CONDITIONAL DISSOLUTION

Globe, Volume IX, Issue 1254, 26 March 1878, Page 3

CONDITIONAL DISSOLUTION

There has recently been laid before the New South Wale* Assembly correspondence between Sir H. Robinson, the Governor of that colony, aud Lord Carnarvon, on the subject of the dissolution of Parliament without supplies. Tho correspondence may be read with interest in New Zealand, as the same question has arisen here also. It was raised in 1872, between Sir G. Bowen and Mr Stafford, and again last year between the present Governor and Sir G. Grey. The point is whether the Governor is bound to absolutely accept or reject tho advice of his Ministers to dissolve Parliament when supplies have not been granted, or whether he is not justified in giving a qualified acceptance, subject to temporary supply being first obtained. In dealing with the Ministerial crisis that occurred last year, Sir H. Robinson acted on the latter view, and afterwards forwarded to the Colonial Office an elaborate memorandum setting forth the circumstances of tho case, and asking Lord Carnarvon’s opinion as to the propriety of tho course he had followed. His Lordship referred the question to the Speaker of the House of Commons, and to Sir T. Erskine May, both of whom agreed that the conduct of Sir Hercules had been perfectly constitutional. In this opinion, judging from the expressions used in his last despatch, Lord Carnarvon concurred. The following is the statement of faces submitted for his Lordship’s consideration : QUALIFIED ACCEPTANCE OF MINISTERIAL ADVICE. The establishment of a now precedent in constitutional practice is a matter of much importance in its bearing upon the future of a young country. No apology, therefore, can be necessary for discussing, as it is proposed to do in this paper, whether the course which has been followed by the representative of Her Majesty in this colony on tho occasion of the last two crises, of giving a qualified acceptance to the advice of Ministers to dissolve, is an exercise of the prerogative of the Crown in unison with sound constitutional principles, and with the permanent interests of the country. In considering this question, it is necessary to bear in mind the difference which exists between, the working of Parliamentary government in England and in this colony. Practices and procedures in connexion with supply, at variance with the constitutional practice of the mother country, have here been repeated until they have become by usage the normal conditions and established precedents of Parliamentary action. For example, the annual estimates and Appropriation Act are scarcely ever passed here until after tho commencement of the year to which they refer. During the early part of almost every year—in some cases as long as for eight or nine months the services are carried on from hand to mouth by temporary monthly Supply Bills, based on the estimates of the previous year. A crisis has frequently arisen _ the financial affairs have been in this condition, and the request of the Crown for supply, to assist a dissolution, has been met by obstruction or by refusal. On being so obstructed, Ministers on one occasion did not hesitate to dissolve without supply and to pay the services without the authority of Parliament, by an arrangement with the Government Bank. These are precedents for which tho Parliamentary history of the mother country furnishes no parallel since the institution of the system of Government by party.

As illustrating more precisely the colonial precedents referred to, the circumstances connected with the last four changes of Government may be briefly reviewed. Towards the close of January, 1872, the Martin-Robertson Government having been defeated upon the Border duties question, advised His Excellency the Earl of Belmore to dissolve, and the advice was accepted. As usual, the Estimates and Appropriation Act for the year had not been passed, and provision for the public service had only been made for January by a temporary Supply Bill for that month. The Government accordingly moved, on the 31st January, the suspension of the standing orders, so as to admit of a temporary Supply Bill for two further months being passed through all its stages in one day, with a view to an immediate dissolution, which had been assented to by the Governor. On this, Mr Piddington moved an amendment to the effect that an address be presented to the Governor by the Speaker and the House, representing the many inconveniences and dangers to the public interest which would arise from a dissolution of Parliament in the then condition of public affairs. This amendment was carried, on the morning of the Ist February, against the Government, by a majority of 38 to 19. The same day the House was prorogued before the Speaker had had an opportunity of presenting the address, and on the 3rd February Parliament was dissolved by proclamation, no provision having been made for the public service. however, appear to have been unable to face the inconvenience and distress caused by such an extreme proceeding, and advised the administrator of the Government in Executive Council (Lord Belmore having left the colony) to assent to an arrangement with the Government Bank to pay the civil servants and other employees of the Government the salaries and wages due to thorn for the months of February and March. To this advice the administrator assented, and Parliament was called together on the 30th April. In the meantime, however, an overwhelming majority against Ministers had been returned at the general election, and they resigned a few days before the meeting of Parliament; but the new Assembly, notwithstanding such resignation, passed and placed on record, by a majority of 36 to 11, an emphatic condemnation of-the proceedings of the retiring _ Ministry, including specifically the transaction entered into them with the Ms for the payment of

