Donal K Coffey

My article in the Northern Ireland Legal Quarterly looks at the influence of imperial law – namely law from within the British Empire but outside the UK – on the development of British constitutional law. In this blog post, I thought it might be interesting to set out how I approached the piece and came to write it in the first place. The genesis for the article was lecturing British constitutional law in the UK and particularly the manner and form objection to parliamentary sovereignty. The conventional history of the objection, as is well known, looks at the way in which Attorney-General of New South Wales v Trethowan (1931) 44 CLR subsequently influenced debates in the UK, and this was the way in which I initially lectured upon it. This prompted two further questions: were there other areas of imperial law which had influenced British constitutional law in the inter-War period, and, relatedly, if one had been a law student in the 1920s or 1930s in the UK, what exposure would one have had to imperial law?

The second question led to the first section of the NILQ article, in which I tried to give an overview of British constitutional law in the academy in the interwar period. It builds off some really excellent work by other scholars such as Twining, but the main thrust of the section is to try and give an overview of where constitutional law stood in the UK. The building blocks for this section were the publications in the Law Quarterly Review, the Cambridge Law Journal, Juridical Review and the Modern Law Review, for which I read all of the publications on constitutional law in the period. To these I added the books surveyed in the following section of my article, as well as some other monographs on British constitutional law written at the time. This survey wasn’t confined to imperial law, as it was more concerned with the overall state of play of the field.

The next section of the article examined four constitutional law textbooks of the time to give an idea of what the subject would have looked like to students in that era. The books were written by Keir & Lawson, Keith, Wade & Phillips, and Jennings. Of course, this survey can’t really capture the entirety of the taught experience – there would have been excellent lecturers who didn’t write textbooks – but the idea behind the section is to try and situate imperial law within the curriculum. The four textbooks have varying degrees of integration of imperial law; Arthur Berriedale Keith in Edinburgh, who was a noted expert in imperial law, was the author who integrated it most closely into his textbook on the constitution.

Sections three and four of the article tried to address the question of the other areas of constitutional law that were influenced by imperial law. These focused on the questions of citizenship and liberty/habeas corpus. The vexed questions of nationality had cropped up in some of my earlier work on Irish constitutional history, but the way in which this showed up in British texts was quite interesting. The linked Nigerian habeas corpus cases fought by Eshugbayi Eleko had been raised in Ibhawoh and Elias’ work, and here I tried to give some flavour of the, not always edifying, treatment of the Nigerian cases in the British academy.

The final section brings the paper back to my original jumping-off point: parliamentary supremacy. As I was reading the foreword to Dicey’s 8th edition, I noticed that his treatment of the Parliament Act 1911 was actually consistent, to my eyes, with the manner and form objection. The section therefore set out my interpretation of this edition and made the argument that the text was consistent with manner and form and not, for example, an argument that the legislation passed under the Parliament Act was delegated legislation. As the question wasn’t directly canvassed, it’s not possible to be conclusive based on the text itself, but I contend that the reading that is most consistent with the arguments in the foreword and the body of the text is that Dicey did not view it as a form of delegated legislation.

At the same time, I was doing some research on the links between Australian and imperial constitutional law and noticed how prevalent the 8th edition was in Australian law schools in the interwar period. This prompted me to consider whether it was possible that the direction of travel had been misunderstood; perhaps the Australians had derived their understanding of manner and form from Dicey, and this had been then reintroduced to the UK? It’s not possible to reach a conclusion on what I could find, but there is at least enough evidence to mean that the question remains open.

Part of the argument was that changes made to the 9th edition after Dicey’s passing meant that his views on parliamentary supremacy at the end of his life were somewhat different than is commonly thought. This final section therefore examined the influence of the 9th edition on subsequent debates about parliamentary supremacy.

Overall, my impression of the time period was that it was one of great vibrancy in constitutional theory. The integration of imperial law into the core syllabus was uneven, but it was present to a greater or lesser degree throughout. That means that a law student in the 1920s or 1930s would have been aware of imperial law to some degree. It was also interesting to note the areas where imperial law had an influence; in core elements of the understanding of the British constitution. The next work that I would like to do to build off the analysis in this article will look at Harold Laski’s thought during the same time period.