The recent general election saw the Labour Party being elected with a majority of 171 seats in Parliament. The following morning, in his first speech as Prime Minister, Sir Keir Starmer claimed the nation had given the Labour Party a “clear mandate”. Similarly, the new Chancellor of the Exchequer, Rachel Reeves, stated the British people had voted for change and she had “begun the work necessary to deliver on that mandate” by implementing the economic ideas set out in the Labour Party’s manifesto. Lastly, in one of his first acts as Secretary of State for Energy Security and Net Zero, Ed Miliband’s lifting of the onshore wind ban was justified on the grounds of the new Labour government being “elected with a mandate to take immediate action to boost Britain’s energy independence”. Overall, there has been a heavy emphasis on the direct relationship between the electoral mandate given by the British people and the implementation of policies.

Whether intentional or not, this speaks to a socialistic-constitutional tradition that developed within the Labour Party from 1900 to 1951. This tradition saw a reformulation of the Diceyan view of parliamentary sovereignty in the British constitution. More specifically, it departed from a legal notion of sovereignty and understood the authority of the elected majority in Parliament, its legislators, and its political and policy agenda as deriving from the citizenry themselves. As such, reframing sovereignty as popular sovereignty was the basis for implementing an uninhibited, electorally sanctioned, social and economic agenda. The short and simple aim of this post is to provide a legal-historical account of this reimagination of sovereignty by key figures within the Labour Party.

A Controlled Sovereignty

The British constitution of the late 19^th and early 20^th century was heavily shaped by the work of Albert Venn Dicey. Indeed, when introducing the first Home Rule Bill in the House of Commons, Gladstone claimed “no work that I have read brings out in a more distinct and emphatic manner the peculiarity of the British Constitution”. Further, judges began to cite Dicey’s infamous Introduction to the Study of the Law of the Constitution (LOTC) and reviews of his work concluded that few books have had comparable influence on how the British constitution is understood (Walker v. Baird (1892) A.C. 491; De Keyser’s Royal Hotel v. The King (1919) 2 Ch. 197 (C.A.), 203, 205; Johnson v. Pedlar (1921) 2 A.C. 262 (H.L.), 264‒265; and Felix Frankfurter, ‘Foreword’ (1938) 47 Yale Law Journal 517). Dicey’s LOTC ran to eight editions from 1885 to 1915, with two posthumous editions released in 1959. For accuracy, this section draws on both the 1885 and 1915 editions.

It is widely acknowledged that some of Dicey’s work was underdeveloped, contradictory, and shifted during his lifetime. What’s more, contemporary constitutionalists have interpreted Dicey’s work in different ways – with large amounts remaining open to question and reformulation. Dicey’s understanding of sovereignty, however, has broadly been accepted to include a sharp distinction between legal and political notions. Although it should be recognised that Dicey did understand Parliament, as a matter of fact, to be controlled by the will of the electorate. In LOTC he claimed: “the will of the electorate…is sure ultimately to prevail on all subjects to be determined by the British government” and “the electors can in the long run always enforce their will” (LOTC 1885 at pages 73, 67, 360; LOTC 1915 at pages 72, 426). While this made sense politically and logistically, for Dicey, Parliament – its legislation and laws – excluded any direct connection to the electorate. As such, the will of the electorate was confined to deciding elections and not the issues of the day (LOTC 1885 at page 59; LOTC 1915 at page 57). Instead, Parliament was the will of the King, House of Lords, and elected representatives of the House of Commons expressed by Acts of Parliament (LOTC 1885 at page 35; LOTC 1915 at page 37). Subsequently, Dicey chose to characterise parliamentary sovereignty as a legal concept that was the ordinary product of the law. In this way, the law preceded sovereignty as opposed to being the product of it.

