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Published online by Cambridge University Press: 01 June 2022
Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional conventions are essentially political not legal requirements. Therefore, a constitutional convention requiring popular approval of constitutional change, if it ever existed, would not have violated parliamentary sovereignty. But if it did exist, it was displaced by the Parliament Act 1911 and has not been revived since. Moreover, there is no evidence that courts today have legal authority to enforce any requirement, conventional or legal, requiring such approval.
Emeritus Professor of Law, Monash University; Professorial Fellow, The University of Melbourne; Adjunct Professor of Law, The University of Adelaide.
I thank Rivka Weill and two anonymous referees for helpful comments on an earlier draft.
1 Weill, R., “Constitutionalism Reborn” (2021) 60 Colum. J. Transnat'l L. 132, 204, 202Google Scholar.
2 Ibid., at 203.
3 Ibid., at 204; see also 142.
4 Ibid., at 203, 140.
5 Ibid., at 200.
6 Ibid., at 200–01; for this terminology, see Weill, R., “Dicey Was Not Diceyan” [2003] C.L.J. 474, 475CrossRefGoogle Scholar, note 5, citing the work of Bruce Ackerman.
7 Weill, “Reborn”, 137, emphasis in original; see also 201.
8 Ibid., at 143–44.
9 Ibid., at section I, 148, 208–09.
10 Ibid., at 145–46.
11 Ibid., at 144, 147.
12 Weill, “Dicey Was Not Diceyan”, 490.
13 Weill, R., “Centennial to the Parliament Act 1911: The Manner and Form Fallacy” [2012] P.L. 105, 105Google Scholar.
14 Weill, “Reborn”, 141, 169–71; see also Weill, “Manner and Form Fallacy”, 118, 117.
15 See text to notes 104–107 below.
16 Weill, “Manner and Form Fallacy”, 119–21. See also Weill, R., “We the British People” [2004] P.L. 380, 383, 403Google Scholar.
17 Weill, “Manner and Form Fallacy”, 107, 112.
18 Weill, “Reborn”, 141, 174.
19 Ibid., at 175.
20 She adds the qualification that the recent use of referendums has re-established popular sovereignty only in a weaker form: Weill, “Manner and Form Fallacy”, 121, 123.
21 Weill, “Reborn”, 185.
22 Ibid., at 185.
23 Ibid., at 142.
24 R. Weill, “We the British People Rule: From 1832 to the Present” (2021) U.K.C.L.A. Blog, “Conclusion”, available at https://ukconstitutionallaw.org/2021/01/21/rivka-weill-we-the-british-people-rule-from-1832-to-the-present/ (last accessed 20 January 2022).
25 Loc. cit.; see also Weill, “Reborn”, 149.
26 Weill, “Reborn”, 204.
27 Weill, “Manner and Form Fallacy”, 113.
28 Weill, “Reborn”, 137–38, then passim.
29 Weill, “Dicey Was Not Diceyan”.
30 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London 1915), 465. This edition, the one that Weill cites, was the last written by Dicey himself.
31 Ibid., at 413.
32 Ibid., at 418.
33 Ibid., at 424.
34 Loc. cit.
35 Ibid., at 417–18, 423, 427.
36 Ibid., at 427, 454.
37 Ibid., at 454.
38 Ibid., at 456.
39 Dicey, A.V., “The Referendum” (1894) 23 National Review 65, 66Google Scholar, quoted in Weill, “Dicey Was Not Diceyan”, 476, note 8.
40 Weill, “Dicey Was Not Diceyan”, 486–87, citing Dicey, A.V., “The Referendum and Its Critics” (1910) 212 Quarterly Review 538, 554–55Google Scholar.
41 Dicey, “The Referendum and Its Critics”, 554.
42 Loc. cit.
43 Loc. cit.
44 Ibid., at 555. The following discussion was written before I discovered Mark Walters’ similar rejoinder to Weill's claim that Dicey's referendum proposal was inconsistent with parliamentary sovereignty: see M.D. Walters, A.V. Dicey and the Common Law Constitutional Tradition, a Legal Turn of Mind (Cambridge 2020), 379–85.
