England's Case Against Home Rule

by A. V. Dicey

As a question of constitutional law.

The inquiry then is whether a Judge in England or Ireland resolved to do his duty would or would not be bound to treat as invalid an Act passed by the British Parliament either inconsistent with or, to put the matter more strongly, actually repealing of such Parliament's own authority the provisions of the Gladstonian Constitution, or in other words of the Government of Ireland Bill, which would then, as we are assuming the Gladstonian Constitution to be in existence, have become the Irish Government Act.

Such a Judge would have to consider a question to which English Courts are now quite unaccustomed as regards Acts passed by the Parliament of the United Kingdom. The reason why they are unused to solve the particular kind of question supposed to arise under the new Irish Constitution is, that as the Parliament of the United Kingdom is undoubtedly a sovereign body, the validity of its enactments is in any British Court beyond dispute. The reason why the problem might under the Gladstonian Constitution require an answer is, that the question might arise whether the British Parliament were or were not a sovereign body.

Our Judge would find the question more difficult to answer than is readily admitted by English lawyers not versed in any constitution except their own. He would have to consider the language and effect of the Irish Government Act in the light of certain propositions which are now, and at the supposed passing of that Act must have been, true of the Parliament of the United Kingdom.

These propositions may be thus stated, roughly indeed, but with sufficient accuracy for our purpose:—

The Parliament of the United Kingdom is admittedly the sovereign of the whole British Empire.

The Parliament of the United Kingdom because it is a sovereign body can make laws for every part of the British Empire, and can legally make or unmake any law, and establish, alter, or abolish any institution (including in that term the Constitution of the Canadian Dominion or of Victoria) existing within the limits of any country subject to the British Crown.

The Parliament of the United Kingdom just because it is a sovereign body cannot, whilst retaining its position as sovereign of the British Empire, be itself bound by any Act of Parliament whatever.

To recur to an instance which is pre-eminently instructive, Parliament conferred in 1867 upon the Dominion of Canada as large a measure of independence as is compatible with a colony's maintaining its position as part of the British Empire. Yet the Parliament of the United Kingdom retains now, as ever, the indisputable legal power to change or abolish the Constitution of the Dominion.