Judicial Power and Judicial Independence
The unconstitutionality of the Supreme Court’s prorogation judgment | John Finnis
The Supreme Court’s judgment in Miller/Cherry [2019] UKSC 41 holds that Parliamentary sovereignty needs to be judicially protected against the power of the Government to prorogue Parliament. But the Judgment itself undercuts the genuine sovereignty of Parliament by...
Parliamentary Sovereignty and the Politics of Prorogation | Richard Ekins
This paper addresses the question of whether the Supreme Court should rule that the Government’s advice to Her Majesty to prorogue Parliament was unlawful. It argues that the prerogative power to prorogue Parliament is not subject to judicial control. Proroguing...
Does Political Criticism Of Judges Damage 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
The Honourable Dyson Heydon AC QC, former Justice of the High Court of Australia and one of the common-law world’s foremost figures, warns that the phenomenon of rising judicial power across much of the common law world represented a “silent revolution” that had occurred largely without parliamentary sanction.
Judicial Power and the Balance of Our Constitution
The Law of the Constitution before the Court
The Supreme Court’s prorogation judgment, Miller/Cherry, was contrary to the settled law of the constitution. This paper, which complements and completes an earlier critique, refutes attempts to deny the judgment’s revolutionary character, attempts that cannot be...
The Future for Constitutional Reform
Did the United Kingdom’s constitution work as it should have done in the process to leave the European Union? In essence, yes, says Sir Stephen Laws, Senior Fellow at Policy Exchange and a former First Parliamentary Counsel. He says the Government should resist...
Protecting the Constitution
The rise of judicial power in the UK in recent years is a striking change in our constitutional arrangements – in how we are governed – a change that threatens good government, parliamentary democracy, and the rule of law. The expansion of judicial power is a function...
The Case of Prorogation
In this new paper for Policy Exchange’s Judicial Power Project, Professor Martin Loughlin of the LSE outlines the failings he perceives in the Supreme Court’s recent prorogation judgment. The paper is framed as the judgment on appeal by an imaginary higher court,...
Putting Royal Assent in Doubt?
The parliamentary authorities have taken the view that because the Supreme Court has quashed the prorogation of Parliament, everything else done by the Royal Commission in the morning of 10 September has been quashed as well. Accordingly, both the Speaker of the House...
Lord Burnett of Maldon | Foreword to Judicial Power and the Balance of Our Constitution
John Finnis is one of the most distinguished legal philosophers of our age, who has spent more than half a century thinking and writing about the concept of judicial power. In October 2015 Professor Finnis delivered his powerful lecture, “Judicial Power, Past Present...
Richard Ekins | Introduction to Judicial Power and the Balance of Our Constitution
The scope of judicial authority is a matter of the utmost public importance. The common law tradition of adjudication has long understood that authority to be limited and disciplined: the courts have not enjoyed any general power to change the law, or to depart from...
John Finnis | Judicial Power: Past, Present and Future
Introduction As we came into the Inn and crossed its South Square to reach the Benchers’ Entrance, we all passed the statue of Francis Bacon, truly outstanding among this country’s scholars and lawyers. One of the most well-known of his Essays is on Judicature, or as...
Justice Brown | Comment
Professor Finnis’ paper Judicial Power: Past, Present and Future describes developments in the United Kingdom which have led to what he sees as a legal quagmire, and advocates a push back towards judicial deference to legislative policy preferences, based upon respect...
Sir Patrick Elias QC | Comment
What is the proper function of the judge? And what, in a democratic society, are the proper boundaries between the judicial, executive and legislative arms of the state? This is a perennial debate about which opinions differ. Professor Finnis, in a characteristically...
Justice Glazebrook | Comment: Mired in the past or making the future?
One of Professor Finnis’ major themes is that the courts are concerned with the past, while Parliament looks to the future and the Executive attends to the present. I agree with Professor Finnis that the primary role of the courts, including final courts of appeal, is...
John Dyson Heydon AC QC | Comment
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
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
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...
Judicial Power and the Left
Danny Nicol | Risk or constitutional complacency? A reply to Professor Phil Syrpis
In a recent post on this site ‘Judicial Power and the Left: A Short Response’ Professor Phil Syrpis welcomes the publication of Judicial Power and the Left whilst disagreeing with its general thrust. He judges it ‘far better [for the Left] to embrace a more legal, and...
