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PRINCIPLES
OF EXECUTIVE GOVERNMENT
WITHIN THE WESTMINSTER SYSTEM
URL: http://www.spatialgovernance.com/governance/government/610-2B.htm
© John S. Cook - Created on 11 May 1997
Last modified
05/04/11 11:01
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INTRODUCTION |
A
Note on Terminology
Unless otherwise noted, principles of
executive government apply generally in jurisdictions that
follow governmental traditions established at Westminster in
England. However, some terminology changes between jurisdictions
and these notes use the terms ‘governor’ and ‘first
minister’ generically as follows
 | ‘Governor’ refers to the
Queen in England or a vice-regal representative. The
vice-regal representative is known as the Governor-General
in the case of the Australian Government,
‘Governor’ in the case of the Australian States and
'Administrator' in Australian Federal Territories.
‘Governor’ applies also to a person duly appointed to
deputise for the time being. |
| ‘First minister’ used
herein refers to the prime minister (in England, Australia
and other Commonwealth countries), the premier (in
Australian States) or the chief or first minister (in
Australian Federal Territories) |
Most
parliaments are bicameral legislatures comprising a lower and an
upper house. Some governments are unicameral with only one house
– as in Queensland
and New
Zealand, for example.
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Dependence on Ministerial Advice
The role of ministers as advisers to reigning monarchs grew with the complexity of government. The monarch needed to delegate
responsibility to ministers for some routine functions of
government and receive advice in matters of detail. The ability
of a monarch to hold effective power involved also an ability to
maintain a satisfactory coalition of interests that could combat
any effective opposition. This coalition was necessary regardless of whether it relied
on intellectual powers of persuasion or the coerciveness of
military force. In retaining the king as a god-like figure of
considerable respect, the doctrine grew that the king could do no
wrong; and if wrong occurred it was attributable to bad
ministerial advice.
Supremacy - the Parliament or the People?
Constitutional struggles in Britain during the seventeenth century supposedly
established the 'supremacy of
parliament'. However, under democratic
institutions the supremacy supposedly lies in the will of the people. In attempting to give effect to principles of
democratic government, the hope is that the design of governmental
institutions will emphasise the responsibility of executive government to the
parliament and for the parliament to be responsible to the people.
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GUARANTEEING
SUPPLY AND CONTINUITY OF GOVERNMENT |
Guarantee
of Supply
Elections
identify the majority party or coalition in the lower house. The
majority is essential to guarantee supply and ensure the
continuity of government by the passage of money bills. Election
results also allow the majority party to identify its leader.
When election results are clear, the party leader of the
majority party can approach the ‘governor’ with credentials
to form a government. On being satisfied with these credentials,
a ‘governor’ can grant a commission to the majority party
leader as ‘first minister’ to carry out the functions of
government.
Ministerial Portfolios
in
offering continuity of government, the 'first minister', in
collaboration with elected party members, identifies the
separate responsibilities of various ministerial portfolios and
nominates an elected member to be responsible for one or more of
these portfolios. In bicameral legislatures, members of the
lower and upper houses are eligible for appointment as
ministers. However, workability in introducing money bills in
the lower house means that the responsible minister (generally
called the ‘treasurer’) as well as the leader of the
majority party are members of the lower house. The 'governor',
acting on the advice of the ‘first minister’, administers
the oaths of ministerial office and formally appoints the
ministry at a swearing-in ceremony. |
Administrative
Arrangements Orders
In
formalising continuity of government, Governor-in Council makes
an order - usually called an Administrative Arrangements Order -
describing the matters to be dealt with by each government
department and legislation for which each minister is
responsible.The remaining requirement is to
name a member of the parliament as being responsible for each
ministerial portfolio. These can change during the period of a
government due to death; resignation or dismissal from office;
or through a reallocation of portfolios - usually called a 'cabinet
reshuffle'. The Administrative Arrangements require regular
updating to reflect the passing and repeal of legislation and any
reallocations of ministerial or departmental responsibilities.
