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Dicey Was Not Diceyan

Published online by Cambridge University Press:  11 August 2003

Rivka Weill
Rivka Weill*
Affiliation:
J.S.D. Yale Law School
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Extract

There is an apparent paradox between Dicey's treatment of parliamentary sovereignty as the central premise of the British constitution and his advocacy of the referendum, a tool of popular sovereignty. Bogdanor wrote:

[i]t is paradoxical that Dicey should have been the first to advocate the referendum in Britain, for he was the author of the classic work Introduction to the Study of the Law of the Constitution (1885). Foremost among the principles there identified as central to the British Constitution was the sovereignty of Parliament—a principle generally held to preclude the referendum.

Cosgrove, who wrote an authoritative biography on Dicey, explained that Dicey turned to the referendum in his search for a device that would prevent Home Rule. Dicey's commitment to defeat Home Rule, he wrote, distorted his judgment.

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Articles
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The Cambridge Law Journal , Volume 62 , Issue 2 , 01 July 2003 , pp. 474 - 493
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Copyright © Cambridge Law Journal and Contributors 2003

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Footnotes

Thanks are due to Professor Bruce Ackerman for his outstanding assistance and contribution to the author’s work, including this article, and Professors Paul Kahn and Jed Rubenfeld for their helpful comments on an earlier draft. Special thanks to my husband Mr. Moshe Feintuch and to Mr. Bernard Schneider for their editing of, and comments on, an earlier draft of this article. The errors are the author’s alone.

References

1 Bogdanor, Vernon, “Western Europe” in Butler, David and Ranney, Austin (eds.), Referendums Around the World: The Growing Use of Direct Democracy (Basingstoke 1994) 24, 34Google Scholar.

2 Cosgrove, Richard A., The Rule of Law: Albert Venn Dicey, Victorian Jurist (London 1980) pp. 105–110, 247Google Scholar. For a similar view, see Lord Bingham of Cornhill, “Dicey Revisited” [2002] Public Law. 39.

3 “People”, with a capital letter, describes the instances in which the people mobilise, deliberate and pronounce their deliberate and sustained opinion on constitutional change. This happens at times when the people engage in public life with the seriousness they usually accord the most important decisions of their private lives. In all other times, we refer to “the people” without a capital. We follow here the work of Professor Bruce Ackerman of Yale Law School. See Ackerman, Bruce, We the People: Foundations (Cambridge, Mass. 1991), vol. IGoogle Scholar; Ackerman, Bruce, We the People: Transformations (Cambridge, Mass. 1998), vol. IIGoogle Scholar.

4 This interpretation was based on Dicey's recurrent emphasis that in the British system the People's will ultimately and in the long run prevails. Dicey, A.V., Introduction to the Study of the Law of the Constitution (8th edn., London 1915) pp. 28–29Google Scholar, 285, 287 [hereinafter cited as Dicey, Constitution]. We rely on this edition, since it was the last that Dicey himself edited.

5 Ackerman has coined the terms monism and dualism to describe constitutional systems that are based on parliamentary vs. popular sovereignty respectively. In a nutshell, a monist system is one that does not distinguish between constitutional and regular law, but rather accords the legislature full authority to legislate on all matters. A dualist system is one that distinguishes between the making of constitutional and regular law, by demanding the People's decision on constitutional issues while leaving the legislature to decide all other law. Ackerman, note 3 above.

6 Cosgrove, note 2 above, p. 161.

7 Ibid.

8 Ibid. Dicey expressed similar views in other writings as well. In March 1894, he wrote:

The sovereignty of Parliament, I may be reminded, excludes any distinction between the articles of the Constitution and ordinary laws. The sovereignty of Parliament, I reply, is a very different thing from the supremacy of the House of Commons, and influences, I add, which have lost their power have, until recent times, in practice though not in law, maintained a distinction between laws which affect the Constitution and laws which deal with matters of everyday life. Dicey, A.V. “The Referendum” (1894) 23 National Review 65, 66Google Scholar [hereinafter cited as Dicey, “The Referendum”].

