The executive government has always been seen as the primary source of tyranny, and in Britain the Parliament was developed to control its power. After centuries of struggle, this control was finally achieved in the nineteenth century by making the executive government responsible to the Parliament. The growth of disciplined political parties in the twentieth century has reversed this responsibility, and the executive government can now often control the parliament, resulting in a form of elective dictatorship.
There is nothing new about the concept of an elective dictatorship. After all, nearly 2500 years ago the Roman Commonwealth instituted the office of dictator, the incumbent to be chosen by the Senate to deal with crises such as war, sedition and crime, which were too difficult for the two annually-elected and often mutually antagonistic consuls to deal with. The dictator initially held office for six months.
The Nazi government of Adolf Hitler is an extreme example of a modern elective dictatorship, but Hitler was elected and his dictatorship was legal under the Weimar Constitution. The Weimar Republic had responsible government, with a Chancellor as head of government. The president-the aged Field Marshal Hindenburg at the time of Hitler’s accession-had considerable authority, including dictatorial power if public order and security were threatened.
The Weimar Parliament was elected by proportional representation, with consequent difficulty in forming stable governments. In January 1933 Hitler, as leader of the largest party, became chancellor in a coalition government, and in the following month a mentally-retarded Dutch anarchist set fire to the Parliament building. Although it now appears that the Nazis were not involved in this crime, Hitler certainly made full use of it. He persuaded the president to use his power to suspend the Constitution by emergency decree, to restrict the right of assembly and of the press, to give power to put individuals in protective custody, and to provide for the death penalty for serious disturbances of the peace.
Even after making ruthless use of these powers, the Nazis were unable to gain more than 44 per cent of the votes in the March 1933 election, yet Hitler was still able to persuade the new Parliament to pass an Enabling Act giving him dictatorial powers for four years. Passage of such an act required a two-thirds majority, and even though a hundred left-wing deputies were either under arrest or in hiding, their presence would not have prevented Hitler obtaining the prescribed majority. He now had the power, not only to pass new laws but to amend the Constitution without consulting the Parliament, and without having to persuade the president to issue emergency decrees. A year later President Hindenburg died, and Hitler, using his dictatorial powers, simply combined the job of president with that of chancellor. His elective dictatorship was now uncontrolled.
There were in fact two more national elections during Hitler’s rule, in 1935 and 1938, but on each occasion the elections were blatantly rigged, with the Nazi ticket gaining more than 98 per cent of the votes. Finally in 1942 the Parliament passed a law which released Hitler from all existing legal restrictions, and made him leader of the nation, supreme commander of the armed forces, head of the government and supreme executive chief, supreme justice and leader of the party.
Although the 1935 and 1938 elections were undoubtedly rigged, it seems clear that Hitler’s rule had the overwhelming support of the German people, certainly from 1936 onwards. By 1936 Germany had made a faster recovery from the Great Depression than any other country in Europe, national morale had been restored, the hated Versailles Treaty had been torn up, and rearmament had commenced. Business leaders generally supported the Nazi regime. They had little regard for Hitler personally, despite the fact that he preached a very conservative social philosophy (‘children, church and kitchen’ was his slogan for women, for instance), but they were grateful for the suppression of communists and trade unions which had made possible the dramatic economic recovery.
Of course, even with the Nazi control of the media, the public could not be unaware of the Nazi thuggery and the concentration camps filled with communists, trade-union leaders, Jews, homosexuals and gypsies, for by the end of 1933, after less than a year of Nazi rule, there were 50 such camps. They seem to have been regarded by some as aberrations of which Hitler was unaware, and by others as regrettable necessities. Of course they were not. They led inexorably to murders, mass genocide and world war.
No one would suggest that the Nazi pattern could arise in any of the four countries being considered. The constitutional tradition and the rule of law are much more firmly established there than they were in the Weimar Republic. Nevertheless there are disturbing common patterns in all elective dictatorships.
