An Introduction to the Study of the Law of the Constitution was first published in 1885, but I quote the 1915 8 edn. p. 250 of this transcribed online PDF. I marked in red p. 428 in this original. I'll abbreviate Constitutional Conventions with CC.

How, it may be said, is the “point” to be fixed at which, in case of a conflict between the two Houses, the Lords must give way, or the Crown ought to use its prerogative in the creation of new Peers? The question is worth raising, because the answer throws great light upon the nature and aim of the articles which make up our conventional code. This reply is, that the point at which the Lords must yield or the Crown intervene is properly determined by anything which conclusively shows that the House of Commons represents on the matter in dispute the deliberate decision of the nation. The truth of this reply will hardly be questioned, but to admit that the deliberate decision of the electorate is decisive, is in fact to concede that the understandings as to the action of the House of Lords and of the Crown are, what we have found them to be, rules meant to ensure the ultimate supremacy of the true political sovereign, or, in other words, of the electoral body.1
      By far the most striking example of the real sense attaching to a whole mass of constitutional conven-tions is found in a particular instance, which appears at first sight to present a marked exception to the general principles of constitutional morality. A Ministry placed in a minority by a vote of the Commons have, in accordance with received doctrines, a right to demand a dissolution of Parliament.

1 Cf. Bagehot, English Constitution (1872 ed.), pp. 25-27.

I don't understand Dicey's outmoded 1915 English, so I Googled and found p. 78 of Bogdanor's The People and the Party System: The Referendum and Electoral Reform in British Politics. I type out this part in red.

      But in any case the formalistic approach to the British Constitution is inadequate because it does not ask what purpose is served by consti-tutional principles and conventions. The classical writers on the British Constitution did not regard it as a set of rules suspended in a formalistic limbo, and lacking any connection with political reality. Instead they saw an intimate connection between constitutional rules and actual political conditions. For Dicey, the purpose of constitutional principles in a rep-resentative system was to allow the electorate to influence the working of government; and the principle of the sovereignty of Parliament, therefore, ought to reflect that of the sovereignty of the people. Under representative government, 'the difference between the will of the sovereign [i.e. Parlia-ment] and the will of the nation was terminated',8 and the 'ethics' of the Constitution comprised 'rules meant to ensure the ultimate supremacy of the true political sovereign, or, in other words, of the electoral body".9 Indeed, Dicey saw the purpose of constitutional conventions as being 'to secure that Parliament or the Cabinet... shall in the long run give effect to the will of that power which in modern England is the true political sovereign of the state — the majority of the electorate'.10 'Our modern code of constitutional morality secures, though in a roundabout way, what is called abroad the "sovereignty of the people".'11
      If the purpose of conventions is to secure the political sovereignty of the electorate, then the electorate has a right to be consulted on major issues of policy.

  1. What do "political sovereign", "electoral body" mean?

  2. How can CCs "ensure the ultimate supremacy of" voters? CCs aren't Acts of Parliament or statutes.


2 Answers 2


It is important to put the quote and constitutional conventions mentioned in context, that is, between the elected House of Commons, and the unelected bodies, namely the House of Lords and the Monarch.

Various constitutional conventions regarding this often ensure the primacy of the elected body, e.g. the Upper House not amending or proposing money bills, the Queen not refusing to give assent to bills passed, the Queen bound to her Ministers' advices.

  1. But how's this true? "political sovereign" or "electoral body" just means voter, right? The average voter has no idea what CCs are, let alone shape them. And CCs can't cover every voter. Some voters may dislike a CC, others not.

Certain constitutional conventions are rules meant to ensure the primacy of the elected bodies (the voters' desires). This is a fact. A convention that favours the House of Commons over the Lords and the Monarch is one that puts primacy on the electoral body. You don't have to agree with them, or want to keep them, or be able to shape them.

Whether the average voter knows what conventions are or how they work is irrelevant (although a proper civic education should have ensured they know the basics). The average voter doesn't know about the variety of mechanisms in laws that protect different interests, except perhaps in connection with their own particular fields of work. But nonetheless these mechanisms are important and the society needs people (lawyers and legislators) to design and understand them. Similarly, whether some voters like them or not is irrelevant to the intention and effects of laws and CCs. If enough of them doesn't like it, they can change it (see below).