the services without the authority of Parha- ! merit. Hero are precedents for which no j parallel can be found in .England. The finanI eiul year commenced without provision for j the service of tho year; the assent of the i Crown to a dissolution granted, but the neces- | ssry supply for such purpose obstructed, i Dissolution without supply follows ; and the j public servants are paid v, ithout the authority | of Parliament. Tho next crisis occurred towards the close of November, 1874'. The Parked Government having escaped defeat on the Gardiner question only by the Speaker’s casting vote, Ministers thereupon advised a dissolution, and being in possession ot: supply to the end of ihe year, they wore enabled to meet a new Parliament before the close of January, in time to ask lor temporary supply for that month. This dissolution was, therefore, not. hampered by any question of supply. Tho next crisis occurred in March 1877. In the early part of that year, the Eobertson-G-overnment had been subjected to successive defeats upon matters of administrative detail, and adverse motions upon other matters of a similar character were before tho House. Whilst things were in this state, Mr Parkes moved on Tuesday, March 6th, a resolution affirming that the retention by the Government of office after the defeats which it had suffered was unconstitutional, and tho resolution was carried by a majority of three. The wording of the resolution was significant, pointing unmistakeahly to the retirement of the Ministry, and excluding the alternative of a dissolution. It was obvious, therefore, that if the Ministry disregarded this indication of tho feeling of tho House, and advised dissolution, the question of allowing them to get supply would ho matter tor consideration by the Opposition. The Estimates and Appropriation Act for the year wore, as usual, in arrear. Provision for the services of January and February had only been made by temporary supply bills, and provision for March had not been made at nil. Mr Robertson, however, advised a dissolution, and His Excellency the Governor accepted that advice, reserving to himself (he right of reconsideration if supply were refused. With this qualified acceptance Mr Robertson appears to have been satisfied ; and on his Treasurer moving the House into committee with the view of obtaining two months’ supply to provide for the public service during a general election, an amendment was moved declining to grant supplies to the Government then in office, and this amendment was carried by a majority of 33 to 27. Ministers then tendered their resignations, and Mr Parkes was entrusted with the formation of a new Administration. Here again are conditions for which no parallel can be found in England. Nearly a fourth of the year had elapsed without any permanent provision for the services of tho year. Ministerial advice to dissolve had been accepted by the Crown, but temporary supply for such purpose was refused by the Assembly. After four months’ experience of office, Mr (now Sir Henry) Parkes found that the public business, with the exception of the Estimates, was in much the same condition as he found it, and that ho was powerless to carry out any policy of Government. After repeated defeats upon minor issues, a motion was submitted by Mr Garrett upon the legal interpretation of the 3lat clause of the Land Act, which Sir Henry Parkes declared he would consider a vital issue ; and this resolution was carried against tlie Government by a majority of two. Upon this, Sir Henry Parkes moved t he adjournment of the House, with a view of considering the course he would adopt. On Tuesday, 7th August, he staled that the Government had determined to take, if they could get, i‘, the Appropriation Act for tho year, and abandoning, if desired, all their other measures, to recommend the Governor immediately to dissolve. On the following day (the Bth August), when the Treasurer moved the House should resolve itself into committee of tho whole to consider the question of the San Frnncisco mail service Sir John Robertson moved, as an amendment, the adjournment of the House. Sir Henry Parkes at once announced that if the amendment were carried he would treat tho vote as equivalent to a refusal of the Appropriation Act. Nevertheless tho adjournment was carried against the Government by a majority of 30 to 24. On the following day (9th August) Sir Henry Parkes informed the House that he had wailed on the Governor and tendered formal advice to dissolve. He stated that his Excellency had asked him how he proposed to carry on the public service pending the meeting of a new Assembly, to which he had replied that he would endeavor to obtain the necessary temporary supply. His Excellency had'then inquired how he would act if the necessary supply was refused, to which he had replied that he could only say that in such case he would certainly see' his Excellency again. His Excellency thereupon said that “ho could only give him the same answer as he had given to his predecessor, namely, that he was prepared to accept the advice to dissolve, reserving to himself as well as to Sir Henry Parkes the right of reconsideration if supply were refused. With this reservation Sir Henry Parkes stated that he was not satisfied, and ho had accordingly tendered his resignation, which had been accepted provisionally, pending the appointment of his successors. Hero, again, is a state of things for which it would be difficult to find a parallel in the political life of the old country. The eighth month of the year had been reached, and the Appropriation Act had not been passed. The first seven months of the year had been only partially provided for by seven temporary Supply Bills. The Government, which had got into office in March by refusing supplies for a dissolution to their predecessors, bad proved too weak to carry out any policy, and were asking in August for the Appropriation Act to enable them to make the appeal to the country, which they had prevented in the case of their predecessors. Upon this being refused by a similar majority of the Assembly to that which had refused supplies in March, the Premier was advising a dissolution, and refusing to accept anything short of an absolute surrender of the prerogative, he himself being unable to state definitely to the representative of the Crown what course he would pursue with it under a specified and by no moans improbable contingency. These being tho facts which presented themselves on the occasions of the last and of the previous crisis, the question for consideration is, was His Excellency the Governor right or wrong in giving only a qualified assent to the Ministerial advice to dissolve ? On the first occasion, in March last, tho advice to dissolve having been tendered by Mr Robertson, it is obvious (hat His Excellency had only three courses open to him, namely—(l) absolute acceptance, (2) absolute rejection, and (3) qualified acceptance. Tho first course —absolute acceptance—woidd have involved the risk of dissolving without supply—a measure entailing so much inconvenience and distress as to be admissible only as a last resort. His Excellency may well have thought it inexpedient to incur such a risk, in view of tho significant phraseology of the resolution which had led to tho crisis, and in view, too, of the precedents established in the previous crisis of February, 1872, when the House obstructed supply after a dissolution had been absolutely assented to by the Governor, and when the Martip-Robertson Government dissolved without supply, paying tho public servants without the authority of Parliament. It seems only right, in view of these circumstances, for the Governor to have protected himself from any risk of being placed, by any pledge beforehand, in the position of being obliged to dissolve without supply against his own judgment, and of having then no choice but to subject the public servants to great and unmerited hardships, or to assent to an irregular mode of paying them which had already been emphatically condemned by Parliament. The second course —absolute rejection—would only have been justifiable if His Excellency had considered that a dissolution was undesirable in the public interest. If, however, as seems probable, he considered that, looking to all the surrounding circumstances —to the equal division of parties and the impracticable character of the House—a dissolution was on tho whole desirable, provided supply could bo irot, and that Mr Robertson had some claim to a dissolution, nearly two and a quarter years of a triennial Parliament—a Parliament wliiph bad bees elected under the auspices of

