parliamentary sovereignty, especially for his book The Sovereignty of Parliament: History and Philosophy . In constitutional theory, he is a proponent of originalism . He is the younger brother of author Peter Goldsworthy . Goldsworthy
340-533: A consultative body. In other Westminster countries, however, the upper house can sometimes exercise considerable power, as is the case for the Australian Senate. Some Westminster-derived parliaments are unicameral for two reasons: Hong Kong , a former British crown colony and currently a special administrative region of the People's Republic of China , has a unicameral Legislative Council . While
408-515: A federal government at any time, loss of supply is sometimes, controversially, considered a suitable trigger for a dismissal (such as with the 1975 Australian constitutional crisis ). This is controversial because it conflicts with the Westminster tradition of government by a party with the confidence of the lower house (not an upper house like the Senate). Some political scientists have held that
476-480: A means of advising, consulting and warning ministers in their actions. Such a practice takes place in the United Kingdom and India. In the UK, the sovereign holds confidential weekly meetings with the prime minister to discuss governmental policy and to offer his or her opinions and advice on issues of the day. In India, the prime minister is constitutionally bound to hold regular sessions with the president, in
544-608: A physical gathering. The assembling of the King, Lords, and Commons as the King-in-Parliament is now "notional rather than real", only occurring ceremonially at the annual State Opening of Parliament . The composition of the King-in-Parliament is reflected in the enacting clause of acts of the British Parliament with: " Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of
612-463: A power similar to that held in the UK until 1911 by the House of Lords , which has since then been impossible, in the Westminster system. A government that has lost supply is severely restricted in its abilities to act; unless a solution can be negotiated and supply can be restored, such an occurrence would normally trigger a federal election. Since the governor-general , technically speaking, can dismiss
680-417: A similar manner to the aforementioned British practice. In essence, the head of state, as the theoretical executive authority, "reigns but does not rule". This phrase means that the head of state's role in government is generally ceremonial and as a result does not directly institute executive powers. The reserve powers of the head of state are sufficient to ensure compliance with some of their wishes. However,
748-428: Is a constitutional monarch ; he or she abides by the advice of his or her ministers, except when executing reserve powers in times of crisis. The sovereign's power to appoint and dismiss governments, appoint cabinet ministers to serve in the government, appoint diplomats , declare war , and to sign treaties (among other powers de jure held by the sovereign) is known as the royal prerogative , which in modern times
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#1732765954036816-556: Is a core tenet of the Constitution of the United Kingdom and has application in the Westminster system more generally. As a concept, legislative authority being exercised by the King-in-Parliament is compatible with different distributions of power among its three components. This allowed for increasing limitations on the monarch’s direct and unilateral influence within Parliament over the 18th and 19th centuries. The influence of
884-492: Is a type of parliamentary government that incorporates a series of procedures for operating a legislature , first developed in England . Key aspects of the system include an executive branch made up of members of the legislature, and that is responsible to the legislature; the presence of parliamentary opposition parties; and a ceremonial head of state who is separate from the head of government . The term derives from
952-508: Is exceptional because the government faces a fully elected upper house, the Senate , which must be willing to pass all its legislation. Although government is formed in the lower house, the House of Representatives, the support of the Senate is necessary in order to govern. The Australian Senate is unusual in that it maintains an ability to withhold supply from the government of the day –
1020-544: Is exercised by the sovereign solely on the advice of the Prime Minister. This custom also occurs in other countries are regions around the world using the Westminster System, as a legacy of British colonial rule . In Commonwealth realms such as Canada, Australia and New Zealand, the day-to-day functions that would be exercised by the sovereign personally in the United Kingdom are instead exercised by
1088-524: Is imminent, a lot of time is taken up in the conversations of politicians and in the news media, speculating on who will, or will not, be moved in and out of the Cabinet by the Prime Minister, because the appointment of ministers to the Cabinet, and threat of dismissal from the Cabinet, is the single most powerful constitutional power which a Prime Minister has in the political control of the Government in
1156-505: Is in contradistinction to the idea of the separation of powers . In Commonwealth realms that are federations , the concept of the King in parliament applies within that specific parliament only, as each sub-national parliament is considered separate and distinct from each other and from the federal parliaments (such as Australian states or the Canadian provinces ). According to constitutional scholar A.V. Dicey , "Parliament means, in
