When the English Prime Minister was being questioned about the now abandoned tax cuts, she gave one straight answer.  She did not discuss the proposal in Cabinet – and the press reported that she did not announce it in the debates leading to her winning the office.  We were then told that this kind of decision was within the authority of the Chancellor without the need of Cabinet approval.  That is a matter of convention, but not law.

That may be the convention, but was it sensible to claim that authority to proceed without notifying Cabinet in a new government whose officers have not been appointed by the people; at a time of national and international crisis; when publishing economic forecasts was not available; and when the political and electoral consequences might be alarming?  Would not common sense and self-regard suggest you should cover your own bum?

So, here was an insight into how pliable our notions of government are.

There are two misconceptions about constitutions.  One is that the English constitution is not written.  It is.  But is to be found in the common law and ancient statutes with occasional later modifications. 

Another misconception is that the dispensation of our federal government is to be found in one document – subject of course to explanation by the judiciary.  That is not so.  The way that the federal ‘government’ works is not spelled out in the federal constitution. 

Section 61 is at best terse.  ‘The executive power of the Commonwealth is vested in the King and is exercisable by the Governor-General as the King’s representative.’  The Governor-General runs the country by representing the King with his power – in accordance with British conventions.

What are those conventions?  In 1888, the great legal historian F W Maitland delivered lectures at Cambridge that were later published as The Constitutional History of England.  It is hard to think of authority as sure as this.  In it, Maitland said:

What then is this government?  The answer to this question, if it is to be true, must be both long and difficult.  The reason is this.  During the last two centuries there has grown up an organisation which is not a legal organization.  Of course, I do not mean that it is an illegal organization; rather I should prefer to say that it is an extra-legal organization; the law does not condemn it, but it does not recognize it – knows nothing about it.  I mean the organization to which we point when we use terms such as ‘the Cabinet’, ‘the Ministry’, ‘the Government’, the Prime Minister’…This certainly is a most curious state of things, that the law should not recognize what we are apt to consider an organ of the state second only in importance to the parliament.

This is still broadly the case now, as best as I can see, for both England and for us.  You do not find terms like ‘the Cabinet’ or ‘Prime Minister’ in the federal constitution.  It may therefore be misleading to suggest that our federal constitution contains the set of rules by which the country is run.  To put it softly, our federal constitution leaves a lot about government unsaid.  You don’t even see the term ‘responsible government.’

It is therefore difficult to see how a dispute about how those organs work might get to a court for resolution.  This result would horrify American lawyers; it might agitate our common lawyers; but it should not come as a surprise to people brought up in the belief that the common law about the supremacy of parliament is our ultimate constitutional foundation.

But if the constitution takes a lot for granted, so does the term ‘convention’.  The Compact OED gives us ‘a way in which something is usually done.’  Just what happens to conventions when unusual people get power is what people have been learning in in England, America and here in the recent past.  Our house of government is not built upon a rock.

Politics – constitution – Prime Minister and Cabinet – responsible government – Morrison – Truss.