What should King Charles have done?

Political Authority in Postimperial Britain

Jon Wilson

October 25 2022

Rishi Sunak has just been elected leader of the Conservative Party and King Charles has confirmed him in №10. Many, including a swathe of Boris Johnson supporters, claim that a third Conservative PM without a general election is immoral and undemocratic. But few argue Sunak’s appointment is unconstitutional. His appointment is sanctioned by the principle of parliamentary sovereignty, which dictates that anyone who can command a majority of votes in the House of Commons becomes Prime Minister. According to this logic, a party can change leaders as many times as it likes without a general election.

The logic holds true simple simply because it is repeated with authority. It is just ‘the way Britain’s parliamentary democracy works’, as an Associated Press explainer put it.[1] Yet the apparent logic of parliamentary sovereignty contrasts with the reality of UK politics. It is widely out of kilter with the way political leaders actually talk about their authority. It offers little use in moments of real crisis. That’s because in fact, the principle which underpins the UK’s constitution isn’t parliamentary sovereignty at. Britons live in a society where popular sovereignty, the will of the people, provides the basis of all lawful and politically-effective forms of power. That principle should at least have caused King Charles to stop and think before appointing another unelected Prime Minister to office without facing the people. We don’t know. But perhaps it did.

Parliament has enormous legal power, of course. In the ordinary course of events, it is supreme amongst institutions within the UK state. Its acts cannot be overruled by the courts or by other public bodies. But sovereignty means supreme, legitimate political power and parliament doesn’t possess anything like that now. The sovereign is the force within our polity that, by one definition, receives ‘habitual obedience’ but does not itself need to obey; or by another which can legitimately decide the exceptional case. Now, and for a long time, parliament has had neither of these powers. Periodically, in elections, it has to obey the wishes of a power other than itself, the people. Where people for long enough and in large enough numbers reject its authority, it has no power. Where it cannot itself decide, in exceptional or hard cases, it is dissolved. Common sense says that there are many things parliament cannot do. My point in this essay is that we need a more common-sense view of where legitimate power lies in the UK.[2]

Imagine that Parliament tried to abolish elections, and rule indefinitely without a vote. MPs could go through the procedure of debating, making law, and then ask the King to sign a law which put an end to democracy in the UK. In practice it would be blocked from doing so, by irate public opinion which would quickly turn to civil disobedience, by the courts, maybe even by the monarch. In such circumstances, Parliament could create a document that looked like law, but it could not actually make law. As the mid twentieth-century constitutional scholar Sir Ivor Jennings put, ‘[p]arliament passes many laws which many people do not want. But it never passes any laws which any substantial section of the population violently dislikes’. As Jennings recognised, doing so would break the principle which has authorised the exercise of political power in the UK since at least the early twentieth century: that it is based on the will of the people.[3]

There is a problem in proving this point, though. The UK’s constitution is founded on practice and history not abstract reason or a written document. It is particular based on what happens in moments of crisis, whose resolution creates precedents which define constitutional norms. The problem for discussion of the relationship between the people and parliament is that — in the domestic UK — there have been few crises in which parliamentarians act against the will of ‘a substantial section of the population’. Since the birth of democracy in Britain, parliament’s tacit acceptance that its powers are shaped and constrained by popular will means there are no precedents to prove that it actually is.[4]

Even in recent fractious times, protagonists in our high-octane political debates have not posed the question of parliament’s power against the people. Brexit has provided the most fuel for constitutional debate, but no one doubts that parliament is anything other than a legal vehicle to put the will of the people into practice. Take the furure on prorogation; Boris Johnson and his lawyers argued the only way to implement a popular mandate for Brexit was to prorogue Parliament. The Supreme Court upheld what it (I don’t think accurately) called the principle of parliamentary sovereignty, but assumed that parliament’s legitimacy came from its role as the means by which the will of the people was expressed in the UK (in fact of course it makes no sense for a sovereign to depend on another force). So, the court opposed prorogation because it eliminated the government’s accountability to representatives elected by the people; ‘the House of Commons exists because the people have elected its members’ as they put it.[5]

