Posts | Judicial Power Project

John Finnis | Judicial Usurpation and Human Rights

8 Mar 2018 | Human Rights and Political Wrongs

Human Rights and Political Wrongs gives us an unrivalled explanatory checklist of the ways in which the European Court of Human Rights (and so any court that takes its cue from the ECtHR) has expanded the power of judges to declare that laws adopted in a civilized,...

Lord Phillips | Strasbourg Overreach and ECHR Membership

7 Mar 2018 | Human Rights and Political Wrongs

In this book Sir Noel Malcolm advances three propositions. The first is that there is no moral or philosophical basis for human rights; they are essentially political. The second is that the jurisprudence of the Strasbourg Court has been unsatisfactory. The third is...

Baroness O’Neill | The Importance of Justifying Rights

6 Mar 2018 | Human Rights and Political Wrongs

Noel Malcolm is surely right both that human rights standards are important, and that accounts of human rights are currently in some trouble. I think that he is also right that some of these troubles have been brought about not by those who are hostile to or who...

Does Political Criticism Of Judges Damage Judicial Independence?

2 Mar 2018 | Judicial Review and Judicial Independence

In a new paper for Policy Exchange’s Judicial Power Project the Honourable Dyson Heydon AC QC, former Justice of the High Court of Australia, asks Does Political Criticism of Judges Damage Judicial Independence? In the paper, Mr Heydon challenges the conventional...

Enclaves and Exclaves: Limits and exceptions to the doctrine of judicial review

1 Mar 2018 | Judicial Review and Judicial Independence

The Honourable Dyson Heydon AC QC, former Justice of the High Court of Australia and one of the common-law world’s foremost figures, considered the rise of judicial review around the world in an event at Policy Exchange. Heydon warned that the phenomenon of rising...

Judicial Power Project submits evidence to Joint Committee on Human Rights inquiry

26 Feb 2018 | News

Representatives of Policy Exchange’s Judicial Power Project have submitted written evidence to the inquiry by Parliament’s Joint Committee on Human Rights, Human Rights: Attitudes to Enforcement. The evidence was complied by Professor Richard Ekins, the...

Anthony Speaight | Data Retention, National Security and the ECJ: The Continuing Saga

6 Feb 2018 | Posts

The latest judgment in the saga of data retention provides further evidence of the problems and uncertainties created by the European Court of Justice. First a recap on the story so far. Since the dawn of telecommunications the companies involved have been recording...

Human Rights and Political Wrongs: A new approach to Human Rights law

12 Dec 2017 | Human Rights and Political Wrongs, Publications

In Human Rights and Political Wrongs, one of the UK’s most eminent historians of ideas offers a powerful critique of the existing system of human rights law, and an original analysis of the fundamental principles on which any such law should be based. As Noel Malcolm...

Mikolaj Barczentewicz: Latest Supreme Court judgment shows why the EU Charter must be axed

19 Oct 2017 | Posts

On 18 October, the Supreme Court decided in Benkharbouche to uphold a judgment of the Court of Appeal ordering disapplication of some provisions of the State Immunity Act 1978 because of their incompatibility with the EU Charter of Fundamental Rights. The Court also...

Rebecca Lowe: Brexit Committee questions Ekins and Laws on legal and constitutional aspects

16 Oct 2017 | Brexit and Judicial Power, Posts

Click here to watch footage of the session. Everyone has questions about Brexit. But perhaps the most significant are those being asked by the House of Commons’ Exiting the EU Committee, which, on Wednesday, held its first hearing of this parliament. The committee’s...

Richard Ekins & Graham Gee: Will the UK’s new senior judge change the Supreme Court?

8 Oct 2017 | Posts

The Supreme Court is changing. Three new Justices are taking office, including Lady Black, who is only the second woman to serve on the UK’s highest court. The first, Lady Hale, was this week officially sworn in as President of the Supreme Court, making her the UK’s...

Christopher Forsyth: The Arms Trade and the Principles of Judicial Review

30 Jul 2017 | Posts

The arms trade is very controversial. To some, it is inherently wicked and the UK should have no part of it. To others, the supply of arms to the UK’s allies and strategic partners buttresses stability in the world and boosts the UK’s national security (apart from its...

Richard Ekins: The Charter of Fundamental Rights gives judges too much power, and is bad for accountable government

22 Jul 2017 | Posts

The Labour Party is threatening to vote against the European Union (Withdrawal) Bill. The Bill aims to secure legal continuity by transposing EU law into domestic law. Section 5(4) of the Bill carves out an exception to this by providing that the Charter of...

Richard Ekins: Only Parliament can decide the law on assisted dying

22 Jul 2017 | Posts

The question of whether assisted suicide should be legalised is back before the courts. The High Court this week is being invited to declare that the Suicide Act 1961, which prohibits assisted suicide, is incompatible with Article 8 of the European Convention on Human...

Gunnar Beck: Beware of Germany’s proposal for a new EU-UK transnational court

23 Jun 2017 | Brexit and Judicial Power, Posts

In an interview with Germany’s leading daily Die Welt on 18 June 2017, German foreign minister Sigmar Gabriel appeared to signal the EU might be willing to relax some of its more extravagant demands in the Brexit negotiations. So far the EU Commission has insisted...

