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Australia's Future as a ‘Westminster Democracy’ – threats to combat, stark choices to make…

2014; Wiley; Volume: 73; Issue: 1 Linguagem: Inglês

10.1111/1467-8500.12068

1467-8500

John Wanna,

Judicial and Constitutional Studies

Westminster is a relatively small precinct of central London that houses some of the principal institutions of British central government. The term ‘Westminster’ is also a colloquial descriptor signifying a system of parliamentary government that has achieved some recognition in comparative government and is used as a shorthand by practitioners and academics to label a certain set of jurisdictions (Ball and Peters 2005; Rhodes, Wanna and Weller 2009). In some former British colonies it is used today to convey constitutional lineage but also referenced in Europe and the USA to distinguish their systems of government from the British. Nevertheless, ‘Westminster’ remains an elusive concept that almost defies definition. There is no agreed historical era as to when Westminster was first established or fully formed. There is no single set of definitive institutions or unequivocal conventions. The systems it purports to describe have not remained static or frozen in time; they have changed and evolved as political development has occurred and contingencies have arisen. To modern day observers it can appear that the more we look for Westminster the more it seems to evade apprehension. And, as Lijphart (1999) once implied, if a strict set of institutional criteria were exercised, virtually no countries in the world would now qualify any more as Westminster democracies; he conceded that only Barbados may be counted and perhaps not even that! Paradoxically, Westminster is not a particularly common descriptive term used in the United Kingdom (UK) – where the main features of the system were originally formulated through centuries of political struggle, compromise and pragmatic ad hocery. British practitioners and academics use the terms ‘British government’, the ‘Queen's government’ or ‘Her Majesty's government’; and sometimes more technically ‘responsible government’ or ‘cabinet government’ (Jennings 1954; Birch 1964). British scholars of comparative government even use the bland term ‘majority democracy’ to contrast with ‘consensus democracy’ (Hague, Harrup and Breslin 1992: 50). Other nations that use the term Westminster to describe ‘their’ own systems of government tend to be restricted to the former British settler dominion colonies; it is a term embraced enthusiastically in both Australia and New Zealand, but far less overtly subscribed to in Canada, South Africa or Ireland (even though they still trace institutional resonances), and hardly at all in the former British colonial possessions of Asia, Africa or the micro-nations of the Caribbean. In Canada, for example, the term ‘Westminster’ is a loaded concept that is too English for their multi-lingual politics and so almost regarded as ‘politically incorrect’ to mention; so Canadians talk blandly of ‘representative democracy’ or ‘European parliamentary traditions’ blending Anglo and French parliamentarism and legalism (Jackson & Jackson 2006: Ch 2; and Rhodes, Wanna and Weller 2009: 61-2). It is at best a half-truth to claim that Britain developed the conventions of responsible government and then the dominions replicated the system when granted self-government. When colonial administrations began to rule themselves they selectively adopted components of Westminster that suited them. They adapted these as they considered appropriate, and added other elements as they saw fit. So, all systems were hybrid and all systems, including the UK, had evolving conventions (Rhodes, Wanna and Weller 2009: 57). Good examples of this are the democratic reforms of universal voting adopted in the dominions well before Britain, and the use of secret ballots and an independent electoral administration to run fair elections. Australia managed to elect its powerful upper house (the Senate) more than a century before either the UK or Canada thought of doing so, and neither have yet managed to implement this elementary initiative. And New Zealand granted Maori reserved seats in parliament as far back as 1867 to ensure representation of its native minority in the lower house, before it courageously abolished its defunct upper house in 1950. But the Westminster system never swept the world to become a globally popular political system. This is despite being an efficient, convenient and largely unconstrained system of strong executive government shrouded in royal mystique and crown privilege. When Bagehot mentioned that he had discovered the ‘efficient secret’ in the ‘English constitution’ he meant it was amendable to political action (rule from ‘behind-the-scenes’) and unconstrained by hard and fast constitutional rigidities (such as a dysfunctional ‘separation of powers’ – see Chapman 2000). Today, one might ponder why so few nations have copied the Westminster form of government (besides the aforementioned settler colonies, only India and Malaysia have absorbed some partial features as did Fiji and Singapore, see Patapan, Wanna and Weller 2005). Was it the Anglo imperialist culture that discouraged copying; was it concerns over Crown tyranny; was it a preference for greater constitutional clarity; or was it that local conditions did not favour the politics on which Westminster was premised? Furthermore, even those countries that initially fashioned their systems of responsible government on Westminster, have then deliberately undone many Westminster precepts (such as: New Zealand with its MMP electoral system, South Africa with a single list-system election for the National Assembly under proportional representation, Australia and Canada fractured parliamentary sovereignty through federalism, and even the UK has gradually broken down its unitary jurisdictional fiction and adopted PR voting in its devolved entities of Scotland and