Everybody in Miller loves Dicey, judging by the publication of counsel’s arguments ahead of next week’s Supreme Court hearing. But it was not always thus and simply quoting more and more of Albert Venn Dicey’s 1885 tome, in any of its editions, on Parliamentary sovereignty is not enough. The challenge in Miller is not what Dicey meant by Parliamentary sovereignty but what is the status of any constitutional doctrine, what is the reason why it is a part of the constitution and how might it change. These are jurisprudential questions.

To enhance enjoyment of Dicey’s forthcoming appearance in the Supreme Court, therefore, I reflect on two largely forgotten critiques of Dicey, then recount the story of his last (and also rarely appreciated) appearance, in a different sense, in our highest court, before drawing attention to a relatively unheralded comment on Dicey and the constitution by someone who is now a Supreme Court Justice. Finally, even if this case is a nightmare for whichever side loses, I give one Dicey-related personal reason why it is a jurisprudential dream come true.

On each of these five points, I leave readers to draw their own conclusions. This is not one of those articles arguing for a particular result in Miller. For the record, I voted to remain in Europe in 1975 and in 2016; if I were Prime Minister I would have been prepared to go straight to Parliament after the 2016 referendum and to have invoked Article 50 as soon as possible thereafter; and I would enjoy a 5-5-1 split in Miller where the swing voter thinks she or he is agreeing or disagreeing with both sides.

Pannick (1985) on Dicey (1885)

David Pannick, now Lord Pannick QC and the leading counsel for Miller, put Albert Venn Dicey in his place at the All Souls-Public Law seminar on the centenary of the publication of Dicey’s An Introduction to the Study of the Laws of the Constitution. He began his comments (1985 Public Law 611-613) by observing that, ‘By 1880, Dicey had reached middle age without conspicuous success in his career’, whether as a barrister, journalist or academic. Pannick considered that, ‘Dicey’s influence is still seen in the widespread belief that comparative civil liberties law has little to teach us, save that we are more fortunate in the scope of our liberties than people who live in countries with constitutional fetters on parliamentary sovereignty. The jurisprudence of the European Commission and Court of Human Rights in Strasbourg shows how misguided such complacency can be.’

This was a little harsh on poor Dicey. At a time when jet-setting was not possible, and despite his own physical frailties, Dicey and James Bryce, a friend from undergraduate days, had in 1870 taken time off from their careers at the Bar to set off on the ultimate constitutional lawyers’ road trip around the USA. It eventually yielded not only Dicey’s classic 1885 book but Bryce’s of 1888 on the American Commonwealth which was influential in the development of the Australian Commonwealth.

Pannick quoted a Dicey hypothetical, which others might think was rather prophetic, of ‘a body of foreign anarchists come to England’ and thought to be ‘engaged in a plot, say, for blowing up the Houses of Parliament’. If the police have suspicion but no proof, what could a minister do? Nothing, according to Dicey. Pannick noted that the law had changed in the intervening hundred years as Parliamentary sovereignty had given ministers powers, ‘But it is a measure of Dicey’s continuing influence that few politicians, even fewer lawyers, and no English court, would analyse the exercise of those powers in terms of their impact on fundamental freedoms.’ It is, however, a measure of the influence over recent decades of David Pannick, as well as of fellow lawyers, European ideals and the Human Rights Act 1998, that some judges are now analysing ministerial powers in just such terms.

Dicey (1893) on Dicey (1885) on acting unconstitutionally

Is Theresa May’s government acting unconstitutionally in seeking to invoke Article 50 without Parliamentary approval? Dicey gave his own response to the accusation in the political furore over Irish Home Rule that he wished to subvert parliamentary sovereignty by introducing the device of a referendum to bind elected politicians:

‘This course, it may be said, is unconstitutional. This word has no terrors for me; it means no more than unusual, and the institution of a Referendum would simply mean the formal acknowledgment of the doctrine which lies at the basis of English democracy – that a law depends at bottom for its enactment on the assent of the nation as represented by the electors.’