9 For a full account of the dualist theory, see Ackerman, note 3 above.

10 For a discussion of the mandate theory, see e.g. Le May, G.H.L., The Victorian Constitution (London 1979) pp. 133–145Google Scholar; Emden, Cecil S., The People and the Constitution (2nd edn., Oxford 1956) pp. 212–218Google Scholar; Weston, Corinne C., “Salisbury and the Lords, 1868-1895” (1982) 25 Historical Journal 103Google Scholar.

11 For a full description of the dualist Britain between 1832 and 1911, see Rivka Weill, The Anglo-american Constitutional Model: Why The British and American Constitutional Systems Are Not As Different As Most Think (Doctoral Dissertation, Yale Law School, 2002) (unpublished).

12 Dicey, A.V., “The Parliament Act, 1911, and the Destruction of All Constitutional Safeguards” in Anson, W.R. et al. (eds.), The Rights of Citizenship: A Survey of Safeguards for the People (London 1912) 81, 85–86Google Scholar [hereinafter cited as Dicey, “The Parliament Act”]. Similarly, in 1893, he wrote:

It is worth while, however, to repeat a statement which cannot be too often insisted upon, that the most important function of the House of Lords at the present day is to take care that no fundamental change in the constitution takes place which has not received the undoubted assent of the nation. The peers are more and more clearly awakening to the knowledge that under the circumstances of modern public life this protection of the rights of the nation, which is in complete conformity with democratic principle, is the supreme duty of the Upper House. A.V. Dicey, A Leap in the Dark or Our New Constitution (London 1893) p. 198 [hereinafter cited as Dicey, A Leap in the Dark].

13 “Democracy in Switzerland” (1890) 171 Edinburgh Review 113, 141 (unsigned) [hereinafter cited as Dicey, “Democracy”].

14 E.g., Dicey, “The Referendum”, note 8 above, p. 69. See also note 47 below. Dicey even wrote that a statute revising the constitution is typically called in Britain a Reform Bill. Dicey, “Democracy”, note 13 above, p. 135.

15 Dicey, A.V., “Ought The Referendum to be Introduced into England?” (1890) 57 Contemporary Review 489, 494Google Scholar [hereinafter cited as Dicey, “Referendum Introduced”].

16 Dicey, A.V., “The Referendum and its Critics” (1910) 212 Quarterly Review 538, 546Google Scholar [hereinafter cited as Dicey, “Referendum Critics”].

17 Bagehot wrote, “Just as the knowledge that his men can strike makes a master yield in order that they may not strike, so the knowledge that their House could be swamped at the will of the king—at the will of the people—made the Lords yield to the people”. Bagehot, Walter, The English Constitution (1867) (Reprinted with an Introduction by Crossman, R.H.S., London 1963), p. 128Google Scholar. For the history of the passage of the Great Reform Act, see Butler, J.R.M., The Passing of the Great Reform Bill (London 1964)Google Scholar.

18 Dicey, Constitution, note 4 above, p. 312. Not all contemporaries shared his views. Hearn, for example, wrote that the creation of peers to coerce a certain policy is “not only unconstitutional but is absolutely unlawful”. Hearn, William E., The Government of England (Melbourne 1867) p. 177Google Scholar. However, even he acknowledged that the Crown's intervention in the business of Parliament was justified when three conditions were met: First, the Crown intervened in order to reconcile the two Houses. Second, its intervention was directed towards the House of Lords, which was unelected. Thus, no other method of coercion, such as dissolution, could be applied against it. Third, this method was used only in the last resort. Ibid., pp. 177-179.

