The Provocative President of the Supreme Court

1st March 2016

A couple of years ago, the President of the Supreme Court was being provocative about the constitution:

“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.”

(Full lecture here; discussion at Professor Mark Elliott’s site here.)

It was a playful statement, plainly intended to stimulate reflection and reaction.  He was not even putting forward his own view – “it may be said with considerable force” implies that he is offering a view up for discussion.

In essence, the President was trolling us – in the proper sense of that much-abused word.

I think the President has a point – it is difficult to define what is meant by the UK having a “constitution”.  Even “parliamentary sovereignty” as a principle is not clear, despite the Diceyan orthodoxy.

Of course, it is possible to provide a (merely) descriptive answer to the question “How is the UK constituted?”.

But beyond that, the lack of the constitution being codified means the “British Constitution” is difficult to define, as opposed to describe.

Here the President – knowingly – is setting out a view point contrary to received wisdom.  There would be many lawyers – and law students – who would rush to contradict him, saying “how stupid to say there is no constitution”.  But the President is wiser than those people would realise.

The President should be congratulated for provoking debate on this.

(The pretext for this post is a piece here which took the tweets I sent about this a few days ago to mean (incorrectly) that I was having swipes at the President’s “apparent lack of constitutional law knowledge” and that I was intending to “not be very nice” about him.  This false interpretation could only mean my tweets were not sufficiently clear, and so I thought it would be useful to set out my views more fully.)

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3 thoughts on “The Provocative President of the Supreme Court”

  1. I got a O level British Constitution (grade B) in 1982. Does this mean my qualification is now useless?

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