Video: Criticism and Accountability in Judging

28 Nov 2016 | Posts

Next month the Supreme Court will hear the Government’s appeal in the Miller judgment. The backdrop to that hearing is unusually heated: earlier this month, press and politicians reacted strongly to the High Court’s decision. Retired judges, lawyers and political...

Graham Gee: A Tale of Two Constitutional Duties: Liz Truss, Lady Hale, and Miller

28 Nov 2016 | Posts

A great deal has been written about the High Court’s judgment in Miller, some of it on this site. The importance of Miller, and the intensity of the reactions that the judgment has provoked, can be seen in the separate controversies over Liz Truss and Lady Hale. In...

John Finnis: Two Too Many?

24 Nov 2016 | ALBA Papers on Judicial Activism, Posts, Publications, Publications: ALBA Papers on Judicial Activism, Publications: Critiquing Judicial Power

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”. A pdf version of this post can be found here. These brief marginal comments on Dame Elisabeth Laing’s interesting, important, and enviably readable “shop floor” reflections in her...

Elisabeth Laing: Two Cheers for Judicial Activism

22 Nov 2016 | ALBA Papers on Judicial Activism, Posts, Publications, Publications: ALBA Papers on Judicial Activism

Download Elisabeth Laing paper John Finnis reply Today we launch this series with a paper by High Court judge Dame Elisabeth Laing entitled ‘Two Cheers for Judicial Activism’. The premise of the paper is that ‘there is a thing, which for want of a better label, we can...

Danny Nicol: “Enemies of the people”, judicial independence and free speech

11 Nov 2016 | Posts

Trenchant criticism of judges is nothing new. Britain’s judges have been characterised as enemies of the people on numerous occasions: Taff Vale, Osborn, Roberts v Hopwood, Rookes v Barnard, Bromley v GLC and many other instances.  Yet when Miller attracted the...

Christopher Forsyth: The High Court’s Miller Judgment

8 Nov 2016 | Posts

I. Law not politics   Writing before the ink is dry on the High Court’s judgment in the Brexit judicial review case R (Miller) may be thought foolish. It will be easy to mistake its significance. It is easy too to rush to judgment (as others who should know...

Miller: Expert Reactions

4 Nov 2016 | Posts

Editor’s Note: Policy Exchange’s Judicial Power Project invited a number of leading academics and practitioners to offer very short comments on the High Court’s decision on the process for triggering Article 50 in R(Miller) v Secretary of State for Exiting the...

A bad day for the rule of law

3 Nov 2016 | Posts

The High Court has made a bad mistake – it has wrongly lent its authority to a claim that undermines both democratic self-government and the rule of law. The basic point of this litigation has not been to defend parliamentary democracy.  Rather, the aim has been to...

Simon Lee: First level judging of the first class

1 Nov 2016 | Posts

Simon Lee on the Belfast court’s justified dismissal of the first round of Brexit litigation. In the Northern Ireland High Court on Friday, 28 October, Maguire J gave the first ruling on Brexit litigation. Maguire J rejected the applications of Raymond Cord and...

Derogation in wartime: A response to Lord Pannick

20 Oct 2016 | Posts

Dr Jonathan Morgan from the University of Cambridge offers the following response:                                                                                           Derogation in wartime                                                                         ...

Richard Ekins: What the PM gets right about the Brexit litigation

7 Oct 2016 | Posts

Richard Ekins’ ‘What the PM gets right about the Brexit litigation‘, was first published on the Reaction site on 5 October 2016. The Government’s legal authority to invoke Art 50 is being challenged in the courts. In her speech on Sunday, the Prime...

Mikołaj Barczentewicz: What is the Government really arguing in the Article 50 litigation? A response to Mark Elliott

5 Oct 2016 | Posts

The litigation on the lawfulness of any Government notification of a decision to leave the European Union without specific prior authorisation in an Act of Parliament is of high legal and political significance. It is therefore right that the submissions of the...

Mark Elliott: The Government’s case in the Article 50 litigation: A critique

30 Sep 2016 | Posts

Professor Mark Elliott’s ‘The Government’s case in the Article 50 litigation: A critique’ has also been cross posted to Public Law for Everybody.    Thanks to a court order, the Government’s case — its “detailed grounds of resistance” — in the...

Robert Stevens: The Proper Limits of Judicial Law-Making

30 Sep 2016 | Posts

Editors Note: In this post, Professor Robert Stevens replies to Baroness Hale’s keynote lecture to the Society of Legal Scholars in September 2016 (Baroness Hale’s lecture can be read here, and a video of the lecture viewed here). It is an honour to have been...

Richard Ekins: What the Strasbourg Court has wrought – and what to do about it

28 Sep 2016 | Posts

Richard Ekins’ ‘What the Strasbourg Court has wrought – and what to do about it‘, first published on the Reaction site on 23 September 2016. Professor Ekins is co-author of the Policy Exchange report Clearing the Fog of Law.   For anyone wondering...