These conventions are shaped, by mutual understanding, negotiation and even wars (and execution of a Monarch), to ensure the primacy of the elected body on behalf of the voters. It is useful to remember for much of the time the Parliament existed, the average "voter" is noblemen and property holders whose interests were more close-knit and more directly in opposition of the Crown.

Without these conventions, the UK would be an absolute monarchy with limited democracy (but as with any alternatives to history, other events would happen).

  1. How can CCs "ensure the ultimate supremacy of" voters? Even if voters wanted to do something to CCs, they can't? CCs aren't Acts of Parliament or statutes.

Constitutional conventions can be codified, modified or replaced, especially by the explicit intention of an Act of Parliament, or meaningful and repeated violations of them. The voters can therefore support a party or politician to pass relevant acts of Parliament, or to show their continued, overwhelming support of politicians that ignore conventions. For example, the whole events regarding the People's Budget, and the confirmation of voters' support for the elected government, led to the Parliament Act 1911 that codified and replaced certain conventions, e.g. bills can pass into law, even without the Lords' support, under certain circumstances. More recently, for example, the Fixed-term Parliaments Act 2011 removed the prerogative of dissolution by the Monarch (conventionally, on the Prime Minister's advice).

Violations of conventions without serious public backlash can also weaken conventions, and with serious backlash can reinforce the conventions. These events can lead to modified or codified conventions as well. See King-Byng affair or the Australian constitutional crisis. In the era of generalized franchise, public sentiments become important and influence conventions.

If no one cares about a convention, it can also become obsolete.

  • Can't "true political sovereign, or, in other words, of the electoral body" mean the entire legislative system by which voters elect representatives and laws are made? I don't know why Dicey would refer to the electoral body as the sovereign as it harkens back to Hobbesian kind of analysis, but it fits the power dynamic between the legislative and jurisprudential bodies?
    – user32200
    Commented Apr 20, 2020 at 14:06
  • to avoid comment chains, can you pls edit your answer?
    – user32200
    Commented Apr 20, 2020 at 14:06
  • This would be a good answer, except it is wholly out of the historical context in which Dicey wrote those things. What Dicey really was defending was the House of Lords (pre 1911) right to effetictively dismiss the Commons on matters the Lords thought were constitutional change. (And this went hand-in-hand with Dicey's opposition to Irish home rule.) Commented Apr 20, 2020 at 23:27
  • @Swansea Fizz's answer can offer you more insight in Dicey's views as a whole. But specifically to the interpretation of the political sovereign in that sentence, it refers to the electors, "Their end is to secure that Parliament [...] shall in the long run give effect to the will of that power which in modern England is the true political sovereign of the State—**the majority of the electors or (to use popular though not quite accurate language) the nation.**"
    – xngtng
    Commented Apr 21, 2020 at 0:13
  • It's not a true simple majoritarian view though ("in the long run"). And then it makes distinction between the actual legal sovereign and the political sovereign. I take "political" as "not technically the sovereign". (I'm not sure how I'd add these coherently in my current answer, so apologies for comment chain.)
    – xngtng
    Commented Apr 21, 2020 at 0:14

TLDR: To understand what Dicey meant, consider the context in which Dicey was writing those paragraphs. Basically, he thought that Irish home rule would be a disaster for the UK, so he opposed it every way possible, which generally meant interpreting the "electoral body" as expressing its wishes in some rather indirect ways at times, e.g. through the unelected Lords opposing things they thought were unconstitutional, and thus forcing elections that Dicey thought were proxy-referendums. In his later writings Dicey would more explicitly support actual referendums as a way to break such deadlocks between the chambers. (A few commentators have interpreted that approach of Dicey was wanting to copy [part of] the American system, and alas this is the first quote I found on the matter, but there are more straightforward ways to explain his position[s], in the later quotes below.)

