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ACM Home arrow Reserve Powers of the Crown arrow Why can our Senate bring down a government but the Lords can't?

Why can our Senate bring down a government but the Lords can't? Print E-mail
Written by John Paul   
Friday, 23 September 2011

[ In this second instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines the power of the Australian Senate to withhold supply and thus bring down a government. This was the subject of a recent debate on ACM's Facebook page. Here John Paul argues that not only does the Senate have this power, this was the intention of our founding fathers.  

A fully footnoted version of the essay will be published soon. ]




 ...”compelling UK precedent?”....





Image
[ The Queen in the House of Lords 2001]

 


This comment recently appeared on the ACM Facebook page:

“It is fact that when the Upper House of Parliament in the United Kingdom tried to blackmail the lower house of Parliament, the House of Commons, the powers of the Upper House were permanently curtailed.  In fact both King Edward VII and King George V agreed, if necessary, to create enough peers to swamp the Upper House and remind them that governments are made and broken in the lower house of Parliament.”

This  confuses two separate Bills, each with a distinctive history.  The House of Lords on 30th November 1909 voted to defer consideration of the Asquith Government’s Finance Bill until it had been referred to the people and an election was held in January 1910.




....the Parliament Bill, 1911...

  

The Parliament Bill, on which a separate election was fought in December 1910, was subsequently enacted as the Parliament Act 1911 which significantly curtailed the powers of the House of Lords. 

Only in respect of this Bill was the issue canvassed that if blocked by the Lords enough peers might be created to facilitate its passage.  Faced with this threat the Lords passed it into law.  Contrary to the ACM Facebook contributor's claim, King Edward VII was not advised to create a sufficient number of peers in this instance.

 The House of Lords conceded that the electors had renewed the Asquith Government’s mandate and passed a resubmitted Finance Bill on 28th April 1910.

 King Edward VII died on 6th May 1910 when the Commons had given the Parliament Bill only its first reading.



...King George V....



( Continued below)

The Lords’ deferring of the Finance Bill in 1909 and the Asquith Government’s response provided the most compelling precedent for the Whitlam Government when the Senate refused it Supply in 1975. 

The Prime Minister, Mr H. H. Asquith, sought and obtained a dissolution of the Parliament from King Edward VII within three days of the House of Lords’ vote to defer on 30th November and an election was held in January 1910.  Asquith addressing the House of Commons declared that the action of the House of Lords had left him with no choice but to advise a dissolution.  His statement was so emphatic that it should be quoted at length. 

"I may be pardoned if in passing, I refer at this point to two suggestions which have been made, proceeding from very opposite quarters, and both of them I think, for obvious but very different reasons, untenable. 

"The first is that the Executive should continue to demand and enforce the new taxes sanctioned by Resolution notwithstanding the prorogation of Parliament. 

"It is frankly admitted by those who put that suggestion forward that it is a revolutionary proposal.  It would certainly bring anyone who adopted it into rapid collision with the courts of law, and it does not commend itself to the judgment of His Majesty’s Government. 

"The second suggestion . . . is that here and now, before the present Session closes, the Government should bring in a new Budget and submit it for approval or rejection to the House of Lords. . .

"I dismiss these impossible suggestions, and I come to the course — the only course — which, in the circumstances, it is open to the Government, without either breaking the law or sacrificing constitutional principle, to pursue

" That course is to advise, as we have advised the Crown, to dissolve this Parliament at the earliest possible moment.  His Majesty has been graciously pleased to accept that advice.    (Emphasis supplied)




....no surprise...




Asquith’s tendering of this advice came as no surprise to the King.  His Government almost three months earlier had made preparations for the appropriate response if the Lords should refuse to pass the Finance Bill.  As the King’s official biography recorded:

"The Cabinet, as Mr Asquith reported to the King on 8th September, was now occupied with a preliminary discussion of the situation which would arise in the event of the House of Lords’ rejecting or delaying the Finance Bill (emphasis supplied), and the Lord Chancellor was requested to prepare as soon as possible, in consultation with the Law Officers, a memorandum on the legal aspects of the case. 

"Mr Asquith added that if the House of Lords rejected the Budget the Cabinet was of the opinion that it ‘ought to be followed by an acceleration of the register so as to secure at the earliest possible moment an appeal to the country’.

 

Next instalment : How has history judged this?  Would the Australian constitution have been  different had it been drafted after 1911? 

   

  
 
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