Caretaker
Conventions
Caretaker convention apply from dissolution of a parliament
pending frsh elections until the swearing in of a new ministry
following elections. The aim during this period is to avoid
major decisions - on policies, appointments, and contracts, for
example - that would be binding on an incoming government. |
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ROLE
OF THE FIRST MINISTER |
Origins of
a First Minister as a Principal Adviser
Historians usually consider Sir
Robert Walpole (1676-1745) to have been the first British Prime
Minister. He held office from 1721-1742. However, his title seems to
have been 'first minister'. Seemingly, the title of 'prime minister'
became recognised officially in 1905.Problems of Maintaining a Workable
Majority
Democracy becomes unstable as a form of government when voting on
issues splits in more than two directions and in such a way that no
clear majority emerges on important issues. Nowadays, parliaments
usually display disciplined voting behaviour along party lines. Many
parliaments have evolved to a situation of two dominant voting
blocs. These blocs comprise members from particular parties or
coalitions of parties aligned into a voting bloc to provide
government and a bloc recognisable
as an opposition and potentially an alternative government.
The First Minister and the Party
System
The party system evolved out of a need to provide stable government
in societies of increasing complexity. In Australian colonial
governments, coalitions came together to pass legislation one issue
(such as a health measure) only to divide on another issue (such as
an education measure). The net result was the forming of factions
within the parliament and an inability of the first minister to see
the passage of some legislation through the parliament. Resignation
by the first minister would cause reorganisation of the Ministry.
Ministers could have such a short tenure that problems within their
administration may not emerge in time to allow effective
parliamentary scrutiny. Frequent ministerial changes make it
difficult to maintain much semblance of ministerial responsibility.
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Evolution of Policy Programmes
Evolving out of a problem of discontinuity due to factions in
parliament was the formation of political parties. Membership of a party held out the hope of being able to influence
government policies. The effect of the party system avoids some
historical problems associated with factions in parliament. A
consequential tendency is for differences of opinion on proposed
policies to occur as debate within parties; and for a relatively
united party stance to be displayed in public forums and in
parliament.
Coordinating Role of the First
Minister
The role of the first minister is essentially one of coordination
across government departments to achieve a whole-of-government
approach to matters affecting the government. In addition, the first
minister plays a role in establishing working relationships with
other governments. This paves the way for more detailed
inter-governmental cooperation in foreign affairs, trade and various
ministerial councils.
After establishment of the necessary protocols,
coordination with other governments on particular matters may occur
through specialised offices dealing with trade and foreign affairs and
ministerial councils.
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CONVENTIONS
OF MINISTERIAL RESPONSIBILITY |
Ministerial
Responsibility
The concept of ministerial responsibility involves a code, largely
unwritten and usually described as a 'convention', that deals with
the kind of behaviour expected of Ministers of the Crown. The code
evolved out of experience in Great Britain of trying to implement
workable democratic government. Australians adapted British practice
to allow for cultural, administrative and constitutional differences
between the two countries. Commentators generally recognise two ways
that hold ministers directly responsible to the parliament and
indirectly to the electorate. Firstly, ministers have an individual
responsibility for their personal behaviour and the performance of
departments under their charge. Secondly, ministers have a collective
responsibility for overall government performance
Individual Ministerial
Responsibility
Supposedly under a convention of individual
ministerial responsibility,
ministers will set an example by their proper personal behaviour,
decide issues in a reasonable and consistent manner and be
answerable regarding the performance of departments under their
direct control. Being responsible implies answering questions asked
by members of parliament either in the parliament (as in question
time) or on personal basis between a member and the minister
concerned.
Questioning of a minister by a member
of parliament may originate from events such as the research or
experience of a person in the electorate, research by a member's
personal staff or the member's personal interests and inclinations.
An ability to ask questions sensibly depends on a flow of
accurate information about ministerial or departmental
performance. Thus, issues of access to government information and
the privacy of individuals are brought into consideration.
Collective Responsibility
The convention holds that ministers should accept a collective
responsibility for collective decisions. Ministers may express
differences of opinion in arriving at a collective decisions.