Sugarman, David (1983). "Review: The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science". The Modern Law Review. 46 (1): 102–111. pdf

Sugarman's quotes don't answer your question, but contextualizes Dicey's approach to constitutional matters; he was described as being enamoured with the US constitutionalism:

Dicey defined the political problem of the age as ". . . how to form conservative democracies. . .to give to constitutions resting on the will of the people the stability and permanence which has hitherto been found only in monarchical or aristocratic states ... The plain truth is that ... the American republic affords the best example of a conservative democracy; and now that England is becoming democratic, respectable Englishmen are beginning to consider whether the constitution of the United States may not afford means by which . . . may be preserved the political conservatism dear and habitual to the governing classes of England." The basic conservatism underlying Dicey's constitutional writings and his " Americomania " is exemplified in three specific examples. First, his growing interest in the referendum as a device to mitigate the full impact of parliamentary sovereignty. Secondly, Dicey attributed the stability and conservatism of the United States to its legalistic spirit. In particular, he envied the way in which the Rule of Law, which in Britain grew haphazardly through custom, precedent and convention, was deified in America and enshrined within its fundamental constitution." There law rather than government held the federation together, judges not politicians were the ultimate arbiters, and litigation had replaced legislation. The prospect of a vast nation ran on the lines of a solicitor's office in Lincoln's Inn must have been very satisfying to Dicey and many of his legal contemporaries. In short, Dicey and other "old Liberals" regarded American constitutionalism as the consummation of the boundary theory of the common law.

[...] From this perspective, Dicey's Law of the Constitution was an attempt to reduce Britain's unwritten constitution to a partially written code. Dicey's Rule of Law endeavoured to create a new procedural natural law or Bill of rights which could be used to ensure that legal change was slow paced and conservative.

[...] Dicey, like most people, was not internally consistent [...] He could simultaneously argue for the supremacy of Parliament and yet suggest that if an election is not called before the enactment of the Home Rule Bill it would be unconstitutional. Although a rigid dogmatist, Dicey was on occasions able to transcend this straitjacket and, no doubt unwittingly, challenge the precepts he also sought to defend.

So unless he was explicit somewhere else what he meant precisely by that phrase/sentence, it's gonna be down to guesses/inferences from other parts of his work(s), which (as noted) aren't known for their relative consistency. So at some point it becomes a Rorschach test. (Yes he seems to have favored referendums, in theory, but he opposed the Irish home rule, etc.)

However, "Dicey Was Not Diceyan" by Rivka Weill says:

THERE is an apparent paradox between Dicey's treatment of parliamentary sovereignty as the central premise of the British constitution and his advocacy of the referendum, a tool of popular sovereignty. Bogdanor wrote:

[i]t is paradoxical that Dicey should have been the first to advocate the referendum in Britain, for he was the author of the classic work Introduction to the Study of the Law of the Constitution (1885). Foremost among the principles there identified as central to the British Constitution was the sovereignty of Parliament—a principle generally held to preclude the referendum.

Cosgrove, who wrote an authoritative biography on Dicey, explained that Dicey turned to the referendum in his search for a device that would prevent Home Rule. Dicey's commitment to defeat Home Rule, he wrote, distorted his judgment. However, we assert that Dicey's advocacy of the referendum was consistent with his constitutional theory. It represented a personal evolutionary process that followed closely the evolution of the British constitution. Most importantly, the referendum was compatible with the British constitution, as Dicey perceived it. He believed the constitution was in practice, though not in theory, based on popular and not parliamentary sovereignty.

Dicey's evolutionary process consisted of three phases. At first, he identified parliamentary sovereignty as the fundamental norm of the British constitution. But, he distinguished between Parliament as the legal sovereign and the People as the political sovereign. Later, primarily after 1890, when his first article on the referendum appeared, he advocated the adoption of the referendum, thus, desiring to officially make the People the legal sovereign. Finally, after the passage of the Parliament Act 1911, in a desperate move he was willing to recognise the People as the legal sovereign even in the absence of a referendum.

