Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

Then can I look perhaps to -- and tie together some general themes. In the United Kingdom, we have an essentially political constitution. That is to say we don't have a written constitution of the kind, for example, contemplated by my Lord, Lord Neuberger in his Lord Rodger memorial lecture, written text which can only be interpreted authoritatively and definitively by our independent judiciary.

Our constitution is shaped by historic and daily practice, and whether or not something is constitutional is primarily determined, we say by Parliament. In our constitution courts do not make or remake the constitution and legitimate judicial law-making, and of course it occurs, but especially in the constitutional sphere, must be interstitial.

Obviously I will not take the court to the Bill of Rights or to Godman-Hales, but if I can give a thumbnail in relation to Godman-Hales, the point with Godman-Hales was that Godman-Hales was the then constitutional orthodoxy. It was orthodox to dispense from the operation of penal statutes. The judges in Godman-Hales, and there was a judicial consensus in favour of the King dispensing power, in favour of Colonel Hales. The revolution, and it was a revolution, was one effected by the convention, by the convention Parliament, and where revolutions occur in our constitutional order, they are the product of the representative institutions.

Historically, the judicial role in the shaping of the constitution has been modest, and judges, as Lord Bingham famously pointed out, did not establish the doctrine of parliamentary sovereignty and they cannot by themselves change it. That is tab 108 of the rule of law. Obviously, speaking extra-judicially, others, clearly members of the court have taken a different view.

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