Gunnar Beck: EU citizens’ rights after Brexit: The EU’s extravagant demands for extra-territorial jurisdiction by the CJEU and reverse discrimination

18 Jun 2017 | Brexit and Judicial Power, Posts, Publications: Brexit and Judicial Power

Download pdf The tremors caused by the general election are still working their way through the political system. The implications for the nature of the UK’s future relationship with the EU have been the subject of much speculation. Before too long, however, the...

Gunnar Beck: The European Court of Justice is not an impartial court and has no role to play in post-Brexit EU-UK relations

7 May 2017 | Brexit and Judicial Power, Posts

Leading authority on EU Law, Dr Gunnar Beck (SOAS), writes for Policy Exchange’s Judicial Power Project to explain why, as a matter of law, Britain can leave the EU without any liability for any allegedly outstanding sums under the EU budget. Dr Beck...

Daniel Greenberg: Judicial Ignorance of the Parliamentary Process: Implications for Statutory Interpretation

27 Mar 2017 | Posts, Publications, Publications: Critiquing Judicial Power

Judges do not understand enough about the parliamentary process to be able to make sense of many of the materials they are required to handle, including the text of Acts of Parliament and subordinate legislation. The starting point for the paper is the increasing...

Launch of the Admin Law Blog

1 Mar 2017 | Posts

We are happy to welcome the Admin Law Blog and wish it every success. Here is the announcement: The Admin Law Blog is a forum for the discussion of ideas and developments of interest to scholars of administrative law across the common law world. It aims to connect...

Christopher Forsyth: Questioning the Legal Establishment

22 Feb 2017 | Posts

“greater assertiveness overall is consistent with the less deferential approach towards authority taken by today’s judges, who grew to maturity in the intellectual climate of the Sixties and Seventies and who therefore feel less hidebound by tradition than their...

Farrah Ahmed: Strategy and Subterfuge? Assessing the ‘New’ Judicial Power

2 Feb 2017 | ALBA Papers on Judicial Activism, Posts, Publications: ALBA Papers on Judicial Activism

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”. In his new paper, Richard Ekins offers an ambitious and wide-ranging narrative of judicial power. He argues that a ‘new understanding’ of judicial power is ascendant. He seeks to...

Richard Ekins: The Dynamics of Judicial Power

1 Feb 2017 | ALBA Papers on Judicial Activism, Posts, Publications: ALBA Papers on Judicial Activism

Judicial power in the new UK constitution is on the rise. This is hardly a remarkable claim: Lord Neuberger and Lady Hale, for example, each take the expansion of judicial power to be an undeniable feature of the change over time in our governing arrangements. In a...

Miller Supreme Court Judgment: Expert Reactions

25 Jan 2017 | Posts

Editor’s Note: Policy Exchange’s Judicial Power Project invited leading academics and practitioners to offer short comments on the Supreme Court’s decision on Article 50 in R(Miller and Dos Santos) v Secretary of State for Exiting the EU. We sought contributions from...

John Finnis: The Miller Majority: Reliant on European Perspectives and Counsel’s Failings

25 Jan 2017 | Posts

1. The European Communities Act 1972 was visibly crafted in every detail for a precise political-constitutional purpose, ignored by the Miller majority. The Act was to enable the UK to join the Communities – if and when the Government ratified the Accession Treaty –...

Supreme Court has ‘fumbled the law’

24 Jan 2017 | Posts

This is a very disappointing decision which is not justified by long-standing legal principle. The claim should have failed. It is encouraging that at least some Justices saw through the claimant’s strained legal arguments. The High Court mishandled the relevant law,...

Anthony Speaight QC: Charter reach extended, national security hampered, EU competence exceeded

11 Jan 2017 | Posts

On 21st December 2016 the Court of Justice of the EU (CJEU) delivered judgment on the joined cases of Tele2 Sverige from Sweden and the Davis/Watson reference from the UK. The case was discussed yesterday on this site by Dr Gunnar Beck. My own view is that the CJEU’s...

Gunnar Beck: The CJEU Ruling in Tele2 Sverige: Why National Security Should Not Override the Fundamental Right to Data Protection

10 Jan 2017 | Posts

The EU Charter of Fundamental Rights precludes the “general and indiscriminate retention of traffic data and location data” and “the Member States may not impose a general obligation to retain data on providers of electronic communications services.” This is clear...

Mikołaj Barczentewicz: The Core Issue in Miller: The Relevance of Section 1 of the 1972 Act

4 Jan 2017 | Brexit and Judicial Power, Posts, Publications, Publications: Brexit and Judicial Power

Download paper The legal controversy in the Miller case may now be distilled in the following way. The government argues that it has a general power to withdraw from treaties, which it certainly does. The claimants argue that the executive does not have a power to...

What the JCHR Gets Wrong about Fundamental Rights

19 Dec 2016 | Posts

Download pdf Gunnar Beck, 1 Essex Court, former advisor to the European Scrutiny Committee of the House of Commons Richard Ekins, Associate Professor, University of Oxford, Head of the Judicial Power Project John Finnis, Professor Emeritus in the University of Oxford,...

Anthony Speaight: Activism in Luxembourg: Another Look at the CJEU’s Record

16 Dec 2016 | ALBA Papers on Judicial Activism, Posts

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”. A pdf version of this post can be found here. Maya Lester, firstly, accuses Leave campaigners of populist attacks on the Luxembourg Court; secondly, is unsure what critics mean by...