RENTS IN THE CONSTITUTION.*
IN a long introduction prefixed to the eighth edition of his great work on Constitutional Law Mr. Dicey compares the Con- stitution as it is with the Constitution as it was when the first edition of the book appeared. There may still be some among our readers to whom the idea that the British Constitution has changed will come as a surprise. Written Constitutions, they may think, can undergo alterations because they always contain some provision for the introduction of amendments. But the British Constitution, with its array of a few founda- tion principles and the absence of any process by which these principles can be varied, is free from any danger of the kind. The Constitution which has been our boast in the past is our boast still, and will remain so until there comes a revolution more disastrous than any we have yet experienced. This is not Mr. Dicey's opinion, and it will not, we think, be the opinion of any one who reads his introduction with an open mind. He arranges his inquiry under four heads: "The Sovereignty of Parliament," "The Rule of Law," "The Tendency of Certain New Constitutional Conventions," and "The Introduction of New Constitutional Ideas." The needs of apace compel us to make a selection among these subjects, and we shall confine ourselves to the first and second and to a particular instance of the fourth.
The sovereignty of Parliament, as it was understood thirty years ago, meant that the King, the House of Lords, and the House of Commons acting together constitute Parliament ; that this Parliament has "the right to make or unmake any law whatever"; that the law of England gives no person or body the right to override or set aside the legislation of Parliament ; and that the power of Parliament extends to every part of the King's dominions. Into the first of these prin- ciples the Parliament Act has introduced a very great change. Down to 1911 no Act of Parliament could be passed without the consent of both Houses. The House of Lords bad the right of rejecting any Bill sent up to it by the House of Com- mons. As regards one large and very important class of measures that power has been taken away. The Lords may still discuss a Money Bill for a calendar month, but they can- not prevent its becoming an Act of Parliament at the end of that month. It is only in this case that the Parliament Act abolishes the veto of the Lords, but in every case it changes it from a final to a suspensive veto. Provided that a Bill has
• Introduction to the Study cfthe Lam or the Constitution. By A. V. Dicey, TLC Eighth Edition. London : Macmillan and Co. [IN. ed. net.]
been passed by the Commons without any material change and rejected by the Lards in each of three successive Sessions, and that at least two years shall have elapsed between the date of the second reading in the first Session and the date on which it passes the Commons in the third Session, it may be presented to the King for his assent as though the Lords had not rejected it. A careless observer might argue that these changes are forma/ rather than serious. Before the passing of the Parliament Act the Lords very rarely rejected or altered a Money Bill, and since 1832 they have again and again given their consent to Bills sent up to them by the Commons though they did not approve of their con- tents. Their absolute veto has for something like three generations been nothing more than a suspensive veto. Why, then, should it be made a grievance that in this particular the uniform, or almost uniform, practice of the House of Lords has been turned into a statute? The answer is that the Parliament Act deprives the Lords of a power which might be, and sometimes was, used with very real benefit to the nation—the power of compelling a dissolution. Down to 1911, if a Government felt that the Lords were vexatiously delaying legislation which a majority of the nation desired, they could always test the accuracy of their opinion by submitting to a General Election. If the result proved that the electorate was with them, the Lords, by a well-established convention, offered no further resistance to the proposals of the Government, however much they might dislike them. In this way there was a real provision made against the possibility that since the last General Election the majority in the House of Commons had ceased to represent the majority of the electors. The Parlia- ment Act provides no similar security. At every General Election the constituencies virtually divest themselves of effective political power for a term of five years. At the end of that time they can punish the Government for what they have done, but they could not prevent them from doing it. The more distrustful the country becomes of its repre- sentatives, the more unwilling those representatives will be to appeal to it. "A House of Commons, the majority whereof perceive that their popularity is on the wane, will for that very reason be opposed to a dissolution ; for until it occurs such majority can carry any legislation it desires, and a dissolution may destroy this power." Is any further proof needed that the Parliament Act has altered the Constitution in at least one most important particular?
