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PARLIAMENT AS AN
INSTITUTION
URL: http://www.spatialgovernance.com/governance/government/610-2A.htm
© John S. Cook - Created on 11 May 1997
Last modified
05/04/11 11:01 Australian EST |
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ORIGINS OF THE HOUSE OF LORDS |
Continuity of the
Great Council
The idea of a Great Council of king and lords has ancient
origins. However, the idea bears some similarities with the
modern corporation. The corporate entity includes
shareholders, boards of directors and executive officers.
Elements of continuity appear through the following:
 | The Witenagemot - also known as
the Witan, with a meaning deriving from 'witen'
meaning wise men, and 'gemot' meaning meeting. |
| The Curia Regis - meaning the king's
court and operating after the Norman Conquest in 1066. Under
Norman rule, structure of the Witan continued much the
same. However, the relationship between king and lords changed
to reflect feudal duties of loyalty, homage and fealty more
fully. Attending to business of the Curia Regis was not so
much a right as an obligation. |
| The House of Lords - currently
existing as an upper house in a bicameral parliament
following the emergence of a House of Commons and a more
democratic form of government in the UK |
Revenues of the Crown
In Medieval England, much of the revenue due to the Crown
derived from 'incidents of tenure' - money and services due in
return for grants of land. Collection depended on organisation
within shires by an officer of the king known as the
shire-reeve or sheriff. The sheriff collected dues and paid
them to an office that became known as the Exchequer. The
person who ran this office was known as the
Lord Chancellor
of the Exchequer. While links with an Anglo-Saxon heritage
remain, changes to the House of Lords have been driven largely
by the idea that the people should have a say in their own
taxation. Giving effect to this idea inferred also that the
people should have a say in the policies and legislative
programs that drive the need to raise revenue. Understanding
how these ideas could be accommodated politically is the key
to understanding the growth of the House of Commons and the
modern parliament as an institution. Secretarial
Duties and the King's Conscience
The 'keeper of the king's conscience' was his chief chaplain -
a learned churchman who also acted as the king's secretary.
Giving effect to decisions of the Great Council usually
required action to do things such as issuing orders, making
declarations, granting commissions and making grants of land.
This required authentication of documents by affixing the
Great Seal of the realm and the personal signature (or sign
manual) of the sovereign. |
Use of the Great Seal
The king's chief chaplain and
secretary became known as the
Lord Chancellor and Keeper of
the Great Seal. He was in charge of an office known as the
Chancery.
The Great Seal was a sovereign's sign of office and seal of
approval given to official documents such as statutes, charters,
treaties, letters patent and land grants. In England, the Lord
Chancellor was also known as 'Keeper of the Great Seal'.
Court of Chancery
Over time, 'keeping the king's conscience'
became formalised through petitioning a Court of Chancery to
deal with concerns about delivering justice and matters of
conscience in administering the legal system. This led to
emergence of a 'law of equity' as a specialised branch of law.
The Lord Chancellor's office changed from one that was
ecclesiastical to one that was judicial in character. The
ecclesiastical origins related to matters of conscience in
family relationships - wills, inheritance, succession; and in
business relationships - contracts and fair trade, for
example.
Currently, the Lord Chancellor and Keeper of
the Great Seal serves as the highest judicial officer in the
UK as well as Speaker for the House of Lords. He is also
mainly responsible for the Public Records Office.
A Summary View
Considerable political compromises over centuries were needed
to begin with a landed aristocracy and end with something that
accommodated democratic
principles while also trying to keep up appearances. More
reforms seem likely if people see a need for a more
representative upper house. This raises the whole question of
the role of an upper house when there is already a
representative lower house. Two questions emerge:
| How can representative upper and lower
houses complement each other without being brought into
conflict or at least having mechanisms to resolve the conflict resolved |
| How is the role of a Judicial Committee
of the House of Lords made compatible with constitutional
principles involving a separation of powers |
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References:
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ORIGINS OF THE HOUSE OF COMMONS |
Historic Overview
Three stages of evolution of the House of Commons seem to identify
themselves:
| First, the summonsing of commoners by the
king to sound out attitudes towards taxation proposals towards
the end of the 13th century |
| Second, significant control over the policies
and legislative programs of government by the end of the 17th
century |
| Third, a process of democratisation to make
the Commons a more representative assembly - emerging in the
19th and 20th centuries |
Parliamentary Control of Public Finance
Ultimately, parliamentary control over public finance required:
| control over all forms of public revenue |
| control over present and proposed expenditure |
A principle derived from the Confirmation of the
Charters of 1297 that the king must depend for his revenue on a
previous grant. This provided the foundation for the so-called
Model Parliament. Few if any knew what that could mean at the
time. However, over time, this foundational principle allowed
construction of many things that could be inferred from it. Some
of this construction included:
| the idea that if approval or refusal of a
grant was reasonable, the reasons may effectively provide the
conditions on which a grant could be approved or refused |
| that approval could become subject to:
 | the king dealing with a list of
grievances |
| reviewing past appropriations to see that
they were used wisely and for their intended purpose - the
foundation for modern auditing processes |
| reviewing legislation giving rise to the
need for expenditure |
| reviewing future policy proposals to see
the context in which present and future expense might be
contemplated |
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Resolving Conflict
between the Monarch and Parliament
The problem that emerged in organising government in England was
that two sources of authority emerged on how the kingdom should be
governed:
| First, the wishes of the king as advised by an
inner circle of lords - exacerbated by the insistence in the Early
Stuart period by the doctrine of a divine right of kings |
| Second, the wishes of representatives in the
Commons who were asked to consider policies, legislation and
audits |
Stalemate could result without some agreement
between the two sources of authority. The problem for the Commons
was to get the king and his council of Lords to agree or for one
of the two to cede authority. The resolution of this conflict occurred in favour of the Commons but it took unto the
early part of the 20th century for it to occur.
