Checks and Balances in the Westminster Parliamentary System: UK and Canada

Overview of Political Branch Balances and Government Structure

• Dr. Jonason describes the primary objective of this study as achieving horizontal balance between the three main branches of government: the executive, the legislative, and the judiciary.
• The Executive Branch:     - Defined as the leadership of the country.     - Head of State: Represents the entire state as a whole. Usually non-political and neutral. In parliamentary systems, this figure is typically different from the head of government.     - Head of Government: Includes roles such as Prime Ministers, Premiers, and Presidents. They head the actual government and make day-to-day decisions.     - In liberal democracies like Canada, the "real executive" is the head of government, operating within constitutional bounds and the laws of the land.
• The Legislative Branch:     - Refers to the lawmakers who write legislation.     - Modern legislatures represent different districts and have a democratic aspect.     - The Westminster system, originating in England/UK, is the central focus here.     - In the Westminster model, there is a "fusion" between the executive and legislative branches, which contrasts with the presidential model (e.g., the United States) where they are strictly separated.
• The Judiciary Branch:     - Consists of the courts and unelected officials making rulings.     - They determine if laws or executive actions are constitutional.     - Their role in checks and balances varies significantly between systems.

The Westminster Model: History and Cultural Context

• Origin of the Model:     - Housed in Westminster, London, England.     - The state title is officially The United Kingdom of Great Britain and Northern Ireland.     - Canada is referred to as the "mother country's" legacy, inheriting many constitutional conventions from the UK.
• Definition of Checks and Balances:     - The principle that no single branch can dominate the government; each branch has powers that are checked by one or both of the others.     - Checks are arguably stronger in presidential models than in Westminster models.
• Cultural and Political Requirements for Success:     - A culture in the population that supports the concept of checks and balances.     - A competitive party system. Dr. Jonason notes that the Soviet Union technically had a parliamentary system, but it was meaningless because the Communist Party of the Soviet Union dominated everything.     - Avoidance of "one-party dominance"; the system relies on at least two parties competing for power.     - A free media that respects and participates in checking government power.
• Historical Timeline of the UK Evolution:     - Tradition dates back approximately $1,000$ years.     - The United Kingdom (UK) as a term officially started in $1801$.     - Prior to the UK, the state was Great Britain (about $100$ years prior to $1801$), and before that, just England.
• Emergence from Dictatorship:     - In the Middle Ages, monarchs (kings or queens) were the executive, legislative, and top judges simultaneously—a state of absolute monarchy or dictatorship.     - The term "Parliament" comes from the French word "parle" (to speak), signifying chambers for debate.

Evolutionary Milestones: From Magna Carta to Responsible Government

• The Magna Carta ($1215$):     - An early document used to limit the power of the monarchy.     - Primarily served the aristocrats and nobles seeking rights against the king's power.     - Rights for commoners (serfs) were extremely limited at this time, but the concept of restraining the monarch and making them accountable "stuck."
• The Bicameral System Development:     - House of Lords: Originally a hereditary chamber for nobles and church elites. It was the main body checking the monarch and controlling budgets.     - House of Commons: Originally a "house of communities" for non-nobles (business people/aristocrats but not titled lords). It was relatively weak for hundreds of years.
• English Civil War and the Glorious Revolution ($1688$):     - Parliament became powerful during the mid-$1600s$ during the time of Oliver Cromwell.     - Thomas Hobbes was writing Leviathan during this chaotic period.     - The monarchy was temporarily deposed but returned because people disliked the chaos.     - The Glorious Revolution happened in the late $1600s$ (around the time John Locke was writing).     - This established "Responsible Government."
• Principles of Responsible Government Established in $1688$:     - The monarch's ministers (appointed from the monarch to run the government) must be responsible to Parliament.     - Parliament gained the power to depose a king (established in $1688$).     - The monarch could no longer present their own budgets; they had to be passed by Parliament.     - Parliament could remove the monarch's ministers if they lost "confidence" in them (voted by simple majority).

