Thursday, 8 September 2011

Review of A.V.Dicey, "Introduction to the Study of the Law of the Constitution"

Dicey's Introduction is, or at least was, the bible of British constitutional law.  Every solicitor, barrister and law student in the country must know, at least in broad outline, what Dicey thought about parliamentary supremacy.  The book was cited as an authority in the Supreme Court only last year (Ahmed v HM Treasury (Nos 1 and 2) [2010] UKSC 2, 5).  It went through eight editions in Dicey's own lifetime, the last one appearing in 1915, and E.C.S.Wade produced a further couple of editions after World War II.

Dicey identified three key components of the British constitution: the sovereignty of Parliament, the rule of law and the role of conventions.

Parliamentary sovereignty

Dicey is remembered today mostly as the pre-eminent defender of the doctrine of parliamentary sovereignty.  This was, he wrote, "from a legal point of view, the dominant characteristic of our political institutions".  The King had originally been sovereign, and this absolute power had, Dicey argued, subsequently passed to Parliament.  The doctrine of parliamentary sovereignty meant, in summary, that "Parliament... has... the right to make or unmake any law whatever; and... 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".  Parliament could lay down its absolute power only by abdicating, in the manner of a monarch: "If the Czar can abdicate, so can a Parliament."

Dicey was aware, of course, that Parliament couldn't do anything it wanted and that there were many things that Parliament would never attempt to do.  This, however, was a matter of practical politics, and had nothing to do with the law.  Moreover, Parliament had passed some pretty adventurous statutes in the past.  By the Septennial Act 1715, one Parliament had unilaterally prolonged its own lifetime, and by Indemnity Acts illegal conduct could retrospectively be made legal.

One consequence of the doctrine was that all statutes were equal.  None could be entrenched or be taken to have precedence over others.  Dicey keeps returning to this theme:
A Bill for reforming the House of Commons, a Bill for abolishing the House of Lords, a Bill to give London a municipality, a Bill to make valid marriages celebrated by a pretended clergyman, who is found after their celebration not to be in orders, are each equally within the competence of Parliament... they none of them when passed will be, legally speaking, a whit more sacred or immutable than the others....
[The monarch, Lords and Commons] can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London....
[N]either the Act of Union with Scotland nor the Dentists Act, 1878, has more claim than the other to be considered a supreme law.
Dicey realised that the doctrine of parliamentary supremacy did not prevail in most foreign countries.  Other nations accordingly tended to have constitutions that were rigid rather than flexible - and there was a danger that a rigid constitution would lead to revolution.

The Diceyan doctrine of parliamentary supremacy still survives in its outlines, but it is open to serious question.  Dicey was aware of some of the objections that could be made against his thesis, but he doesn't really engage with them at any length.  It is in this area that his work is most vulnerable to challenge, even if it hasn't quite been given a decent burial yet.

The Rule of Law

Dicey thought that there were 3 facets to the rule of law:
  1. "[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts".
  2. "[E]quality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts".
  3. "[W]hereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals."
Dicey talks about habeas corpus and freedom of assembly and claims that "the securities for personal freedom are in England [I wish he wouldn't call it England] as complete as laws can make them".  On the other hand, he says that freedom of speech and freedom of the press are not deeply rooted legal concepts in this country.  Certain forms of speech, such as libel and sedition, can be punished severely.  Goodness knows what he would have made of the Human Rights Act.
The third of the three points quoted above may seem somewhat chauvinistic, and indeed this would not be an unfair judgement on the tone of much of Dicey's discussion in this part of the book (and elsewhere).  France was a particular bugbear for Dicey: he thought that the French legal and constitutional system still bore the hallmarks of the pre-1789 ancien régime.  He criticised the French emergency and military laws and (in particular) the French droit administratif or system of administrative law, which he implied allows for the arbitrary exercise of governmental authority.  Later writers said that Dicey was talking nonsense here, and indeed he probably was.


Finally, Dicey considers conventions of the constitution, such as the following:
"The King must assent to, or (as it is inaccurately expressed) cannot veto any bill passed by the two Houses of Parliament"

"the House of Lords does not originate any money bill"

"when the House of Lords acts as a Court of Appeal, no peer who is not a law lord takes part in the decisions of the House"

"Ministers resign office when they have ceased to command the confidence of the House of Commons"

"a bill must be read a certain number of times before passing through the House of Commons." 
Of these and other conventions, Dicey said: "they are none of them "laws" in the true sense of that word, for if any or all of them were broken, no court would take notice of their violation".  Nevertheless, "the assertion that they have nearly the force of law is not without meaning".  He points out that violating conventions can be expected to entail indirect, even if not direct, legal difficulties.  For example, if a ministry remained in office against the will of the House of Commons, the Commons could create legal havoc by refusing to pass the annual legislation required to maintain the Army and to levy taxation.

Dicey thought that the purpose of conventions was to ensure that effect was given to the will of the country's true (as opposed to legal) sovereign, namely the electorate.  More specifically, most of them pertained to the conduct of the Crown, government ministers and the royal prerogative.  He wrote that "the one essential principle of the constitution is obedience by all persons to the deliberately expressed will of the House of Commons in the first instance, and ultimately to the will of the nation as expressed through Parliament".  Conventions were a means of attaining this end.

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Dicey had an essentially conservative view of the constitution.  He didn't like working men's suffrage, women's suffrage, federalism or PR, though he was ok with referendums (at least when they could be used to stop Irish home rule).  He thought that "the authority of the House of Lords has been gravely diminished, whilst the authority of the House of Commons, or rather of the majority thereof during any one Parliament, has been immensely increased".  He objected to the assignment of judicial functions to non-judges, such as the Education Commissioners, officials under the National Insurance Acts and the Inland Revenue.  He thought that in recent times there had been a decline in respect for the judiciary and for the law itself.  He comes across as slightly cranky, but on one point he was undoubtedly correct, namely the growing dominance of the government and the Prime Minister over the legislature:
It may be maintained with much plausibihty that under the quinquennial Parliament created by the Parliament Act [1911] the British electorate will each five years do little else than elect the party or the Premier by whom the country shall be governed for five years.
In the final analysis, Dicey's work is perceptive but both biased and dated.  He was writing at the high noon of Empire, at a time when universal suffrage was still to be attained, the monarch had significant personal influence in the governance of the country, and the modern bureaucratic state was still in its infancy.  His work is lucid (in spite of certain longeurs) and was no doubt accurate enough for its time.  It is a pity that no contemporary constitutional lawyer has yet produced a work of the same enduring influence and stature.