Wales). Hence, the relatively few remaining jurisdictions that identify with Westminster are all very different to each other and behave differently. Yet there remain some important similarities and similar-sounding institutions, even if their operations and practice differ markedly. Butler (1973: 7) once pointed this out in a book describing what he thought was the ‘Canberra Model’, claiming that while there were many differences between the mother parliament and its colonial offshoots, the ‘questions that came naturally to someone schooled in the British system were, almost invariably, wholly appropriate questions to ask in Australia’ (meaning Canberra) – except, of course, that we had no Lords or hereditary aristocracy in parliament, no seats handed out to Anglican bishops, no undisputed sovereignty of the Commons, a powerful, party-based, elected Senate, significantly different voting systems and, most importantly of all, enormously complex intergovernmental relations between semi-sovereign jurisdictions that could not be so easily pushed around. So, is there an essential checklist of criteria that signifies Westminster or qualifies a jurisdiction to claim membership of this cluster? Some academics have tried to find such a list (see Patapan, Wanna and Weller 2005: 4-6; Rhodes, Wanna and Weller 2009: Ch 1), but the purported list is full of contentions, aberrations and exceptions. For instance, besides the widely accepted features of Westminster listed below, some scholars cite unicameralism, a free press, a national public broadcaster, transparency and open government, the separation of church and state, and a central bank dependent on the executive. The range of supposed criteria can be truly amazing. Many features of old-style Westminster were pre-democratic (or adopted in a partially democratic environment) and have since adjusted to the exigencies of disciplined, mass party politics (Jennings 1957). Traditionally, Westminster emerged from ‘the “capture” of the authority of the Crown by the parliament and later still by the cabinet’ (Kemp 1988: 106). It should also be noted that many of these features listed as components of Westminster are found in other parliamentary systems and even in some presidential systems (ministers answerable to the legislature, governments accountable to the legislature, the importance of cabinet government, a reliance on legislative ‘confidence’ or numerical support etc). In addition, classical Westminster did not operate from written constitutions, federal structures or have high courts determining what could be decided. At its most extreme, Westminster institutionalises the tyranny of the majority (Jennings 1954); almost approaching an elected dictatorship (a claim frequently made in New Zealand politics from the 1950s to the 1990s, see Palmer 1979; Mulgan 2004: 63-64), with few constraints on executive power or what governments can or cannot do. Political actors such as Margaret Thatcher, Robert Muldoon, Robert Menzies, or Mackenzie King, all Westminster ‘diktats’, subscribed to the strong majoritarian view, namely: ‘give us absolute power, we undertake to use it responsibly, and you, the electorate, get to judge us on election-day deciding our fate’. They would also not have wanted anyone poking in too much into what they got up to on a day-to-day basis – it was the overall assessment of government performance relative to what the opposition offered that was the final arbiter of responsible power. Hence, Westminster is a highly political-based system (as opposed to a rechtstaat or constitutional-based system); it traditionally calls on politics to resolve differences or chart new courses of action, unimpeded by artificial separations of powers, anachronistic constitutions or legalistic high courts, relying purely on a popular mandate and the prime minister's or dominant party's sense of what was appropriate and defensible. Yet, today we are constantly and increasingly putting cages and legal norms around this fluid and amoebic political system, reflecting the ‘swings and roundabouts’ of politics and administration. And, in so doing, we are fundamentally changing traditional Westminster practices. Then there is the further issue of interpretations made by different participants. As a general rule, officials subscribe to the time-honoured sanctities of Westminster far more than passing politicians ever do. It is part of their defence against the potentially excessive intrusion of ‘politics’; a shielding discourse; it's a way of coping with uncertainty; it provides a foundation for the rules and procedures that govern their worlds giving a sense of routine and orderliness even if backed only by convention and normative aspirations. Ministers, by contrast, often do not know (or much care) about Westminster practices, until they become steeped in the practices of office (puppy-trained by the officious senior public servants). Power is their real world, not some arbitrary, handed-down conventions called ‘Westminster’. At the point of becoming ministers they have been entirely preoccupied with party politics and the task of winning office and, having won, only then turn their attention to due process and procedural questions of public policy and administration – most of which is conveyed to them by senior officials as custodians of the rules (cf. the scribes of Ancient Egypt or the mandarins of the Imperial Chinese court). Ministers are concerned that the system works well for them and has good processes; that they receive the necessary support and are not tripped up by oversights or unnecessary rules and regulations. But they rarely lose sleep over questions such as: who appoints whom in the public service; who is likely to be considered for promotion to head their department; what previous career experience might the person have had; and whether that person is permanent or contractual in employment. These are not their pressing concerns. One bewildered Minister of Agriculture once said when told that a new appointee