The Transformation of the Executive: Dignified vs. Efficient

• Transition to Prime Ministerial Power:     - The "Prime Minister" (meaning "First Minister") was the key person the monarch gave instructions to, who then informed the Cabinet of Ministers.     - Over approximately $150$ years, monarchs retreated from active governing to avoid political conflict.
• Walter Bagehot’s Classification:     - The Dignified Element: The Monarch as the figurehead and symbolic Head of State (e.g., King Charles III, formerly Queen Elizabeth II).     - The Efficient Element: The Prime Minister and Cabinet who actually run the government.
• Modern Role of the Monarch (King Charles III):     - Expected to remain neutral and keep out of partisan politics.     - Meets with the PM but does not provide instructions; only advice.     - Crossing this boundary results in a "constitutional crisis."
• Fusion of Powers:     - Convention grew that the PM and Cabinet must sit in one of the houses of Parliament (typically the House of Commons).     - This allows members of the executive to be checked immediately by the body they sit in, but it also creates the possibility of the breakdown of checks if the PM has a strong majority.
• The Layout of the Chambers:     - Adversarial structure: "Us versus them" (Government vs. Opposition).     - The distance between the benches is traditionally "two swords' length" to prevent physical fighting, encouraging verbal debate instead.

The Decline of the House of Lords and Rise of Party Discipline

• Weakening of the Lords:     - By the $20th$ century, a hereditary chamber was seen as illegitimate in a democratic age.     - 1911: The Lords agreed to their own demise by becoming a "delaying chamber" rather than a veto chamber. They could no longer veto bills from the Commons.     - 1949: Their power to delay legislation was further reduced.     - 21st Century Reforms: Most hereditary lords were removed, replaced by "life peers" appointed by the PM (similar to the Canadian Senate).
• Party Discipline:     - Caucus members (non-cabinet members of the party) almost always vote with their leader.     - This reduces the effectiveness of the "Responsible Government" check because a majority PM essentially controls the whole chamber.     - Minority Governments: Exist when the PM controls less than $50\%$ of the House. Here, the threat of being kicked out via non-confidence is real.

The Canadian Parliamentary Context: Similarities and Departures

• General Structure:     - Housed in the Centre Block (contains both Senate and House of Commons).     - Head of State: King Charles III, represented by the Governor General (GG).
• The Governor General of Canada:     - Appointed by the Prime Minister for relatively short periods.     - Originally selected from the UK, but now Canadians.     - Role is neutral and symbolic (e.g., "ribbon cutting").     - 1925 King-Byng Affair: A rare case of constitutional controversy regarding a GG's decision on who should govern.     - 2008 Crisis: Another near-intervention by the GG that was narrowly avoided.
• The House of Commons (Canada):     - The dominant chamber with the power of responsible government.     - Members elected from single-member districts using the single-member plurality system.     - Elections occur at least every $4$ years.     - PM and Cabinet sit in this chamber (Fusion of Powers).
• The Canadian Senate:     - Modeled after the House of Lords but without a landed aristocracy.     - Intended for "notable Canadians" and originally had property qualifications.     - Often described as the chamber of "sober second thought."     - Powers: Technically still has the power to veto or amend Commons legislation (unlike the UK Lords who can only delay), except for budgetary bills which must originate in the Commons.     - Illegitimacy: Because they are appointed and not elected, they rarely use their veto power against "government bills" to avoid looking "rotten" in a democratic age.     - Retirement age: Required to retire at age $75$.     - Constitutional Amendment Power: Can only delay constitutional amendments for $180$ days.     - Reform: Justin Trudeau introduced reforms to make senators more independent/non-partisan, moving away from the "party hack" tradition.

Comparison of the Judiciary and Judicial Review

• The UK Judiciary:     - Historically weak in terms of checks and balances.     - No power of "Judicial Review" (cannot declare laws unconstitutional).     - The highest court was once housed within the House of Lords (The Law Lords).     - 2011: Established an independent Supreme Court of the UK, which has more authority over executive acts but still cannot strike down laws.
• The Canadian Judiciary:     - Historically influenced by the Judicial Committee of the Privy Council (UK) until $1949$.     - 1982: The Charter of Rights and Freedoms was entrenched, giving the Supreme Court significant powers of judicial review.     - The Court can declare both executive acts and laws unconstitutional.
• The "Notwithstanding Clause" (Section 33):     - A unique Canadian check on the judiciary.     - Allows the legislative/executive branches to bypass judicial decisions regarding sections $2$ and $7$ to $15$ of the Charter.     - Applicable for $5$-year renewable periods.     - Dr. Jonason notes this is controversial as it can be seen as a threat to individual rights, but it acts as a balance against "judge-made law."

Conclusion: The Reality of Prime Ministerial Government

• In both Canada and the UK, the PM has become effectively "the boss" of the Cabinet.
• PMs can shuffle, hire, and fire ministers at will, leading to a concentration of power.
• Despite the "first among equals" theory, modern systems are better described as "prime ministerial government."
• In a majority government, a PM potentially wields more power than monarchs did immediately following the Glorious Revolution because of party discipline and the breakdown of parliamentary checks.