Albert Venn Dicey died at his home on Banbury Road in Oxford on 7 April 1922, at the age of 87. Three days later, he was buried at St Sepulchre’s Cemetery, off Walton Street (see photograph at p. 108). His wife of 50 years, Elinor, survived him by 19 months and is buried alongside him.

Almost 100 years later, one of us (a student of the conflict of laws) ventured to the Cemetery in search of Dicey’s resting place. The site has been carefully tended in recent years by volunteers, but many of the gravestones understandably show signs of age. In Dicey’s case, this is something of a metaphor, for his reputation as a legal scholar and political thinker has encountered heavy weather in recent times. Dicey, no doubt, would have accepted some of this commentary as fair – as an individual, he was conscious of his own fallibilities and not averse to acts of self-criticism. In some part, however, he has been disadvantaged by a modern inclination to pass judgement according to contemporary facilities, knowledge, and standards, and a tendency to highlight failings in the midst of achievements. As editors, we are in no doubt that the dedication to Dicey as having been ‘honoured and loved as a great teacher and a true friend’ was truly deserved. The honest and earnest dedication with which he approached his life’s work shines from the page, and his two most important works on The Law of the Constitution and The Conflict of Laws live on as testaments to his academic endeavour.

That visit prompted the idea that the centenary of Dicey’s death ought to be marked by an event in Oxford, where he had studied (at Balliol College) and spent much of his life (as a Fellow of Trinity College and, later, as Vinerian Professor of English Law and a Fellow of All Souls College).

This contribution explores A. V. Dicey's political thought from a literary perspective, exploring his strong interest in the poetry and political ideals of William Wordsworth. We will approach Wordsworth through Dicey, and Dicey through Wordsworth, in order to address two questions: first, why did Dicey turn to Wordsworth and what core political principles lie at the heart of that attraction? Second, why poetry? What can a poet do with politics that others cannot?

Dicey himself draws links between two periods and corresponding works of Wordsworth that, for him, embody his political ideals as they evolve over time:

Taking our lead from Dicey, then, this contribution will primarily move across and between Wordsworth's ‘Sonnets to Liberty’ of 1802 (published 1807) and his prose essay on ‘The Convention of Cintra’ (1809).

We can begin with one of Wordsworth's most well-known sonnets. In 1802, a brief break in the Napoleonic Wars created by the Peace of Amiens allowed Wordsworth to return to France and to reflect upon his own nation from across the channel.

If you ask anyone who has studied UK constitutional law to name two key fundamental principles of the UK constitution, it is likely that both parliamentary sovereignty and the rule of law will feature in their reply. If pressed for more information, they are equally likely to talk to you about Dicey's account of both of these principles. These accounts continue to shape UK scholarship. Our analysis of events is through the lens of their impact on parliamentary sovereignty and the rule of law. Constitutional change is assessed in terms of whether it is strengthening or weakening the relative importance of these principles.

This contribution is not designed to argue that these two principles are unimportant. Rather, it focuses on other aspects of Dicey's work that have not had the same impact – either because we have forgotten them, or because it appears at first glance that Dicey forgot to discuss them. The first is Dicey's criticism of the development of the party system and how, without check, this may lead to governments instituting and implementing constitutional change made by Parliament that is contrary to the wishes of the electorate. The second is the separation of powers, barely mentioned by Dicey and only latent in his work.

I will argue that failing to take account of these forgotten elements not only undermines the accuracy of our assessment of the UK constitution, but may also threaten the delicate balance of powers needed to provide a normative justification for the UK's predominantly political constitution.

INTRODUCTION

On 28 April 1884, A. V. Dicey gave the first of the lectures which became his best-known work, The Law of the Constitution. He had recently been elected Vinerian Professor of English Law at All Souls College, Oxford, and this first lecture, titled ‘a Public Lecture on the True Nature of (so-called) Constitutional Law’, was delivered on 28 April 1884. As a public lecture, it was addressed to the University at large. The subsequent ‘Six Lectures on some fundamental principles of Constitutional Law’ began on 30 April 18843 and had a more specialist, legal quality. When Dicey wrote to Macmillan & Co. in June 1884 to propose the publication of all seven lectures together, he said it ‘would not be a law book in the strict sense of the term, but would I think have some interest for a wider class than mere lawyers’. So it has proved. The published Lectures Introductory to the Study of the Law of the Constitution were received from the outset not merely as a work of legal education, but as a major contribution to political and constitutional thought.