In modern times, attention was first called to the new elective dictatorships by Lord Hailsham, in a famous address on the BBC in 1976. He later wrote:
Disregard the fundamental human values of justice and morality and you will soon turn majority rule into unprincipled tyranny. But in practice, human nature being what it is, every human being and every human institution will tend to abuse its legitimate powers unless these are controlled by checks and balances, in which the holders of office are not merely encouraged but compelled to take account of interests and views which differ from their own.
In pointing to the dangers of an elective dictatorship, Lord Hailsham was in fact echoing the views of a long tradition of political theorists, dating back to the times of ancient Greece. Even the expression ‘elective dictatorship’ was similar to Thomas Jefferson’s description of a type of government as elective despotism. He wrote
The concentrating [of all the powers of government] in the same hands is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one ... An elective despotism was not the government we fought for.
The founders of the United States of America, particularly Jefferson and Madison, brought remarkable intellectual rigour and imagination to the problems of creating a new democracy. They may have been somewhat misled by the French philosopher Montesquieu, who thought that the separation of the executive, legislative and judicial powers was the secret of the success of the English system after 1688, and the American system was modelled on that principle. ‘The Americans of 1787’, wrote Bagehot, ‘thought they were copying the English Constitution, but they were contriving a contrast to it.’ In fact what Montesquieu was emphasising was the importance of the independence of the judicial system from political forces (unlike the situation in France), and this separation of powers is common to both the British and American systems.
There was great concern among the authors of the American Constitution that there should be checks on the use and abuse of political power, and that the various parts of government should be in balance. James Madison, the principal author of the Constitution, wrote that:
in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
As Lord Acton put it: ‘Power tends to corrupt and absolute power corrupts absolutely.’ Edmund Burke was also aware of the dangers of untrammelled power. Two hundred years ago he wrote that ‘in a democracy the majority of citizens is capable of exercising the most cruel oppression upon the minority.’ His views were echoed nearly a century later by J.S. Mill when he wrote of:
the evil effect produced upon the mind of any holder of power, whether an individual or an assembly, by the consciousness of having only themselves to consider ... A majority in a single assembly easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority. One of the most indispensable requisites in the practical conduct of politics, especially in the management of free institutions, is conciliation: a readiness to compromise; a willingness to concede something to opponents, and to shape good measures so as to be as little offensive as possible to persons of opposite views.
He went on to say that, to control a government, it was essential to:
throw the light of publicity on its acts; to compel a full exposition and justification of all of them which anyone considers questionable.
This attitude was totally different to that of Dicey three decades later. Dicey believed that the true source of the life and growth of the British Constitution was ‘the absolute omnipotence, the sovereignty of parliament’. It must be admitted, though, that when this sovereign Parliament was prepared to take action with which Dicey disagreed-as in Home Rule for Ireland-his respect for the Constitution seemed to vaporise. He recommended a referendum (so much for the sovereignty of Parliament) and, if a majority voted for Home Rule, he was prepared to see armed insurrection (so much for respect for the British Constitution).
The authors of the American Constitution were almost obsessive in their desire to have checks on executive power, and they created a system of division between executive, legislative and judicial power which is still unique. Several flaws in the model they created have emerged over the years, but the dangers of elective despotism which they sought to prevent are real. Responsible government as it has developed in the four countries we are considering does little to control these dangers.
None of the four countries has anything approaching responsible government in Bagehot’s sense, though all pretend they have. What they have is party government, where the party which wins the majority of seats in the lower house forms the government, and its leader become prime minister. The government is responsible, not to the parliament, but to the caucus of the government party MPs. The lower house merely registers the laws proposed by the government, after discussions with the government party caucus. The caucus relies for its electoral success on the party organisation, which in some of the parliaments may give orders to the parliamentary party.