19 Dicey, “Referendum Critics”, note 16 above, p. 554.

20 Dicey, “The Parliament Act”, note 12 above, p. 85.

21 Sir William Anson wrote:

At the general election of 1868 the question of the Disestablishment of the Irish Church had been brought most distinctly before the constituencies, and a great majority of the members returned to the House of Commons were pledged to support such a measure. When in 1869 the Irish Church bill came before the House of Lords, Lord Cairns, in urging the House not to reject a measure of which he personally disapproved, said: “There are questions which arise now and again—rarely but sometimes—as to which the country is so much on the alert, is so nervously anxious and so well acquainted with their details, that it steps in as it were, takes the matter out of the hands of the House of Lords and the House of Commons, and substantially tells both Houses of the Legislature in this country what it requires; and in those cases either House of Parliament or both together cannot expect to be more powerful than the country, or to do otherwise than the country desires.” So too Lord Salisbury: “Reject this bill now, and you will tell the English people that you have determined upon offering an uncompromising resistance to the decision which they have unhesitatingly pronounced.” Anson, William R., The Law and Custom of the Constitution (4th edn., Oxford 1909), vol. I, pp. 285–286Google Scholar.

22 Dicey, “The Parliament Act”, note 12 above, p. 86.

23 Bogdanor, Vernon, Devolution in the United Kingdom (Oxford 1999), p. 19Google Scholar [hereinafter cited as Bogdanor, Devolution].

24 Dicey, “Referendum Introduced”, note 15 above, pp. 494, 506.

25 Bogdanor, Devolution, note 23 above, p. 19.

26 Dicey, “The Parliament Act”, note 12 above, p. 86. He expressed a similar opinion earlier, writing in 1910:

The events of those years [1893-1895] show that in the matter of Home Rule the deliberate will of the country was expressed, not by the representative and elected House of Commons, but by the hereditary and unelected House of Peers. An assembly freely chosen by the electors may fail then to represent the nation. This is the truth which was first forced home upon Englishmen in 1895. Dicey, “Referendum Critics”, note 16 above, p. 541.

27 Dicey, Constitution, note 4 above, p. 28.

28 Ibid., p. 28 n. 51.

29 Ibid., p. 291.

30 Ibid., pp. 286-287.

31 Cosgrove, note 2 above, p. 107 (quoting Dicey to Strachey, 29 January 1894, Strachey Papers).

32 Dicey, A.V., “The Paralysis of the Constitution” (1905) 88 Contemporary Review 305, 311Google Scholar.

33 Dicey, “Referendum Introduced”, note 15 above, p. 506.

34 Dicey, A.V., England's Case Against Home Rule (1886) (Richmond 1973)Google Scholar; Dicey, A.V., Letters On Unionist Delusions (London 1887)Google Scholar; Dicey, A Leap in the Dark, note 12 above ; Dicey, A.V., A Fool's Paradise (London 1913)Google Scholar.

35 Cosgrove, note 2 above, p. 106 (quoting Dicey to Salisbury, 11 November 1892, Salisbury Papers).

36 Ibid.

37 See Dicey, A.V., “Will the Form of Parliamentary Government be Permanent?” (1899) 13 Harv. L. Rev. 67Google Scholar; Dicey, “Referendum Introduced”, note 15 above, pp. 505-506.

38 Dicey, “Referendum Critics”, note 16 above, p. 543.

39 In 1881, during Gladstone's ministry, the House adopted the closure rule to check obstructive speaking (filibustering) by members opposed to the passage of legislation. It enabled the Commons to close debate and move for a vote on the bill under discussion. See Hughes, Edward, “The Changes in Parliamentary Procedure, 1880-1882” in Pares, R. and Taylor, A.J.P. (eds.), Essays Presented to Sir Lewis Namier (London 1956), p. 289Google Scholar; Porritt, E., “Amendments in House of Commons Procedure Since 1881; The Aims and Tendencies of the Newer Standing Orders” (1908) 2 Am. Pol. Sci. Rev. 515Google Scholar. The Guillotine rules adopted in 1887 allow restriction of the time allocated for the discussion of a bill in the Commons by setting the dates and times at which the specified provisions of the bill must be voted upon. It is also known as closure by instalments or closure by compartment. Ibid., pp. 524-525.

40 Dicey, “The Referendum”, note 8 above, p. 68.

41 Dicey supported the passage of reform in 1867. He believed that Parliament should represent the people rather than the three classes of British society, Royalty, Aristocracy and Commoners. Dicey, A V, “The Balance of Classes” in Essays on Reform (London 1867), p. 67Google Scholar. But he lamented the growth of party government, which resulted.