The two main claims which The Law of the Constitution has on historians of political thought today are its treatment of the idea of sovereignty and its role in developing the concept of the rule of law. The second is the focus of this contribution.

INTRODUCTION

On 28 May 1909, Lord Curzon wrote to A. V. Dicey remarking that he had been ‘seriously distressed’ when Dicey had told him of his intention to resign the Vinerian Professorship at Oxford. He said he understood Dicey's reasons, which were honourable, and reflected his sense of public obligation. Curzon hoped, however, that, ‘as Chancellor of the University at the moment of your retirement’, he might be permitted ‘to send … a brief line of sincere and grateful recognition of the preeminent contribution that [Dicey had] made … to the life, the learning and the public distinction of Oxford’; his ‘name and works’ had ‘shed a lustre upon the University’. On election as Chancellor, Curzon had personally nominated Dicey to receive the degree of D.C.L. honoris causa. The professor stands out in the list of honorands gaining this degree, mainly distinguished politicians and military men, the only other lawyers being the Lord Chancellor and the Lord Chief Justice of England. This is powerful testimony to Dicey's quality and the recognition he had achieved. He was touched by the laudatio given by his colleague Henry Goudy, who, as Professor of Civil Law, had the onerous task of giving a Latin oration for each of the graduands. That for Dicey he gave extempore, such was his knowledge of his colleague and the affection he felt for him. Goudy apostrophised Dicey, not unjustly, as ‘vir eloquentissime, in forma et consuetudine nostrae civitatis versate, nec non Hiberniae domi retinendae acerrime adsertor’.

INTRODUCTION

Climate change is one of the many aspects of biotic impoverishment, which directly weakens human communities through reduced quality of life, environmental injustice and political instability. Because of such important consequences for basic human rights, in recent years there has been a growing number of cases brought before national, regional and international courts that aim to hold States and private entities responsible for their actions and omissions regarding climate change policies. Human rights-based climate litigation aligned with climate objectives uses international and national human rights law to request governments and corporations to reduce their greenhouse gas emissions on the basis that climate change causes significant breaches of international human rights law. However, human rights-based climate litigation also includes those lawsuits not aligned with climate objectives, aimed at opposing green development projects that have a negative impact on human rights. In such lawsuits, even though the plaintiffs are not objecting to climate action being undertaken, they are criticising how such climate-related projects are being implemented.2

At present, several such complaints have been filed before the European Court of Human Rights (ECtHR), seeking redress for climate injustices that have caused serious human rights violations.As of May 2021, there were as many as 112 cases (out of 1,841 cases) relying in whole or in part on human rights revindications. This ‘rights turn’ in climate change litigation aims at regulating climate policies, whereas the international legal regime does not provide for enforcement or accountability tools when States do not meet their emissions reduction obligations.

THE ROLE OF DOMESTIC CONSTITUTIONAL LAW

In a recent tort law case regarding the approval of the extension of a coal mine, the Federal Court of Australia1 decided unanimously – by overturning a judgment of a single judge – that the imposition of a ‘duty of care’ regarding ‘human safety’ has to be rejected in the context of climate change. The Court backed up the claim made by the Minister for the Environment that it ‘is one of core, indeed high, policy-making for the Executive and Parliament involving questions of policy (scientific, economic, social, industrial and political) which are unsuitable for the Judicial branch to resolve in private litigation by reference to the law of torts and potential personal responsibility for indeterminate damages, if harm eventuates in decades to come.’ One might question the relevance of this climate change case in private law when the focus of the following analysis lies in constitutional law. The Australian case, however, perfectly illustrates the effect of the lack of constitutional law concerning climate rights of individuals. Australian constitutional law does not provide a fundamental rights catalogue of its own and was unable to provide a constitutional basis for climate change litigation.

Constitutional law and tort law are just two examples of the possible ways to address climate change in courts.The international human rights perspective seems to be dominant in addressing climate change. Domestic constitutional law and constitutional rights, however, might differ significantly from an international human rights perspective.