1224-410: Is nominally exercised in their name. The head of government , usually called the prime minister or premier , will ideally have the support of a majority in the responsible house, and must, in any case, be able to ensure the existence of no absolute majority against the government. If the parliament passes a motion of no confidence , or refuses to pass an important bill such as the budget , then
1292-632: Is obliged to resign, e.g., when a re-elected Legislative Council passes again a bill that he or she had refused to sign. The waters of the Thames and of the Potomac both flow into Lake Burley Griffin . Australian constitutional law is, in many respects, a unique hybrid with influences from the United States Constitution as well as from the traditions and conventions of the Westminster system and some indigenous features. Australia
1360-476: Is usually where ministers or members of the house come to speak. Other ceremonies sometimes associated with the Westminster system include an annual Speech from the Throne (or equivalent thereof) in which the head of state gives a special address (written by the government) to parliament about what kind of policies to expect in the coming year, and lengthy State Opening of Parliament ceremonies that often involve
1428-699: The Australian system of government was consciously devised as a blend or hybrid of the Westminster and the United States systems of government , especially since the Australian Senate is a powerful upper house like the US Senate; this notion is expressed in the nickname "the Washminster mutation". The ability of upper houses to block supply also features in the parliaments of most Australian states . The Australian system has also been referred to as
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#17327659540361496-495: The British Empire , upon gaining self-government (with the exception of the United States and Cyprus ), beginning with the first of the Canadian provinces in 1848 and the six Australian colonies between 1855 and 1890. It is the form of government bequeathed to New Zealand , and former British Hong Kong . Israel adopted a largely Westminster-inspired system of government upon declaring independence from
1564-476: The British Mandate of Palestine . However, some former colonies have since adopted either the presidential system ( Nigeria for example) or a hybrid system (like South Africa ) as their form of government. The Westminster system of government may include some of the following features: Most of the procedures of the Westminster system originated with the conventions , practices, and precedents of
1632-517: The British prime minister wished to dissolve Parliament in order for a general election to take place, the prime minister is constitutionally bound to request permission from the sovereign in order to attain such a wish. However, the sovereign in modern times has virtually always followed the advice of their prime minister without their own agency, this owes to the fact that the British sovereign
1700-680: The Governor remained the head of government until the transfer of sovereignty in 1997, when the role was replaced by the Chief Executive . Secretaries had remained to be chosen by the Chief Executive not from the Legislative Council, and their appointments need not be approved by the Legislative Council. Although essentially more presidential than parliamentary, the Legislative Council had inherited many elements of
1768-503: The House of Commons (under various names), comprising local, elected representatives of the people (with the only exception being elected entirely by nationwide Proportional Representation). Most also have a smaller upper house, which is made up of members chosen by various methods: In the UK, the lower house is the de facto legislative body, while the upper house practices restraint in exercising its constitutional powers and serves as
1836-581: The King and the New Zealand House of Representatives . McHugh describes New Zealand, like Canada, as finding the concept of Crown in Parliament (as it had previously been conceived) to be inadequate in the late 20th century. Contrasted with Canada's approach, New Zealand's response was, to "[reconstitute] that Parliament on an electoral model of proportional representation." Westminster system The Westminster system , or Westminster model ,
1904-649: The Palace of Westminster , which has been the seat of the Westminster Parliament in England and later the United Kingdom since the 13th century. The Westminster system is often contrasted with the presidential system that originated in the United States , or with the semi-presidential system, based on the government of France . The Westminster system is used, or was once used, in the national and subnational legislatures of most former colonies of
1972-524: The Parliament of Canada as the legislative authority for the country, defining it as consisting of "the Queen [or King], an Upper House styled the Senate, and the House of Commons." The Parliament of Canada may be referred to as the King-in-Parliament, and its three-part composition is based on "the British model of legislative sovereignty vesting in the [King]-in-Parliament". Canadian acts of Parliament use
2040-517: The Parliament of the United Kingdom , which form a part of what is known as the Constitution of the United Kingdom . Unlike the uncodified British constitution, most countries that use the Westminster system have codified the system, at least in part, in a written constitution . However, uncodified conventions, practices, and precedents continue to play a significant role in most countries, as many constitutions do not specify important elements of procedure. For example, some older constitutions using