45 Loc. cit.
46 Loc. cit.
47 Weill, “Dicey Was Not Diceyan”, 488, note 53.
48 Dicey to Leo Maxse, 2 February 1894 (Maxse Papers, West Sussex County Record Office, Chichester), quoted in M. Qvortrup, “A.V. Dicey: The Referendum as the People's Veto” (1999) 20 History of Political Thought 531, 545. At the time, Maxse was the editor of the journal National Review, in which Dicey was about to publish his article “The Referendum”, on which Weill relies (see note 39 above).
49 Dicey, Law of the Constitution, 141; J. Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford 1999), 15; J. Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge 2010), 181–82. See also Walters, A.V. Dicey, 385.
50 Weill, “Dicey Was Not Diceyan”, 492.
51 Weill, “We the British People”, 380. See also Weill, “Reborn”, 180: Britain in the early twentieth century was still “one step away from becoming a formal popular sovereignty system”.
52 A.V. Dicey, A Fool's Paradise (London 1913), quoted in R. Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (Chapell Hill 1980), 246.
53 Weill, “Dicey Was Not Diceyan”, 491.
54 Ibid., at 493, 492, respectively.
55 Cosgrove, Rule of Law, 246. Cosgrove also wrote: “That a Home Rule Act might lack moral validity was also a remarkable doctrine from a lawyer who, when it suited his purposes, had adhered rigidly to the Austinian separation of law and morality” (loc. cit.). But this was not at all remarkable: it is precisely this separation that permits a legal positivist to criticise the moral validity of a law while acknowledging that it is legally valid. Austin himself insisted that all governments are bound by moral law and lack legitimacy in so far as they fail to comply with it: see Goldsworthy, Sovereignty of Parliament, 19.
56 Dicey, Law of the Constitution, 516, Appendix, Note VII. Weill seems to overlook this in Weill, “Dicey Was Not Diceyan”, 491–92. See also Walters, A.V. Dicey, 393–96.
57 Dicey, Law of the Constitution, 516, Appendix, Note VII.
58 Ibid., at 417, 430, 432, 436, 442, 445.
59 See Goldsworthy, Sovereignty of Parliament, 190–91.
60 See above text to notes 34–39. Mark Walters also questions whether such a convention existed: A.V Dicey, 392.
61 See the chapters by Galligan and Brenton and by N. Aroney, in B. Galligan and S. Brenton (eds.), Constitutional Conventions in Westminster Systems: Controversies, Changes and Challenges (Cambridge 2015).
62 Weill, “Dicey Was Not Diceyan”, 486. Dicey expressed a similar criticism: ibid., at 489. See also Weill, “We the British People”, 399.
63 Weill, “Reborn”, 177.
64 Ibid., at 161.
65 See Dicey, “The Referendum”, quoted in Weill, “Dicey Was Not Diceyan”, 476, note 8.
66 Weill, “We the British People”, 386, esp. note 20. See also Weill, “Reborn”, 148 (in “both the Whig and Tory parties, dissidents pushed the popular commitment further by demanding the people's decision in referenda on divisive constitutional issues”).
67 Weill, “Reborn”, 171.
68 Ibid., at section III.B, 169–71.
69 But see the discussion of competing conceptions of “the people” in C.W. Reid, “Democracy, Sovereignty and Unionist Political Thought During the Revolutionary Period in Ireland, c. 1912-1922” (2017) 27 Transactions of the Royal Historical Society 211, esp. 222, 231.
70 Sir W. Ivor Jennings, The Law and the Constitution, 5th ed. (London 1959), 90; see also G. Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford 1984), 13, 24.
71 See notes 16–18 above.
72 S.G. White, “The Referendum in the UK's Constitution: From Parliamentary to Popular Sovereignty?” (2020) Parliamentary Affairs, 12–16, available at doi:10.1093/pa/gsaa062 (last accessed 20 January 2022).
