Albert Venn Dicey and the Modern UK Constitution - Essay Example

Albert Venn Dicey & the Modern UK Constitution Number Department Introduction The rule of law in Britain has immensely benefited from Albert Venn Dicey (4th February 1835- 7th April 1922). Dicey was a British jurist and a constitutional theorist, for which he is well known for his work, An Introduction to the Study of the Law of Constitution, dated 1885. A graduate of Balliol College in Oxford, Dicey would proceed to become one of the chief constitutional scholars of his time and Oxford’s Vinerian Professor of the English Law. Though the phrase rule of law dates back to the 17th century, Dicey played a pivotal role in popularising it. Thus, the immense contributions that Dicey are far reaching and significant, as shall be seen forthwith. First and on a lighter note, although the term rule of law dates back to ancient civilizations such as ancient China, India, Greece, Mesopotamia and Rome, yet Dicey is known to have played the most pivotal role in popularising it. As a matter of fact, Dicey is the first person to have enunciated the modern description and definition of the rule of law. It is nevertheless important to recon with the fact that the idea of the rule of law is traceable far back to Aristotle, when he observed that it is far better and more superior to have a king who ruled by the law, in lieu of a king who ruled by discretion. Nevertheless, it is Dicey who provided the logical foundation upon which the modern idea of the rule of law is premised. In his 1885 book An Introduction to the Study of the Law of Constitution which is often and simply referred to as Law of the Constitution contended cogently and successfully that: all people are equal before the law; no one is punishable unless he has clearly breached the law; and that there is no set of laws whose authority exceed that of the courts. According to Anderson1, the magnitude of the first of the three postulations above is its allowance and recognition of the civil rights and freedoms and justice for all in the United Kingdom (UK). Civil rights and freedoms and justice for all begin immediately all people are declared equal before the law. To envision a legal postulation contrary to this is to court a system that is awash with impunity, sectarianism, class antagonism and injustice. This is because, equality before the law deals with the dynamics that stem from socio-economic differences, race and different religious and ideological affiliations. The second proposition that Dicey advanced is relevant to the constitution of the UK since it paves way for the process of proper litigation. Merely, punishment is the exclusion or the dereliction of human rights and freedoms that are enshrined in the Bill of Rights. The import of this is that the state has no authority to remove these rights and freedoms from any of its citizen, without the citizen having committed a crime and the state having established the crime through police investigation and subjecting the citizen to a fair trial. In light of the proposal that Dicey makes in respect to the first two principles, he makes emphasis on personal freedom from arbitrary detention, apprehension and other forms of state-sanctioned punitive acts that may be leveled towards an individual. Dicey divulges that all socio-economic and socio-cultural classes in the United Kingdom were equally subject to the ordinary laws of the land which were being administered by ordinary courts. Waldron2 contends that Dicey would continue that in the same respect, the public and private servants, the rich capital owner, the poor and the middle income earner were to be taken as equally and individually liable for a crime or a tort. However, it is expedient to take stock of the fact that by this, Dicey did not mean to mean equality of duties and rights. For instance, an unpaid tax is in every way, a debt that is due to the state. In this regard, the income-tax department possesses the power to recover this debt, unlike private creditors. As a matter of fact, the first two propositions that Dicey and Raina3 advance as being relevant to the constitution have become the pillars of the rule of law, not just in Britain, but also to an international system. These two legal principles have been extensively incorporated to the point that they have become the litmus tests for real democracies. Democracies fully respect the provisions in the Bill of Rights and subject defendants to the due process, right from the point of apprehension, to the point of conviction or acquittal. On the contrary, despotic regimes do not only withdraw these rights from its citizens, but the withdrawal of these rights also becomes the identity of totalitarianism. The input that Dicey made is still relevant to the rule of law in the modern day United Kingdom, as touching both the law of tort and criminal law. Dicey maintained that the Rule of Law readily demands that payments of compensation are made in certain circumstances where someone has been harmed or injured by the change in law. To this effect, Dicey charges that discretionary power that is exercised by the judge or the panel of judges must not be arbitrary power or exercised arbitrarily. That Dicey intends the two principles to be taken seriously, is a matter that is underscored by him using the very principles to define the rule of law. To Dicey, the rule of law is the absolute supremacy and predominance of regular law, in contrast to the influence of arbitrary power- with this supremacy or predominance removing the arbitrariness or the prerogative to wide discretionary authority, on the government’s part. Dicey continues with another alternative to this definition, by qualifying the rule of law as the equal subjecting of all classes to ordinary laws of the land that ordinary courts administer, or equality before the law. The import of the qualification that it rules out chances for arbitrariness which in turn pave way for selective or subjective application of the law. In this effect, the determination of the verdict should be premised upon the Constitution of the UK, statutes and case laws that have made in the United Kingdom. The same observation remains of critical importance since it portrays the subjects and citizens of the United Kingdom as