42 E.g., Dicey, “The Parliament Act”, note 12 above, p. 84. Moreover, Dicey recognised the logical nexus between enfranchisement and the referendum. The same considerations that supported the extension of the franchise supported granting the People the veto power by way of referendum. Dicey, “Democracy”, note 13 above, p. 141.

43 See e.g., Jenkins, Roy, Mr Balfour's Poodle (London 1954), p. 33Google Scholar. On the passage of the Third Reform Act, see Hayes, William A., The Background and Passage of the Third Reform Act (New York 1982)Google Scholar.

44 Roberts, Andrew, Salisbury: Victorian Titan (London 1999), p. 586Google Scholar.

45 Dicey, “Democracy”, note 13 above, pp. 136-137.

46 Dicey, “Referendum Critics”, note 16 above, pp. 556-557; Dicey, “Referendum Introduced”, note 15 above, pp. 502-504.

47 Dicey enumerated the following Acts:

These scheduled Acts should at first, at any rate, be few in number, and should in any case be statutes of the highest importance, such, for example, as the Act of Settlement, the Union with Scotland Act, 1707, the Union with Ireland Act, 1800, and the various Parliamentary Reform Acts. Among such scheduled Acts ought to be included the Referendum Act itself. Dicey, “Referendum Critics”, note 16 above, p. 554. See also Dicey, “The Referendum”, note 8 above, p. 69.

48 Dicey, “Referendum Introduced”, note 15 above, pp. 497-500.

49 Dicey, Constitution, note 4 above, p. 39.

50 Ibid., pp. 36-41.

51 Dicey, “The Referendum”, note 8 above, p. 69.

52 Dicey, “Referendum Critics”, note 16 above, p. 554.

53 Dicey, “The Referendum”, note 8 above, p. 71. Already, in 1890, when writing his first article on the referendum, Dicey did not disguise the fact that he was considering a dualist constitution governed by popular sovereignty. He concluded his article:

The time approaches when we may import from the United States the “Constitutional Convention,” which in the domain of politics is by far the most valuable result of American inventiveness. The time has come when we ought all to consider the possible expediency of introducing into England that appeal to the people which is by far the most original creation of Swiss democracy. Dicey, “Referendum Introduced”, note 15 above, p. 511.

Interestingly, in 1910, while Dicey advocated the referendum, he wrote that Parliament could legally, though not politically, evade a Referendum act by exempting any bill from its operation, in accord with parliamentary sovereignty. Dicey, “Referendum Critics”, note 16 above, p. 555. However, as we demonstrated, under Dicey's proposed referendum, Parliament would no longer remain sovereign according to Dicey's own definition of parliamentary sovereignty. It is possible that in his last efforts to block the passage of the Parliament Act 1911, Dicey, in 1910, tried to minimise the effects of a possible adoption of the referendum. He therefore tried to present it as compatible with parliamentary sovereignty, thus making it easier for the British to adopt it, though it was not compatible.

Another point worth mentioning is that Dicey supported at first women's suffrage. However, later, he changed his mind and opposed it. Cosgrove, note 2 above, pp. 216-217. This fact does not change our claim that he was a supporter of popular sovereignty, as that term was understood at the end of the nineteenth century. Even the United States that is considered the archetype of popular sovereignty did not enfranchise women until 1920, when it passed the XIX Amendment to the US Constitution.

54 Cf. Bogdanor, who wrote that Dicey “did not believe that a general election could fulfil the function of a referendum”. Bogdanor, Vernon, “Dicey and the Reform of the Constitution”, [1985] Public Law 652, 659Google Scholar.

55 Dicey, “Referendum Critics”, note 16 above, p. 559. See also Dicey, “Referendum Introduced”, note 15 above, pp. 494-495.