There have been hints at the role of popular will trumping parliamentary power in other moments of uncertainty. At moments of extreme doubt in the direction of policy, even where a Prime Minister has been able to command a majority, the usual recourse has been an election. There have been few examples, and they mainly occur when the Conservative Party has been riven by divisions about its relationship with the rest of the world, protectionism in the early twentieth century, Brexit in the early twenty-first. In 1905, a divided Conservative government could no long hold together on the question of tariff reform, so the Liberals took office. With the Tories in chaos, the new Liberal Prime Minister Campbell-Bannerman (who, incidentally, was the first Prime Minister not to physically kiss the hands of the King) could have governed without an election but chose to go to the polls, in part to ensure a popular mandate for free trade, and in part to stop the Liberal Party from itself splitting into imperialist and anti-imperialist factions.[6] In 1923 Stanley Baldwin had a clear majority in the House of Commons after his Conservative predecessor Bonar Law retired. But he argued that he was bound by his predecessor’s promise not to introduce tariffs without going to the polls, so asked the King to dissolve Parliament, a temporarily disastrous choice for the Conservatives described by Lord Curzon as ‘one of the greatest crimes in history’[7]. More recently, the elections of 2017 and 2019 occurred when Conservative leaders appealed to the electorate for a decision when, at least in their view, Parliament was unstable or deadlocked. In each case, popular sovereignty was invoked as the principle underpinning parliament’s capacity to act. But Prime Ministers called an election before there was any question about the illegitimacy of not doing, so it created no precedent.

But at the edges of our polity, there are instances where the democratic reality which lies at the root of the constitution has been more obvious. One has to turn to empire. While dismembering Britain’s network of overseas territories, Parliament was faced with questions about the relations between the power of Westminster and the people. On numerous occasions, it acknowledged the power of popular will as the basis of political authority more emphatically than it ever did at ‘home’.

The Westminster parliament formally acknowledged the constituent role of the will of people as early in 1922. In a strange, contradictory moment, only months after the end of a vicious war between Irish nationalists and the British state, the Irish Free State Constitution Act of 1922 used the authority of the then imperial parliament to affirm that popular sovereignty was the basis of Irish law: ‘[a]ll powers of government and all authority legislative, executive, and judicial in Ireland, are derived from the people of Ireland’, the document said. The preamble, also annexed to the Act, spoke of lawful authority ‘being transmitted from God to the people’, and not through parliament first.

Sometimes after violent resistance to empire, sometimes not, from the 1940s onwards Westminster passed a succession of Acts to manage the ‘transfer of power’ to newly independent regimes. Unlike the Irish act of 1922, these pieces of legislation did not enact the constitution of other states. Nor did they declare the will of people in new states as the basis of their political authority. Instead they created new ‘independent Dominions’, as the Indian Independence Act put it, which for the time being retained the British King or Queen as head of state, but in which the Westminster parliament no longer had the right to legislate. These Acts were followed by newly elected constituent assemblies that passed new constitutions which did affirm the people of India, Pakistan, Ghana, Nigeria and so on as the source of legal and political authority. In some cases, they relinquished any connection to the crown altogether and turned their new state into a republic.

As Peter Oliver has recently noted, a similar process occurred in a more subtle and gradual way in the former dominions of Australia, Canada and New Zealand.[8] There, states whose autonomy was initially based on constitutions enacted by the Imperial parliament evolved a complex understanding which emphasizes the importance of popular sovereignty as the foundation of state power. Some Australian jurists go so far as to argue that Australia’s 1900 constitution, approved in referenda by Australia passed by Westminster, founded an independent polity based on the sovereignty of the Australian people. By whatever complex root it got there, and in whatever complex fashion the people is defined, few doubt now that Australia’s constitution is based on popular sovereignty.

A narrow view of Parliamentary Sovereignty would make this chain of events impossible. If parliament was absolutely and uniquely sovereign, the end of imperial control would be legitimate solely only because it had been enacted by the imperial parliament. That would mean independence could be rescinded at any moment. India would be a dominion, haunted by the ghost of Westminster that could always able to annul independence and reimpose British authority. That is of course, exactly what late nineteenth-century proponents of colonial autonomy argued the legal situation was when they were trying to reassure supporters of empire reluctant to conceded control in Ireland or elsewhere. The liberal imperialist Albert Venn Dicey, who we’ll discuss again in a moment, argued that Westminster was simply incapable of giving up its power over parts of its empire, because no current act could preclude any further piece of legislation in the future. This is of course an absurd idea now. Parliament can no more undo the independence of India or Nigeria than it can assert British sovereignty over Mars, or abolish general elections. The ghosts of imperial sovereignty have been fully exorcised. Parliament can’t undo independence because authority practically and legally exists now elsewhere, with the people of newly independent states. Across the world, the authority of the Westminster parliament is now subordinate to a higher principle, that government now occurs in any territory the once imperial parliament has or had power over through the will of the people.