However, disallowing comment on these differences allows Cabinet to
present a united front once decisions are made. If called upon, a
minister should defend collective decisions publicly and maintain
'cabinet solidarity'. A minister unable to support a collective
decision should resign.
Maintaining a facade of cabinet
solidarity tends to conceal an undercurrent of conflicting ideas. A
minister may receive information from departmental advisers that
conflicts with advice received by other ministers from other
advisers.
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Limitations
to Ministerial Responsibility
Ministers and chief executive officers of government departments
confront a problem that is common in most large organisations. No
single person can know every detail of what is happening when there
are a large number of matters requiring consideration and the
matters themselves involve a wide variety of issues. Evolution of an
organisational hierarchy based on a division of labour and
specialisation of tasks provides a method of coping with
organisational complexity.Problems of communication magnify as
specialisation grows. Specialised knowledge involve specialised
language. Policy advice translated from a specialised language into
a simpler language for wider public dissemination may well lose
something in the translation. The ethical issue is whether
simplification helps lay persons understand issues without being too
misleading or whether the simplification becomes deceptive and
allows people to be 'blinded by science'. The point is well illustrated
in the BBC series 'Yes
Minister'.
Scrutiny by the Mass Media
The mass media is an important avenue of communication to the public
at large on how well government performs. Identifying how well the
mass media performs this role is a study in itself.
However, the main players have conflicting interests and gives
many opportunities for bias. Players involved include:
| the mass media as an organisation
with commercial interests in selling news stories |
| individual journalists and
commentators |
| special interest groups hoping to
influence public opinion in their favour |
| politicians generally desirous of
being portrayed in a favourable light |
The mass media provides information
on the performance of government on a frequent basis. The so-called
'freedom of the press'
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EXECUTIVE
COUNCIL |
Origins of Executive
Council
Under absolute monarchy, kings usually retained advisers but
there was no requirement for the king to accept the advice. While the parliament may authorise budgets and task allocations
through the passing of Acts, workability depends on the
executive government
Roles of Executive Council
The roles of executive council are subordinate to the parliament
and are set out in various Acts of the Parliament. These roles
include:
| the making of subordinate legislation as
authorised in Acts of parliament |
| various appointments and functions
authorised under Acts of the Parliament |
Subordinate Legislation
Many Acts of Parliament provide authority for Executive Council
to make regulations and by-laws - known generally as 'subordinate
legislation' - to supplement provisions that the Acts
contain.
In Queensland
the Legislative
Standards Act 1992 and the Statutory
Instruments Act 1992 gives authority to an Office of
Parliamentary Counsel to prepare Bills for Parliament and
statutory instruments for Executive Council and Government
Departments. |
Informing the Public on
Actions by the Executive
Traditionally, Government Gazettes were an official form of
advice on actions by the Executive. Recently, governments have
given increasing attention to people being able to see the
operations of Executive Government as a condition for a healthy
democracy. Governments are making increasing amounts of
government information freely available via the Internet. Terms
such as 'government-on-line' refer to such government policies
entered into by most of the developed nations.
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CABINET |
| Cabinet has evolved as an
institution to achieve coordination across the various government
departments. As a consequence, the secretariat is within a
department under control of the first minister. Collective
ministerial decision making is important in establishing the
priorities of government and the allocation of available resources
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PARLIAMENTARY
SCRUTINY OF EXECUTIVE POWERS |
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Forms of Scrutiny Exercisable
by Parliament
Parliament can exercise some scrutiny over the exercise of executive
powers through:
| reviewing various departmental and other reports and
accounts |
| considering reports by officers
responsible directly to the parliament rather than to various ministers |
| questioning of
ministers during question time in the parliament |
| appointing committees
established to enquire into various aspects of government
performance |
| passing of administrative
laws |
Financial Auditing
Audit offices have a somewhat unique role in providing
independent specialist advice to the Parliament as a whole on
financial accounting performance of government departments and
agencies. Parliament usually delegates detailed consideration of
accounts and audit reports to special committees - the Joint
Committee of Public Accounts and Audit in the Australian Parliament
- the Public
Accounts Committee in the Queensland Parliament.