his predecessor—having expired, then an absolute rejection of the Ministerial advice could only have been justified by the uncer- | tainty as to whether or not the House would j grant supply. To have acted conclusively on I such a doubt would have been to assume that j the House would disregard all home precedent and refuse supply. If a dissolution had been refused on this assumption —the correctness which would not have been susceptible of proot- Mr Robertson and his party would, and with some reason, have felt themselves aggrieved, and the result might possibly have been a system of “stonewall” obstruction, such as had been adopted shortly before in Victoria, under somcwhatsirailarconditions, to the serious detriment of the public interests. The third course—qualified acceptance, reserving (lie right of re-consideration if supply were refused—appears to have been on the whole the course least open to serious objection ; and although it lias been followed by a refusal of supply, and by the prolongation of the existence of an impracticable Assembly, it is by no means certain that more serious consequences would not have resulted if his Excellency the Governor had adopted either of the other courses open to him. In the last crisis, when Sir Henry Partes tendered advice to dissolve, it is clear that all the considerations which bore on the decision in the previous crisis applied with even greater force to his case. Here was a Govern-int-nt which had succeeded to office by refusing their predecessors supply to enable them to dissolve. Having thus, as it. were, grasped the reins of office, they found that they had overrated their ability to guide the House or to carry out any definite policy. Sir Henry Parkes had doubtless himself been misled by the action of the House, but such an erroneous calculation, and such a futile attempt to carry on the Government, constituted no valid claim for special consideration. He asked, too, for an unqualified acceptance of his advice to dissolve, without being able to say how he would act if the House reiterated its refusal to entrust his Government with supply pending an appeal to the country. In short, in such a contingency—by no means an improbable one—he insisted on being made free beforehand to use the prerogative of the Crown ns he might think proper, denying to the representative of the Crown the right of judging whether the time had or had not arrived for the extreme measure of dissolution without supply. It is not surprising that his Excellency declined to entertain such pretensions, as it must be obvious to every impartial person, that if such an extreme step should ultimately prove unavoidable, Sir Henry Parkes’s Government was not the one primarily entitled to such a concession.