These imperial contexts might seem distant from the simple question of whether the second Conservative leader not to face a general election should become Prime Minister. What has our long-forgotten empire and its dead ghosts have to do with Britain now? Surely Australia and India are foreign places where a different logic applies. The connection is closer than one might think, for two reasons.

First of all, it is impossible to constitutionally disentangle imperial from domestic British politics. There has never been stable boundary between the two. The official and everyday naming of the country / countries (it is never clear whether the UK is one or multiple) has never recognised a clear distinction between the metropolis on the one hand and empire on the other. Instead those names reflect a complex and shifting understanding of a state that, from at least the first Anglo-Norman invasion of Ireland in 1169 to the present day, has been made up of multiple parts. The change in 2021 to insist that “UK” needs to be stuck on cars driving in the continent is the most recent twist, caused by the Johnson’s government anxiety about the exclusion of Northern Ireland from Great Britain.

The only part of the UK which has always, undeniably been part of the metropolitan core, England, currently has no separate political or constitutional identity. Converting Scotland and Wales into dominions, in other words giving them the same status that Australia, Canada and New Zealand during the first half of the twentieth century, has been mooted as a serious possibility.[9] Since at least the Belfast Agreement and Scottish independence referendum, popular consent has been universally recognised as the basis of the link between two of the remaining three nations and the UK. The current debate about the legitimacy of a referendum on Scottish independence is not whether the Scottish people have the right to secede from the UK, but how that process is managed. It is hard to argue that the principle governing the relationship between, for example, Northern Ireland and Westminster should not apply to Westminster’s relationship with the whole of the UK.

Second, the process which occurred in Ireland, India and elsewhere has happened in England, Wales and Scotland too. In the 1880s, men like Dicey thought it was legitimate for a parliament to rule adults who had no say in their government, in the UK and elsewhere.

Now we do not, in the UK and beyond. Politicians recognised that a popular mandate was needed for public institutions to work. Different stories about the collapse of elite liberal authority can be told. LSE constitutional scholar J.A.G Griffith argued it started when millions were marched over the trenches to near certain death in the First World War. A more global story would show how the violence that stretched from the Jallianwallagh massacre to the collapse of Singapore played an important role.[10] However it happened democracy spread; representative institutions, in the United Kingdom as well as the decolonising empire, were seen as bodies whose role was to express, rather than discipline or channel the popular will.

The doctrine of parliamentary sovereignty was developed in an imperial world frightened of the power of people, but that world no longer exists. Dicey, Vinerian Professor of Law at Oxford University from 1882 to 1909, formulated the doctrine in the 1880s as a way to uphold Westminster’s authority amidst the clamour for more popular participation throughout the British empire. A large section of his Introduction to the Law and Constitution was concerned with the relationship between Westminster and what he saw as subordinate territories such as Australia and Ireland. Dicey suggested that acknowledging parliament not the people as the legal source of legitimate authority would prevent the chaos he thought would ensue if there were multiple competing democratic jurisdictions throughout Britain’s empire. Dicey’s concern was to preserve Britain’s capacity to act as a unified imperial power throughout the world in the late nineteenth-century. The solution was a theory which insisted that authority lay in one, centralised, recognisable and easily managed place.

Dicey’s argument was complex and subtle though. Dicey was an imperialist, but he was also also a liberal. He recognised the birth of democracy, and was concerned to reconcile the power of the people in England and elsewhere, with the need for authoritative, centralised forms of power which could hold empire together. ‘Parliament is’, he suggested, ‘from a merely legal point of view, the absolute sovereign, since every Act of Parliament is binding on every Court throughout the British dominions’. Outside the realm of ‘merely legal’ institution Parliament was not sovereign, Dicey admitted. Drawing a distinction between common sense political reality and law, Dicey noted that ‘[t]he electorate is in fact the sovereign of England’; ‘our modern code of constitutional morality secures, though in a roundabout way, what is called abroad “the sovereignty of the people”. But Dicey thought the will of the people needed a disciplined, ordered channel, whose job it was for parliament to provide. Insisting that a legal sovereign could not legally limit itself Dicey nonetheless suggested that parliament was bound by ‘conventions’ whose object was ‘to secure the conformity of Parliament to the will of the nation’.[11]

Dicey was an intelligent scholar seeking a single, identifiable and rational source of political authority for the British empire, who needed to follow a tortured process to make that search fit democratic facts which suggested a different constitutional reality. Into the twentieth century, Dicey increasingly worried about the growth of the collective power of the state. But Dicey never doubted that, whatever his misgivings, the people were sovereign. That led him, like British politicians from Baldwin to Johnson, to seek recourse to the peoples’ will at moments of crisis; in later life, Dicey ended up being an unlikely advocate of referenda as a way to resolve constitutional crises.

