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.
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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. 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 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.
J My readers are thus enabled to see how far either legislation or constitutional conventions have during the last thirty years extended or it may be limited the application of the principles which in lay at the foundation of our whole constitutional system. 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. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,"8 and further that this right or 1 Compare the Introduction to the second edition of Law and Public Opinion in England during the Nineteenth Century.
Chapters I. 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, i8th 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 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. See Parliament Act, s. 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.
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 constructively19 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 18 S. Under this enactment the House of Lords may insist upon a delay of at least two years and one calendar month, and a powerful opposition in the House of Commons may lengthen this delay. It was constructively rejected in the third session by the House of Lords simply by the House not passing the Bill during such 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.
No reference whatever is therein made to the so-called "veto" of the King. Its existence is undoubted, but the veto has not been exercised for at least two centuries. I am far from certain, that if several laws which I know had fallen under the stroke of that sceptre, the public would have had a very heavy loss.
But it is not the propriety of the exercise which is in question. The exercise itself is In these circumstances it is arguable that the Parliament Act has transformed the sovereignty of Parliament into the sovereignty of the King and the House of Commons. 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. Its repose may be the preservation of its existence; and its existence may be the means of saving the constitution itself, on an occasion worthy of bringing it forth.
The existence of this "negative" has greatly facilitated the development of the present happy relation between England and her self-governing colonies. It has enabled English and colonial statesmanship to create that combination of Imperial unity with something coming near to colonial independence which may ultimately turn out to be the salvation of the British Empire.
Compare especially as to British colonies with representative and responsible government pp. The Dominions for the most part consist either of a country which was a self-governing colony, or of countries which were self-governing colonies in But this statement does Zealand, and the Union of South Africa. 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 Parliament22 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 not apply with perfect accuracy to every one of the Dominions.
Western Australia, for instance, which is now one of the states of the Commonwealth of Australia, did not obtain responsible government till , and Natal, now a state of the Union of South Africa, did not obtain such government till The Union of South Africa itself consists to a great extent of states which in , though subject to the suzerainty of the King, were under the government of the Boers all but independent countries.
Throughout this Introduction, unless the contrary is expressly stated, or appears from the context, no reference is made to the position either of i. British India. This Introduction, in short, in so far as it deals with the relation of the Imperial Parliament to the colonies, refers exclusively, or all but exclusively, to the relation between the Imperial Parliament and the five Dominions.
The term "Imperial Parliament" is, however, a convenient one when we have to deal, as in this Introduction, with the relation between the Parliament of the United Kingdom and the Dominions, every one of which has representative legislatures of their own which are always popularly, and sometimes in Acts of Parliament, termed Parliaments. The term "Imperial Parliament" is used in colonial statutes, e.
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. Nothing worse happens to you, than does to all nations who have extensive empire; and it happens in all the forms into which empire can be thrown.
In large bodies, the circulation of power must be less vigorous at the extremities. Nature has said it. The Turk cannot govern Egypt, and Arabia, and Curdistan, as he governs Thrace; nor has he the same dominion in the Crimea and in Algiers which he has at Brusa and Smyrna.
Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can. He governs with a loose rein, that he may govern at all; and the whole of the force and vigour of his authority in the centre is derived from a prudent relaxation in all his borders. Spain, in her provinces, is, perhaps, not so well obeyed as you are in yours.
She complies too; she submits; she watches times. This is the immutable condition, the eternal law, of extensive and detached empire. Since taxation imposed by an Imperial Act has always been, even in the case of a Crown colony, imposed for the benefit of the colony, and the proceeds thereof have been paid to the colony.
But until the repeal of the Navigation Laws in Parliament, in support of our whole navigation system, retained the practice of imposing duties on goods imported into the colonies, though the proceeds thereof were paid to the colonies so taxed.
Since no Imperial Act has been passed for the taxation of any colony, and no colony is compelled by the Imperial Parliament to contribute anything in the way of taxation towards the cost of the government of the United Kingdom or towards the defence of the British Empire. The Imperial Parliament does still impose customs duties upon the Isle of Man. 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.
A. V. Dicey
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