2108-535: The execution of Charles I (1649). The Parliamentarian position ultimately prevailed with the Glorious Revolution (1688–89) and subsequent passing of the Bill of Rights 1689 , which significantly limited the day-to-day powers of the monarch, including removing prerogative powers to unilaterally suspend or dispense with statutes. The concept of the King-in-Parliament holding supreme legislative authority
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2176-576: The governor-general . In such nations, the prime minister is obligated to formally seek permission from the governor-general when implementing executive decisions, in a manner similar to the British system. An analogous scenario also exists in republics in the Commonwealth of Nations , such as India or Trinidad and Tobago , where there is a president who functions similarly to a governor-general. An unusual case lies in Israel and Japan , where
2244-400: The head of government. The pattern of executive functions within a Westminster system is quite complex. In essence, the head of state , usually a monarch or president, is a ceremonial figurehead who is the theoretical, nominal or de jure source of executive power within the system. In practice, such a figure does not actively exercise executive powers, even though executive authority
2312-490: The prime minister and the Council of Ministers . In Israel , however, executive power is vested de jure and de facto in the cabinet and the president is de jure and de facto a ceremonial figurehead. As an example, the prime minister and cabinet (as the de facto executive body in the system) generally must seek the permission of the head of state when carrying out executive functions. If, for instance
2380-402: The Cabinet are collectively seen as responsible for government policy, a policy termed cabinet collective responsibility . All Cabinet decisions are made by consensus, a vote is rarely taken in a Cabinet meeting. All ministers, whether senior and in the Cabinet, or junior ministers, must support the policy of the government publicly regardless of any private reservations. When a Cabinet reshuffle
2448-512: The Crown such as through an order in council . The concept of the Crown as a part of parliament is related to the idea of the fusion of powers , meaning that the executive branch and legislative branch of government are fused together. This is a key concept of the Westminster system of government, developed in England and used in countries in the Commonwealth of Nations and beyond. It
2516-472: The House of Lords has also been significantly limited, most notably by the Parliament Acts 1911 and 1949 , which allow money bills to be passed against the wishes of the House of Lords. Such legislation can still be understood in a constitutional sense to be an act of the King-in-Parliament, that is by the King, Lords, and Commons acting jointly as a single body known as parliament. In order to act as
2584-466: The King acting with the consent of the Lords and Commons, but ultimately exercising his own sovereign authority. The Parliamentarian view was that legislative authority was exercised by the "King-in-Parliament”, a composite institution of the King, Lords, and Commons acting together. As described by Jeffrey Goldsworthy , "The question that divided them was whether [the] final, unchallengeable decision-maker
2652-538: The King-in-Parliament, the individual components must act according to their established rules and procedures. The individuals involved must be "constituted as a public institution qua Parliament (on the basis of some rules and under certain circumstances)" in order to "[enjoy] the power to legislate as 'the [King] in Parliament' i.e., the ultimate legislature." This creates a potential paradox when determining Parliament’s ability to modify its own rules or composition. Section 17 of Canada's Constitution Act, 1867 establishes
2720-554: The Legislative Councils in British Australasian and North American colonies were unelected upper houses and some of them had since abolished themselves, the Legislative Council of Hong Kong has remained the sole chamber and had in 1995 evolved into a fully elected house, yet only part of the seats are returned by universal suffrage. Responsible government was never granted during British colonial rule, and
2788-479: The Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows...". In England , by the mid-16th century, it was established that the "King in Parliament" held supreme legislative authority. However, this phrase was subject to two competing theories of interpretation. The Royalist view interpreted the phrase as "King, in Parliament"; that is,
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2856-433: The President remains responsible to the lower house of parliament; it elects the President at the beginning of a new Parliament, or when there is a vacancy in the office, or when the sitting President is defeated on a vote of confidence. If the Parliament cannot elect a new President within a short period of time (a week to a month) the lower house is dissolved and new elections are called. Jeffrey Goldsworthy He held
2924-709: The Queen-in-Parliament as "a purely formal body consisting of the Queen sitting on her Throne with the Lords of Parliament sitting before her and the Commons standing at the Bar." This formal gathering was historically the only process by which legislation could be enacted. The Royal Assent by Commission Act 1541 allowed Lords Commissioners to stand in for the monarch, and the Royal Assent Act 1967 allowed legislation to be enacted by pronunciation, without
