The UK Supreme Court and the British Constitution

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I recently contributed the foreword to this year’s volume of the United Kingdom Supreme Court Annual Review. In my foreword, I address what I consider to be a significant new wave of constitutional jurisprudence emerging from the Supreme Court, including such judgments as R (HS2 Action Alliance) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, Osborn v Parole Board [2013] UKSC 61, [2014] AC 1115, Kennedy v Charity Commission [2014] UKSC 20, [2014] 2 WLR 808 and R (Evans) v Attorney-General [2015] UKSC 21, [2015] 2 WLR 813.

In doing so, I respond to a paper contributed to the Review by the President of the Supreme Court, Lord Neuberger, in which he asserts that the UK “has no constitution”, the implication being that the doctrine of parliamentary sovereignty precludes the existence of a constitution properly so-called. In the paper, I argue that that view is incorrect, and can be shown to be so by reference to the recent jurisprudence of the UK Supreme Court — including, paradoxically, cases in which Lord Neuberger played an instrumental role. In particular, I argue that the Court is in the process of fashioning a jurisprudence which both affirms the existence of a UK constitution (its “unwritten” character notwithstanding) and suggests that parliamentary sovereignty, far from casting doubt upon the constitution’s very existence, is both accommodated within and shaped by it.

Such judicial thinking is particularly evident in recent cases — including some of those mentioned above — that re-characterise the nature of the interfaces that exist between our national legal system and the European institutions with which the UK is (at least for the time being) associated. I go on to argue that the thread that runs through this line of case-law is that it conceives of the domestic constitution in relatively rich terms, meaning that it tells us far more about that constitution than about the European influences that operate upon it, and that the significance of this case-law thus transcends circumstances in which such influences are germane.

A copy of my paper can be accessed via SSRN.