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ACM Home arrow Reserve Powers of the Crown arrow Can an upper house withhold supply?

Can an upper house withhold supply? Print E-mail
Written by John Paul   
Tuesday, 27 September 2011

 [In the fourth instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines whether, under the classical Westminster system, an upper house could withhold supply]

Image
[ House of Lords, 1851: Joseph Nash ]

 
 In 1954 Roy Jenkins, who was Home Secretary and Chancellor of the Exchequer in the Wilson and Callaghan Labour administrations in the 1960s and 1970s, commented authoritatively on the Lords’ vote on the Finance Bill and its consequences: 

Any course other than immediate dissolution was out of the question.  The legislature had refused Supply, and in these circumstances no Government could carry on.

"
It was this, most of all, which gave the full measure of what the Lords had done.  They had not merely confronted the Government with the choice of an immediate election or of acceptance of the loss of a particular measure, as they had frequently done before. 

"They had left the Government with no choice, and had taken upon themselves the right of deciding when a Government could carry on and when it could not, when a Parliament should end and when it should not
." 

Ten years later Jenkins again made this very point in his biography of Asquith: 

"A dissolution was of course inevitable once the Lords had performed the act of rejection.  There was no dispute in the Cabinet about this.  The legislature had refused Supply, and in these circumstances no Government could carry on”.    

And Dr Stephen Koss, in his biography of Asquith published within a year of the 1975 crisis in Australia, claimed that in the Asquith Cabinet, divided as its members were on how to reform the House of Lords, one thing, and one thing alone, was certain:  if the peers had the temerity to refuse Supply, the Government had no option but to dissolve.    

More than sixty years before Koss published this biography a distinguished American authority on British Government, writing of the Lords’ conduct in 1909, concluded:

“Their action forced a crisis.  The government could not remain without the revenue it needed.  It could not drop the budget, like other bills, for the time;  and to abandon its policy by trying to frame a new budget satisfactory to the Peers was, of course, out of the question.  It could only accept the challenge . . . and Parliament was forthwith dissolved.”



...legal textbooks...


(Continued below)

These judgments have been consistently vindicated in legal textbooks. 

The following quotation from E.C.S. Wade and G. Godfrey Phillips, (A. W. Bradley ed.), Constitutional and Administrative Law, 1977, pp. 186-7,conclusively states the whole matter in its historical context:  while acknowledging the impact of the Parliament Act 1911 on the subsequent constitutional practice at Westminster, it states the issue where both Houses still possess the same powers over Supply as had been the case at Westminster before 1911:

No Government can exist without raising and spending money.  In the Bill of Rights 1688, article 4, the levying of money for the use of the Crown without grant of Parliament was declared illegal.  Relying on the principle that redress of grievances preceded Supply, the Commons could therefore insist that the Crown pursued acceptable policies before granting the taxes or other revenue which the Crown needed.“

“ It has been said of the financial procedure of Parliament that the Crown demands money, the Commons grant it and the Lords assent to the grant.   Today a Government regards it as a condition of holding office that its financial proposals should be accepted by the Commons. . .  A Government which failed to ensure Supply would have to resign or seek a General Election.  [What follows is a footnote.]

“ Hence the necessity for a General Election after the Lords had rejected the Liberal Government’s Finance Bill in 1909.  In 1975, the Governor-General of Australia dismissed the Prime Minister of Australia, Mr Whitlam, after his Government had failed to get the approval of the Senate to two Appropriation Bills.  The Governor-General applied the principle that if a Prime Minister cannot get Supply, he must resign or advise an election.  Unlike the House of Lords [since 1911], the Australian Senate is authorized by the Australian Constitution to reject Appropriation Bills."   
 

Sir Ivor Jennings made the following observation on the powers of the House of Lords before 1911: 

“The power to reject Finance Bills was a reserve power for use in exceptional cases only, since it is in essence a power to refuse supplies, and that is, in constitutional theory, a power to overthrow the Government or compel a dissolution."

 
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