This was part of Albert Venn Dicey’s refutation of Parliamentary sovereignty in a book entitled A Leap in the Dark, written just eight years after the first edition of his more famous theoretical work on the constitution. He reissued it in 1913. The alternative title for A Leap in the Dark was Our New Constitution.

So why was Dicey so keen on the referendum that he would use it to challenge his own 1885 doctrine of Parliamentary sovereignty in 1893 and why was he still so het up two decades later that he would, by signing the English version of the Ulster Covenant, threaten even his own belief in the Rule of Law? The year after Dicey’s Introduction, Gladstone had embarked on a long campaign to give Home Rule to Ireland. This was anathema to Dicey. He found it galling that a Prime Minister could command a majority in the Commons and sometimes among the voters in a general election while pursuing such a policy. Dicey thought that those entitled to vote in a referendum on the single issue of Home Rule might act as a check on MPs disregarding the people’s, and Dicey’s, wishes. Another way of putting this is that Dicey was so obsessed with his own view of the merits of a single political issue that he lost touch with his constitutional law and theory.

Dicey in court (1916)

Dicey’s last appearance as a barrister was not until 1916. It was in the Judicial Committee of the House of Lords and was on issues relevant to the Supreme Court in Miller: should an action by the Crown be seen as a matter of the prerogative or as governed by statute? One hundred years ago, of course, the country was at war. The case is In Re A Petition of Right but more of a sense of its subject matter is given by the alternative description of Brighton Shoreham Aerodrome Ltd v The King. As Lord Denning might have put it: the Zeppelins were coming. (Well, they were not coming to Shoreham but the government gave Avory J the impression that they might be.) The aerodrome had been requisitioned. Compensation would be an entitlement if this were a statutory matter but not if it was under the prerogative. The Crown won at first instance and in the Court of Appeal {1915] 3 KB 649. G R Rubin’s book on the saga (Private Property, Government Requisition and the Constitution 1914-1927) gives the impression that the government’s case was entirely without merit except for the context of a war effort that was proving too expensive. The aerodrome company appealed. It took a year for the case to come before a three judge Judicial Committee, time which no doubt helped the government ward off other claims as well as delay any payment to the aerodrome. It brought the company to the brink of closure.

Dicey did not appear below. F E Smith had led for the government as the Solicitor-General at first instance and in the Court of Appeal. Now he was the Attorney-General (before later becoming the Lord Chancellor and the Earl of Birkenhead). Writing to his wife on 24 June 1916, A V Dicey’s delight at F E Smith’s invitation to appear alongside him for the Crown shines through:

‘I was a good deal surprised, really pleased, though in the circumstances a little saddened by the knowledge it was unlikely it would be well for me to argue the case. I thought there was a kindly consideration in the way in which Sir F E Smith enabled me without scruple to accept the brief in spite of my deafness. The case refers to the prerogative of the Crown to take property during war. It is quite in my line, but I don’t know more about it than most lawyers …’

On 8^th July, he wrote to her with news that,

‘I got through a good piece of work this morning. I arranged in order the argument in our House of Lords case. This is the only real service I can give the Attorney-General. I was glad to find I was still able to do the work which at one time I was so accustomed to perform for the Law Officers.’

The Times of 28 July 1916 reported that ‘the Attorney-General, Mr Dicey, KC and Mr G A H Branson’ had been appearing for the Crown. (G A H Branson’s grandson Richard is the well-known entrepreneur.) The Attorney-General announced in court that the Crown was now ‘willing as a matter of grace to grant compensation on certain terms’ for ‘He had come to the conclusion that in the special circumstances the suppliants had some ground for supposing that the Crown had proceeded under the Defence Act, 1842, which provided for compensation’ or to put it less politely, because he thought the Crown might lose.

The Times reported further that, the ‘Attorney-General added that this was the last case in which his friend Mr Dicey, the well-known jurist, would appear, as Mr Dicey, being now 80 years of age, was about to retire from practice at the Bar. Lord Loreburn said that he hoped that Mr Dicey would be spared for many years to enjoy his retirement.’

