Tenos On publishing the eighth and final edition of this treatise I have thought it expedient to pursue a different course. This power has been employed but once during the last thirty-seven years, and this single use of the presidential prerogative gives a precedent which no French statesman is tempted to follow. The Law of the Constitution was first published in Does the experience of the last thirty years confirm the doctrine laid down in this treatise that the sanction which enforces obedience to the conventions of the constitution is to be found in the close connection between these conventions and the rule of law? Ideas with Consequences Amanda Hollis-Brusky.
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Causes for demand for referendum The book was based on lectures delivered by me as Vinerian Professor of English Law. The lectures were given and the book written with the sole object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law, and the Conventions of the Constitution.
The book, therefore, dealt with the main features of our constitution as it stood in —85, that is thirty years ago. The work has already gone through seven editions; each successive edition, including the seventh, has been brought up to date, as the expression goes, by amending it so as to embody any change in or affecting the constitution which may have occurred since the last preceding edition.
On publishing the eighth and final edition of this treatise I have thought it expedient to pursue a different course. The constant amendment of a book republished in successive editions during thirty years is apt to take from it any such literary merits as it may originally have possessed. Recurring alterations destroy the original tone and spirit of any treatise which has the least claim to belong to the literature of England.
The present edition, therefore, of the Law of the Constitution is in substance a reprint of the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in with the constitution as it now stands in It is thus Edition: current; Page: [xxxvi] possible to take a general view of the development of the constitution during a period filled with many changes both of law and of opinion.
This Introduction therefore is in the main a work of historical retrospection. And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. Their truth has never been denied.
We must now, however, consider whether they are an accurate description of parliamentary sovereignty as it now exists in And here it should be remarked that parliamentary sovereignty may possibly at least have been modified in two different directions, which ought to be distinguished.
It is possible, in the first place, that the constitution or nature of the sovereign power may have undergone a change. If, for example, the King and the Houses of Parliament had passed a law abolishing the House of Lords and leaving supreme legislative power in the hands of the King and of the House of Commons, any one would feel that the sovereign to which parliamentary sovereignty had been transferred was an essentially different sovereign from the King and the two Houses which in possessed supreme power.
It is possible, in the second place, that since the Imperial Parliament may, if not in theory yet in fact, have ceased as a rule to exercise supreme legislative power in certain countries subject to the authority of the King. Let us consider carefully each of these two possibilities. The best mode of giving an answer to this question is first to state broadly what were the legislative powers of the House of Lords immediately before the passing of the Parliament Act, 18th August , and next to state the main direct and indubitable effects of that Act on the legislative power of the House of Lords and of the House of Commons respectively.
No doubt the House of Lords did very rarely either alter or reject any Money Bill, and though the Lords have always claimed the right to alter or reject such a Bill, they have only on very special occasions exercised this power. No doubt again their lordships have, at any rate since , acknowledged that they ought to pass any Bill deliberately desired by the nation, and also have admitted the existence of a more or less strong presumption that the House of Commons in general represents the will of the nation, and that the Lords ought, therefore, in general to consent to a Bill passed by the House of Commons, even though their lordships did not approve of the measure.
But this presumption may, they have always maintained, be rebutted if any strong ground can be shown for holding that the electors did not really wish such a Bill to become an Act of Parliament. Hence Bill after Bill has been passed by their lordships of which the House of Lords did not in reality approve. It was however absolutely indubitable up to the passing of the Parliament Act that no Act could be passed by Parliament without obtaining the consent of the House of Lords.
Nor could any one dispute the legal right or power of the House, by refusing such assent, to veto the passing of any Act of which the House might disapprove. Two considerations, however, must be taken into account. This veto, in the first place, has, at any rate since , been as a rule used by the Lords as a merely suspensive veto. The passing of the Great Reform Act itself was delayed by Edition: current; Page: [xxxix] their lordships for somewhat less than two years, and it may well be doubted whether they have, since , ever by their legislative veto, delayed legislation really desired by the electors for as much as two years.
It must again be remembered that the Lords, of recent years at least, have at times rejected Bills supported by the majority of the House of Commons which, as has been proved by the event, had not received the support of the electors.