had been installed as head of his department: ‘was he a farmer by background?’, but the minister was told ‘she was an international trade commissioner and eminently qualified for the role, but we will still check on her farming background if you like’. Shades of Yes Minister. Officials are often more energised than politicians about writing down their interpretations as codes and guidelines; it gives them comfort as officials, codifying ambiguities and systemic looseness. Written interpretations potentially have more effect, so there is an ulterior motive in exercising control. Hence, officials often working to ministers have devised: codified caretaker conventions, public service values, codes of conduct (for themselves and ministers), official guidelines, reporting lines, financial memoranda, administrative arrangements, explanations and directives. These documents or guidelines provide structures to the conventions from which they operate. Ministers can work from entirely different interpretations of Westminster practice. One minister invited to speak to a university class once explained: ‘ministers are accountable to the government and the government is accountable to parliament’. After he had finished one of the students questioned whether he had got it wrong? ‘Weren't ministers directly accountable to parliament’, the student inquired? It was a good point, but the minister did not cavil at such fine distinctions! However, in essence the answer is both yes and no. Ministers from their perspective are accountable (responsible and usually grateful) to the government in the person of the Prime Minister or Premier – who can make real decisions over their survival, career prospects, and their future as a minister. To them this accountability to the leader is the most salient form of accountability which has serious consequences and sanctions. By contrast, individual ministers are only formally accountable to parliament in a much more tepid way for their actions or inactions and their administrative elements (and only then to be ‘answerable’ for them). If a prime minister loses confidence in a minister, the culprit is likely to suffer a Hobbesian fate terminating in a ‘nasty, brutish, and short’ ending; by contrast, if parliament censures a minister the outcome may be nothing but temporary embarrassment or perhaps some uncomfortableness. And if ministerial colleagues loyally defend the minister against his/her political opponents, the contest will degenerate into point-scoring rather than retribution. The above comments illustrate an important point about Westminster – there are many important perspectives on how it works in theory and in practice, in rhetoric and reality; with no irrefutably right or wrong answers. There are merely a myriad of perspectives with some more important and persuasive than others. Ministers tend to see Westminster working with particular in-built logics together with some realities and fictions; others like officials may not share these interpretations or may work from different ones entirely. Hence, Westminster as a political-based system functions on competing myths; a series of constructed pretences combining elements of factual reality and fictional belief; between normative aspirations and operational dynamics. Ministers are formally and supposedly accountable to parliament but do their damnedest to evade such accountabilities. It is honoured in the breach. Likewise, prime ministers have almost no formal powers, yet are far more powerful in practice than an elected president in a presidential system. The civil service is supposedly apolitical, neutral and ostensibly responsive, yet it is often they as the ‘permanent constitutional actors’ that frame issues and drive policy options onto unsuspecting governments. The aspirations and norms pretend one thing, practice reveals another reality. As one French critic said when commenting on British political traditions – they could be ‘both efficient and devoid of logic’. Collective responsibility (cabinet solidarity) is a classic example of such factual-fictional myths. Collective responsibility is simultaneously a mainstay principle and splendid fiction; it is subscribed to and also honoured in the breach; it is violated if and when necessary or expedient, and subject to the prime minister's accepted authority by his/her colleagues (see Wanna 2012). The Curtin and Chifley governments had to live with the mercurial and cantankerous Eddie Ward; Whitlam had to contend with Jim Cairns, Fraser had both Andrew Peacock and John Howard grooming themselves for his job while sitting in cabinet; the first Hawke cabinets had a bitter Bill Hayden as member; and most of Keating's cabinet were Hawke men. Julia Gillard ditched collective responsibility to usurp an unsuspecting Kevin Rudd in 2010, and then in the ‘non-coup’ implosion of March 2013 when senior ministers tried unsuccessfully to unseat Gillard, one senior minister (Simon Crean) was sacked as a sacrificial offering; three more resigned before being pushed (Chris Bowen, Martin Ferguson and Kim Carr); but Anthony Albanese who was also up to his neck in the back-room dealings miraculously survived to fight another day, and with the return of Rudd in June 2013 would be rewarded by becoming Deputy Prime Minister. Albanese was simultaneously loyal to two leaders and three cabinets, yet maintained his position at the centre of the Labor because he was politically important to the government and the costs of removing him were considered too dangerous. These are all brilliant examples of Westminster exceptionalism as it accommodates cabinets riven with ambition while professing subservience to collective responsibility! There are many other dimensions of these myths and fictions – the ‘heroic view’ of the minister responsible for everything done in his/her name; the evasion of ministerial accountability; normative notions of how cabinets should operate but which are then continually undermined by expediency (bi-lateral decisions