There were important practical implications of Dicey’s legal sovereignty. First, it excluded any direct relationship between the citizenry or electors’ will and Acts of Parliament. More specifically, no Act passed in law gained its authority from, or could be justified on the grounds of, electoral consent. Secondly, Dicey’s understanding of sovereignty as a legal concept, arguably, created internal limitations to its own exercise. Indeed, Dicey himself claimed “the internal limit to the exercise of sovereignty arises from the nature of sovereign power itself” (LOTC 1885 at pages 73 – 74; LOTC 1915 at pages 77 – 78). Of course, this might seem counter intuitive to the well-known, widely taught, position espoused by Dicey that Parliament has the “right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament” (LOTC 1885 at page 35; LOTC 1915 at pages 36 – 37). But critics, like Mark Walters, through extensive study of Dicey’s published and unpublished manuscripts, have argued the nature of this unlimited legal sovereignty was, in fact, legally conditioned in three ways: (i) Parliament was a legal body defined by law; (ii) parliamentary sovereignty was a legal principle; and; (iii) parliamentary sovereignty only extended to law-making and not to other actions of Parliament or its constituent parts. This resulted in, firstly, a general limitation to its own exercise and, secondly, inherent practical constraints, beyond the self-imposed limits of the people authorised to exercise sovereignty, that were legal in character.

Indeed, a closer reading of Dicey’s version of parliamentary sovereignty, arguably, shows legal qualities that tempered its use and, importantly, its use for political ends. First, Dicey’s formulation of sovereignty placed great importance on judicial authority. More specifically, Dicey claimed once a bill passed into statute it immediately became subject to judicial interpretation. This on its own is relatively uncontroversial. But Dicey did not stop there. He went on to argue judges would not be able to construe Acts in accordance with political intent. More specifically, Dicey claimed the judiciary would “take no notice of the resolutions of either House, of anything which may have passed in debate”, or “changes which a Bill may have undergone between the moment of its first introduction to Parliament and of it receiving the Royal assent”. For Dicey, this method ensured the “fixity” or paramountcy of the law (LOTC 1885 at pages 407 –  408; LOTC 1915 at pages 403 – 404). Secondly, Dicey’s version of parliamentary sovereignty prevented the House of Commons – the elected majority within – from unilaterally exercising sovereignty or executing and administering laws. More specifically, to temper the political authority of the House of Commons Dicey sought to disperse sovereign power between all the components of Parliament (LOTC 1885 at pages 408 to 410; LOTC 1915 at pages 404 to 405). At the time of Dicey writing LOTC, there were no Parliament Acts which meant other constituent parts of Parliament, like the House of Lords, could play a significant role in tempering the House of Commons – as they did with the Liberal Party’s “People Budget” of 1909. In this way, a natural implication of Dicey’s theory was the elected majority in Parliament not being legally empowered to do anything except make laws alongside the other constituent parts of Parliament.

Of course, Dicey was not just a strict legal jurist and some of his contemporaries, like Sir Ivor Jennings, claimed his work was more politically driven. More specifically, it reflected a Whiggish ethos and political thought. Indeed, Dicey often reminded people he was writing from a mid-Victorian perspective. For Whigs, the British constitution was one that was fit for a quaint England full of robust individuals who enjoyed ancient common law liberties. As such, they were known for supporting limited government and incremental political forms that aimed to enhance individual liberty (H. T. Dickinson, ‘The Eighteenth-Century Debate on the Sovereignty of Parliament’ (1976) 26 Transactions of the Royal Historical Society 189; Sheldon Amos, Fifty Years of the English Constitution, 1830‒1880 (Longmans, Green & Co., 1880)). When responding to the interventionist ideas of new Liberals and the Labour Party, Dicey claimed the power of the state was being used to tamper with the social order. Tellingly, he suggested the problem was that people failed to understand the essence of the constitution and, instead, were using parliamentary sovereignty as an “instrument” for “democratic despotism”. As such, viewing the British constitution through “Whig spectacles” gives further force to Dicey purposely creating a version of parliamentary sovereignty that was itself limited, legally conditioned, sought to restrain political power, enhance judicial authority, and protect the individual from “…the collective and autocratic authority of the state”.