Anthony Speaight QC: CJEU takes the meaning of EU citizenship into the unknown

20 Sep 2016 | Posts

Last week’s decision of the Court of Justice of the European Union in Home Secretary v CS marks a new high water mark in the Court’s expansion of the implications of EU citizenship and the role of the EU Charter of Fundamental Rights. It may also raise important...

Panel Discussion of Judicial Power and Brexit

28 Jul 2016 | Brexit and Judicial Power, Posts

On 21 July 2016, Policy Exchange’s Judicial Power Project hosted a panel discussion on Brexit and Judicial Power. Key issues addressed included: what Brexit means for judicial power in the UK constitution, the role of Parliament and the courts in triggering Article 50...

Brexit and Judicial Power

21 Jul 2016 | Posts, Publications, Publications: Brexit and Judicial Power

Professor Richard Ekins publishes a new Judical Power Project report on Brexit’s wide implications for the future of judicial power in our constitution. Read the report...

Chris McCorkindale: The New Powers of the Judiciary in Scotland – Part II

20 Jul 2016 | Posts

i The devolution project which saw legislative and executive power transferred from Westminster to Holyrood and from Whitehall to Victoria Quay has been accompanied by enhanced judicial powers. As they relate to primary legislation in the devolved sphere, these new...

Richard Ekins: Can the courts block Brexit?

1 Jul 2016 | Posts

Not everyone is taking last week’s vote well. There have been calls for a second referendum or for Parliament simply to ignore the result. Whatever one thinks about the outcome of the referendum, these are not sensible suggestions, as I argue elsewhere. They are...

Christopher Forsyth: A change of mind on Bradley

14 Jun 2016 | Posts, Varuhas on Judicial Review and Political Accountability

Editor’s Note: Last week Policy Exchange’s Judicial Power Project published a report by Dr Jason Varuhas on Judicial Capture of Political Accountability. The Project has invited commentators with a range of views to reply to the report. Some might be expected to be...

Farrah Ahmed: Deference to political accountability mechanisms

9 Jun 2016 | Posts, Varuhas on Judicial Review and Political Accountability

Editor’s Note: Earlier this week Policy Exchange’s Judicial Power Project published a report by Dr Jason Varuhas on Judicial Capture of Political Accountability. The Project has invited commentators with a range of views to reply to the report. Some might be expected...

Richard Ekins: A legitimacy crisis in judicial review

8 Jun 2016 | Posts, Varuhas on Judicial Review and Political Accountability

Judicial review of executive action is a vital part of the rule of law. The courts rightly hold ministers and other public bodies to the scope of their lawful powers, insisting on procedural fairness and correcting some obvious abuses of power, but aiming always to...

Carol Harlow: A comment on Judicial Capture of Political Accountability

8 Jun 2016 | Posts, Varuhas on Judicial Review and Political Accountability

Editor’s Note: Earlier this week Policy Exchange’s Judicial Power Project published a report by Dr Jason Varuhas on Judicial Capture of Political Accountability. The Project has invited commentators with a range of views to reply to the report. Some might be expected...

Richard Kirkham: A reply to Judicial Capture of Political Accountability

7 Jun 2016 | Posts, Varuhas on Judicial Review and Political Accountability

Editor’s Note: Earlier this week Policy Exchange’s Judicial Power Project published a report by Dr Jason Varuhas on Judicial Capture of Political Accountability. The Project has invited commentators with a range of views to reply to the report. Some might be expected...

Jason Varuhas: Judicial Capture of Political Accountability

6 Jun 2016 | Posts, Publications: Critiquing Judicial Power, Varuhas on Judicial Review and Political Accountability

In a Policy Exchange report released today I examine the increasing capture of political accountability mechanisms by courts. Institutions such as the Parliamentary Ombudsman are intended to operate in the political sphere, securing government accountability through...

Daniel Greenberg: Human rights and reductio ad Hitlerum

3 Jun 2016 | Posts

This site maintains an interest not only in the substance of human rights and other law, but also in the manner in which it is debated. A good example of how not to discuss human rights is found in an article by Adam Wagner in The Times of Israel / Jewish News...

Simon Lee: From judge-shaming to judiciousness-sharing

31 May 2016 | Posts

Sir Stephen Sedley, possibly the most radical lawyer to have become a judge in the UK, has pointed out that, ‘Left to journalists, commentary on the law and the legal system is sometimes excellent but frequently jejune and agenda-driven’. Joshua Rozenberg, the...

Graham Gee responds to Joshua Rozenberg: There is no shame in debating judicial power

18 May 2016 | Posts, Problematic Cases

Joshua Rozenberg’s ‘A judge-shaming list is bad for justice’, published in The Guardian on 12 May 2016. A judge-shaming list is bad for justice Judges shouldn’t be frightened to set precedents. A list of those that have ‘gone too far’ – including...

Lisa Burton Crawford: The limits of Australian administrative law

16 May 2016 | Posts

In 2008, Michael Taggart famously described Australian administrative law as ‘exceptional’. The description has stuck — and it has a hint of the pejorative. It captures a certain sense of frustration if not disapproval: that Australian administrative law has failed to...