Hence it cannot be denied that the action of the House of Lords has sometimes protected the authority of the nation. The House may discuss such a Bill for a calendar month, but cannot otherwise prevent, beyond a month, the Bill becoming an Act of Parliament. In respect of any public Bill which is not a Money Bill , 14 the Act takes away from the House of Lords any final veto, but leaves or gives to the House a suspensive veto.
That the Bill shall, before it is presented to the King for his assent, be passed by the House of Commons and be rejected by the House of Lords in each of three successive sessions. That the Bill shall be sent up to the House of Lords at least one calendar month before the end of each of these sessions. That in respect of such Bill at least two years shall have elapsed between the date of the second reading of the Bill in the House of Commons during the first of those sessions and the date on which it passes the House of Commons in the third of such sessions, 18 iv.
That the Bill presented to the King for his assent shall be in every material respect identical with the Bill sent up to the House of Lords in the first of the three successive sessions except in so far as it may have been amended by or with the consent of the House of Lords.
The history of the Government of Ireland Act, , popularly, and throughout this Introduction generally, called the Home Rule Bill or Act, affords good illustrations of the peculiar procedure instituted by the Parliament Act. The Home Rule Bill was introduced into the House of Commons during the first of the three successive sessions on April 11, ; it passed its second reading in the House of Commons during that session on May 9,; it was rejected by the House of Lords either actually or constructively 19 in each of the three successive sessions.
It could not then possibly have been presented to the King for his assent till June 9,; it was not so presented to the King till September 18, On that day, just before the actual prorogation of Parliament in the third session, it received the royal assent without the consent of the House of Lords; it thereby became the Government of Ireland Act, The Act as assented to by the King was in substance identical with the Bill sent up to the House of Lords in the first of the three sessions on January 16, But here we come across the difficulty of amending a Bill under the Parliament Act after it had once been sent up in the third session to the House of Lords.
By June Edition: current; Page: [xli] it was felt to be desirable to amend the Home Rule Bill in respect of the position of Ulster. On June 23 the Government brought into the House of Lords a Bill which should amend the Home Rule Act which was still a Bill, and it is difficult to find a precedent for thus passing an Act for amending a Bill not yet on the statute-book.
On September 18, , the Home Rule Bill became the Home Rule Act or technically the Government of Ireland Act, unamended, but on the very day on which the Home Rule Act was finally passed it was in effect amended by a Suspensory Act under which the Government of Ireland Act, , cannot come into force until at any rate twelve months from September 18, and possibly will not come into force until the present war has ended.
The Suspensory Act evades or avoids the effect of the Parliament Act, but such escape from the effect of a recently passed statute suggests the necessity for some amendment in the procedure created by the Parliament Act.
The House of Commons can without the consent of the House of Lords present to the King for his assent any Bill whatever which has complied with the provisions of the Parliament Act, section 2, or rather which is certified by the Speaker of the House of Commons in the way provided by the Act to have complied with the conditions of the Parliament Act, section 2. The simple truth is that the Parliament Act has given to the House of Commons, or, in plain language, to the majority thereof, the power of passing any Bill whatever, provided always that the conditions of the Parliament Act, section 2, are complied with.
But these provisions do leave to the House of Lords a suspensive veto which may prevent a Bill from becoming an Act of Parliament for a period of certainly more, and possibly a good deal more, than two years. But the better opinion on the whole is that sovereignty still resides in the King and the two Houses of Parliament.
The grounds for this opinion are, firstly, that the King and the two Houses acting together can most certainly enact or repeal any law whatever without in any way contravening the Parliament Act; and, secondly, that the House of Lords, while it cannot prevent the House of Commons from, in effect, passing under the Parliament Act any change of the constitution, provided always that the requirements of the Parliament Act are complied with, nevertheless can, as long as that Act remains in force, prohibit the passing of any Act the effectiveness of which depends upon its being passed without delay.
Hence, on the whole, the correct legal statement of the actual condition of things is that sovereignty still resides in Parliament, i. Each of the Dominions is a self-governing colony, i. Our subject raises two questions: First Question What is the difference between the relation of the Imperial Parliament to a self-governing colony, such, e.