2992-489: The Speaker's Chair at the opposite end of the chamber (e.g. UK House of Lords or Israel Knesset) or the rows of chairs and desks are rounded at the end, opposite to the Speaker's Chair (e.g. Australian chambers, Ireland, South Africa, India). The chairs in which both the government and opposition sit, are positioned so that the two rows are facing each other. This arrangement is said to have derived from an early Parliament which
3060-430: The Westminster system do not mention the existence of the cabinet or the prime minister, because these offices were taken for granted by the authors of these constitutions. Sometimes these conventions, reserve powers , and other influences collide in times of crisis and in such times the weaknesses of the unwritten aspects of the Westminster system, as well as the strengths of the Westminster system's flexibility, are put to
3128-495: The Westminster system, including parliamentary powers, privileges and immunity, and the right to conduct inquiries, amongst others. Minutes are known as Hansards, and the theme colour of the meeting chamber is red as in other upper houses. Government secretaries and other officials are seated on the right hand side of the President in the chamber. The Chief Executive may dissolve the Legislative Council under certain conditions, and
3196-416: The Westminster system. The Official Opposition and other major political parties not in the Government, will mirror the governmental organisation with their own Shadow Cabinet made up of Shadow Ministers . In a Westminster system, some members of parliament are elected by popular vote, while others are appointed. Nearly all Westminster-based parliaments have a lower house with powers based on those of
3264-582: The constitutional law of Westminster systems that holds that parliament has absolute sovereignty and is supreme over all other government institutions. The King-in-Parliament as a composite body (that is, parliament) exercises this legislative authority. Bills passed by the houses are sent to the sovereign or their representative (such as the governor-general , lieutenant-governor , or governor ), for royal assent in order to enact them into law as acts of Parliament . An Act may also provide for secondary legislation , which can be made by executive officers of
3332-591: The enacting clause: " Now, therefore , His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows..." Canada's provincial legislatures are constitutionally defined as consisting of the province's lieutenant governor (as the representative of the King) and a popularly elected legislative assembly. The concept of King-in-Parliament also applies to these sub-national legislatures. Legal scholar Paul McHugh describes Canada as having "a crisis of constitutional identity" in
3400-404: The executive as the head of government is ultimately the person from whom the head of state will take advice (by constitutional convention) on the exercise of executive power , including the appointment and dismissal of cabinet members. This results in the situation where individual cabinet members in effect serve at the pleasure of the prime minister. Thus the cabinet is strongly subordinate to
3468-410: The extent of such powers varies from one country to another and is often a matter of controversy. Such an executive arrangement first emerged in the United Kingdom. Historically, the British sovereign held and directly exercised all executive authority. George I of Great Britain (reigned 1714 to 1727) was the first British monarch to delegate some executive powers to a prime minister and a cabinet of
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#17327659540363536-462: The floor in front of the government and opposition benches that members may cross only when exiting the chamber. At one end of the room sits a large chair, for the Speaker of the House . The speaker usually wears black robes, and in some countries, a wig . Robed parliamentary clerks often sit at narrow tables between the two rows of seats, as well. These narrow tables in the centre of the chamber,
3604-479: The following: One of five countries other than the UK to use a Westminster system with a native monarch , along with Japan, Lesotho, Malaysia, and Thailand. One of five countries other than the UK to use a Westminster system with a native monarch , along with Denmark, Lesotho, Malaysia, and Thailand. One of five countries other than the UK to use a Westminster system with a native monarch , along with Denmark, Japan, Malaysia, and Thailand. The Westminster system
3672-417: The formal powers of monarchs, governors-general, and presidents vary greatly from one country to another. However, as sovereigns and governors-general are not elected, and some presidents may not be directly elected by the people, they are often shielded from any public disapproval stemming from unilateral or controversial use of their powers. In many Commonwealth realms a governor-general formally represents
3740-405: The government must either resign so that a different government can be appointed or seek a parliamentary dissolution so that new general elections may be held in order to re-confirm or deny the government's mandate. Executive authority within a Westminster system is de jure exercised by the cabinet as a whole, along with more junior ministers , however, in effect, the head of government dominates