Sir Patrick Elias | Judicial scepticism from the left: some thoughts
Judicial Power and the Left: Notes on a Sceptical Tradition is a stimulating and provocative selection of essays. It is part of Policy Exchange’s timely Judicial Power Project which focuses on the role of judges within the constitution. The voices in this collection...
Phil Syrpis | ‘Judicial Power and the Left’ – A short response
I have spent the last days reflecting on an excellent collection of short essays ‘Judicial Power and the Left’. The essays examine the relationship of the Left with the judiciary, and are best seen as a reaction against the Left’s (and here I quote from Jon Cruddas...
Simon Lee | Judicial Power: What is Left Unsaid?
The Judicial Power Project is on to something with its collection of a dozen essays, entitled Judicial Power and the Left published earlier this year. It is just that the something is not, in my opinion, a deepening of our understanding of judicial power or, at least,...
Jon Cruddas MP | Foreword to Judicial Power and the Left
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
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
Carol Harlow sets the scene by reflecting on the working classes’ experiences of the criminal courts and civil courts, noting in particular how suspicion of the judiciary was rooted in the judges’ development of the common law in ways supportive of capital and hostile to trade unions.
Danny Nicol | The Left, Capitalism, and Judicial Power
Danny Nicol reflects on some of the reasons why the Left in the UK now appears so amenable to ascendant judicial power.
Mike Macnair | Can Judges Be Trusted with the Common Law?
Mike Macnair reflects on the extent to which the left should trust the judiciary.
Alan Bogg | Judicial Power and the Left: Deference, Partnership, and Defiance
Alan Bogg argues that it may be time to recalibrate traditional attitudes on the left towards judicial power.
K. D. Ewing and John Hendy QC | The Politics of Labour Law in the European Court of Human Rights
K.D. Ewing and John Hendy discuss how the protection of labour rights under the ECHR has evolved over almost fifty years.
Chris Bickerton | The Left’s Journey from Politics to Law
The left’s conversion to judicial power is a complex phenomenon with multiple causes, and Chris Bickerton begins by pointing to some of the intellectual and political background to the left’s changed attitudes to law and courts.
Helen Thompson | Returning to Democracy: The British Left and the Constitutional Temptation of the European Union
Helen Thompson explores some of the consequences of the Labour Party’s repudiation of the UK constitutional tradition.
Human Rights
The ECHR and the future of Northern Ireland’s past
In this paper, which is the revised text of his recent lecture for Policy Exchange’s Judicial Power Project, John Larkin QC reflects on the state of the United Kingdom’s constitution. The paper discusses an aspect of an important provision of the European Convention...
Commentary on Sir Noel Malcolm’s “Human Rights and Political Wrongs”
In his recent study for Policy Exchange’s Judicial Power Project, Sir Noel Malcolm (All Souls College, Oxford) considers European Human Rights law and finds it wanting. The European Court of Human Rights, he argues, operates on principles that are incoherent and...
Noel Malcolm | Between Human Rights Theory and Practice: A Reply to Five Commentators
I am very grateful to these five distinguished authors (Professor Finnis, Baroness O’Neill, Lord Phillips, Professor Tasioulas and Professor Verdirame) for taking the time and trouble to comment on my work. Without writing at even greater length, I cannot deal with...
Guglielmo Verdirame | Which theory? Whose bill of rights?
The Human Rights Act (HRA) has been a centrepiece of the British Constitution for almost twenty years. The idea that, over 300 years after the 1688 Bill of Rights, Britain should have a new bill of rights was laudable. But its implementation was a failure of legal and...
John Tasioulas | Feeling our Way: Human Rights as Democratic Beliefs
Chapter 5 of Sir Noel Malcolm's Human Rights and Political Wrongs examines leading moral-philosophical theories of human rights and issues a damning verdict. Their advocates, according to Malcolm, are just 'whistling in the dark'. By contrast, he offers an account of...
John Finnis | Judicial Usurpation and Human Rights
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
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
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...
Human Rights and Political Wrongs: A new approach to Human Rights law
In a major new study for Policy Exchange, Sir Noel Malcolm, leading historian of ideas and Senior Adviser on Human Rights to Policy Exchange, argues that democracy is being eroded by an ever-expanding system of human rights law and condemns the encroachment of the European Court of Human Rights on democratically-elected parliaments. Sir Noel reaches the conclusion that the best way to protect human rights and align this protection with democratically accountable government is for the UK to leave the jurisdiction of the Court. He appeared on the Today programme to debate the issue with Baroness Kennedy of the Shaws QC.
