Critically assess Dicey’s arguments in relation to Ireland

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In his monumental review of Twentieth century Irish history, Joe Lee begins his first chapter by stating that: ‘The Parliament Act of 1911 broke the power of the House of Lords to defy the popular will as represented in the House of Commons. ‘ 1 This statement encapsulates in a sense the constitutional dichotomy with which Albert Venn Dicey was faced when he challenged the legitimacy of the Westminster parliament granting home rule to Ireland in the late nineteenth and early twentieth centuries.

The whole basis and ethos of the House of Commons was experiencing a traumatic shift. The last bastion of direct political control still in the hands of the landed oligarchy had been emasculated by the Parliament Act. The House of Commons was dominated by factions and special interest groups; the most important being the Irish Parliamentary Party, with its demand for home rule about to be placed on the statute book. Ferdinand Mount described Dicey’s opinion of the Liberal administration in these terms: ‘… he demoralising and degrading kind of government under men like Asquith… ‘ 2 and though an avid defender of the primacy and efficacy of Parliamentary sovereignty – Dicey proposed the extension of the democratic process where changes to the British constitution were concerned.

He believed that referenda should be conducted in order to counter what he described as ‘… the inordinate power now bestowed on the party machine… 3 The crux of the matter lay in the fact that Dicey had to review and refine his views on the ultimate sovereignty of Parliament in the changed circumstances that the threat of home rule represented to his original thesis on the one hand; and the metamorphosis that had occurred in the nature of – and sectional political dynamics governing – the motivations of much of the elected representation in parliament. These changes became more pronounced following the Liberal party split over home rule in 1886 and the populist policies which Gladstone and the Liberal rump espoused.

Ferdinand Mount claims that originally: ‘According to Dicey, it was the untrammelled power of Parliament which was the secret of England’s power and glory… ‘ 4 and Dicey modified his constitutional views in response to federalist tendencies within the Liberal alliance and the Union. Dicey would have agreed with the classically liberal views of George Goschen, Liberal MP and political economist, who disparaged the rise of sectional interest and populism in British politics as divisive and as Jonathan Parry states: he believed that ‘…

MP’s were merely life trustees charged with perpetuating its authority. The principal of parliamentary government was that anti-social minorities of any sort were to be resisted. ‘ 5 The changed political complexion that graced the House of Commons in the latter half of the Victorian period led Dicey to re-appraise his conclusions regarding British parliamentary sovereignty.

The Liberal party had progressively expanded and extended the electoral franchise during the Victorian period in line with the dominant Liberal ethos which envisaged extending suffrage and mass participation in the political process: this could only be successfully achieved in classical liberal terms by a concurrent rise in educational standards and the consequent adoption of the ‘British way of life’ (specifically non-conformist and Protestant in ethos) by the lower orders, and religious and ethnic minorities who constituted the bulk of the electorate in the burgeoning British democratic system. Notions of the civilising mission of British imperialism… ‘ 6 were juxtaposed with the gradual disintegration of the propertied hegemony and its replacement by competing class and economic interests.

The Liberal paradigm of Irish political development was evident as early as the Catholic Emancipation debate when the Whig leader Russell declared in 1826: ‘… the Catholics would become Protestants – at least … less Catholic, and therefore more English. 7 Ironically, this process had begun to display itself in sections of the Irish polity at the turn of the century when some nationalist commentators like A. M. Sullivan envisaged a Whiggish plutocracy in an Irish home rule context: ‘The educated nationalists, the Protestant gentry, and the Northern commercialists could have assumed the government of Ireland with no urgent problems to face. ‘

But a contemporary of Sullivan – W. F. Monypenny, quoted by Paul Bew, identified the various unsavoury dynamics, from an Irish perspective, which the home rule crisis in 1913 unearthed and exposed: they state that ‘… ll the various animosities of “race”, “religion” and “class” were involved in the crisis… ‘ 9 This negative view of Ulster Unionism in particular, must be leavened by reference to the strong Ulster Liberal Unionist tradition. Paul Bew quoted one of its progenitors A. C. Rentoul MP on the reasons for his allegiance to the Union: ‘I defended the Union because I thought it was better for Ireland to be a section of a great prosperous Empire than to be a small self governing country. ‘ 10

To maintain its hegemony the British ruling class had the difficult task of reconciling plutocracy with democracy in a political atmosphere where the exploitation of sectional interests became more feasible and therefore more prevalent with the extension of democratic principles due in the main to electoral reform and increased suffrage. Gladstone’s ideological background was decidedly un-Liberal and more akin to a conservative tradition which had severe problems ‘… adjusting to reformed politics after 1832. 11 Therefore his approach to politics was to adopt a populist stance on many issues of government. Having only ever spent one month in Ireland in 1877 Gladstone became obsessed with the idea that ‘… the Irish people formed an organic whole through a shared national identity. ‘ 12 His assiduous courting of Parnell and volte-face on the Irish home rule question, in order to regain parliamentary power, resulted in permanent schisms developing in the Liberal party and the eventual demise of its hegemonic status.