Before attempting a direct answer to this inquiry it is well to point out that in two respects of considerable importance the relation of the Imperial Parliament 22 to the self-governing colonies, whether called Dominions or not, has in no respect changed since In the first place, the Imperial Parliament still claims in , as it claimed in , the possession of absolute sovereignty throughout every part of the British Empire; and this claim, which certainly extends to every Dominion, would be admitted as sound legal doctrine by any court throughout the Empire which purported to act under Edition: current; Page: [xliv] the authority of the King.
The constitution indeed of a Dominion in general originates in and depends upon an Act, or Acts, of the Imperial Parliament; and these constitutional statutes are assuredly liable to be changed by the Imperial Parliament. Parliament, in the second place, had long before practically admitted the truth of the doctrine in vain pressed upon his contemporaries by Burke, 23 when insisting upon the folly of the attempt made by the Parliament of England to exert as much absolute power in Massachusetts as in Middlesex, that a real limit to the exercise of sovereignty is imposed not by the laws of man but by the nature of things, and that it was vain for a parliamentary or any other sovereign to try to exert equal power throughout the whole of an immense Empire.
The completeness of this admission is shown by one noteworthy fact: the Imperial Parliament in , and long before , had ceased to impose of its own authority and for the benefit of England any tax upon any British colony.
A student may ask what is the good of insisting upon the absolute sovereignty of Parliament in relation to the Dominions when it is admitted that Parliament never gives, outside the United Kingdom, and probably never will give, full effect to this asserted and more or less fictitious omnipotence. The answer to this suggestion is that students who do not bear in mind the claim of Parliament to absolute sovereignty throughout the whole of the British Empire, will never understand the extent to which this sovereign power is on some occasions actually exerted outside the limits of the United Kingdom, nor, though this statement sounds paradoxical, will they understand the limits which, with the full assent, no less of English than of colonial statesmen, are in fact, as regards at any rate the Dominions, imposed upon the actual exercise of the theoretically limitless authority of Parliament.
It will be found further that even to the Dominions themselves there is at times some advantage in the admitted authority of the Imperial Parliament to legislate for the whole Empire.
In the eyes, at any rate, of thinkers who share the moral convictions prevalent in most civilised states, it must seem a gain that the Imperial Parliament should have been able in to prohibit the existence of slavery in any country subject to the British Crown, and should be able to-day to forbid throughout the whole Empire the revival of the Slave Trade, or of judicial torture. Let us now turn to the points wherein the relation of the Imperial Parliament to the self-governing colonies in differed from the existing relation of the Imperial Parliament to the Dominions in The relation of the Imperial Parliament in to a self-governing colony, e.
New Zealand. The Imperial Parliament, under the guidance of English statesmen, certainly admitted in practice thirty years ago that a self-governing colony, such as New Zealand, ought to be allowed in local matters to legislate for itself.
Parliament did, however, occasionally legislate for New Zealand or any other self-governing colony. So again the veto of the Crown was. No doubt as time went on the unwillingness of English statesmen to interfere, by means of the royal veto or otherwise, with colonial legislation which affected only the internal government of a self-governing colony, increased. But such interference was not unknown. There was further, in , an appeal in every colony from the judgments of the Supreme Court thereof to the English Privy Council.
And a British Government would in have felt itself at liberty to interfere with the executive action of a colonial Cabinet when such action was inconsistent with English ideas of justice. It was also in a clear principle of English administration that English colonists should neither directly nor indirectly take part in negotiating treaties with foreign powers.
Nor had either England or the self-governing colonies, thirty years ago, realised the general advantage of those conferences now becoming a regular part of English public life, at which English ministers and colonial ministers could confer upon questions of colonial policy, and could thus practically acknowledge the interest of the colonies in everything which concerned the welfare of the whole Empire.
Neither certainly did English statesmen in contemplate the possibility Edition: current; Page: [xvlii] of a colony standing neutral during a war between England and a foreign power. The relation of the Imperial Parliament in to a Dominion.
But this rule applies almost exclusively to matters which directly and indubitably affect Imperial interests. As long, in short, as the present state of things continues, the Imperial Parliament, to the extent I have laid down, still treats any Dominion as on matters of Imperial concern subordinate to the sovereignty of the Imperial Parliament.