73 Ibid., at 14.
74 Gordon, M., “Referendums in the UK Constitution: Authority, Sovereignty and Democracy after Brexit” (2020) 16 EuConst 213, 215–23Google Scholar.
75 Ibid., at 218.
76 Ibid., at 217–18.
77 Ibid., at 218.
78 Ibid., at 221; this was the view of the Independent Commission.
79 Ibid., at 220.
80 Ibid., at 219, 222.
81 Ibid., at 220–21.
82 Weill, “Manner and Form Fallacy”, 123, emphasis added.
83 Weill refers to parliamentary sovereignty and popular sovereignty as “conflicting constitutional theories”: Weill, “Manner and Form Fallacy”, 105. She assumes that sovereignty can to some extent be shared, by being divided, when she says that the Parliament Act 1911 “embodied a transformation from a strong-form model of popular sovereignty to a weakened commitment to popular sovereignty and a parallel strengthening of commitment to parliamentary sovereignty”: ibid., at 105. But in that situation, popular and parliamentary sovereignty are still competitors.
84 For agreement, see Gordon, “Referendums in the UK Constitution”, 236–37, and White, “Referendum in the UK's Constitution”, 7–8.
85 This is a slight simplification; for some complications, see Goldsworthy, Sovereignty of Parliament, 9–16.
86 Weill, “We the British People”, 380.
87 One referee objected that “the rule of recognition is not a law”. But H.L.A. Hart, who devised the concept, states that “in a mature legal system, we have a system of rules which includes a rule of recognition”, mentions “my doctrine that developed municipal legal systems contain a rule of recognition”, and refers to “important legal rules including the rule of recognition, which is in effect a form of judicial customary rule”: The Concept of Law, 2nd ed. (Oxford 1994), 110, 246, 256; see also 111–12.
88 Dicey, Law of the Constitution, 425.
89 Ibid., at 449.
90 Contra Weill, “Dicey Was Not Diceyan”, 475, 483.
91 J. Goldsworthy, “The ‘Manner and Form’ Theory of Parliamentary Sovereignty” [2021] P.L. 586.
92 Goldsworthy, Sovereignty of Parliament, 234.
93 Ibid., at 30–31; for subsequent appearances of this idea, see Index, 318, under “Parliament, as representing and binding community”.
94 Weill, “Reborn”, 188–89; see also R. Weill, “Secession and the Prevalence of both Militant Democracy and Eternity Clauses Worldwide” (2018) 40 Cardozo L. Rev. 905, 980–81.
95 J. Kirby, “A.V. Dicey and English Constitutionalism” (2019) 45 History of European Ideas 33, 43; H. Tulloch, “A.V. Dicey and the Irish Question: 1870–1922” (1980) The Irish Jurist 137, 156.
96 See note 69 above.
97 Weill, “Reborn”, 183, 135.
98 Weill, “We the British People Rule”.
99 Ibid., at 381.
100 Weill, “Manner and Form Fallacy”, 113; see also Weill, “Reborn”, 141.
101 Weill, “Manner and Form Fallacy”, 113, note 43.
102 Hart, Concept of Law, ch. 5.
103 Weill, “We the British People”, 381, note 5; Weill, “Manner and Form Fallacy”, 124–25.
104 Ibid., at 119.
105 Ibid., at 115, note 59. The criteria referred to are those required by Bruce Ackerman's “dualist” theory of lawmaking: see note 6 above.
106 Weill, “Manner and Form Fallacy”, 106–07, 119, 124.
107 Ibid.
108 Ibid., at 124–25.
109 Weill, “We the British People”, 405.
110 All major textbooks on British constitutional law devote considerable space to discussing constitutional conventions.
111 For a rebuttal of the objection that parliamentary sovereignty is now just a formal legal theory that ignores practical reality, see Goldsworthy, Parliamentary Sovereignty, 302–04.
