Friday, 15 July 2011

Anson on the organic development of the constitution

From Sir William Anson, The Law and Custom of the Constitution (1897):

"A constitution which began with the rude organisation of a group of settlers in a hostile country has been adapted not only to the wants of a highly civilised race, but to the government of a vast empire, and has been adapted by an insensible process of change, without any attempt to recast it as a whole, or to map it out in a written form.

It follows that there are many things in our constitution for which it is hard to account. We find one practice prevailing at one time, and quite a different practice, in the same matter, at another; and it is sometimes difficult, if not impossible, to indicate the moment at which the change occurred. For changes have most often been unconscious adaptations of practice to convenience; where changes have been deliberate they have never been comprehensive; they have never dealt with more than the matter which needed change.

It follows then that our constitution is a somewhat rambling structure, and that, like a house which many successive owners have altered just so far as suited their wants at the time of their possession, it bears the marks of many hands, and is convenient rather than symmetrical.

One result of these piecemeal changes in our constitution is the divergence, in many important matters, of law and custom, of theory and practice. We are constantly embarrassed by finding power vested by law in hands which never exercise it in fact, and power exercised in fact by persons unknown to the law. A student who rose from the perusal of the latest edition of Stephen's Commentaries to study the working of our institutions at the present day, would wonder what had become of the prerogative of the Crown, and who were meant by the Prime Minister and the Cabinet....

First compare the process of legislation in theory, that is, according to the strict rules of law, and in practice.

Legislation is effected by the Crown in Parliament; it is true: the Queen who makes laws with the assent of Lords and Commons, and by the authority of the same. But in fact the Commons have an exclusive initiative and control over one branch of legislation, the laws by which taxes are imposed; they have a preponderating influence over all other legislation; and the enacting power of the Crown has, since the reign of Henry VI, been reduced to a right to assent or dissent to measures submitted by Lords and Commons, and the veto to which it has been reduced by custom has not been exercised for more than 170 years.

Or, take again the Executive. The Crown in Council is the executive; the Crown appoints the various ministers who conduct the business of government; but, legally, they are only heads of departments acting under the orders of the Crown, which makes peace and war, issues charters, increases the peerage, is the fountain of honour, of office and of justice. The ministers hold their offices during pleasure; they may be dismissed, one or all, at any moment; they are not in any way legally obliged to be in Parliament; their relations to Parliament are a matter with which the law is wholly unconcerned, except that the acceptance of office necessitates as a rule the re-election of the member taking office, and that the emoluments of ministers depend upon a Parliamentary grant.

It seldom, if ever, occurs to any one but a student of constitutional law that the business of the various departments of government might be transacted by men who were not in Parliament, and that there is no legal necessity that the heads of departments should be responsible for the general policy of the country, still less that they should initiate and control it.

This severance, which is possible in law, between the controlling executive, the departmental executive and Parliament is now impossible in fact.

Practical convenience, amounting to necessity, assigns to party leaders the headship of departments, and therewith a joint and general control of the policy of the country. Parliamentary criticism and the many ways in which an adverse majority in the House of Commons may thwart and embarrass the departments of government make it necessary that those who are responsible for such departments should not only act together, but should act in harmony with the majority in the House. And so it comes about that if our constitution were stripped bare of convention and displayed in its legal nakedness, it would be found not only unrecognizable, but unworkable."