Tampering with Legislation
Earlier problems in making laws arose when a statute as enacted in the lower house
underwent subsequent interference before being enrolled - by insertion of
saving clauses for example. Statutes could also be got around by
additional ordinances or proclamations made under executive
authority. The need then was to establish the supremacy of parliament
and for executive government to follow a discipline imposed by the
parliament.
Impeachment of the Monarch and Executive
Officers
The processes of impeachment could hold
kings and officials to be responsible for their acts. In this
situation, the
parliament itself acts as a court - a process retained to some
extent in dismissing a judge.
Privilege of Members of Parliament
freedom from retaliation by executive government
for things said and done in parliament
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References:
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George Burton Adams, Constitutional
history of England, rev. edn. by Robert L. Schyller (London:
Jonathon Cape, 1935) pp.192-215
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IMPLICATIONS OF CONFLICTING AUTHORITY IN
GOVERNMENT |
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Problems of Conflicting Authority
Being told two different things and making up one's mind on what
to believe is a common form of enquiry in everyday life, and more
formally in official enquiries such as in courts of law. However,
a problem emerges if it is a source of authority in the style of a
rule of law that people are supposed to obey. Obedience to one
form of authority may come at the expense of disobedience to
another - and authorities may try to exact some form of penalty
for disobedience. Historically, three forms of authority have led
to significant social tensions when they conflict:
| the law of god or religious authority - the natural order of things as
evidenced in scripture - though subject to various
interpretations from time to time and according to what people
may be prepared to see |
| the laws of man or secular authority -
the organisation of society according to secular authorities
according to various power relationships
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| the laws of nature or scientific
authority - a perception of what is possible or
what is best based on science - where the penalty of trying to
do what is seen as scientifically unsound is some form of
failure, supposedly predictable |
Religious Authority
Historically, religious authorities in the Judeo-Christian
tradition have sometimes coalesced and sometimes conflicted with
secular authorities. Moreover, church authorities have relied on
internal power relationships to the problems have included:
| competing claims in rights to taxation |
| claims regarding a divine right to rule |
| conflict within religious authority regarding
rights to interpret scripture - evidenced in the historical
period of the Reformation movement |
Generally, trying to reach some settlement
between secular and religious authority has involved:
| a constitutional separation of church and
state |
| constitutional safeguards regarding freedom
of religion |
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Secular Authority
Secular authority can have conflicts from within as well as
conflicts with religious and scientific authorities. The conflict
within comes mainly from gaining control over the resources to
govern through taxation. Thus the evolution and gradual shift of
power to the House of Commons in the United Kingdom demonstrates
the problem and a resolution.
Tensions still arise between church and secular
authorities over 'matters of conscience' - social security,
policies affecting families, abortion and public morality
generally. However, church authorities have a right to influence
but not to decide these issues if democratic principles are to
remain intact.
Scientific Authority
A secular authority that denies scientific knowledge that is known
to be reliable invites trouble because their policies are likely
to be unworkable on scientific grounds. Thus, policies affecting
human behaviour generally have underpinnings - in areas such as
economics, criminal and deviant rehabilitation, and social
conditions. Similarly, policies affecting natural resources and
the environment have underpinnings in agricultural sciences,
forestry, and ecological sciences more generally. However,
shortcomings or conflicts within science can lead to political
tensions - as in the search for policy directions during the Great
Depression through shortcomings in economic theory. Similar
problems may arise where scientific knowledge is tentative and the
economic consequences one way or another are significant.
Tensions
between Religious and Scientific Authorities
Tensions arose between religion and science with the growth of
scientific knowledge because science was incompatible in many respects with
literal interpretation of scripture in whatever version or
translation it appeared. |
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References:
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