This process ensured the dominance of sectional interests controlled by extra-parliamentary lobby groups over the sovereignty of Parliament and its representatives as understood and interpreted by Dicey. According to Jonathan Parry: ‘The rump of the Gladstonian Liberal party became less attached to the principles of “parliamentary Government”; and Liberalism became the shifting programme of a party with an extensive formal grassroots organisation, forced to search for votes in the attempt to recover power. ‘ 13

The Victorian Liberal plutocracy emphasised the centrality of the House of Commons in the holding and exercising of sovereignty and decision making within the remit of the Union. This view was reiterated by the constitutional theorist Dicey who Paul Bew asserts was the ‘… leading exponent of parliamentary sovereignty… ‘ 14 during this period. There is a crucial distinction however, to be made, between the arguments against home rule in Ireland, identified by Monypenny above and propounded by many of the Ulster Unionist leadership apropos those engaged in by High Unionist constitutional theorists such as Dicey.

This line of argument took on a distinctly legalistic and imperialistic hue and reflected the mindset of the declining oligarchy ‘… particularly as it [home rule] was perceived from London. ‘ 15 Indeed, in relation to Ireland, Dicey seems to have had a firmer grasp of the indigenous political realities than many sections of the Liberal party, whose battle over the Irish question Jonathan Parry described as: ‘… a three-way clash of prejudices… ‘ 16

Dicey consistently opposed any diminution in the British Parliament’s sovereignty with regard to Ireland, even to the extent of resisting moves towards the limited devolution proposed by Sir Antony MacDonnell in 1904 which he declared ‘… went two-thirds of the way to Home Rule. ‘ 17 Concerning the extension of local government powers in Ireland in 1890, Dicey wrote to Balfour decrying Chamberlain’s modest devolutionary proposals and implying that the civilising influence of the British Empire had not as yet infiltrated the Irish nationalist polity to any great extent: The proposal to extend local government to Ireland on what is termed English lines, seems to me in itself absurd. One thing is certain. The state of England is quite different from that of Ireland, and there is not the least presumption that an arrangement that succeeds in Birmingham will succeed say in Limerick. ‘ 18 Dicey decried these attempts at ‘constructive Unionism’ pioneered by Balfour and Wyndham precisely because of the many disparities between the two neighbouring polities.

That he presumed the British Parliament possessed the sensibility and knowledge to legislate for a Irish polity (he readily admitted as being radically different from the English model), without the modifying filter that some form of home government apparatus could provide is somewhat surprising from a real-politik perspective; but it is consistent with his total rejection of any federal option for Ireland and his belief in the civilising influence of direct English parliamentary rule.

J. E. Parnaby asserted that in 1886 Dicey’s refutation of Gladstone’s Home Rule Bill: ‘… stressed the differences between the colonial and the Irish situation, the subordination rather than the independence of the colonial parliaments. ‘ 19 Yet Dicey refused even the most minimal modicum of devolved and subordinated political power such as extending English local government models to Ireland, not to talk of the home rule granted to Canada and Australia within the Empire.

Charles Gavin Duffy identified the underlying reason for the refusal to grant Ireland similar status to the colonies. It was in close proximity to Britain geographically and as such the relationship between the two islands had implied security connotations which were paramount in the Unionist psyche regarding the protection of the British state. 20

Dicey was opposed to these subsidiarity type measures which were part of a fashionable British Unionist attempt at the turn of the century to homogenise the Union through what Roy Foster described as: ‘… the new obsession of legislators with the idea of “simultaneity” and “equalisation” between England and Ireland – whereas if the previous one hundred years demonstrated anything, it was the need to accept differences. ‘ 21 On the above point Dicey falls between two stools.

On the one hand he opposed Liberal attempts to justify home rule on the grounds of innate differences between the peoples of the two islands (notwithstanding the indigenous divisions in Ireland); while also dismissing Conservative – Unionist attempts at cementing the Union through proto-federalist efforts aimed at inculcating the burgeoning Irish Catholic political classes with English parliamentary ethics and standards. As George Boyce asserts, Dicey wanted the best of both worlds as he believed it would be ‘… more prudent to wait for a generation and see whether or not the policy of land reform would win Irish tenants to the Union. 22 The opposite occurred as the rural petit-bourgeoise sought an outlet for their political ambitions in the new nationalism. From A. V. Dicey’s perspective, English parliamentary ethics were not what they used to be. His attraction to the Ulster Unionist banner was a cause celebre which in its earliest manifestations after 1911 seemed to embody the essence of his argument concerning the indivisibility of the Union; which was threatened by what Bonar Law referred to contemptuously as ‘… a corrupt parliamentary bargain. ‘ 23 between the Liberals and the Irish parliamentary Party.