The power of such a party government is not invariably absolute. The procedure in the British House of Commons, where the party discussions take place in public in a standing committee rather than in the relative privacy of a caucus meeting, has much the same result, though it must be said that the resultant cross voting has beneficial results on the independence of MPs in other areas. Another problem occurs if the government does not have an absolute majority in the lower house. If this happens, there will be a coalition with other parties or Independents, or a minority government. The government will negotiate with its possible allies with the aim of retaining government and keeping control of the lower house so that it can get a rubber stamp on its key legislation.
There are also other constraints. The doctrine of the sovereignty of parliament, under which its enactments cannot be struck down by any court, now applies only in New Zealand. Canada and Australia are federations, with entrenched constitutions. The powers are divided between the federal and state governments, and any disputes are decided by the courts. The UK is a de facto provincial member of the European Federation, with laws enacted by its Parliament liable to be overridden by European Union laws on certain designated subjects, and disputes resolved by a Union court.
These restraints still leave formidable and effectively unreviewable powers in the hands of a government which controls the lower house. The only remaining barriers to party despotism are upper houses, but these barriers are of very uncertain strength. If the government party has the numbers in the upper house it is really no barrier at all for, except in the UK, where party members of both houses meet in a common caucus where the upper house members are usually heavily outnumbered by those from the lower house. The decisions of this caucus are usually binding on upper house members, even in cases where most of them actually oppose the decision. cross voting is rare; it is effectively non-existent among Labor members in Australia. The House of Lords was a special case, for most of the peers did not accept party discipline. The answer was inevitable. Exploiting the non-elective character of the House of Lords, governments managed to reduce its power to a mere delaying role.
However, if the government party does not have the majority in the upper house-and this is becoming increasingly common, with four of the six elected upper houses using proportional representation-the upper house can be a formidable obstacle to an elective despotism, reviewing legislation thoroughly, and amending and sometimes rejecting it. Government activities may be closely and critically scrutinised, and inquiries held into matters the government does not want investigated. If elected by proportional representation, upper houses can reasonably claim to be more reflective of actual community opinion than a lower house elected by single member constituencies. This claim should be slightly qualified, if only part of an upper house-usually half-retires at each election. This is deliberately done to make the upper house a continuing body, without violent fluctuations in balance caused by temporary changes in public opinion.
Despotic governments do not like this sort of behaviour at all, and have conducted substantial campaigns to destroy or emasculate their upper houses. ‘Why should a democratically-elected government be frustrated by people who have not been elected to government?’ they cry, and their call has some effect, for many in the community, particularly those who voted for the government, would support them. Let the government govern seems to be the feeling. As the poet put it: ‘For forms of government let fools contest; What’er is best administered is best.’ So let the government pass such laws as it wishes, in the form it wishes. Let the government set up such inquiries as it wishes, and prevent any inquiries and suppress any information as it wishes. After all, it is answerable to the voters at the next election, and that is enough.
But is it enough? What are the dangers of such an elective dictatorship? Five such dangers stand out.
First of all, the responsibility to the electorate is crude and unsatisfactory. Three, four or five years is a long time to allow any group untrammelled power, and its ultimate accountability depends on the issues which can be brought to the fore at election time. The government can often manipulate the current issues as well as being able to choose the date for an election. Public opinion polls have a crucial influence on the choice of the date for an election, despite prime ministers frequently saying that the only poll that matters is held on election day. Parliaments usually last their full term only if the polls are adverse. The power of a prime minister to call an early election when public opinion is, perhaps temporarily, in his favour is a very great political advantage, and a quite unjustifiable one.
The second objection is that an elective dictatorship is also most defective in its answerability to parliament. A government which controls the parliament can suppress information or inquiries which are to its disadvantage, sometimes by refusing to supply information, sometimes by using party numbers to head off or interminably delay threatening inquiries, and sometimes by throttling the parliamentary budget so that resources are simply not available for a proper inquiry.