INTRODUCTION

Following the ‘rights turn’ in climate change litigation in Europe, several national courts have made it clear that legislation on climate protection can also be reviewed in the light of fundamental rights. In contrast, recent decisions by the Court of Justice of the European Union (CJEU) have rejected similar actions. Prominently, in its decision of 25 March 2021, the CJEU refused to declare the action in the People's Climate Case admissible, and in doing so, also made it clear that direct actions against EU climate change law in principle have no prospect of being successfully contested by individual plaintiffs. ‘Plaumann means Plaumann means Plaumann’ seems to be the unshakable position of the Court regarding the interpretation of individual action possibilities, pointing to the indirect route to the CJEU with an action before a national court and the possibility of referral as a preliminary ruling. Since the Court has essentially not changed its position on standing within the past 60 years, this approach has often been described with a reference to Franz Kafka,creating an image of standing rules before the CJEU as being as insurmountable as the gatekeeper in the parable Der Prozeß. But is this image truly accurate or is there a comprehensive explanation for this restrictive approach?

This chapter takes the opportunity to shed light on the different paths to the CJEU in the EU judicial system for actions that aim to challenge the legality of EU legislation to improve efforts to combat climate change.

INTRODUCTION

People v. Arctic Oil is a full-bench judgment and decision delivered by the Norwegian Supreme Court in December 2020.It was a case where Greenpeace and Nature & Youth (joined by Grandparents’ Climate Movement and Friends of the Earth Norway as interveners) filed an application to quash licences issued by the Norwegian government for petroleum exploration in the Barents Sea during the 23rd Licensing Round (Licensing Decision). The case began its trajectory before the Oslo District Court with a fair bit of publicity – there was an ice sculpture with a ‘112’ inscription found outside the courthouse,signifying Article 112 of the Norwegian Constitution on the right to a healthy environment. Thus, the case was framed by the petitioners as a climate rights case where both rights under the European Convention of Human Rights (ECHR) as well as constitutional rights were in play. The case then went up to the BorgartingCourt of Appeal, and finally to the Supreme Court. The case was decided in favour of the government at all three stages. Aggrieved by the decision, young Norwegians have filed an application before the European Court of Human Rights (ECtHR) on a similar cause of action, focusing on Article 2 (right to life) and Article 8 (right to private family life) of the ECHR.

INTRODUCTION

The issue of climate migration (forced displacement due to climatic events) has long been discussed in academic circles. It became a salient policy issue as early as the 1990s with the publication of the first United Nations Intergovernmental Panel on Climate Change (IPCC) Assessment Report. The report stated that ‘the gravest effects of climate change may be those on human migration as millions will be displaced’. Now, as the climate becomes increasingly volatile and climate change is an even more pressing issue on global policy agendas, the issue of climate migration is rapidly drawing international attention.

There are three categories of climatic events that drive climate migration. The first includes rapid-onset events such as tropical cyclones, severe storms and floods. These events tend to lead to shorter-term displacements, typically within national or regional borders. They overwhelmingly affect vulnerable individuals in lower-income countries, many of whom lack the financial resources to permanently relocate. Many of these individuals return to the site of the event shortly after it occurs, even rebuilding their homes in the disaster zone. The second category of displacement-inducing climatic event is drought and desertification, which can cause shortages of both drinking water and water for irrigation. These phenomena occur over a longer period of time. Their progressive nature tends to also lead to progressive mobility patterns: over time, more and more people from affected regions relocate permanently as their environment becomes increasingly inhospitable.

INTRODUCTION

Over the past decade, climate change litigation has become a powerful tool for climate governance. In attempting to bridge the regulatory gaps in the international legal framework for climate change and the lack of ambition in international negotiations, litigation has emerged as an alternative advocacy mechanism to advance regulatory action through intentional attempts to control or influence the behaviour of governments, corporations and individuals. Cases that received a favourable outcome from courts from a plaintiff's perspective – deemed ‘successful’ – have pushed for more effective climate regulation or implementation of existing commitments. In its Sixth Assessment Report, the IPCC recognised, for the first time (with medium confidence), that climate litigation has influenced the outcome and ambition of climate governance. The IPCC also identified climate litigation as an important avenue for actors to influence climate policy outside of the formal UNFCCC processes.

Government actors are the most common defendants in climate litigation cases globally. UNEP notes that paradigmatic cases filed against governments have claimed that policies or decisions are inconsistent with commitments to reduce GHG emissions. These commitments can be included in constitutions, legislation or general policies. Urgenda Foundation v. Kingdom of the Netherlands was the first case in the world to establish a legal duty on a government to prevent dangerous climate change. In Urgenda, the plaintiffs claimed that the Dutch national greenhouse gas (GHG) policies were insufficient to address national climate mitigation obligations.