equals, before the law, regardless of their statuses, colour, race, descent, social standing and class, creed, religious conviction or ideological persuasion. This postulation that Dicey advanced is seen to have been carried forth to the modern day UK Constitution since the concept of impartiality of the law is one of the most sacrosanct aspects in the dispensation of justice. During all legal procedures, whether these procedures touch on tort’s law, or are of criminal nature, the law must remain blind to colour, race, descent, social standing and class, creed, religious conviction or ideological persuasion or any biological or social characteristics that may mark an individual. In another wavelength, Walters4 observes that Dicey is known to have played a pivotal role in having the constitution of United Kingdom of Great Britain and Northern Ireland maintain its unwritten streak. Dicey supported unwritten constitution, referring to it as a judge-made constitution, in the then ensuing debate on the concept of the rule of law and Parliamentary Supremacy. Dicey herein referred to the unwritten constitution as superior to the written one which had been adopted by France and the United States. In light of the above, Harris5 discusses Dicey as having argued that the approach known as legal precedent which was used to protect individual rights was by its very nature a creation of an inseparable connection between the rights that are to be enforced and the means of enforcing a right. Conversely, this is to be said that by finding the legal decisions that enunciate a right, one also finds the legal decisions which describe how a said right is supposed to be enforced. In contrast, Dicey believed that the approach of proclaiming rights in a constitutional document had a tendency of ignoring the necessities for the provision of adequate remedies by which these rights that they proclaimed may be enforced. Cartier6 divulges that to underscore his statement, Dicey uses the French Constitution of 1791 which did well to declare the liberty of the press, the liberty of conscience, the right to public assembly and the responsibility of government officials, yet there was no period in mankind’s recorded annals when each and all of these rights or liberties were so insecure that one may almost speak of them as nonexistent in the French Revolution. It is arguments such as these that emboldened the ideas of likeminded individuals to have an unwritten constitution for the UK. In the same vein, the vestiges of unwritten constitution which Dicey had proposed are seen in the passing of the Criminal justice Act of 1994 which allows for the refusal to answer questions that are to be used as evidence against a given defendant. At the same time, Dicey’s views played a critical role in the maintenance of parliamentary supremacy. This is clearly seen in the fact that in his Law of the Constitution, Dicey argued that Parliament should have, and had the right to pass such laws that it willed to (pass). It is pointed by reputable scholars such as Tamanaha and Brian7 that the concept of parliamentary supremacy may have been sired by Thomas Hobbes’ political philosophy before it was subsequently picked up and developed by Albert Venn Dicey and Sir William Blackstone. In this regard, Dicey continued that parliament had the right to make and unmake any law, and that no one ought to be recognised by the law of Great Britain as having the right to set aside, bypass or override the legislation that this very parliament has made. Stewart8 also explains that by this parliament, Dicey meant a parliamentary system that consisted of the King, the House of Commons, and the House of Lords, since at this time these are the very elements that constituted the British parliament. The rationale that Dicey advanced to this effect is that laws that passed through an act of Parliament were characteristically subject to intense scrutiny. In turn, this intense scrutiny would facilitate the passing of only good laws in Parliament. On the converse, Dicey deemed the approach of Constitutional Supremacy as less satisfactory. To lend credence to his postulation, Dicey pointed out that Constitutional Supremacy often did, and therefore could result in bad laws that were either avoided by the courts in obscure judgements, or too fixed. To further underscore his position, Ranjan9 points out that Dicey re-wrote the introduction to the eighth edition of his book, with this introductory bit mainly dealing with what he believed to be troubling the development of the British constitutional history. Particularly, the government that was in power in 1911 and under the tutelage of Herbert Asquith had forced through an act titled, The Parliament Act, 1911. This act had effectively stripped the House of Lords of its ability to block legislation which the House of Commons had passed. The effect of the change divulged upon above was to immensely increase the House of Common’s share of sovereignty which in the British system, was being enjoyed among the King, the House of Lords and the House of Commons. Given that Dicey’s reasons for arguing in favour of the British system which he referred to as the judge-made constitutional system as being superior to the French and American systems was based on the intensity of scrutiny which bills would be subjected to, Dicey would treat any development which weakened the scrutinising ability and role of either houses as a point of serious concern. Dicey’s reasons and debates therefore played a critical reason and added to the voices that called for the adoption of the British Parliamentary system, in lieu of the system that France and America had adopted. Particularly, even Gross10 consents to the fact that one can see that the Great Britain has become fully parliamentary, in the manner in which it passes laws. In fact, many argue that Britain has become ultra-parliamentary to the extent that the office of the Prime Minister almost became dictatorial in nature. By this, it is not meant that the office of the Prime Minister is caught in the morass of unconstitutional and unethical behaviour, but that this office now wields more power and influence over that of its party’s individual Members of Parliament. In this effect, the dissent of the Members of parliament may