Sumption (2010) on Dicey and constitutional change

Dicey’s legacy has been spared for a century. It is not only counsel for each side in Miller who hold him still, or now, in high regard. Jonathan Sumption OBE QC, writing in 2010, declared that,

‘… our constitution is not entrenched. It can be amended by a simple majority of both Houses of Parliament or even, if the Parliament Act is invoked, in the House of Commons alone. There is no requirement for an enhanced majority, a referendum, or any other formal step which might provoke serious discussion of the implications. Indeed, those parts of our constitution which are based on practice can be amended without even the formality of Parliamentary sanction, by a mere change of political sentiment. One consequence of this state of affairs is that constitutional change occurs constantly but imperceptibly in Britain, without necessarily being intended by any of the main interests involved. The great Victorian sages Bagehot and Dicey, thought that this was part of the efficiency of the British state. A less self-confident age is not so sure.’

This collection of essays for the Judicial Appointments Commission was entitled Judicial Appointments: Balancing Independence, Accountability and Legitimacy. Lord Sumption, now a Justice of the Supreme Court, continues to refer to A V Dicey as ‘the great constitutional lawyer’ in lectures and continues to use ‘sentiment’ as a favourite word in other lectures, in books eg Chapter 2 of Cursed Kings (2015), in literary reviews, and in court, eg in the opening paragraph in R (on the application of Lord Carlile and others) v Home Secretary 2014 UKSC 60.

One way of approaching the Supreme Court’s hearing is as an exercise in determining whether the referendum represents such a change of political sentiment.

Dicey on inspiration

To end on a personal note of sentiment in its more usual sense, the three accounts of the rule of law best known to law students in the UK are, in my experience, by Dicey, Joseph Raz and Tom Bingham. Balliol College, Oxford, is a common factor in the lives of Dicey, Raz and Bingham. Dicey studied Greats with Benjamin Jowett (later Master of Balliol) as a tutor and seems to have taken his use of the phrase ‘the rule of law’ from Jowett’s unconventional translation of ‘nomon archein’ in Aristotle’s Politics as ‘the rule of the law’, see Stephen Humphreys, Theatre of the Rule of Law; Transnational Legal Intervention in Theory and Practice, 2010, pp91-92 and commentary at footnote 8. Jowett’s translation was eventually published in the same year as Dicey’s Introduction.

Jo Raz tutored me in four (now all Miller-related) subjects in my undergraduate studies at Balliol: Jurisprudence, Constitutional Law, Administrative Law and European Law. In particular, Raz’s essay on the Rule of Law was first published in the 1977 April edition of the Law Quarterly Review just after my Law Moderations in Constitutional Law. Those who have asked me what it was like to study Constitutional Law and European Law with Jo Raz will soon know the answer: it was like next week’s tutorial for the whole country in the Supreme Court.

This is why I began by claiming that the challenge in Miller is not what Dicey meant by Parliamentary sovereignty but what is the status of any constitutional doctrine, what is the reason why it is a part of the constitution and how might it change. These are ultimately jurisprudential questions, variously described as the quest for the rule of recognition or the Grundnorm in our legal system(s). As Dicey wrote of having been tutored by Jowett, it is not the content of what is said but the ‘stirring one up at the right moment and guiding one in the right direction’ which is the hallmark of a great teacher (Rait, Memorials of Albert Venn Dicey, 1925, p27). Likewise, it is not just the result in Miller which is significant, nor how popular reaction thereto is whipped up by partisan media or politicians, but how the arguments in the Supreme Court stir up and guide popular sentiment.

Simon Lee (@paradoxbridge) is Professor of Law and Director of Citizenship & Governance Research at The Open University, Emeritus Professor of Jurisprudence at Queen’s University Belfast, and a Fellow of St Edmund’s College, Cambridge. He was a Brackenbury Scholar at Balliol College, Oxford, and a Harkness Fellow at Yale Law School.

(Suggested citation: S. Lee, ‘Dicey Sentiments’, U.K. Const. L. Blog (29th Nov 2016) (available at https://ukconstitutionallaw.org/))