The Westminster Model

Parliamentary sovereignty. All three recipients have a supreme constitution and judicial review of legislation, which is precisely what the British system does not have. That is the largest single divergence.

The unwritten constitution. All three codified.

A worked example

A government wishes to pass a Bill that the upper house opposes.

United Kingdom. After the delay in section 2(1) of the Parliament Act 1911 as amended by the 1949 Act, two successive sessions, the Bill may be presented for assent without the Lords, unless it is a Bill extending the maximum duration of Parliament.

India. Article 108 provides for a joint sitting of both Houses summoned by the President where a Bill has been rejected, or the Houses have disagreed, or more than six months have elapsed. The Bill is then decided by a majority of the total number of members of both Houses present and voting, which the Lok Sabha's greater size makes decisive. Article 109 excludes Money Bills, on which the Rajya Sabha has only fourteen days and a power of recommendation.

Ireland. Article 23 gives the Seanad only a ninety-day delay, after which the Dail may resolve that the Bill is deemed to have been passed. Article 21 confines the Seanad to twenty one days on a Money Bill.

Canada. The Senate has, in law, a full veto on ordinary legislation, and by convention does not use it against the elected chamber's clear will.

Four descendants, four different deadlock devices, and the same underlying principle: the elected chamber prevails.

The cases

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, required the Supreme Court to describe the Indian executive and its relationship to the legislature in the context of executive action without a statute.

Held, by Mukherjea CJ. The President is a formal or constitutional head; the real executive power vests in the Council of Ministers, responsible to the legislature; the executive may act without a statute where no citizen's rights are affected and expenditure has legislative sanction.

Why it matters here. It confirms that India took responsible government whole, and it defines the scope of executive action, which is where the Westminster model's practical flexibility lies.

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, arose from Canada's attempt to patriate its constitution without substantial provincial consent.

Held. Lawful by seven to two; unconstitutional in the conventional sense by six to three; no remedy.

Why it matters here. It shows the Westminster inheritance under strain in a federal recipient: Canada had British conventions and a written federal division, and the two had to be reconciled by a court.

Distinctions

What beginners get wrong

"The Westminster model means the British system." It means the exportable features of it. Every recipient rejected parliamentary sovereignty, which is the most distinctive British feature of all.

"Ireland is a Westminster system." It is a Westminster executive on a proportional electoral system with a rigid constitution and strong judicial review, and the electoral system alone changes the politics completely, because it makes single-party majorities rare.

"India copied the British constitution." India copied responsible government and took federalism, the lists, the office of Governor and the emergency provisions from the Government of India Act 1935, judicial review and fundamental rights from the American model, and the directive principles from Ireland.

Limits and criticism

The model assumes a two-party system. With many parties it produces coalitions, which Ireland has had almost continuously and India has had frequently.

It concentrates power. A single-party majority with strong discipline gives a Prime Minister control of both organs, and the recipients added judicial review partly for that reason.

Exported conventions do not always survive the journey. The office of Governor in India works very differently from the office of Lieutenant Governor in Canada, although the drafting is similar.

Quick revision

1. What travelled: nominal head of State on advice, cabinet, responsible government, a weakened upper house, a permanent civil service, an official opposition, first past the post.
2. Canada added federalism and a written division of powers; the Senate is appointed under section 24 of the 1867 Act.
3. India added a republic, Part III with article 32, three legislative Lists, emergency provisions, and later the Tenth Schedule.
4. Ireland added the single transferable vote under Article 16.2.5, a referendum for every amendment, and the Article 26 reference.
5. Nobody took parliamentary sovereignty, a hereditary chamber, or an uncodified constitution.
6. Deadlock: Parliament Acts; article 108 joint sitting; Article 23 ninety-day delay; convention in Canada.
7. Ram Jawaya Kapur, AIR 1955 SC 549, on the Indian executive; the Patriation Reference on Canadian conventions in a federation.

Test yourself

1. What are the features of the Westminster model, and which of them did every recipient reject? A nominal head of State acting on advice, a cabinet drawn from and collectively responsible to an elected lower house, a weakened upper house, a permanent neutral civil service, an official opposition, and single-member plurality elections. Every recipient rejected parliamentary sovereignty: India, Canada and Ireland all have a supreme constitution and judicial review of legislation.

2. What did Ireland change, and what difference does it make? It replaced first past the post with the single transferable vote in multi-member constituencies, required by Article 16.2.5, and made the constitution rigid, requiring a referendum for every amendment under Articles 46 and 47. The electoral change makes single-party majorities rare, so coalition government is the norm, and the rigidity means constitutional change is decided by the people rather than by the Oireachtas.

3. Compare the four deadlock devices. The United Kingdom uses delay: section 2(1) of the Parliament Act 1911, as amended in 1949, allows a Bill passed by the Commons in two successive sessions to go for assent without the Lords. India uses a joint sitting under article 108, decided by a majority of both Houses present and voting, which the Lok Sabha's size makes decisive. Ireland uses a ninety-day delay under Article 23, after which the Dail may deem the Bill passed. Canada relies on convention, the Senate having a legal veto it does not use.

4. Is it accurate to say India copied the British constitution? No. India took responsible government and the cabinet system from Britain; federalism, the legislative lists, the office of Governor and the emergency provisions from the Government of India Act 1935; fundamental rights and judicial review from the American model; the directive principles and the method of electing the President from Ireland; and the federation with a strong centre and residuary power from Canada.