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...

Maya Lester: The “Rogue” European Court in the Campaign for Brexit

15 Dec 2016 | ALBA Papers on Judicial Activism, Posts, Publications, Publications: ALBA Papers on Judicial Activism

In the third part of our series on Debating Judicial Power: Papers from the ALBA Summer Conference, Maya Lester QC from Brick Court Chambers writes on ‘The “Rogue” European Court in the Campaign for Brexit’. With debate about judicial activism playing a...

Christopher Forsyth: Who is the ultimate guardian of the constitution?

13 Dec 2016 | ALBA Papers on Judicial Activism, Posts, Publications, Publications: ALBA Papers on Judicial Activism

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”. A pdf version of this post can be found here. 1. Sir John Laws writes, whether on or off the bench, with brilliance and brio. He presents an apparently utterly persuasive account...

Sir John Laws: Judicial Activism

12 Dec 2016 | ALBA Papers on Judicial Activism, Posts, Publications, Publications: ALBA Papers on Judicial Activism

Download John Laws paper Christopher Forsyth reply In the second part of our series on Debating Judicial Power: Papers from the ALBA Summer Conference, Sir John Laws, who served from 1999-2016 as a Lord Justice of Appeal, shares his thoughts on “Judicial Activism”,...

Aileen McHarg: The Devolution Implications of the Miller Decision

6 Dec 2016 | Posts

Brexit and Devolution Given the complexity of the United Kingdom’s system of multi-layered governance, and the intertwining of policy competences across European, UK-wide and devolved levels, the devolved governments and legislatures necessarily have a strong interest...

John Finnis: Brexit and the Balance of Our Constitution

2 Dec 2016 | Posts, Publications, Publications: Brexit and Judicial Power, Publications: Critiquing Judicial Power

Following on from his three Judicial Power Project papers on Miller, Professor John Finnis delivered the Sir Thomas More Lecture at Lincoln’s Inn on ‘Brexit and the Balance of Our Constitution’, on 1 December 2016. The lecture provided powerful...

Timothy Endicott: Parliament and the Prerogative: From the Case of Proclamations to Miller

1 Dec 2016 | Brexit and Judicial Power, Posts, Publications, Publications: Brexit and Judicial Power

The Government’s argument in the Miller case is that triggering Article 50 lies within the power of the Crown to make and unmake international treaties – a power the leading litigant, Gina Miller, has termed ‘this ancient, secretive Royal...

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...