3808-541: The later 20th century, finding "the old Whig narrative of an absolute sovereign self (the Crown in Parliament)" to be inadequate. The Canadian response was to "not seek to refurbish a historical order so much as to fundamentally reorder it by adopting the Charter of Rights and Freedoms limiting the power of government, the Crown in Parliament (federal and provincial) included." The New Zealand Parliament consists of
3876-619: The ministers, largely because he was also the monarch of Hanover in Germany and did not speak English fluently. Over time, further arrangements continued to allow the execution of executive authority on the sovereign's behalf and more and more de facto power ended up lying in the Prime Minister's hands. Such a concept was reinforced in The English Constitution (1876) by Walter Bagehot , who distinguished between
3944-530: The monarch, who is usually absent from the realm. In such countries, the identity of the "head of state" may be unclear. In the book The English Constitution , Walter Bagehot emphasised the divide of the constitution into two components, the Dignified (that part which is symbolic) and the Efficient (the way things actually work and get done), and called the Efficient " Cabinet Government ". Members of
4012-443: The mouth of a lawyer (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the 'King in Parliament,' and constitute Parliament." Legal philosopher H. L. A. Hart wrote that the Queen-in-Parliament is “considered as a single continuing legislative entity”. Constitutional scholar Ivor Jennings described
4080-460: The presentation of a large ceremonial mace . Some legislatures retain Westminster's colour-coded chambers, with the upper houses associated with the colour red (after the House of Lords) and the lower with green (after the House of Commons). This is the case in India, Australia, Canada, New Zealand, and Barbados. Countries that use variations on the theme of the Westminster system, as of 2023, include
4148-475: The prime minister as they can be replaced at any time, or can be moved ("demoted") to a different portfolio in a cabinet reshuffle for "underperforming". In the United Kingdom, the sovereign theoretically holds executive authority, even though the prime minister and the cabinet effectively implement executive powers. In a parliamentary republic like India, the president is the de jure executive, even though executive powers are essentially instituted by
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#17327659540364216-542: The respective prime ministers have the full legal power to implement executive decisions, and presidential (in Israel) or imperial (in Japan) approval is not required; the prime ministers of these nations are fully the de jure source of executive authority, and not the head of state. The head of state will often hold meetings with the head of government and cabinet, as a means of keeping abreast of governmental policy and as
4284-705: The separate "dignified" and "efficient" functions of government. The sovereign should be a focal point for the nation ("dignified"), while the PM and cabinet actually undertook executive decisions ("efficient"). The electoral system is often set out in a Representation of the People Act . Common ministerial titles include parliamentary secretary and under-secretary . Ministers are supported by private secretaries and government departments are run by permanent secretaries , principal secretaries or chief secretaries . The head of state or their representative (such as
4352-497: The test. As an illustrative example, in the Australian constitutional crisis of 1975 , the Governor-General of Australia, Sir John Kerr , dismissed Prime Minister Gough Whitlam and replaced him with opposition leader Malcolm Fraser . Usually the leader of the largest party in the lower house (legislature if unicameral). Formed by the largest party/coalition in the lower house (legislature if unicameral), and led by
4420-517: The wishes of the head of government. A president, monarch, or governor-general might possess clearly significant reserve powers . Examples of the use of such powers include the Australian constitutional crisis of 1975 and the Canadian King–Byng affair in 1926. The Lascelles Principles were an attempt to create a convention to cover similar situations, but have not been tested in practice. Because of differences in their written constitutions,
4488-414: Was adopted by a number of countries which subsequently evolved or reformed their system of government departing from the original model. In some cases, certain aspects of the Westminster system were retained or codified in their constitutions. For instance South Africa and Botswana , unlike Commonwealth realms or parliamentary republics such as India, have a combined head of state and head of government but
4556-456: Was held in a church choir . Traditionally, the opposition parties will sit in one row of seats, and the government party will sit in the other. In some countries, the mace will face the government’s side whilst lying on the table of the House. In most majority governments , the number of government-party MPs is so large that it must use the "opposition" seats as well. In the lower house at Westminster (the UK's House of Commons) there are lines on
4624-532: Was the king alone, or the King, Lords, and Commons in parliament." The dispute had implications for the ability of Parliament to limit the monarch’s powers, or "the supremacy of the King in Parliament over the King out of Parliament." The clash between the Royalist and Parliamentarian views continued through the 16th century and much of the 17th, and was a factor in the English Civil War (1642-1651) and
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