and ‘kitchen cabinets’); conventions of prime ministerial power yet also forms of the contestability to the PM's authority; the supposed accountability of advisers through ministers; the consequences of losing votes in parliament; and budgetary fudging within an opaque resource allocation system still using an anachronistic composite called ‘consolidated revenue’ (an archaic concept hanging on from medieval times when kings held treasure chests and wanted to oversee their consolidated wealth). Of course we have deliberately added other dimensions of this fictionalisation in Australia – the ‘Washminster mutation’ has been deliberately introduced – combining elements of British parliamentarism with US features of constitutionalism, federalism and an elected Senate and constitutional High Court. This is a hybrid bastardisation that has very real structural and operational consequences – but changing these arrangements in any major way in the future can seem nigh on impossible, especially if proposals, however modest, do not attract bi-partisan support. We have not yet managed to introduce simultaneous elections, a purely technical modification that would enhance electoral convenience. An important question many people might ask today would be: is it appropriate for Westminster to retain these mythical and rhetorical fictions? Fictions were probably tolerable when governments were small and limited in scope, and thought that they ‘knew best’. They were perhaps acceptable even in the post-war era when governments were growing, building up their welfare states, presiding over the ‘long boom’, and had additional funds to spend. But now our economic, fiscal and social challenges are more intense. Governments are faced with much tougher fiscal strictures and austerity; more complex policy areas and intractable problems to address; with an inability or unwillingness to deal with things because of explosive costs or because it might make things worse. Today, it is less credible and less legitimate to hang on to the fictions. Why? Because if we continue to subscribe to the fictions it will increasingly erode community confidence in the political system, breed cynicism and distrust in government, and ultimately affect the effectiveness of governments. Yet, Westminster remains a powerful cluster of myths apparent in many of our aforementioned jurisdictions; and is especially powerful for public servants and senior officials. Oppositions regularly recommit themselves to restore Westminster as if it is some magical nirvana, to make ministers accountable and cabinet work properly, to honour commitments to restore transparency; yet the moment they get into office they invariably slip back into expediency, convenience and fiat. Public servants produce pamphlets on the importance of preserving Westminster or ‘reinvigorating the Westminster tradition’ as if it were some hallowed leitmotif for good government that should not be changed; and forgetting their often aberrant inclusion of criteria (such as integrity, public service independence, evidence-based advice, mutual respect between officials and governments – see APSC Reinvigorating the Westminster Tradition, 2008). So, what does Westminster have to say about the relations between ministers and senior public servants? The short answer is that not much is actually stipulated in a prescriptive sense. Ministers are in parliament (but not always elected) and are expected to engage in the political realm; but Westminster declares nothing much on what roles must be performed, what responsibilities they must accept, what they must do in office, or what style of administration they should adopt. Concerning officials, their standing as anonymous and permanent custodians and most of their interpretations of Westminster were gradually recognised after the Northcote-Trevelyan and Macaulay reports which were both produced in 1854 (and were arguably much more influential in the colonies than in the UK itself – see Lowe 2011). Despite patronage, nepotism and seniority continuing, public services began to display the Weberian status of the neutral bureaucracy and ‘the competent official’ (with qualities of competitive entrance, merit, political neutrality, permanency for administrative ranks, specialist trainings etc.). Most of these modern criteria on which to base administration were gleamed from the philosophy of Northcote-Trevelyan/Macauley, rather than definitely stated in the reports (indeed, the reports largely concerned recruitment, open examinations and promotion on merit, the nature of administrative ‘industry’, ‘intellectual’ versus ‘mechanical’ labour, and with ridding the system of the indolent and nepotistic, again see Lowe 2011). In today's world, Westminster conventions have nothing to say on the relative power of ministers versus officials; nothing on what parliaments can or can't do, or ask for from the public service; nothing on how ministers should administer an agency (even though Australia has included such a phrase in the Constitution); nothing on management structures, New Public Management, contracting out or outsourcing; nothing about whether ministers need advisers and if so where they should be sourced and what skills they should possess; and nothing on whether officials should be held accountable for their performance separate from the minister. It was once claimed that federalism was the biggest threat to responsible government. The claim was made that the two systems were incompatible and one would defeat the other. But in Australia both have co-existed for 113 years (and in Canada even longer); perhaps not always harmoniously or free from tensions but with both systems remaining robust – and in developing we have built a far more homogenous federation than Canada. Perhaps the main threat to the traditional conventions of Westminster is posed by the persistent (and to some perhaps pernicious) trend toward codification; codifying conventions, relations, powers, authorities, values and procedures