So yeah, Rorschach test. Different commenters read Dicey differently. At least the latter article finds a more obscure letter of Dicey in which he explained some of his views at one point:

Until 1911, even though he spoke of parliamentary sovereignty, Dicey distinguished between Parliament as the legal sovereign and the People as the political sovereign. Scholars understood this formulation of political sovereignty to mean only that in the long run the People's will prevails through elections, not that the People decide on specific issues. That is, they treated Dicey's formulation as consistent with a constitutional system that grants plenary lawmaking authority to the winner of the last election; i.e., a monist system. However, Dicey meant more than that. He also wrote that in practice constitutional change cannot pass in Britain without the People's consent.

In a letter to the Unionist journalist Leo Maxse, written in January 1895, Dicey distinguished between the British treatment of executive (normal) and constitutional issues. On executive issues, he wrote, the will of even a small majority of the Commons was decisive. However, on constitutional issues, the British constitutional practice demanded that the permanent will of the People be clearly expressed. Therefore, a small majority of the Commons was not authorised to pass constitutional changes. In his words, "[i]t is I think of immense importance that people should realise that a small & transitory political majority, though it necessarily exercises the powers, has not the authority of the nation. On this point my mind is becoming more and more clear". He continued:

In Executive matters I hold that the Government of the day ought even though put into office by but a small majority, to be whilst it continues the Government, in general supported by good citizens. My reason is this, viz: that in Executive matters the majority must of necessity be treated as the organ of the nation, otherwise the action of the nation is at every turn weakened. A party which is not in a position to carry on the administration ought not to hamper the action of the Ministers of the day. Moreover matters of administration are transitory. On the other hand on matters of constitutional change I do not think a small majority has any moral right to act with vigour. The presumption is in favour of the existing state of affairs, because on the whole it may be assumed to be the permanent will of the nation. Add to this that a constitutional change once made is, or ought to be, final, and therefore ought not to be made by any body of men who do not clearly represent the final will of the nation. Till modern times this has been the practice, though not the theory, of English constitutional government, and it is, as I have pointed out, recognised as a democratic principle in every true democracy.

Dicey attested here that "the practice, though not the theory, of English constitutional government" was that of dualism. By dualism, we mean a constitutional system that distinguishes between constitutional and regular law by demanding the People's explicit, unequivocal and sustained approval for constitutional change. In other words, his discussion of the People as the sovereign cannot be taken to mean, as the scholars understood, that the People's sovereignty is only theoretical.

The historical context of those writings of Dicey is important. See "Democracy in Switzerland" (1890) 171 Edinburgh Review 113, 141 (unsigned) [hereinafter cited as Dicey, "Democracy"].

Between 1832 and 1911, Britain conditioned the passage of disputed constitutional measures on the People's consent. When the Lower House proposed fundamental constitutional change, the Upper House initially vetoed it. The Lords justified the exercise of their veto, explaining that they were referring the constitutional issue to the People's decision at election. The next election was fought on the constitutional issue. Only if the promoters of constitutional change won the election, the Lords accepted the result as expressing the People's ratification of the measure and allowed the change to be enacted into law.

Footnote: For a full description of the dualist Britain between 1832 and 1911, see Rivka Weill, The Anglo-American Constitutional Model: Why The British and American Constitutional Systems Are Not As Different As Most Think (JSD Thesis, Yale Law School, 2002) (available at Yale Law School Library).


Under this structure, the sovereign Parliament consisted of four bodies instead of the traditional three. In addition to the Commons, the Lords and the Crown, the People emerged as the fourth and decisive body. Without the People's consent, no fundamental constitutional change could pass into law. Dicey believed that "[w]e have introduced into our constitution the spirit, though not as yet the form, of the referendum".

Dicey was even more adamant in A.V. Dicey, "The Parliament Act, 1911, and the Destruction of All Constitutional Safeguards" in W.R. Anson et al. (eds.), The Rights of Citizenship: A Survey of Safeguards for the People (London 1912) 81, 85-86 [hereinafter cited as Dicey, "The Parliament Act"].

