Dicey produced the nearest the UK has had to a constitution written down in one book. His ongoing influence is remarkable—and detrimentalby David Allen Green / November 12, 2019 / Leave a comment
In 2019, the study and practice of constitutional law of the United Kingdom is still dominated by one book first published in 1885. This was the Introduction to the Study of the Law of the Constitution by the Victorian and Edwardian jurist, Albert Venn Dicey.
Politicians and commentators, lawyers and constitutionalists, generally either follow the categories and theories of Dicey, often unknowingly, or define themselves against his famous text. Jacob Rees-Mogg even hailed Dicey in his badly received recent book on the Victorians and invokes him at any opportunity. Judges, meanwhile, expressly refer to Dicey and his book as the legal orthodoxy even when they are seeking to escape his shadow.
For what was in substance a mere collection of lectures, this influence is remarkable. The original book, and subsequent editions—issued into the 1950s, 30 years after Dicey’s death—is the nearest the UK has had to a constitution written down in one book. But its overall impact has been detrimental.
Dicey’s preoccupation with a legally omnipotent parliament meant the inherent powers of the executive and judiciary did not, until recently, receive adequate attention. And as well as averring that parliament was able to do whatever it wanted, Dicey objected to those exercising public power having any special “public law” obligations, thereby giving total licence to rule-makers to do as they wished, subject only to express parliamentary controls. His disregard for fundamental rights of subjects (let alone citizens) hindered the development of rights-based jurisprudence for over 100 years. His equation of the UK with England ignored the distinct legal position of Scotland and, as an ardent Unionist, he was never able to comprehend the possibility of Irish home rule. He did not even accept that women had the right to vote: this was because in his view, they were fundamentally different from men. And yet Dicey has still not been thrown off. His text remains the most important account of the sovereignty of parliament, and always will be—the definitive exposition of the orthodox position.
Dicey’s emphasis on parliament meant any legal limit on judicial and executive power, and on the rights of individuals, rested on parliament’s (actual or presumed) intentions. This long-delayed the wider understanding of a balanced constitution that we have finally achieved in the last 30 or so years—a reading of our polity that regards parliament as one institution among others, and an understanding that fundamental rights and legal duties do not necessarily derive from parliamentary enactments.
Take the recent Gina Miller case on limiting the prorogation of parliament. The power that the PM sought to rely on was not derived from parliament, and the power of the court in turn asserted to strike down that prorogation was not from statute either. The Supreme Court instead implied that parliament was constitutionally so weak it that required the protection of the courts. The case had little to do with a constitution rooted in an all-powerful parliament as described by Dicey and yet the decision may turn out to be the constitutional case of a generation.
Courts are these days often thoughtful and innovative in constructing and interpreting legislation, sometimes even developing new law. If fundamental rights are at stake, under the Human Rights Act or otherwise, there will be anxious scrutiny of the extent to which a statute can be squared with them. The courts now also routinely refer to “constitutional statutes” that cannot be implicitly repealed by subsequent legislation in the way any law could be under Dicey’s insistence that all laws are of equal status. Judges have even gone so far as to abolish areas of law (such as in respect of marital rape) or create new legal claims (such as for misuse of private information) without regard to parliament. Some judges hold the view, heretical to Diceyean orthodoxy, that the sovereignty of the Crown in her courts is co-equal with the Crown’s sovereignty in parliament.
In truth, Dicey’s dominance should never have lasted so long. His ascendancy had always been as much a matter of timing as substance. His key book happened to be published when constitutional law was becoming established as an academic subject in England that required a core set text. And because constitutional law tends to change less quickly than other areas of law, the book’s influence endured. It is only in the last few decades that we have had senior judges who did not learn their public law with the latest edition of Dicey.
And so it is now time to bring an end to Dicey’s entrenched position in our understanding of the constitution, and leave him to Rees-Mogg’s spirited nostalgia. Parliament, of course, has ultimate legislative power but it just does not entirely dominate our constitutional arrangements and perhaps it never really did. Indeed, parliament has recently twice had to be saved from its own impotence by Miller and the Supreme Court.
Today the Westminster parliament is one element among many in the constitution. The checks and balances to abuse of power are sometimes far from SW1. The Good Friday Agreement, which Dicey would have abhorred, has become the single most important constitutional document in shaping UK politics and policy. And it was a Scottish court that held the PM to the fire over compliance with the Benn Act (which required a Brexit extension to be sought), saving the legislature yet again from powerlessness.
The UK constitution is no longer recognisable to readers raised on Dicey. But this is not to say we need a new Dicey. The problem has been that this one writer was accorded undue deference. Constitutional authority should not flow from one great idol, but from the importance of the constitutional powers and rights themselves. Those rights include access to the courts, to reasonable and proportionate exercises of power, to a fair trial, to privacy from the surveillance state and so on. And the powers being those of the individual, the courts, the judiciary as well as those of the legislature. An account of the modern constitution should start with these rights and powers, and how parliament fits in with them, and not the other way around. Dicey, his book and parliament itself all need to be put in their proper place.