The Ulster Unionist tack soon changed after 1913 to a demand for self determination in the form of its own home rule parliament. Dicey’s constitutional subtleties were lost in the scramble to reach some sort of compromise solution. The Conservative-Unionists opted for exclusion from home rule and threatened ‘… to repudiate the authority of any parliament forced upon them. ‘ 24 The new King – George V – explored the possibility of extending devolution to Scotland, Wales and Ulster in collusion with Asquith: these bodies would be given ‘… ocal autonomy but would remain subordinate to the imperial parliament. ‘ 25 This scenario of impending rampant federalism was anathema to Dicey.

Given the fact that modifications to the constitutional basis of the Union seemed inevitable in the heightened tension surrounding the home rule crisis, it is not surprising that Dicey opted to support the Ulster Unionists as they – ostensibly at least – supported the maintenance of the constitutional status quo. Bonar Law claimed that home rule was not a specific election issue in 1910 and that ‘… he Liberals had no mandate to implement it. ‘ 26 Consequently Dicey’s advocacy of constitutional referenda, from a High Unionist ideological viewpoint, made a great deal of sense. In an era of steadily increasing democratic reform, referenda pandered to the fashionable paradigm of political development in the British Empire: yet they would also serve the purpose (in what Dicey perceived as a House of Commons wracked by sectionalist interests) of emasculating the new-found untrammelled power over the development of the constitution provided by the 1911 Parliament Act.

This flies in the face of his earlier belief in the ultimate sovereignty of Parliament, but so also does the nature of the Parliamentary polity that the 1911 Act enshrined. Joe Lee levels the charge that by signing the Ulster Covenant (which Dicey himself endorsed and signed): ‘Ulster Unionists thus threatened to defy public opinion in Ireland and parliamentary opinion in the United Kingdom. 27 It is arguable from a Unionist perspective that the referendum solution proffered by Dicey legitimised the Ulster Unionist case by transcending both obstacles presented by Joe Lee above and appealed, in the ultimate democratic fashion, to the instincts of the electorate of the Union as a whole.

This gives the lie to Joe Lee’s assertion that: ‘… the Unionist leaders would not trust the electorate. ‘ 28 or as Dicey stated the Unionist case in his refutation of the third Home Rule Bill, ‘A Fools Paradise’, in 1913: ‘… law depends at bottom for its enactment on the assent of the nation as represented by the electors. ‘ 29 This statement was hardly the stuff of rebellion, unless viewed from the perspective of classical Toryism. Ferdinand Mount goes on to make the sweeping allegation that ‘… Dicey … recommends … actual insurrection. ‘ 30 In ‘The Times’ of 27 January 1912, Dicey states that he could possibly envisage a set of circumstances which could ‘… justify rebellion against a Sovereign Parliament. ‘

This would place Ulster Unionists in what A. J. L. Morris described as ‘… pre-political state of nature. ‘, 32 so justifying Dicey’s apology for Ulster Unionist threats of armed resistance. Paul Bew sees this as the accepted belief of many British Unionists, if not always expressed so candidly, regarding the Ulster situation. He says they believed ‘… that a coherent, reasonably large community which was content with its existing political institutions had a right not to be disturbed. ‘ 33 But in the event of their natural polity being disturbed, no government could dictate their future allegiance. This is in effect what happened to Ulster in 1920.

Yet, this argument fails to take into account the large minority of Ulster Catholic – Nationalists who would be displaced from their chosen destination if home rule was denied; a community who existed to all intents and purposes in a pre-political state of nature. British Unionists including Dicey failed to address the problems posed by these ‘invisible’ non-loyalists. These arguments can be utilised by either faction – nationalist or Unionist.

Ferdinand Mount states that Dicey considered in 1886, during private correspondence with the Liberal home ruler Bryce, ‘… federal solution as an alternative to a stern unbending Unionism to which he was publicly wedded. ‘ 34 This hardly equates with Mount’s view that Dicey saw constitutional issues in terms of ‘… black and white… ‘, 35 disregarding any subtle political nuances that might arise as irrelevant. Dicey consequently modified his views on the ultimate sovereignty of the Imperial Parliament as the nature and dynamics of the dispensation of parliamentary power metamorphosed in the nineteenth and early twentieth centuries.

Where there is no written constitution as in Britain ‘… social opinion functions as a constitution. ‘ 36 Dicey was one of the main opinion formers of the day, so his views on home rule and Ireland held great sway in Imperial circles. In 1936 Austen Chamberlain, commenting on the pitfalls inherent in government based on an unwritten constitution quipped ‘… “unconstitutional” is a term applied in politics to the other fellow who does something that you do not like. ‘ 37

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