John Dyson Heydon AC QC | Comment

2 Feb 2018 | Judicial Power and the Balance of Our Constitution

John Finnis has made many trenchant points in Judicial Power: Past, Present and Future. The following seeks to highlight what can flow from two of them. One is the danger arising from what he calls “inequality of arms”. This takes place, he argues, where the...

Baroness O’Neill of Bengarve | Comment: Varieties of Judgement

2 Feb 2018 | Judicial Power and the Balance of Our Constitution

Past, Present and Future John Finnis contrasts the temporal perspectives of legislatures, executives, and the judiciaries. As he sees it, legislatures look forward as they seek to work out how a framework of law might be improved; executives address current...

John Finnis | Rejoinder

2 Feb 2018 | Judicial Power and the Balance of Our Constitution

The foregoing responses — one by a scholar-participant in the deliberations of the Upper House of Britain’s Parliament, and four by distinguished judges in the common-law constitutional tradition — all share the Lecture’s aim: to evoke that tradition (initially in its...

John Finnis | Appendix: “Guardians of the Constitution”

2 Feb 2018 | Judicial Power and the Balance of Our Constitution

Here are the main uses of “guardian(s) of the Constitution” in UK-related courts. I asterisk sentences that seem to me fallacious. 1 In Akar v AG Sierra Leone [1970] AC 853 at 872, Lord Guest, dissenting, said: Although the courts are the guardians of the...

John Finnis | Brexit and the Balance of our Constitution

2 Feb 2018 | Judicial Power and the Balance of Our Constitution

The Lord Chief Justice, the Master of the Rolls, and Lord Justice Sales have ruled that the Crown’s prerogative of conducting international relations and making and unmaking treaties does not authorise our Government to notify the European Council, pursuant to Art. 50...

John Finnis | Postscript

2 Feb 2018 | Judicial Power and the Balance of Our Constitution

Brief observations on the final Miller judgment[1] My first thought about Miller[2]: We are leaving the EU just in time; our Supreme Court is going native — reading statutes like courts in European jurisdictions characteristically do, subordinating deliberate wording...

Jon Cruddas MP | Foreword to Judicial Power and the Left

9 Jan 2018 | Judicial Power and the Left, Publications

The retreat towards the law and the continental constitutional separation of powers, and away from democracy and parliamentary sovereignty, have been very powerful tendencies within the left over the past fifty years. This collection of essays exposes this political...

Richard Ekins and Graham Gee | Introduction to Judicial Power and the Left

9 Jan 2018 | Judicial Power and the Left, Publications

The constitutional kaleidoscope has been shaken and politics is in flux. One consequence of this is to bring into clearer focus changing patterns of political and legal thought, some of which have been a long time in the making. One such pattern is the erosion of the...

Carol Harlow | Judicial Power, the Left, and the LSE Tradition

9 Jan 2018 | Judicial Power and the Left, Publications

It is hardly surprising if the attitude of the left — which I shall leave undefined, though I shall concentrate on the Labour Party — towards judicial power is not entirely friendly. Labour has always been a working-class party rooted in trade unionism, and,...

Danny Nicol | The Left, Capitalism, and Judicial Power

9 Jan 2018 | Judicial Power and the Left, Publications

Why is the British left so tolerant of the rise of judicial power? By ‘the left’, I refer to those in the Labour Party — a majority of members but minority of MPs — who supported the transformative election (and re-election) of Jeremy Corbyn as party leader. Whilst...

Mike Macnair | Can Judges Be Trusted with the Common Law?

9 Jan 2018 | Judicial Power and the Left, Publications

The question posed by this title may seem meaningless — but it is not. The reason why it is posed is the underlying issue: why should judges be trusted more than other branches of government? Our eighteenth-century forebears, like Blackstone, thought of their...