Dicey described the confusion of issues that was sometimes present at election as “madness” or “grotesque”. Dicey, “The Referendum”, note 8 above, p. 66; Dicey, “Referendum Critics”, note 16 above, p. 548 respectively. He wrote:

The judge who should direct a jury that they could not properly give a verdict upon one most difficult case, unless they at the same time gave a verdict on twenty others as difficult, would not be allowed to remain a day longer upon the Bench. But the behaviour which would argue madness in a judge when asking for the verdict of a jury, is considered the wisdom or astuteness of politicians when appealing to the verdict of the country. Dicey, “The Referendum”, note 8 above, p. 66.

56 Ibid., pp. 71-72. Dicey, “Referendum Introduced”, note 15 above, p. 508.

57 Ibid.

58 Ibid., p. 498.

59 Dicey, “The Parliament Act”, note 12 above, p. 87 n. 1.

60 Dicey, “Referendum Introduced”, note 15 above, p. 500.

61 Ibid. See also Dicey, “Democracy”, note 13 above, p. 142.

62 Dicey, “Referendum Critics”, note 16 above, pp. 559-560.

63 Dicey, Constitution, note 4 above, p. cxviii (“The Parliament Act is the last and greatest triumph of party government”.)

64 The Parliament Act 1911 abolished the Lords’ veto on money bills. With one exception, it transformed the Lords’ veto on non-money bills into a suspensory veto capable of imposing a two-year delay of legislation. Only on extension of Parliament's term, did the Lords retain their absolute veto power. The Parliament Act 1949 further reduced the Lords’ suspensory veto power to one-year.

65 Dicey, “The Parliament Act”, note 12 above, p. 81.

66 Ibid., p. 91.

67 Dicey wrote, “[t]he world knows that one motive at least, for the passing of the Parliament Act by the House of Commons, and forcing it by means of a ministerial misuse of the prerogative through the House of Lords, was that the Act makes it possible to pass a Home Rule Bill…without an appeal to the nation”. Dicey, “The Parliament Act”, note 12 above, p. 89.

In fact, the Irish Members of Parliament demanded the enactment of the Parliament Act in return for their support of the passage of Lloyd George's disputed budget of 1909. Dicey wrote of the budget's passage, “[n]o bribe which leads Irish Nationalists to accept for the moment financial proposals which all Ireland abhors, will deprive of their true meaning facts which no man can dispute”. Dicey, “Referendum Critics”, note 16 above, p. 548. Since the first election of 1910 was held on the budget, Dicey denounced its results writing, “[t]he general election of 1910 will remain for ever a satire upon the attempt to identify a general election with a Referendum”. Ibid. Dicey claimed that only legislative logrolling enabled the budget's passage.

68 While we believe Dicey was consistent with his constitutional theory in advocating the referendum, he was not consistent regarding the method he required for expressing the People's verdict on Home Rule. In some of his writings, especially when he felt he could achieve no more, he required an election focused on Home Rule. A.V. Dicey, “The Appeal to the Nation” (1914) 75 The Nineteenth Century and After 945 [hereinafter cited as Dicey, “Appeal”]. However, during the 1890's he demanded a referendum, writing that he would not have even considered two consecutive Liberal victories at the polls as sufficient proof of public support for the measure. Dicey, A Leap in the Dark, note 12 above, pp. 197-199.

69 Cosgrove, note 2 above, pp. 248-249.

70 Dicey, “Appeal”, note 68 above, p. 948. By plebiscite Dicey meant a “sham appeal to a popular vote by which revolutionary and imperial tyranny has fraudulently obtained the moral consecration of the vox populi”. Dicey, “Democracy”, note 13 above, p. 137.

71 Dicey, “Appeal”, note 68 above, pp. 951-954.

72 Cosgrove, note 2 above, p. 250.

73 Ibid., p. 246.

74 Ibid.

75 Ibid., p. 247.

76 See notes 15 and 16 above and accompanying text.

77 See note 20 above and accompanying text.

78 See note 26 above and accompanying text.

79 See Blewett, Neal, The Peers, The Parties and the People: the General Elections of 1910 (London 1972), p. 326Google Scholar; Weill, note 11 above.