Ombudsman
The word 'ombudsman' has Swedish origins and refers to a person
who defends individuals in their dealings with government. The
Ombudsman - also known as a 'parliamentary
commissioner' - reports directly to parliament or
parliamentary committees on problems arising out of public administration.
Specialised dealings with government has led to some
specialisation in the investigative functions of an Ombudsman's
office.
Under provisions of the Ombudsman
Act 2001 (Qld) the Ombudsman is an officer of the parliament (s.11),
with functions of investigating and reporting on administrative
actions (s.12).
The Ombudsman reports in particular to the Legal,
Constitutional and Administrative Review Committee of
Queensland's Legislative Assembly.
the Joint Committee in the
Australian Parliament -
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Question
Time in Parliament
A period set aside as 'question
time' in Parliament supposedly addresses some problems of
public administration. This time is often informative when
ministers try genuinely to inform the house on some matter.
However, question time can degenerate into a farce where
ministers filibuster
to cloud issues and avoid answering questions. Another tactic is
to have a government backbencher ask a leading question -
usually known as a 'Dorothy Dix question' or 'Dorothy Dixer' -
that allows a minister to make political capital
Anticorruption
Commissions
In Queensland, the Crime and Misconduct Act 2001 provides
for the Crime and Misconduct Commission (CMC) to combat and
reduce the incidence of major crime, to improve the integrity
and reduce incidence of misconduct in the public sector. The
CMC in Queensland owes its origins to the Fitzgerald Inquiry that
commenced in 1987. The Independent
Commission Against Corruption (ICAC) operates similarly in
New South Wales.
Much of the problem encountered
in the Fitzgerald and similar inquiries results from lack of
independence in internal police and other departmental
investigations into misconduct.
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CHECKS
ON EXECUTIVE POWERS THROUGH ADMINISTRATIVE LAW |
The Nature of Administrative Law
Administrative law is law as passed by parliament or implied
by a constitution and operates through various court and tribunals
to check potential or actual abuse of executive power. Workability
of government would be affected adversely if public officials were
not allowed some discretion, since it is impracticable to
prescribe rules to cover every situation. However, parliaments in
Australia have also given to the judiciary a function of
administrative review and this depends, for the most part on ultra
vires and natural law doctrines.
The Ultra Vires Doctrine
Ultra vires means beyond the powers. The Australian Constitution
sets out what is in effect a division of legislative powers
between the federal and states. In this instance the High Court
plays a constitutional role as interpreter of the Constitution in
deciding whether federal and State legislatures have operated
within their prescribed legislative powers. Acts of parliaments
often include a power to make subsidiary legislation - in
regulations, by-laws, proclamations, orders and the like. Where a
person claims that subsidiary legislation exceeds the powers as
prescribed in the enabling act of parliament, courts may be asked
to rule on whether is invalid. |
Natural
Law Doctrine
Some argument exists over what should be
included within the tenets of natural law. However, there is a general consensus
it certainly include two tenets:
| that a person adversely affected by an
administrative decision a should have an opportunity to be heard |
| that a person has a right to be heard before
someone who is |
Generally, legislation provides mechanisms for appeal
against administrative decisions.
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PUBLIC SCRUTINY OF EXECUTIVE
POWERS
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The Need for Public
Scrutiny
Most large bureaucracies have a capacity to funnel selective
information on the well-being of an organisation to the upper
levels of organisational hierarchy. Selectively filtering good
news while concealing bad news can jeopardise
the well-being of an organisation by concealing needs for timely
remedial actions. Moreover, organisational culture can operate
from within to dissuade persons from 'blowing the whistle' on
poor performance.
Institutional Safeguards
The forms of scrutiny available
to the public reflect in some measure the limited scope and
funelling of selective information
Scrutiny through the Growth of
Administrative Law
A growth in administrative law has accompanied the growing
complexity of modern government. Institutions have grown to
check abuses of executive power and hold people accountable
for particular types of decisions at various levels in the
government. Among these institutions are:
| the office of Ombudsman |
| Administrative Appeals
Tribunal |
| special commissions against
corruption |
| whistleblower legislation |
| freedom of information
legislation |
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