Many people are appalled at the scandalous revelations which are periodically turned up by American congressional inquiries. What they overlook is that equally scandalous events may be happening in their own societies but are not being uncovered by their supine parliaments. Some outrageous financial deals have been done by governments in some of our twenty parliaments, and kept secret for years. There have been numerous cases of governments being able to suppress unfavourable stories until elections have been called and won, elections which would almost certainly have been lost if all the proper information had been available to the voters.
The evasive devices are many: irrelevant answers at question time; excessive delays-sometimes years-in answering questions from MPs requiring written replies; orders to public servants not to provide information to parliamentary committees by claiming Crown privilege, or by asserting that a policy issue is involved; and the failure of ministers to give proper information to parliamentary committees investigating aspects of their responsibilities, and sometimes even failing to appear before the committees at all.
Two examples will suffice. During the UK parliamentary inquiry into the Westland helicopter affair, the responsibility (or lack of it) of civil servants to Parliament was laid down by the government. Civil servants, the government claimed, are accountable to ministers and ministers are accountable to Parliament, so civil servants are bound by any instructions given by ministers and must observe confidentiality. The Parliament did not like the rules, but could do nothing about them. Nor could the accountability of a minister to Parliament be enforced. In the same select committee investigation, the committee:
asked Mr Brittan [the minister who had directed the leaking of selected passages from a letter of the Solicitor-General which were damaging to a colleague, Mr Heseltine] whether he authorised that the whole document be published. He refused to tell us. We asked Mr Brittan who selected the passages to be quoted. He refused to tell us. We asked Mr Brittan whether he knew the facts that would enable him to answer the previous questions. Again, he refused to tell us. We put the following question to Mr Brittan: ‘Why was the Solicitor-General not told that his letter was going to be leaked?’ Mr Brittan would not tell us.[104]
The second example occurred in Australia in 1975, when the Senate wished to call several public servants to the bar of the Senate to answer questions and produce documents about some dubious overseas loan negotiations undertaken by the government. The government claimed Crown privilege, and directed the public servants, if the Senate did not accept the claim, to refuse to answer questions or to produce documents. The public servants obeyed, and the Senate yielded.
This conflict between Crown privilege (or ‘public interest immunity’, as it is sometimes euphemistically called) and parliamentary privilege is difficult to resolve. The responsibility of the government to the parliament would suggest that it should be parliament, not the government, which should decide whether questions should be answered or documents produced, in camera if necessary. On the other hand, parliament is a party political body, and many committees are notoriously leaky. In practice, the government simply refuses to produce documents or permit the giving of evidence which it claims would be prejudicial to the public interest, and parliament has yielded.
The courts have taken a firmer line. It now seems to be well established that a minister’s certificate claiming Crown privilege will not be accepted as conclusive in all cases, and the courts will decide the competing claims of public interest. In the UK the courts do accept that there is a class of documents such as Cabinet minutes which remains privileged, but the Australian courts have held that no class of document is entitled to absolute immunity.
The relations between the government and the parliament are so highly politicised that an appeal to the courts to resolve a question of Crown privilege would not be appropriate. Yet it is difficult to justify the present situation, where the government decides what is in the public interest, and not infrequently seems to confuse its own political interest with that of the public. Of the options available, the best would seem to have the head of state decide, in the event of a dispute between the government and the parliament, where the balance of public interest lay. But governments would not like such a solution at all.
The third danger in an elective dictatorship is the power of the government to make appointments to the courts, to the senior ranks of the bureaucracy and to management positions in government business enterprises and other government-controlled organisations. The vast expansion of government activities in modern times permits government patronage on a scale which would have shocked even such a celebrated user of patronage as King Charles II. Some appointments are made to reward loyal party service, others so as to have a political supporter in a key policy post. Many appointments, of course, are made on merit, but the possibility of the abuse of this patronage power is disturbing.
The only parliament to take any action to supervise such appointments is that of Canada, though not yet very effectively. The potential for corruption is considerable, and one very troubling aspect of government corruption is the way it often has implicit business support, particularly in the early stages. Queensland under the National Party in the 1980s is a good case study. Many businessmen rather liked having to bribe only one person-a corrupt minister or senior bureaucrat-and thereby avoid complicated, expensive and time-consuming tendering processes.
