Is Lord Neuberger right to suggest that the UK “has no constitution”?

Delivering the inaugural Freshfields Annual Law Lecture at Cambridge’s Private Law Centre, Lord Neuberger, the President of the UK Supreme Court, reflected on the subject of “The British and Europe”, seeking to situate the present debate about Britain’s relationship with Europe in its historical, political and legal context. I will make no attempt to summarize what he said; the full text of the lecture can be accessed via the Supreme Court’s website. Suffice to say that the general thrust of the argument was that British attitudes to matters European are attributable to a form of exceptionalism that may be built upon myth as much as reality. For instance, said Neuberger, “[T]he idea that English law developed as a self-contained system is quite misconceived.” It followed, he suggested, that concerns about European law constituting an alien influence placing the pristine integrity of domestic law at risk are misplaced.

However, while Neuberger questioned some of the premises upon which British attitudes to Europe are built, he cited the UK’s constitutional architecture as a distinguishing factor that is real, not merely perceived:

I think that it is very significant that the UK has a very different constitutional arrangement from every other European country. Unlike every other European country, we have no written constitution and we have parliamentary sovereignty. Indeed, it may be said with considerable force that we have no constitution as such at all, merely constitutional conventions, and that it is as a consequence of this that we have parliamentary sovereignty. The relatively pragmatic outlook of a system with no written constitution and parliamentary sovereignty involves a very different approach to government from the more principled, but less flexible, system enjoyed by the rest of Europe. But the point goes further than that. The absence of a written constitution and the existence of Parliamentary sovereignty mean that we have no history of the courts overruling Parliament. Over the past thirty years there has been an academic debate sputtering away about whether, in extreme circumstances, the courts could overrule a statute, but it is very much an academic issue – and I hope that it remains so. [Emphasis added]

Neuberger’s assertion that the UK “has no constitution as such at all” is arresting, as is the suggestion that there are “merely constitutional conventions”. It seems unlikely that Neuberger intended to argue that the UK possesses no constitutional laws, given the obvious untenability of such a position. Rather, the juxtaposition of these comments with his reference to parliamentary sovereignty suggests that what Neuberger really means is that the UK possesses no body of constitutional law that occupies a hierarchically distinctive or superior position within the legal order. On this view, the constitutional landscape is a flat one, populated by laws that—whether their subject-matter is constitutional or not—are equal in status.

That Neuberger would advance such a view is surprising, not least because—as I shall explain—it is inconsistent with very recent judgments of his own Court. It is surprising too because it represents an impoverished view of the UK’s constitutional order. Happily, conteseting Neuberger’s view does not require further contribution to the “sputtering” academic debate about whether courts can overrule Acts of Parliament in extreme circumstances (a debate, I note in passing, to which many senior judges—including Neuberger—have contributed in recent years). Rather, it turns upon the subtler, but still important, observation that the sovereignty of Parliament can be accommodated within a constitutional order that knows a hierarchy of norms.

Indeed, two recent judgments of the UK Supreme Court demonstrate precisely this, and sit uncomfortably with arguments advanced in Neuberger’s Cambridge lecture. First, Neuberger suggested that British antipathy towards the European Convention on Human Rights can be attributed, at least in part, to the unusually high profile that it plays in our domestic jurisprudence, so giving at least the impression of the imposition of what might be considered to be “foreign” norms:

The absence of a written UK constitution … [means] that the Convention has much greater prominence in our judicial decisions, than in decisions of judges in countries which have written constitutions. So when a case involving freedom of expression, privacy, the right to marry, or other infringement of alleged civil rights is heard in this country, any decision is likely to be determined by reference to the Convention, as that is where such rights are, at least very often, primarily to be found in the UK legal system. However, such rights are just the sort of rights which are likely to be included in a written constitution. But in Germany, for instance, when it is alleged that such rights have been infringed, the case will be primarily decided by reference to the German Constitution: the Convention does not loom nearly so large in German Federal Court decisions as in our decisions.

It is certainly the case that the Convention, and Strasbourg jurisprudence, have to date played an unusually prominent role in the British courts. Yet the judgment of the Supreme Court last year in Osborn v Parole Board [2013] UKSC 61 demonstrates that the position need not be as Neuberger describes it. In Osborn, the Court placed renewed emphasis upon the doctrine of common-law constitutional rights. As Lord Reed put it, the ECHR

does not … supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the [Human Rights] Act when appropriate.

The approach in Osborn differs markedly from the top-down, ECHR-centric analysis that has characterized much of the UK courts’ jurisprudence over the last decade or so, and which found expression in the “mirror principle” that accorded pride of place to the Convention rights and to the Strasbourg Court’s interpretation of them. Instead, Osborn acknowledges not only the existence, but the fertility, of the UK’s own constitution.

Second, Neuberger argued that the absence of a constitution in the UK affects the way in which we conceive of our relationship with the European Union:

A … consequence of not having a constitution is that one way of fighting off some EU decisions … which is available to many other European judges is not open to us. The point may be graphically illustrated by the decision last week of the German Constitutional Court, the Bundesverfassunsgericht, which was considering the legality of an essential aspect of the European Central Bank’s scheme for supporting the Euro, the so-called outright monetary transactions programme. While the German Constitutional Court has played for time by referring to the CJEU the question whether the programme infringes EU law, it has left open the possibility that it, the German Court, may decide that the programme infringes German law, which would, according to some commentators, throw the future of the Euro into doubt. More centrally for present purposes, the fact that Germany has a Constitution enables a German court to say that German law sometimes trumps EU law. This is an option which is much more rarely, if at all, open to a UK court as we have no constitution to invoke.

Neuberger assumes that the disability (as he sees it) under which British judges labour is attributable to the absence of a domestic constitution. The reality, however, is more complex, and turns upon the terms of the extant constitution. The duty of British courts to apply EU law is imposed by Acts of Parliament. It is therefore possible, as a matter of domestic law, for Parliament to qualify the courts’ duty, so as to give priority in given circumstances to UK law, just as the German Constitution may qualify the effect of EU law within the German legal system. The difference between the two countries, then, is that the German Constitution more obviously offers legal benchmarks against which the propriety of giving domestic effect to EU law may be tested. In contrast, the absence of a written constitution in the UK, coupled with the baldness of the judicial duty apparently imposed by section 2 of the European Communities Act 1972, suggests a paucity, if not an absence, of such benchmarks. Yet that view is challenged by the recent decision of the UK Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3. It suggests that, in determining the relationship between UK and EU law that Parliament is already taken to have ordained via the ECA 1972, our courts may invoke (implicit) constitutional norms and constitutional legislation, the effect of which may be to restrict the capacity of EU law to assume effect within the domestic order. Indeed, Lord Neuberger himself was party to a judgment in the HS2 case in which the following was said:

The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

On this analysis, the ECA 1972, even if regarded as a constitutional statute, might not be taken to authorise the infraction of legislation or values with a greater claim to constitutional fundamentality. This implies, as I have argued in another post, that we are witnessing the emergence—or perhaps, more accurately, the articulation—of a legal system that knows not just constitutional laws and values, but an increasingly subtle ordering of them. And, in turn, this casts doubt upon Neuberger’s assertion that the particularities of British attitudes to Europe can be understood (at least in part) by reference to the absence of a constitution in the UK. To the contrary, the Supreme Court’s own judgments, in cases like Osborn and HS2, point towards not merely the existence, but the richness, of our domestic constitution.