Rivka Weill: We the British People Rule: From 1832 to the Present

To anyone who accepts Britain’s parliamentary sovereignty, Brexit should not make sense. How could a nation committed to parliamentary rule find itself bound by a consultative referendum’s result? And after the majority of Parliament had repeatedly opposed Brexit!  

In “From Earl Grey to Boris Johnson: Brexit and the Anglo-American Constitutional Model,” I reveal that Brexit does not shatter longstanding grand British constitutional traditions and violate parliamentary sovereignty, because Britain has, in fact, been operating under a popular sovereignty model since 1832. This model requires the People’s, and not just Parliament’s, consent as prerequisite for constitutional change. It demonstrates that Brexit is an organic outcome of Britain’s historical commitment to the People’s will.

Before 1832, the Lords indirectly controlled the House of Commons’ composition. They opposed the Great Reform Act’s adoption to preserve this control but lost the battle. From that point on, British constitutional history splits into three eras:

Era 1: The Referendal Period (1832-1911)

During this era, the House of Lords served as the guardian of the constitutional status quo. It fulfilled two functions: As a whole, it was a second legislative branch. As a subgroup, the Law Lords constituted the highest legal authority of the land, effectively fulfilling the function of a Supreme Court. The House of Lords thus had to exercise its role as constitutional guardian upfront as a legislative branch, rather than as a judicial branch. Otherwise, it would have exposed itself to criticism that what it allows in its role as a legislature, it later undoes in its capacity as a court. This UK model preceded Kelsen’s idea that the veto of a second legislative chamber may function as the equivalent of judicial review over primary legislation.

After losing direct control of the Commons in 1832, the weakened Lords turned to legislative veto power as their new primary weapon. At this era of newly expanded suffrage and aspiration for greater democratization, the Lords faced criticism for the veto’s “aristocratic” nature. They thus rebranded their veto power as referendal, exercised to refer constitutional matters to the People’s decision, as expressed through election results or through platform politics.

Scholars dismissed the Lords’ rhetoric as fueled by self-interest and partisanship, but British practice during this era nonetheless aligned with popular sovereignty. During this period, the Commons proposed constitutional changes on different occasions, and the Lords vetoed them, citing the need to gain the People’s consent, even though they truly opposed their contents. The Lords’ vetoes on constitutional issues often led to the Commons’ dissolution. At the very least, the Commons’ members usually engaged in platform politics. If the reformers won the “war of numbers” in platform politics or maintained the majority in the Commons following elections, then the Lords would remove their veto, acknowledging that the People had spoken. The proposed constitutional change would then be codified in an Act of Parliament.

Thus, the five most defining constitutional issues of the Referendal Period passed in accordance with this model’s requirements. These include the three Reform Acts, which enfranchised the middle and lower classes, the Irish Church Act, which disestablished the Irish Church, and the Parliament Act of 1911, which diminished the Lords’ veto power. Current doctrine treats these Acts as “constitutional statutes,” which require explicit, rather than implicit, repeal. Yet, the UK Supreme Court acknowledges these Acts as constitutional because of their content. The Court should recognize that these Acts gained their special status because their enactment process involved the People’s consent.

Era 2: The Suspensory Veto Period (1911-1970)

The Referendal Period ended with the enactment of the Parliament Act of 1911, which transformed the Lords’ absolute veto into a suspensory veto. This further weakened the Lords; they could no longer prevent legislation, only delay it for two years at most.

The Lords’ suspensory veto proved effective in delaying legislation by enabling the opposition to mobilize forces against change. When the Liberals ratified the Parliament Act of 1911, they hoped it would enable them to also enact Home Rule for Ireland and the Welsh Church’s disestablishment. In 1914, both laws passed despite the Lords’ opposition, through the Parliament Act of 1911’s procedure. However, the two years’ suspensory veto enabled such resistance that the government had to enact a Suspension Act delaying the implementation of both Acts until after WWI. By then, it was too late. In 1922, Ireland became a free state altogether. As the Conservative leader at the time of the Parliament Act of 1911’s passage, Arthur Balfour, predicted, the suspensory veto became “a bad form of referendum,” but a referendum nonetheless: a legitimate representation of the People’s will. Parliament invoked this 1911 Act for a third time to enact the Parliament Act of 1949, which further restricted the suspensory veto’s effect to only one year, rendering it nearly powerless. Britain thus came closer to parliamentary sovereignty than ever before, but not for long.

Era 3: The Contemporary Period (1970s-today)

The third period of popular sovereignty begins in the 1970s with the rise of referenda and judicial review over primary legislation. Already in the 19^th century, the political actors discussed referenda as an alternative to the Lords’ veto. After the Lords’ veto lost power in 1949, the UK turned to referenda as the new mechanism to express the People’s will. The British used referenda to both affirm the UK’s membership in the EU, in 1975, and decide to exit it, in 2016. In 1979, Parliament abolished devolution Acts for Wales and Scotland after they were rejected or did not garner sufficient majority in referenda respectively. The UK further held referenda on other pressing issues such as devolution, electoral reform, Scottish secession and so forth.

In addition, the British began exercising judicial review over primary legislation directly. The Factortame decision of 1990 proclaimed the judicial power to disapply UK legislation that did not align with EU law. Subsequently, the Human Rights Act of 1998 granted the superior courts the power to declare statutes incompatible with the European Convention on Human Rights. Finally, in the Jackson decision of 2005, the Lords affirmed the validity of the Parliament Act 1949. At the same time, some of the Lords asserted in dicta a common law power to invalidate statutes, were Parliament to abolish the House of Lords without its consent, or prevent judicial review of administrative decisions. As the Court recognized the death of the Lords’ legislative veto as protector of the constitutional status quo near the Centennial to the Parliament Act 1911, it began reasserting its role as a judicial branch to protect the constitutional status quo.

Conclusion

As we acknowledge and accept that Britain indeed operates by a popular sovereignty model, we should also note the British model’s striking resemblance to its American counterpart. In both countries, constitutional change requires the People’s consent, expressed through elections, super-majorities or referenda. In both countries, unelected branches exercise judicial review to guarantee that no constitutional change occurs without the People’s consent, whether it is the US Supreme Court or the House of Lords as a second legislative chamber, and, ultimately, the UK Supreme Court as a judicial branch.  These features contradict the very definition of a parliamentary sovereignty model.

Though Dicey identified parliamentary sovereignty as the UK’s basic norm, based on Blackstone’s Commentaries, I suggested in 2003 that “Dicey Was not Diceyan.” Even Dicey had explicitly admitted in scattered articles, and ultimately in his Introduction to the Law of the Constitution, that the People’s will reigns supreme in the UK. It is past time to acknowledge that the principle of “We the British People” has been ruling the UK since 1832 and grapple with its implications.

Rivka Weill, Harry Radzyner Law School, IDC. The article was written while I was a Senior Research Scholar at Yale Law School.

(Suggested citation: R. Weill, ‘We the British People Rule: From 1832 to the Present’, U.K. Const. L. Blog (21st Jan. 2021) (available at https://ukconstitutionallaw.org/))

* This article was originally published here