The supremacy of law and its administration by an inde- pendent authority was a second feature of the Constitution. Is it so still? Mr. Dicey holds that "the ancient veneration for the rule of law has in England suffered during the last thirty years a marked decline." In proof of this he points first to actual legislation. Recent Acts of Parliament have given judicial or quasi-judicial authority to certain Govern- ment officials. In different ways this is done by the Education Act of 1902, by the Insurance Ant, and by the Finance Act of 1910. The decision of certain questions has been expressly taken away from the Courts of Law and vested in the authorities appointed to carry out the purposes of the Act. Mr. Dicey does not question the convenience of this change from the point of view of a man of business. Such a man, "whether employed by a private firm or working in a public office, must make it his main object to see that the business in which be is concerned is efficiently carried out. He could not do this if tied down by the rules which rightly check the action of a judge." Yet it is precisely in these rules that the private citizen finds his most effective protection against arbi- trary government. In order to remove the occasional fetters which the Courts have imposed on the action of official persons we have deprived ourselves of oar best safeguard against official tyranny. The Law Courts herein one or two instancea discovered an unsuspected weakness in the official armour created by these Acts, but with this exception the rule of law has been suspended in the interest of those who wear it. A second example of this growing antagonism to the rule of law is the dislike of judicial intervention felt by large classes of persons. The blackleg may often be guilty of preferring his own interest to that of his fellow-workmen. But down to the passing of the Trade Disputes Act the law left the morality of his action to the decision of his own conscience. By that measure he was made over to the mercy of his brethren as shown in "that self-eantradietory idea of 'peaceful picketing,' which is no more capable of real existence than would be 'peaceful war' or • unoppressive oppression.'"
The" New Constitutional Ideas" which Mr. Dicey specially mentions are Woman Suffrage, Proportional Representation, Federalism, and the Referent/tun. We propose hero to deal only with the third of these ideas. Federalism, says Mr. Dicey, "is a natural constitution for a body of States which desire union and do not desire unity." It is greatly favoured by the physical contiguity of the countries inelnded in the Federation, and by their approximate equality in wealth, population, and historical position. And when successful it has "tended to pass into nationalism." All the same, it is absolutely necessary not to confound these two things. To establish a really federal government is to deny "national independence to every State of the Federation." Is it expedient to extend this system to England and her Dominions ? To this question Mr. Dicey gives an unhesitating answer. The attempt to form a Federal Constitution for the British Empire is, he thinks, full of peril to England. to the Dominions, and to the Empire itself. The advocates of the scheme do not seem to have given a thought to the inquiry, " What are they going to do with the old Imperial Parliament which has, throughout the whole history of England, inherited the traditions and often exercised the reality of sovereign power? Under our new Constitution is the Imperial Parlia- ment to become a Federal Congress wherein every State is to have due representation ? Is this Federal Congress to be for Englishmen the English Parliament, or is there to be in addition to, or instead of, the ancient Parliament of England a new local English Parliament controlling the affairs of England alone P" Mr. Dicey sees in the fact that the advocates of Federalism have never really considered " what is to be, under a Federal Government, the real position not of the United Kingdom but of that small country limited in size, but still of immense power, which is specifically known by the august name of England," a strange example of intellectual levity. England is not merely a fractional part of a larger whole. She was known and famous "before the legal creation either of Great Britain or of the United King- dom," and to forget this can only land us in difficulties with India, with the Crown Colonies, with the Protectorates. To take one point only, the law of England and the laws of some of the Dominions have different conceptions of British citizenship. The one gives equal political rights to all British subjects, the other introduces limitations founded on race or colour. The present Imperial Parliament and the suggested Imperial Congress will necessarily represent opposite ideas on this vital question, and Mr. Dicey asks with great pertinence whether the peoples of India will contentedly see themselves transferred from the more liberal to the less liberal authority. In his opinion, there is no necessity for any such change. Only two things are wanted to give us the substantial advantages that are claimed for Federalism. "They are the contribution by every country within the Empire towards the cost of defending the Empire," and the estab- lishment of "constant consultation between England and the Dominions."
We are inclined to be of Mr. Dieey's mind upon this question of Imperial Federalism, but he has omitted— owing possibly to the date at which the introduction was completed — one consideration which may compel Englishmen to go further in the direction against which he warns them than they would do if left wholly to themselves. The magnificent response which the Dominions have made to the call of the Empire will give a new significance to their views and wishes on the whole question of imperial as contrasted with Britannic Federalism. The adoption or rejection of the Imperial Federal solution has become an issue to the consideration of which the Dominions must be admitted on equal terms, and at present we have no information as to the attitude they will take up in the momentous debate to which the conclusion of the war is likely
to lead. For ourselves, we feel that in any case premature Imperial Federalism might be a disaster. When the self- governing Dominions equal the Motherland in population, and when the most distant of them can reach us easily in three weeks, the whole scheme will bear a very different and much more practical aspect.
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