It has been urged that if Sir John (then Mr) Robertson had been given an unqualified dissolution in March last, the House would have granted supply, and a dissolution might then have taken place. It is of course only natural that those who find they have, by disregarding home precedent, prejudiced the public interests and made a grave party blunder, should seek to shift the blame on to other shoulders, by finding fault with the manner in which the proposal w r as submitted to them. Looking, however, to the temper of the House at that time, and to the willingness habitually evinced here to use supply as a weapon of party warfare—looking, too, to the significant phraseology of the resolution which had led to the crisis, and to the precedent of 1872, when a dissolution having been granted without qualification, supply was obstructed—there seems to be no reason for concluding that if on this occasion an unconditional dissolution had been granted the result would have been other than what it was.

Even if it were otherwise, the question remains, Would it not have been proper for the Governor to surrender absolutely the prerogative with the simple object of enabling a Minister to coerce the House into doing what it ought to do without any such pressure ? In view of the precedent established in 1872, of dissolving without supply, and of paying the public servants in an irregular, roundabout manner, without the authority of Parliament —in view, too, of the fact that the Ministry that adopted this course was presided over by a distinguished lawyer, since appointed chief justice, and by a gentleman who had been seven times a Minister of the Crown, would it have been right for the Governor to run the risk of being precluded from saying “no ” if a similar course were again proposed, merely for the purpose of enabling a Minister to go down to the House, and say : “ I have a dissolution in my pocket, supply or no supply, and let those who refuse take the responsibility of their action?” Apart from the risk, would it be dignified for the Crown to assist in playing—as it were —such a mere game of political brag ? It has been argued that the Crown, by making its assent to dissolution contingent upon the obtaining of supply, in effect remits the question of a dissolution to the House itself. This is doubtless to some extent true, but it is the necessary consequence of the Crown being left dependent upon monthly doles for the maintenance of the public service, instead of being granted twelve months’ supply in advance before the close of each financial year, in conformity with the constitutional practice of the mother country. If this practice were adhered to, the Crown would be free to deal with advice to dissolve upon the merits of each case, unhampered with any question of supply. The contention, therefore, simply amounts to this—that being dependent, the Crown does not act independently. When a crisis occurs at a time when there is no supply, and a dissolution is advised,there is no course possible-which is altogether free from difiiculty and danger—there is but the choice between evils ; and being so situated, it can scarcely be said to be the duty of the Crown to exercise its prerogative in the political interest of the Ministry of the day, without regard for the interest of the civil servants and other employes , who, at all events, are not in any way responsible for making the function of dissolution habitually dependent on supply in the irregular manner described.

It is this improper dependence of the executive function of dissolution upon the Legislative function of supply, which is really the source of all the trouble which has arisen here in reference to dissolutions. Ever since the establishment of responsible Government duo provision for the service of the Crown before the commencement of each financial year has been the exception and not the rule. In twenty-one years the Appropriation Act has only on two occasions been passed before the commencement of the year to which it refers, as will be seen from the following statement:—