112 Weill, “Reborn”, 166.
113 F. Ahmed and A. Parry, “The Quasi-Entrenchment of Constitutional Statutes” [2014] C.L.J. 514, 517–18.
114 J. McGarry and S. Spence, “Constitutional Statutes – Roots and Recognition” (2020) Stat. L. Rev. 378, 388.
115 See note 49 above.
116 Dicey, Law of the Constitution, 83–87.
117 Ibid., at 37–38.
118 See note 49 above.
119 Weill, “Reborn”, 190.
120 Ibid., at 191.
121 Goldsworthy, Parliamentary Sovereignty, 299–304.
122 Weill, “Reborn”, 191.
123 Notes 49, 115, 118 above.
124 The example usually cited is Ghaidan v Godin-Mendoza [2014] UKHL 30, [2004] 2 A.C. 557.
125 Ekins, R., “Legislative Freedom in the United Kingdom” (2017) 133 L.Q.R. 582, 596Google Scholar.
126 F. Powell and S. Needleman, “How Radical an Instrument Is Section 3 of the Human Rights Act 1998?” (2021) U.K.C.L.A. Blog, available at https://ukconstitutionallaw.org/2021/03/24/florence-powell-and-stephanie-needleman-how-radical-an-instrument-is-section-3-of-the-human-rights-act-1998/ (last accessed 20 January 2022).
127 R. (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 A.C. 262, at [102] (Lord Steyn), [104], [107], [126] (Lord Hope), [159] (Baroness Hale).
128 Weill, “Reborn”, 198–99.
129 Lord Steyn's assertion at [102] that the judges created the principle of parliamentary sovereignty is demonstrably false, as is Lord Hope's related assertion at [126] that the principle was “created by the common law”, if he means judge-made law. See Goldsworthy, Sovereignty of Parliament, ch. 10; Goldsworthy, Parliamentary Sovereignty, ch. 2. Lord Hope's suggestion at [104]–[106] that the Acts of Union 1707, the European Communities Act 1972 and the Human Rights Act 1998 all qualified or limited parliamentary sovereignty are highly questionable: Goldsworthy, Sovereignty of Parliament, 165–73; Goldsworthy, Parliamentary Sovereignty, 287–304. The strongest case concerned the European Communities Act, but Brexit has put that to rest: see in particular R. (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] A.C. 61, at [60] (Lord Neuberger, Lady Hale, Lords Mance, Kerr, Clarke, Wilson, Sumption and Hodge). See also M. Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Oxford 2015), 204–06.
130 R. (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, at [43]; and see also at [61] and [67] (Lord Neuberger, Lady Hale, Lords Mance, Kerr, Clarke, Wilson, Sumption and Hodge); also affirmed by Lord Reed (at [183] and [334]) and Lord Carnwath (at [274]). R. (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41, [2020] A.C. 373, at [41] (Ladies Hale, Black and Arden; Lords Red, Kerr, Wilson, Carnwath, Hodge, Lloyd-Jones, Kitchin and Sales).
131 Weill, “Reborn”, 199–200.
132 Ibid., at 199–200, 203.
133 Ibid.
134 See note 130 above.
135 Whether or not the court in Miller II enforced a constitutional convention has been debated. See e.g. Elliott, M., “Constitutional Adjudication and Constitutional Politics in the United Kingdom: The Miller II Case in Legal and Political Context” (2020) 16 EuConst 625, 632–33Google Scholar; A. Perry, “Enforcing Principles, Enforcing Conventions” (2019) U.K.C.L.A. Blog, available at https://ukconstitutionallaw.org/2019/12/03/adam-perry-enforcing-principles-enforcing-conventions/ (last accessed 20 January 2022); Sirota, L., “The Case of Prorogations and the Political Constitution” (2021) 3 J.C.C.L. 103, esp. 124–35Google Scholar.
136 Weill, “Reborn”, 216; see also 200–01.