The Labour Party’s Popular Sovereignty

Critics have argued that, historically, the Labour Party have provided little substantial thinking on constitutional matters. Instead, it simply accepted the existing British constitution and its accompanying Diceyan principles. This argument holds weight, to the extent that there was a rejection of radical constitutional ideas – direct action, revolutionary and other violent extra-parliamentary behaviour – in favour of orthodox arrangements and institutions. However, it fails to consider the underappreciated, but fundamental, departure key figures in the Labour Party made from the prevailing Diceyan view on sovereignty. More specifically, where Dicey’s legal sovereignty excluded any connection with the electorate, key individuals in the early Labour Party began to reimagine sovereignty as the elected majority in Parliament equalling and embodying the nation’s will and people. Support for this more expansive and popular notion of sovereignty had three key practical implications that can be starkly contrasted to Dicey’s formulation as understood above.

Firstly, it provided the necessary justification for key figures to claim the elected majority in Parliament had complete control over domestic legislative and policy decision-making. Indeed, Richard Toye argues Parliament, for the Labour Party, was viewed as a tool for implementing the will of the electoral majority. As such, unimpeded implementation of a programme for government was seen as politically justified. Secondly, great importance was placed on the mandate received by the electorate. More specifically, the mandate to implement the contents of the manifesto gained constitutional significance for the Labour Party. This is because it allowed them to make a direct connection between the consent given by the people and its policy and legislative agenda. Indeed Tuck has claimed the manifesto became a “special document whose provisions have been approved by the electorate”. Lastly, where Dicey’s legal sovereignty created the space for greater judicial authority, support for popular sovereignty produced a distinct kind of anti-judicial constitutionalism. These ideas can be traced across several key figures between 1900 and 1951.

Ramsay MacDonald, the Labour Party’s first Prime Minister, began his reconceptualisation of sovereignty by placing great importance on the idea of a “common” and “general” will or, in other words, a unified social consciousness within the state. But to harness and make this unified social consciousness effective, MacDonald believed it had to be embodied in institutional structures and acts of the state. From here, it becomes clear why MacDonald went on to support sovereignty in popular terms. He claimed the elected majority in Parliament derived its power from, and was representative of, the unified will of electors and, therefore, the institution of Parliament was where “direct action” of the people could come into play. With Parliament embodying the peoples’ will, it could then proceed to freely reform the material and moral health of its citizens (Ramsay MacDonald: Parliament and Government (National Labour Press, 1919) 69 – 70; Socialism and Society (Independent Labour Party, 1908) xviii, 7 – 8; Socialism and Government (Independent Labour Party, 1909) 3 – 4, 10,12, 37, 78). MacDonald heavily drew on organic themes that were prevalent amongst British idealists in the early 20^th century. But, importantly, the link between the consciousness of the people and political institutions, like Parliament, saw MacDonald put forward a different conception of sovereignty to Dicey. More specifically, it allowed MacDonald to justify the elected majority in Parliament, unilaterally, using parliamentary machinery to assess and implement the long series of reforms necessary for social adjustment.

Secondly, while not drawing on organic themes, other early Labour Party figures also advanced ideas of popular sovereignty. In 1920, when campaigning against the Liberal-Conservative coalition government’s housing policy that weakened rent control, John Wheatley, Housing Minister in 1924, claimed “the voice of the people is the voice of Parliament and however much we may hate a law we must obey that law because it expresses the will of the people”. Tellingly, when suggesting Acts of Parliament were a direct expression of popular will, Wheatley also argued there would be no mandate to pursue legislative initiatives if it did not have electoral consent. For example, in relation to the changes to rent control Wheatley stated “but what is our duty if a law is made – not only without popular sanction – but in direct violation of the conditions on which its members were sent to Parliament? Surely we owe no allegiance whatever or respect to Members of Parliament as individuals divested of their representative capacity? When they exceed their authority derived from the people they have no authority”. Similarly, John Clynes, leader of the Labour Party from 1921 to 1922, blended popular sovereignty into ideas of parliamentary sovereignty. While dismissing the radical constitutional methods of communism, Clynes supported the idea of popular consent. He argued “we must advance by consent and gather force that will endure for the reason that people have signified their approval of our conceptions of national law, international relations and social needs”. As such, Clynes wanted the Labour Party to be an institutional expression of moral causes and, at the general election of 1910, he asked voters to “capture the legislative machine” so that Parliament could be an expression of the people.