Tho Appropriation Act for passed in March, 1857 ; for 1858, in November, 1858 ; for 1859, in April, 1859; for 1860, in July, I 860; for 1861, in May 1861; for 1862, in January, 1862 ; for 1863, in *Deceraber, 1862 ; for 1864, in April, 1864; for 1865, in June, 1865 ; for 1866, in April, 1866 ; for 1867, in 1866; for 1868, in April, 1868 ; for 1869, in April, 1869 ; for 1870, in May, 1870 ; for 1871, in June, 1871; for 1872, in August, 1872 ; for 1873, in January, 1873 ; for 1874, in April, 1874 ; for 1875, in August, 1875 : for 1876, in August, 1876 ; for 1877, not passed up to September, 1877. It is difficult to exaggerate the evils arising from the irregularity above disclosed. They are greatly enhanced, too, by the fact that here there is no Civil Service Act, and that with tho exception of about £20,000 a year permanently appropriated by the Constitution Act for the salaries of a few high officials, the whole public service is dependent upon the annual votes of Parliament. Without going into details, however, it will be sufficient to state generally that the practical effect of this departure from tho constitutional practice of the mother country in reference to supply has been to weaken the check of the taxpayers upon the public expenditure, to demoralise parties in the Assembly, and to detract from the efficient administration of public affairs. Under such a system Ministers drag on a feeble and uncertain existence, dependent from month to month upon a small majority, which may at any moment bo alienated by disaffection or disappointment. The inevitable tendency of tho system is to make Ministers pliable, and to add to the influence of individual votes. It is possible that there may bo members in the Assembly who find enjoyment and advantage in the uncertainty and confusion which result; t but no impartial ' looker-on can note tjje operation of swsjj a

system in all its bearings without becoming convinced that it will, if continued, prove fatal to the success of Parliamentary Government in this countrv.

It is in its hearing upon this objectionable practice of deferring supply that the question under consideration of qualified assent to Ministerial advice to dissolve assumes its gravest importance. If a political crisis arises when vtio Crown is without supply, and the Minister ia entitled to ask that the prerogative should be handed over absolutely to him, so as to enable him to threaten the Assembly, and should such threats prove ineffectual, to carve his way out of his difficulty at the expense ot the public servant s, then there - would seem to be lit tle prospect of a change in the present objectionable practice. Rut when the leaders on both sides find, as they have now done, that if Ministers neglect to make timely provision for the service of the Crown, and a crisis arises, their claim to a dissolution wall in all probability be contingent upon their ability to obtain supply, a strenuous and united efforr. will perhaps be made to arrange for supply in advance, in accordance with the constitutional practice of the mother country. The conclusion arrived at, therefore, upon a careful and impartial consideration of the question in all its bearings, is this—that whenever a crisis arises when the Crown is without supply, and a dissolution is advised, an absolute acceptance of such advice in view of what has occurred here, is not onlv inadvisable but improper—at all events until every effort to obtain supply has been exhausted. If a dissolution is undesirable on public grounds, the advice should of course be absolutely rejected ; but if a dissolution is held to be desirable in the interests of the public, provided supply can be got, then the advice should be accepted, but only subject to that qualification. These simple rules are based upon considerations affecting the public welfare, and not the predominance ot particular sections or parties in the Assembly. They are, it is submitted, consistent with Bound constitutional principles in view of the normal state of things existing hero of the Crown being loft habitually without sujiply ; and if their adoption on the last two occasions be regarded as precedents for future guidance, they will, it is to be hoped, tend to put an end to an irregularity in the working of the Constitution which ia inconsistent with the good government of the country. There are two or three other despatches which it is unnecessary to republish, as t hey relate only to the progress and final settlement of the crisis in the New South Wales Assembly. The above letter gives all that bears on the principles at issue. The following is Lord Carnarvon’s despatch in reply, enclosing the opinions furnished by the Speaker and Sir E. May : The Earl of Carnarvon to Sir Hercules Robinson, G C.M.G. New South Wales. (Confidential.) Downing street, December 15, 1877. Sir, —I have received, and had under my consideration, your confidential despatches of the 20th August and 19th of September, in which, with reference to the last two Ministerial ciises which have occurred in New South Wales, you request my opinion whether, when supply is in arrear, the Governor is justified in giving only a qualified acceptance to the advice of hia Ministers to dissolve Psrliame -t, and contingent upon their first obtaining temporary supply. 2. I have also received and considered in connexion with the same matter, your confidential despatches of the 21st and 20th of September, in which you inform mo of t e circumstances attending the last Ministerial crisis. 3. As the question which you have raised is one of much interest and importance, I have thought it desirable to consult Sir Thomas Erskine May upon the subject; and I enclose, for your information, a copy of the opinion with which he has furnished me, together with a copy of the letter in which I caused the question to bo submitted to him for his con aide ration.

