As the referendum on Scottish independence approaches in 2014, new research shows how a founding father of constitutional law in the United Kingdom was advocating a referendum at the height of the Victorian age.
His hope was that it would hold the Union together despite parliamentary initiatives to establish Home Rule in Ireland.
An independence referendum, which might now result in the break-up of the United Kingdom, was being advocated as early as 1888, newly-published papers reveal.
The documents appear in the book Comparative Constitutionalism, a compilation of largely-unpublished lectures by the British jurist A. V. Dicey.
It shows that, 125 years prior to the forthcoming Scottish referendum, the leading British constitutional lawyer was, similarly, advocating a referendum, not to break up the Union but specifically to prevent national separation.
Dicey was calling for this in Ireland, but the book’s editor, Dr John Allison, from the University of Cambridge, suggested that his ideas could be realised in Scotland next year if the “no” vote wins out.
“If the popular vote goes against Scottish independence, it may well have the result that Dicey himself was contemplating when he advocated the referendum,” Allison said. “The referendum could end up having been an effective obstacle to national separation if this is the result, maintaining the Union and deferring further initiatives on Scottish independence for the foreseeable future. In short, it will have served the main political purpose Dicey originally hoped it would.”
Dicey (1835-1922), who popularised the phrase “the rule of law” and helped to enshrine parliamentary sovereignty as the constitution’s other main principle, is widely recognised as the founder of modern constitutional law.
But he was also the referendum’s first English advocate – not because he was against the Union, but out of a respect for popular sovereignty and the will of the people. Dicey advocated the referendum to counteract the domination and machinations of the leading political parties in Parliament. His hope was that a popular vote in a referendum would, in practice, go against Home Rule, and therefore preserve the Union in which he believed.
He advocated the referendum after the Government of Ireland Bill 1886 (the First Home Rule Bill) had been defeated in Parliament by a narrow margin. His fear was that Parliament would later successfully pass a bill that repealed the 1800 Act of Union and establish Irish independence. Believing that the people of the United Kingdom desired Union, and that the parliamentary initiatives on Home Rule reflected the manoeuvrings of the leading political parties, Dicey saw the referendum as a desirable obstacle to independence.
He hoped that this device would enable any future parliamentary bills on the subject to be defeated as well. In his “Memorandum on English Party System of Government” (1888), believed to be the earliest English advocacy of a referendum, he specifically promoted the idea of a popular vote in a referendum as a “remedy […] for lessening […] the bad results of the party system”.
Comparative Constitutionalism also features a previously unpublished lecture in which Dicey expressed comparable ideas about Scotland. In his lecture entitled “Scottish Constitution – The Union” (1906), he stressed the numerous advantages the country derived from its connection with Britain. Dicey firmly believed in both the power and economic advantages of a united nation. He characterised the Union as “a distinct bargain” for all involved, with advantages including “freedom of trade throughout the whole of Great Britain”.
Dicey’s support for a popular vote in a referendum was not, however, simply a mechanism to achieve his own political ends. He seems truly to have believed not only in Parliament’s sovereignty, but also in a more fundamental popular sovereignty.
According to another previously unpublished lecture, entitled “Representative Government” (1900), it was a representative parliament’s basic duty to represent the people, and when their parliamentary representatives did not do so, they would have to sustain a “heavy blow” struck against their moral authority. The newly-published lectures highlight the strength of his belief in the importance of popular sovereignty, expressed both in his advocacy of the referendum, and his account of representative government.
For Dr. Allison, critics (and advocates) of Dicey’s work should pay careful attention to these lectures and be open to reconsidering their original positions under the further light they shed on his constitutional thought. “Though commentators have in the past criticised Dicey’s preoccupation with parliament and the common law courts, and relative inattention to executive government, it is crucial that they now examine the careful attention he later gave in his comparative constitutional lectures to representative government, party government, and parliamentarism,” he said.
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