[t]he legislative authority of the House of Lords meant, and was up to 1911 understood to mean, that the House had the power, and was under the obligation to reject any Bill of first rate importance which the House reasonably and bona fide believed to be opposed to the permanent will of the country. ..no one till 1910 and 1911 seriously disputed the doctrine that the House of Lords in modern times had the right to demand an appeal to the people whenever on any great subject of legislation the will of the electorate was uncertain or unknown.

And Dicey used this line of argumentation that the British people rejected Irish home rule by this kind of "referendum"

Dicey believed that the People expressed their veto of Home Rule in the 1886 election. Before the election, Gladstone attempted to pass the first Home Rule bill. However, he failed to gain support even in the Lower House, with ninety-three members of his own party voting against it. Parliament dissolved over the bill, and the election confirmed, according to Dicey, Gladstone's lack of mandate regarding Home Rule. Dicey asserted that the People vetoed Home Rule once again in the 1895 election. After Gladstone's victory at the 1892 election, Gladstone attempted to pass Home Rule anew. This time the bill passed the Lower House, but the Lords vetoed it by an overwhelming majority. Dicey believed the 1895 election was fought on the issue and the Conservatives' decisive victory at the polls proved that the Lords rather than the Commons represented the will of the People on this issue.

This condemnation should never be forgotten; it is of infinite significance, it means that at a great crisis in the fortunes of England, the hereditary House of Lords represented, whilst the elected House of Commons misrepresented, the will of the nation.

[footnote:] Dicey, "The Parliament Act", note 12 above, p. 86.

So yeah, Dicey held that before the "Destruction of All Constitutional Safeguards" of 1911, the Lords were basically enforcing a referendum-in-spirit whenever they opposed a matter and [thus] forced elections.

As @zhantongz pointed out to me in a comment below, the 1885 passage from the OP's question is also framed in this context of the Lords-Commons conflict resolution. You should probably look up papers citing the first sentence of your quote

How, it may be said, is the “point” [...] the creation of new Peers?"

(or Weill's full thesis, on which this paper appears to be based) to see where the academic dispute around how to interpret Dicey's writings on the constitutional conventions ended up. But interpreting them out of the historical context can lead to the wrong conclusion(s).

N.B. later Weill's paper notes

The first edition of Dicey's classic treatise, Introduction to the Study of the Law of the Constitution (1885), did not mention the referendum. Only later did he start advocating it. Dicey did not support the referendum out of great belief in it, but rather out of a loss of confidence in Parliament. In an 1894 letter to J. St. Loe Strachey, the Unionist editor of the Spectator, he wrote, "I am sure we are right in agitating for the Referendum. Wherever I go I find it popular. Personally I think that I should have preferred real Parliamentary government as it existed up to 1868."

Somewhat more ironically, as Weill notes (but I'll spare you the quotes on that), Dicey thought that neither major party represented the will of the people on the matter of Free Trade. He thought that if put to a referendum that matter would have succeed despite opposition from both major parties.

  • 1
    I think you could answer more directly the question in the historical context (i.e. expanding on your comment to my answer). I was focusing on OP's auxilliary questions, but upon review I think the historical context helps them more.
    – xngtng
    Commented Apr 21, 2020 at 0:00
  • 1
    I think you could cite the preceding sentence to the quote "This reply is, that the point at which the Lords must yield or the Crown intervene is properly determined by anything which conclusively shows that the House of Commons represents on the matter in dispute the deliberate decision of the nation.", which is a rather explicit defense of deferrence to the electors (by the Lords).
    – xngtng
    Commented Apr 21, 2020 at 0:01
  • @zhantongz: good point. If only the OP had quoted that sentence too... it would have made answer(s) a lot shorter... Commented Apr 21, 2020 at 0:22
  • @Swansea: done. Commented May 9, 2020 at 14:27
  • many thanks! i hope my edit's OK with you. after reading your answer four times, i found it hard to keep track of which author wrote what, because you cite the author at the bottom. so I turned the citations into titles. And I quoted "How, it may be said, is the “point” to be fixed" so you don't need to quote it.
    – user32200
    Commented May 10, 2020 at 6:31

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