Albert Venn Dicey, the ‘high priest of parliamentary sovereignty’ as Brian Gould called him in 1993, remains the dominant figure in constitutional discussion.[12] But he was thinking about ways to govern a world which no longer exists. Over the last hundred years, empire has collapsed and the will of the people has become the normative basis of political power throughout the world, in the ex-imperial territories Dicey thought Westminster should continue to rule, as well as in Britain, even England itself. We no longer need Dicey’s tortuous logic to reconcile the supposed order of Parliament with the fleeting whims of a democratic public. Recent events suggest that the problem might now be the other way round. It is often parliamentarians (at least in the Conservative Party) rather than the electorate who do not know what they want, who find it difficult to legislate in a clear direction and are in danger of pulling the polity apart. Resistance of government by distant others has become a central theme of everyday political rhetoric, not something which political leaders try to suppress and oppose; indeed, as with Brexit or Scottish nationalism, it is a vital part of the language ruling parties use to validate their power. In such a situation, any regime which justifies its rule purely through the principle of parliamentary sovereignty alone accelerate the speed of disaffection, rebellion and crisis.

In their everyday rhetoric, for good political reasons, all governments recognise this, including the current one. Rishi Sunak spent much of short first speech as Prime Minister dealing precisely with the argument I make here, an argument reiterated in his first Prime Ministers questions. Sunak insisted that his authority came from the mandate of the 2019 election, which was for the whole Conservative Party, not just Boris Johnson, to implement a definite programme of policy. His point was that his government’s authority legitimacy was based on the will of people in a national poll, not from the right of 650 MPs to choose whichever Prime Minister they wanted however many times they wished, as the adherents of the doctrine of parliamentary sovereignty would argue.[13] Sunak’s logic is nearly as tortuous as Dicey’s. But it shows that whatever constitutional lawyers or politicians affecting to understand constitutional law tell us, popular sovereignty is the universally accepted, common sensical justification for the exercise of political power today.

The point here is not that King Charles made a mistake appointing Rishi Sunak Prime Minister. The people are sovereign. But a pure expression of the popular will is impossible; the democratic population doesn’t come in an already organised form, but instead always needs its will to be mediated and represented by political institutions, including parliament. My point is, though, that we always need to be asking about the relationship between popular sovereignty and the forms in which it is practically exercised. A parliament the moment after a general election is governed by the peoples’ will; a parliament which, thinking back to my impossible thought experiment, abolished elections, is not. Everything between is open to question, including a second Prime Minister appointed without a general election. The fact that Sunak insists so strenuously on his legitimacy proves my point.

The bigger argument here is that we need a different way of talking about the constitution. We need to abandon talk of an immobile ‘law’ rooted in mythical texts that reflect assumptions developed from a very different political context which now have no relation to the shared assumptions which rule our political life.

The best justification for the unwritten form of Britain’s constitutions is that it presents the polity from being stuck with doctrines out of tune with social and political reality such as Dicey’s. An unwritten constitution allows changing norms to become binding legal principles without a major crisis, a process Sir Ivor Jennings described as ‘[t]he Conversion of History into Law’. Jennings argued that Britain’s constitution was ruled by a ‘pragmatic method’ in which ‘slow evolution wraps our institutions in the fabric of society’, and society of course changes. In the essay, Jennings gave the example of the Magna Carta, a document originally defining the feudal rights of a baronial elite which came to reflect and uphold the rights of individuals.[14] Jennings elsewhere discussed the remoulding of state institutions to govern a planned national economy and welfare state without a sudden constitutional revolution.

Writing in the middle of the twentieth century, Jennings assumed parliament’s authority came from the will of the people. But Jennings shared contemporary assumptions about post-war, newly post-imperial Britain being homogenous country with well-organised interests that were neatly reflected in stable political parties. Writing during wartime, he insisted Britain was ‘a small island with a very homogenous population’ which was also a ‘close-knit economic unit, with a large measure of common interests’.[15] As a result, he didn’t think hard (hard enough, we would say now) about what might happen if the views of parliament clashed with those of the people or peoples of the UK. He didn’t entertain the idea that the different nations and peoples of the UK have their own separate popular wills, for example, a central question now. My argument here is that our discussion of the constitution needs to reflect the evolving way we talk about political authority in a less deferential, more fractious, more plural and in some sense, more democratic society.

