Lord Neuberger discusses work of the Supreme Court and addresses constitution criticism

He listed the functions of the court as clarifying, correcting, modernising and reconciling the law and went on to discuss the recent case of Jogee – which corrected a misstep in the law from 1984.

Lord Neuberger suggested that the older case of R v R, concerning marital rape, was an example “of the law not being so much corrected as brought up to date.”

He went on to discuss the tension between common law and statute, saying: “The notion that the law should remain ossified until the legislature choose to step in seems wholly out of keeping with the United Kingdom’s approach to law and to constitutional issues. That approach has been distinguished by a flexibility and pragmatism which is very different from countries with a civilian law system based on detailed codes, which leave the judges with no law-making capacity.”

The Supreme Court president also defended judge-made law from arguments that judges lack the “democratic legitimacy” to make law, referring to the lack of “absolute concentration” of power in the UK’s democratic system. He added judicial power is checked by the fact Parliament can legislate where it dislikes judge-made law.

Lord Neuberger also addressed recent criticism he received from some quarters for suggesting the UK does not have a constitution.

Addressing his critics, he said: “The short answer to that point is, as it is with so many arguments, that it depends what you mean by a constitution. On any view, the UK does not have a coherent or embedded constitution; it has some constitutional conventions and some quasi-constitutional statutes, and they are conventions and statutes which can be changed or repealed by Parliament. People often refer to Magna Carta and the 1688/9 Bill of Rights as being part of our constitution, but, over the years, almost all the provisions of Magna Carta have been repealed and all the provisions of the Bill of Rights have been repealed or amended, by a simple majority in Parliament.”