Alan Bogg | Judicial Power and the Left: Deference, Partnership, and Defiance

9 Jan 2018 | Judicial Power and the Left, Publications

The moment of conception for British labour law might be traced to an act of great courage in Germany in 1933. Otto Kahn-Freund, a judge in the German Labour Court, upheld the dismissal claims of three employees of the Empire Radio Company. The dismissals had occurred...

K. D. Ewing and John Hendy QC | The Politics of Labour Law in the European Court of Human Rights

9 Jan 2018 | Judicial Power and the Left, Publications

The objection to the courts on the labour left is based on the nature of law and the nature of the interests served by law. In common law systems, the judges are rule-makers and are indulged to a great extent as authors of the law, including a great deal of private...

Chris Bickerton | The Left’s Journey from Politics to Law

9 Jan 2018 | Judicial Power and the Left, Publications

The political foundation of law In his great work, The Twenty Years’ Crisis, originally published in 1939 on the eve of the Second World War, E.H. Carr discussed at length the relationship between law and politics. His purpose was to explain why conflicts in...

Helen Thompson | Returning to Democracy: The British Left and the Constitutional Temptation of the European Union

9 Jan 2018 | Judicial Power and the Left, Publications

For a long time, many on the left were democratically suspicious of the European Economic Community (EEC), and its successor, the European Community (EC). As the primary organised expression of the left, the post-war Labour Party was dominated by those who wanted to...

Richard Tuck | Constitutional Restraints and Radical Politics

9 Jan 2018 | Judicial Power and the Left, Publications

In the months after the US election last November, I often found myself arguing against people in America who thought that Trump and Brexit were the same phenomenon. On my view, Brexit was in fact an innoculation against Trump and the politics of the radical right....

Gerald N. Rosenberg | Protecting Privilege: The Historic Role of the U.S. Supreme Court and the Great Progressive Misunderstanding

9 Jan 2018 | Judicial Power and the Left, Publications

Introduction What role can courts play in furthering progressive social change? In the view of many lawyers, human rights activists, and left-leaning political activists, courts offer a golden pathway to justice and equality. In their view, courts can uphold rights...

Chye-Ching Huang and Brian Highsmith | Progressive Politics and the Courts: Lessons from the United States

9 Jan 2018 | Judicial Power and the Left, Publications

US Supreme Court Justice Hugo Black characterised courts as “havens of refuge for those who might otherwise suffer because they are helpless, weak, [or] outnumbered …”.  This appealing view of the judiciary — as a reliable guardian of minority rights, and an...

Jane Kelsey | The Crisis of Legitimacy in International Investment Agreements and Investor-State Dispute Settlement

9 Jan 2018 | Judicial Power and the Left, Publications

In the thirty years since the World Trade Organisation (WTO) was established, international economic agreements have intruded ever deeper into states’ regulatory and judicial domain, to the point that they now face a multi-faceted backlash. The popular discontent that...

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...

Timothy Endicott: The Stubborn Stain Theory of Executive Power

7 Sep 2017 | Publications

In November 2016, days before the Supreme Court hearing in the Miller case, Professor Timothy Endicott (University of Oxford) delivered a lecture for Policy Exchange’s Judicial Power Project on the royal prerogative. Reflecting its weight and importance, the lecture...

Carol Harlow: Administrative Justice and the Parliament Square Axis

4 Sep 2017 | Publications

Download paper Introduction This paper concerns the judicialisation of administrative justice and is prompted by a recent decision of the UK Supreme Court. The case arose in the context of housing, but for these purposes is relevant insofar as it raises critical...

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...

Derogation from the European Convention on Human Rights in Armed Conflict: Submission to the JCHR

27 Apr 2017 | Publications, Publications: Brexit and Judicial Power

Download paper Submission to the Joint Committee on Human Rights 7 April 2017 Dr Jonathan Morgan, Senior Lecturer in Law, University of Cambridge Professor Richard Ekins, Associate Professor, University of Oxford Professor Guglielmo Verdirame, Professor of...

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...

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...

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...

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...