What does that mean in practice? It requires us to broaden debate about the constitution of political authority in the UK away from a focus on what judges and lawyers say in court, to an engagement with political debate more broadly. It would move political philosophy from the discussion of abstract theories or a few classic texts from centuries ago, to a more empirical domain, concerned with the everyday assumptions politicians, judges and ordinary citizens make about the basis of legitimate power. It would provide something we currently lack; an account of how the norms which govern political life have been debated and have shifted over the last century, as the democratic power of people has become embedded as the basis of all political authority, but in interpreted in particular ways. At the moment, the history of the constitution in the UK reads as a series of isolated, disconnected islands; Dicey, the Parliament act, Taff Vale maybe, mid-century constitutional thinkers like Sir Ivor Jennings, joining and leaving the European communities, the Human Rights Acts. We need to understand the moving sea which connects them, and trace the complex, pragmatic and everyday way constitutional practice has reflected changing social and political circumstances through time.[16]

[1] ‘Explainer. Why the British public is not choosing its leader’, Washington Post, Oct 24 2022

[2] For definitions of sovereignty, see A.D. Lindsay, ‘Sovereignty’, Proceedings of the Aristotelian Society 24 (1924), 236; Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty (Chicago, 1985), 5; The argument here draws from Sir Ivor Jennings, Law and Constitution (5th ed, London, 1959), 144–6

[3] Jennings, Law and Constitutions, 149

[4] The Scottish National Party argues Westminster’s refusal to authorise a second independence referendum is precisely such a crisis, a subject current being considered by the UK’s supreme court, see ‘Reference by the Lord Advocate of devolution issues’, Supreme Court Case 2022/098, https://www.supremecourt.uk/cases/uksc-2022-0098.html

[5] R (on the application of Miller) v The Prime Minister &ca, Judgment, Supreme Court, 2019 UKSC 41, https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf. For a critique of the Supreme Court’s arguments see Martin Loughlin, ‘The Case of Prorogation. The UK Constitutional Council’s ruling on appeal from the judgment of the Supreme Court, Police Exchange, https://policyexchange.org.uk/wp-content/uploads/2019/10/The-Case-of-Prorogation.pdf

[6] R.C.K. Ensor, England, 1870–1914 (Oxford, 1936), 381–6; for Campbell-Bannerman and the constitution, see José F. Harris and Cameron Hazelhurst, ‘Campbell-Bannerman as Prime Minister’, History 55, 185 (1970), 360–383

[7] Robert Self, ‘Conservative Reunion and the General Election of 1923’, Twentieth Century British History, 3, 3 (1992), 249–73

[8] Peter Oliver, The Constitution of Independence. The Development of Constitutional theory in Australia, Canada and New Zealand (Oxford, 2005)

[9] https://www.centreonconstitutionalchange.ac.uk/news-and-opinion/dominion-scotland-does-britains-imperial-history-provide-way-forward-modern

[10] J.A.G. Griffith, ‘The Political Constitution’, Modern Law Review 42 (1979), 6

[11] Dicey, Introduction to the Study of the Law and Constitution (Eighth edition, London=, 1915), 426

[12] Brian Gould, House of Commons, Hansard, 21 April 1993

[13] ‘Rishi Sunak’s first address as UK Prime Mjnister’, BBC News, 25 Oct 2022, https://www.youtube.com/watch?v=o06qqMh_Vao

[14] Harshan Kumarasingham ‘Sir Ivor Jennings’ “The Conversion of History into Law”’, American Journal of Legal History 56, (2016), 113–127

[15] Sir Ivor Jennings, The British Constitution (Cambridge, 1941), 5

[16] The argument I’ve made in these pages runs parallel to the strand of discussion amongst academic jurists and political philosophers which has gone under the name political constitutionalism. However, in their battle with legal theorists rand judicial practitioners relying on abstract notions of justice, some strands of political constitutionalism have tended to relify the sovereignty of parliament in precisely the way I’ve criticised here. Two key texts in the history of this mode of thinking are .A.G. Griffith, ‘The Political Constitution’, Modern Law Review (1977); for Griffiths deep context, see Martin Loughlin, ‘The Political Constitution Revisited’, King’s Law Journal, 30, 1 (2019), 5–20. For the need to meld a historical approach with political constitutionalism, see Mark Hickford, ‘Historicity and the Political Constitution’, King’s Law Journal 30, 1 (2019), 97–124.