not matter against that of the office of the Prime Minister. Nonetheless, just as Dicey proposed, bills are often introduced in parliament in their first visible form for public scrutiny before they take their final form. From this juncture, they are passed mostly in a period of days before they are sent to the Upper House which in Britain, is known as the House of Lord. From this point, the bill undergoes the rubber stamp passage before it is taken for the royal accent. It is from this juncture that the bill becomes law. Established law scholars such as Glinavos11 wax poignant that the only pitfall with this system of Parliamentary Supremacy is that by locking out the role of the courts in lawmaking (as it attempted to install Parliamentary Supremacy), it fully emasculated the role of the courts from participating in this function. Because of this, as parliament continues to reign supreme in legislation, the courts remain unable to annul bad laws which are passed through an act of parliament. The real risk of the matter at hand is substandard laws being passed. For instance, at the moment, parliament mainly refers to the House of Commons. Because of the powers that Dicey and Blackstone described as being relevant to the Westminster System, this parliament does not have legal restrictions on this subject matter, over which it may intend to legislate. In respect to this, parliament usually assumes the power to attenuate the scope in which civil liberties may be recognised, or to extinguish these rights altogether, whenever it becomes clear that these rights are coming into sharp conflict with the interests of the government. The highhanded nature of the Parliamentary Supremacy is underscored in the development immediately above. The same mishap is also exemplified by the fact that the majority in the United Kingdom have over time come to believe that civil liberties and rights are far much better protected in several legal systems and constitutions, than is the case with the Great Britain. In respect to the immediately foregoing, instances where civil rights are seen to be compromised by the British Government are: intimidation and censorship acts against broadcasters and journalists; compromising of the rights of the immigrants; invasion of the individual rights to privacy; the curtailing of basic protection for those who have been apprehended for suspected stint/s with the Irish Republican Army; and the denial of access to conventional public places, with the intention of carrying out protests. The government is in turn carrying out these acts that are in total contravention of human rights and civil liberties acts, following the passage of laws allowing for this, through acts of parliament. The restriction of access to conventional public places is a matter that was most recently exemplified by the manner in which the United Kingdom tackled Occupy Wall Street Protests. In Belfast for instance, the police rounded up participants on 14th October, 2012. This is seen as a contravention of the provisions of civil rights, since the Bill of Rights provide for the right to mass action. This development therefore readily underscores the magnitude of constitutional problems that may be brought about by an all potentate parliament. Again, the gravity of this development that ensues from the concept of parliamentary supremacy which has the vulnerability to turn into a dictatorial outfit is felt in the failure to uphold the very principles of the rule of law that Dicey proposed, advanced and clamoured for. For instance, by the government curtailing basic protections for those who have been apprehended and detained merely for being suspected of involvement with the Irish Republican Army. This becomes a serious and direct affront to the second principle of the rule of law, wherein Dicey argued that no one should be punished without the determination of a crime having been committed by the same person. By extension, this amounts to the contravention of the first principle of the rule of law since it amounts to the wrongful and unlawful withdrawal of individual rights and freedoms and civil liberty. Conclusion In respect to the foregoing, it is clear that Dicey is an epitome of statesmen who have constructively contributed to the rule of law in the UK. That the UK and the entire world are seriously indebted to Dicey is a matter that is clearly underscored by the near global adoption and recognition of the two principles- everyone being equal before the law and everyone being absolvable from punishment unless there is a clear breach of the law. These form the very foundations of democracies- whether such democracies are parliamentary or presidential systems, notwithstanding. Were he alive today, Dicey would have taken great pride on seeing the manner in which his first two principles of the rule of law have influenced political developments, universally, over the last century. It certainly would also be interesting to hear how Dicey would defend his third principle on the rule of law (the proposition that there are no, or there are not to be, any set of laws that are to supersede the courts) and other aspects of the UK’s parliamentary system and unwritten constitution which he had proposed. References Anderson, J. R. “A dicey situation.” [1999] 35 TNLN 2: 74. Cartier, G. “Administrative Discretion and the Spirit of Legality: From Theory to Practice.” [2009] 24 CJL & S 3: 313-335. Dicey, A. V. & Raina, P. K. “General Characteristics of English Constitutionalism.” [2009] IAP: 75. Glinavos, I. “Rule of Law Promotion and Development: A Search for Meaning.” [2009] CUP: 122. Gross, O. “Stability and Flexibility: A Dicey Business Global Anti-Terrorism Law and Policy.” [2005] CUP: 37. Harris, P. “An introduction to Law.” [2007] CUP: 111. Ranjan, V. “Rule of Law and Modern Administrative Law.” [2007] IITLS: 66. Stewart, I. M. “Men of Class: Aristotle, Montesquieu and Dicey on 'Separation of Powers' and 'the Rule of Law'. [2004] 4 MLJ 2: 187-223. Tamanaha, Z. & Brian, Z. “On the Rule of Law: History, Politics & Theory.” [2004] CUP: 125. Waldron, J. “The Hamlyn Lectures 2011: The Rule of Law and the Measure of Property.” [2012] 1 NYUSL: PLRP 1: 11-47. Walters, M. D. “Dicey on Writing the Law of the Constitution.” [2012] 32 OJLS 1: 21-49. Read More