in the name of clarity and legal defensibility. Predominantly, codification is promoted and practiced by lawyers, ether in government (lawyer politicians, lawyers in officialdom, Attorneys-General, Crown Law etc), or by courts and legal interpretations. Instinctively lawyers seek to legalise politics to contain the possibilities. We have already seen High Court challenges to the powers of ministers to make decisions and it is not impossible to foresee some legal challenge to the authority of cabinet despite our political understandings that such power is germane. Codification can have some pluses (perhaps clarity, clear procedures) but also limits discretion, creates more hurdles, and imposes harder rules than may be necessary or desirable. One unintended consequence of the over-codification of practice is that it will displace politics to other spheres or find that it is done in other ways (eg FOI has seen the proliferation of oral advice and advice not written down leaving scope for plausible deniability, if cabinet processes are overly codified, as in New Zealand, politicians will organise pre-cabinet meetings to sort the business at hand). A second threat comes from limits to parliamentary sovereignty; especially the rise of independent bodies and commissions grafted onto the political system – either transferring aspects of decision-making away from the political executive, or established to scrutinise the legality of the executive's decision-making procedures often in relation to specific cases. These bodies include: the Reserve Bank on monetary policy, judicial review bodies and independent tribunals, even the Productivity Commission or Australian Competition and Consumer Commission on policy-settings. The establishment of these bodies was aimed at keeping politics out of decision-making or appointing decision-makers at arm's length from government; both of which are counter to gravity under Westminister. There is a clash of logics when the essence of a parliamentary system is acutely political, and political issues are removed from political determination. Many commentators have identified the rise of political advisers in ministerial offices as both a threat to the integrity of the system and an additional unnecessary complexity. The main point of criticism is not usually directed towards those officials seconded from departments to serve in ministers’ offices (a practice that has existed for many decades), but to those novice political apprentices and party apparatchiks who opt for a career as professional politicians and have little policy, technical or sectoral knowledge, or understanding of how bureaucracies work. At present we live with the fiction (and also friction) that these ghosts are simply ‘the minister’ evoking the notion of multiple ministerial identities, but without these advisers being identifiably accountable. Westminster was once premised on the monopolisation of advice from a competent, neutral public service, who possessed information, data, records and the like, that was then able to analyse this information and recommended courses of action. The public service was the inside ‘permanent state’ with a monopoly of access to ministers and cabinet (a feature that was always exaggerated). But now sources of advice are legion and highly contestable. Public debate is informed by many outside experts, think tanks, consultants and commentators, and the media. But is this a genuine competition of ideas, or competition for the minister's ear? The open contestability of advice changes the relationships and dependencies between ministers and senior officials – some appear to cope with this change well, while others clearly struggle. Turning to wider sources of outside advice is also stimulated by some ministerial distrust of public service advice as self-serving, deficient or of poor quality. Today's political executives are distracted by demands of the 24/7 media; its rise and technological sophistication, its prevalence and appetites. In particular, governments and oppositions are fixated on coverage from continuous opinion polling (a feature that has existed federally now for some 20 years). The media makes the political class persistently nervous and has it dancing to its tune. Constant media attention and the need to ‘feed’ the media continually (see Tanner 2011) has shackled politics to the media's agendas. Media management, focused on gaining favourable coverage and combatting one's opponents, absorbs the attention and commitment of the Prime Minister and senior ministers and advisers, to such an extent that there is far less scope for attention to policy development, coherence and management. There are a series of options or choices we now face and which will become more intense as we move forward. Undoubtedly, we can ignore these challenges and muddle along, but it might be more prudent to have a considered position on them and perhaps take some preferred action on them; rather than simply allow these deficiencies to drift. First, Westminster has adapted to disciplined political parties that serve as gatekeepers to office. But is the pool of talent from parliament sufficient to provide a competent, representative government with the range of skills necessary to govern effectively? Will we continue to pretend we can form capable government purely from a narrow, insular sub-set of the political class elected to parliament? Ought we to consider inviting additional ministers (under some terms and conditions) to become ministers or join cabinet (as South Australia has already done)? And if so how should they be held accountable to parliament? Such an augmentation of talent is not impossible to conceive and jurisdictions as different as the Netherlands and Taiwan both currently do so. What do we want from cabinet in the future? Our present antipodean model of cabinet is very much business-oriented; cabinet acts as a deliberative body deciding collectively on the business of government (policies, announcements, appointments