Further, judicious bribes can override planning and environmental objections, which can indeed be tedious and frustrating if carried to extremes. Some businessmen prefer a corrupt government to an incompetent one. A bribe may not necessarily be for the personal benefit of a corrupt minister. It may take the form of a donation to party funds. In Queensland in the 1980s it was generally accepted that one or the other was necessary before a major contract could be made with the government. Ingenious methods of transferring funds were developed, such as deliberately defaming a minister and then making a large out of court settlement (which was tax free), or purchasing the mineral rights on a minister’s private property, doing nothing about them, and, after a judicious pause, forfeiting the rights. What businessmen giving such bribes do not realise, or do not care about, is that an incompetent government can be changed, but once there is corrupt public administration it is extraordinarily difficult to cleanse it.
A vigilant, inquiring and effective parliament is essential if such corruption is to be nipped in the bud, but such a parliament cannot co-exist with an elective dictatorship. In the case of Queensland, the lower house was ruthlessly controlled by the government, and there was no upper house.
No parliament has established any watching brief over judicial appointments, which are entirely in the hands of the government, despite the fact that the independence of the judiciary is a crucial constitutional concept. In Canada and Australia, where the courts interpret the constitution, there is an ever present danger that the courts will become another prize for the political parties to seize.
The fourth objection to an elective dictatorship is the inability of the parliament to assert proper control over the government’s defence and foreign policy activities. A government can move the armed forces into dangerous positions and can declare war without consulting parliament. It can sign and ratify treaties which make fundamental changes to the legal, economic and social systems of the country, again without any consultation with parliament. Examples of the use of such powers are the granting to citizens of the right of appeal to international human rights organisations, which makes major changes to the effective power of parliament and the courts. Similarly the conclusion of trade agreements may radically affect the economy. In Australia the government can effectively change the Constitution by concluding an appropriate international treaty. Except for some controls in Canada on the use of the defence power, the four national parliaments have done nothing to control the enormous powers thus left with the government.
The final objection to an elective dictatorship is that it gives the government control over the legislative process. Modern governments are far too prone to see new laws as the solution to administrative problems, when they would often be better advised to see that existing laws were administered fairly and efficiently. If the government controls the legislature, the bills wanted by the government party and the bureaucracy will be bulldozed through the parliament, any significant amendments being fiercely and effectively resisted by the government party. The government can also avoid public scrutiny in the parliament by leaving not only administrative details but substantial policy matters to be completed by the government under powers delegated by the principal act.
If the government controls the legislature it becomes a cipher. The possibility of substantial input into a bill by expert witnesses is normally frustrated by a government if it has power to do so. Governments do not like committee hearings on their bills, for the members of a committee, studying a particular problem and hearing informed evidence on it in public, tend to develop a common bond which undermines rigid party discipline. Yet public examination of a bill frequently results in a better solution and reveals defects and unintended consequences.
Most bills emanate from the bureaucracy, and all bureaucracies have a tendency to totalitarianism. They are looking for laws which solve administrative problems with precision and certainty. Questions of justice and ethics are not necessarily considered.
Bills may emerge from the bureaucracy, and be accepted by the Cabinet and the government party, which reverse the onus of proof; make criminal or taxation laws retrospective; discriminate on the basis of sex or religion and fail to provide for constructive objection; give unreasonable powers of search and entry; invade personal or medical privacy; inappropriately delegate ministerial power to unspecified officials, and so on. The only defence against such abuses of power is a parliament which is willing and able to force their removal. In an elective dictatorship there is no such defence. The effective by-passing of parliament as far as legislation is concerned is the most serious consequence of elective despotism.
The five defects of an elective dictatorship, each serious in itself, are devastating in sum. What must be considered, urgently, is how the defects can be overcome.
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