Edition: current; Page: [xlviii] Rule 3 The Imperial Parliament now admits and acts upon the admission, that any one of the Dominions has acquired a moral right to as much independence, at any rate in regard to matters occurring within the territory of such Dominion, as can from the nature of things be conceded to any country which still forms part of the British Empire. Take the following illustration of the extent of such internal independence: Parliament does not except at the wish of a Dominion legislate with respect to matters which merely concern the internal interests of such Dominion, e.
The power of the Crown, i. New Zealand, is now most sparingly exercised, and will hardly be used unless the Bill directly interferes with Imperial interests or is as regards the colonial legislature ultra vires. Thus the Crown, or in other words a British ministry, will now not veto or disallow any Bill passed by the legislature of a Dominion on the ground that such Bill is indirectly opposed to the interests of the United Kingdom, or contradicts legal principles generally upheld in England, e.
The British Government will not interfere with the executive action of the Government e. And the policy of England is in the main to withdraw the English Army from the Dominions and to encourage any Dominion to provide for its own defence and to raise Edition: current; Page: [xlix] for itself a Navy, and thereby contribute to the defensive power of the British Empire.
The Imperial Government is now ready at the wish of a Dominion to exclude from its constitution, either partially or wholly, the right of appeal from the decision of the Supreme Court of such Dominion to the Privy Council. These conferences, which were quite unthought of thirty years ago, and which did not receive their present form until the year , mark in a very striking manner a gradual and therefore the more important change in the relations between England and the self-governing colonies.
The answer then to the question before us 36 as to the difference between the relation of England or in strictness of the Imperial Parliament to the self-governing colonies 37 in and her relation to the Dominions in can thus be summed up: At the former period England conceded to the self-governing colonies as much of independence as was necessary to give to such colonies the real management in their internal or local affairs. But English statesmen at that Edition: current; Page: [l] date did intend to retain for the Imperial Parliament, and the Imperial Government as representing such Parliament, a real and effective control over the action of the ministry and the legislature of each self-governing colony in so far as that control was not palpably inconsistent with independence as regards the management of strictly local affairs.
In the colonial policy of England is to grant to every Dominion absolute, unfettered, complete local autonomy, 38 in so far as such perfect self-government by a Dominion does not clearly interfere with loyalty of the Dominion to the Empire.
The two relations of England to the self-governing colonies—now called Dominions— are, it may be objected, simply one and the same relation described in somewhat different language. The objection is plausible, but not sound. My effort has been to describe two different ways of looking at one and the same relation, and the results of this difference of view are of practical consequence.
In it was admitted, as it is to-day, that the self-governing colonies must have rights of self-government. But in the exercise of self-government on the part of any colony was regarded as subordinate to real control by the English Parliament and Crown of colonial legislation which might be opposed to English interests or to English ideals of political prudence.
In the self-government, e. The one limit to this complete independence in regard to local government is that it is confined to really local matters and does not trench upon loyalty to the Empire.
Online Library of Liberty
Possible change in constitution of parliamentary sovereign Parliament Act, The book was based on lectures delivered by me as Vinerian Professor of English Law. The lectures were given and the book written with the sole object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law, and the Conventions of the Constitution. The book, therefore, dealt with the main features of our constitution as it stood in , that is thirty years ago. The work has already gone through seven editions; each successive edition, including the seventh, has been brought up to date, as the expression goes, by amending it so as to embody any change in or affecting the constitution which may have occurred since the last preceding edition. On publishing the eighth and final edition of this treatise I have thought it expedient to pursue a different course.
A. V. Dicey
Biography[ edit ] Dicey was born on 4 February His elder brother was Edward James Stephen Dicey. In he won a fellowship at Trinity College, Oxford , which he forfeited upon his marriage in He was called to the bar by the Inner Temple in , subscribed to the Jamaica Committee around , and was appointed to the Vinerian Chair of English Law at Oxford in , a post he held until He argued that the British Parliament was "an absolutely sovereign legislature" with the "right to make or unmake any law".
Introduction to the study of the law of the constitution