4. I will not. allow this correspondence to close without expressing my approval of the course you took in endeavouring to cheek tbs usage of delaying to obtain supply and of carrying on the Government cither without supply or upon temporary Supply Bills; and I sincerely hope that your action in the matter may tend to open the eyes of the people of Now South Wales to the danger of practices which are inconsistent with the true spirit of representative government. 5. f have to add that, although the correspondence has been marked confidential, you are at liberty to use your own discretion as to giving more or less publicity to it. -I have, &c., Carnarvon. Enclosure 2 in No. 5. Sir T. Erskine May, K.C.8., to Mr Herbert. House of Commons, Dec. 6th, 1877. Sir. —I beg to acknowledge the receipt of your letter of the 3rd inst., together with the correspondence and papers transmitted to me by direction of Lord Carnarvon, and I will briefly state my views upon the subjects referred to, as desired by Lis lordship. 1. The first question raised by these papers is, whether the Governor of New South Wales, in giving a qualified assent to the advice of his Ministers to dissolve Parliament, adopted a constitutional course. It seems to me that as the power of dissolution rests absolutely with the Governor, as representative of the Crown, lie is entitled to i-sist upon such conditions as he may deem necessary for the public interests before he proceeds to exercise that power. He was, therefore, warranted in giving a qualified or conditional assent according to his own discretion. 2. At the same time the form in which his conditional assent was given appears open to some objections. His resolution being communicated by his Ministers, to the Parliament, it practically gave to that body a veto upon its own dissolution, and even encouraged it to withhold the supplies. And further, the Governor took upon himself the responsibility of granting or refnsing a dissolution instead of laying that responsibility upon his constitutional advisers.

3. I think that the course more recently taken by the Governor, in regard to Sir John Robertson’s Administration was entirely free from these objections, and was in every respect judicious and constitutional, according to the usage of the mother country. 4 To dissolve Parliament before provision has been made for the public service is so serious an evil that the Governor is entitled to the highest credit for his endeavours to discourage such a practice, and I have no doubt he will continue to discountenance it by every means in his power. But I should venture to suggest that in future the Governor, after discussing with his Ministers all the circumstances under which they advise a dissolution, including the financial situation and the probability of obtaining supplies, should either accept or decline their advice without conditions, or should defer his decision until every effort had been made to secure the supplies or io avert a dissolution. 5. It is to be hoped that the difficulties which have arisen, arid the great public inconvenience caused by the present methods of providing for the public service in New South Wales, will lead to improved financial arrangements, and to the separation of questions relating to the supplies from the conflicts of political parties.—l am, &0., T. Erskink Max. No. 6. Prom the Speaker of the House of Commons to the Earl of Carnarvon. Glynde, Lewes, December 10th, 1877. Dear Lord Carnarvon, —I have received your letter of the 3rd instant, transmitting papers with reference to the recent political crisis in New South Wales. I have also heard from Sir Erskino May that the same papers have been referred to him by your direction, and that he reported his opinion at length in a letter of the (itli instant, a copy of which ho has sent me. I have carefully gone through the papers, and I concur generally in the substance of Sir Erskiue May’s report upon them. I apprehend that there can be no doubt of the right of the Governor, acting in the public interest, to qualify his acceptance of Ministerial advice, although by so doing he incurs serious responsibility. The course taken by Sir Hercules Robinson upon the recent occasion of a political crisis, seems to have been thoroughly constitutional. He declined to accept unconditionally the advice of his Ministers until he had endeavoured through other political arrangements to carry cn the Government, and when his several attempts had proved abortive, he then acquiesced in the advice originally tendered by his Ministers. It appears to me that the Gove nor and his Minis to l s and the Legislative Assembly can never he placed in proper relationship, so long as the present system prevails of deferring supply ; for the Governor ceases to be independent, the Ministers are hampered by the constant need of temporary Supply bills, and the House has a strong inducement to stop supply, in order to prolong its own existence. It is to bo hoped that the complications arising out of the several crises occurring recently in New South Wales will open the eyes of the colony to the propriety of voting suppl es more in accordance with the practice of the mother cmtiy.-Coliovg me,., &c., a. Jto'P*