What’s more, this version of sovereignty gave way to a view that the judiciary and legal system represented a regressive and anti-democratic impediment to socialistic policies. More specifically, key figures in the Labour Party believed social causes and legislation were all rigidly interpreted in accordance with laissez-faire values by the judiciary. Indeed, George Lansbury, one time leader of the Labour Party, claimed “organised labour should understand that in the courts of law all the scales are weighed against us because all the judges administer class-made laws which are expressly enacted not to do justice but to preserve the present social order”. As such, where Dicey included a role for judicial authority in his version of sovereignty, key figures in the Labour Party excluded it. Indeed, after a string of hostile judiciary decisions (e.g., Taff Vale Railway Co v Amalgamated Society of Railway Servants (1901) AC 426 and Amalgamated Society of Railway Servants v Osborne (1910) AC 87), Clynes reflected that it was vital the Labour Party were in Parliament as it was “parliamentary action” that came closest to the “workshop and work of everyday men”. In other words, it was only through Parliament working peoples’ interests could be secured.

This understanding of popular sovereignty amongst early Labour Party figures went on to permeate the upper echelons of the Attlee government. Prior to the Labour government being elected in 1945, Clement Attlee argued that “when it (the Labour Party) has obtained a mandate, it will utilise the ordinary machinery of the legislature and the administration in order to carry out its programme into effect” and having obtained a mandate “it shall have the right like any other Party to carry through its programme”. Similarly, once elected, in the House of Commons, Hugh Dalton, Chancellor of the Exchequer from 1945 to 1947, justified the Labour Party’s programme for government on the consent given by the electorate to the manifesto. He asserted “I hold in my hand a document entitled “Let Us Face the Future, A Declaration of Labour Policy for the Consideration of the Nation”. The nation considered it and having done so elected this House of Commons. We have an unchallengeable popular mandate to carry out all that is contained in this document”. Moreover, the belief in popular sovereignty was made clear in the 1945 manifesto, Let Us Face The Future. In it, the Labour Party stated, “we give clear notice that we will not tolerate obstruction of the people’s will by the House of Lords”. Lastly, adhering to popular notions of sovereignty also meant restraining judicial intervention to the formal plane – which ensured the aims of the elected majority in Parliament prevailed. For example, the Lord Chancellor, William Jowitt, who sat regularly on judicial panels, did not allow for judicial creativity in either the common law or statutory interpretation. As such, the infamous voices of Lords Denning, Reid, Radcliffe, and Devlin were muted during the post-war Labour government. Jowitt believed the role of the judge was only to apply objective rules determined by strict ratio and to interpret statutes according to the intention of the elected majority in Parliament. So, where the law produced a result which did not accord with the requirements of the day Jowitt argued it was for politicians in the legislature to rectify this. Unlike Dicey, who put great faith in judicial authority, key figures in the Attlee government believed the judiciary to be ill-equipped for such tasks.

Conclusion

Overall, adhering to popular notions of sovereignty as the basis for unimpeded implementation of programmes for government was politically and constitutionally preferable for key figures in the Labour Party – as opposed to the rigid and controlled Diceyan version that sought to constrain the pursuit of political, social, and economic change. Whether we will see this historical understanding of parliamentary sovereignty repeated by the present-day Labour government is difficult to conclude. But the early references to a “mandate” to justify the implementation of interventionist policies has merit, theoretical grounding, and should be welcomed.

I would like to extend gratitude to UKCLA editors, Professors Michael Gordon and Se-shauna Wheatle, for their extremely helpful feedback on previous drafts. Any errors in this post are my own.

Sanjit Nagi, PhD Researcher at SOAS University of London

(Suggested citation: S. Nagi, ‘“A Mandate for Change!”: Popular Sovereignty and the Labour Party’, U.K. Const. L. Blog (22nd July 2024) (available at https://ukconstitutionallaw.org/))