Critiquing Judicial Power
Judicial Intervention in Parliamentary Proceedings
The Inner House of the Court of Session in Scotland acted wrongly in referring to the Court of Justice of the EU the question of whether the UK can unilaterally revoke Article 50 and so remain in the EU. As the UK Supreme Court urgently considers the Government’s...
Daniel Greenberg: Judicial Ignorance of the Parliamentary Process: Implications for Statutory Interpretation
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...
John Finnis: Brexit and the Balance of Our Constitution
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 explanation of...
John Finnis: Two Too Many?
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...
Jason Varuhas: Judicial Capture of 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...
Judging the Public Interest: The rule of law vs. the rule of courts
Download report The judiciary is guilty of overreaching its constitutional remit by overruling Ministers’ decisions whether to release material not deemed to be in the public interest. In Judging the Public Interest, Prof Richard Ekins (University of Oxford) and Prof...
John Finnis – Judicial Power: Past, Present and Future
Below is the text of the speech delivered by Professor John Finnis FBA at the relaunch of Policy Exchange’s Judicial Power Project, with an introduction from Lord Chancellor Rt Hon Michael Gove MP and a Vote of Thanks from Rt Hon Lord Justice Elias, himself a...
Jeffrey Goldsworthy – Losing Faith in Democracy: Why judicial supremacy is rising and what to do about it
Below is a transcript of the speech delivered by Professor Jeffrey Goldsworthy at the launch of Policy Exchange's Judicial Power Project. You can also download a copy of the speech in pdf format here. 1. INTRODUCTION I am honoured to have been invited to launch this...
Brexit and Judicial Power
Gunnar Beck: EU citizens’ rights after Brexit: The EU’s extravagant demands for extra-territorial jurisdiction by the CJEU and reverse discrimination
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
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...
Mikołaj Barczentewicz: The Core Issue in Miller: The Relevance of Section 1 of the 1972 Act
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...
John Finnis: Brexit and the Balance of Our Constitution
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 explanation of...
Timothy Endicott: Parliament and the Prerogative: From the Case of Proclamations to Miller
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 Prerogative'. The legitimacy...
John Finnis: Terminating Treaty-based UK Rights: A Supplementary Note
This post is excerpted from a second short paper published today, available here: Download paper In a Judicial Power Project paper of 26 October, Terminating Treaty-based UK Rights, I argued that UK law and constitutional practice about double tax treaties provides a...
John Finnis: Terminating Treaty-based UK Rights
This post is excerpted from a short paper published today, available here: Download paper Oral argument in the Brexit Case in the Administrative Court last week left an easy case looking a bit difficult. It allowed Lord Pannick QC, for the lead claimant, to reiterate...
Rights after Brexit: Submission to the JCHR
Download pdf Submission to the Joint Committee on Human Rights 10 October 2016 Gunnar Beck, 1 Essex Court, former advisor to the European Scrutiny Committee of the House of Commons Dominic Burbidge, Research Fellow, Judicial Power Project Richard Ekins, Associate...
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
ALBA Papers on Judicial Activism
Farrah Ahmed: Strategy and Subterfuge? Assessing the ‘New’ Judicial Power
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
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...
Maya Lester: The “Rogue” European Court in the Campaign for Brexit
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 key role in...
Christopher Forsyth: Who is the ultimate guardian of the constitution?
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
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”,...
John Finnis: Two Too Many?
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
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...
‘Lawfare’ and Judicial Power
Lawfare | Resisting the Judicialisation of War
Policy Exchange’s latest paper on lawfare, endorsed by General David Petraeus, sets out new measures on how the next Government must protect our soldiers from the assault of lawfare. The paper recommends that the next government should: Maintain a policy of derogating...
Protecting Those Who Serve | Richard Ekins, Patrick Hennessey and Julie Marionneau
The next Prime Minister has a responsibility to act urgently to protect UK troops, whether serving or retired, from ongoing exposure to legal risk and to unfair legal processes. From Northern Ireland to Iraq and Afghanistan, those who served – or who serve still – in...
Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat
Download report Misguided human rights laws mean British troops operating in the heat of battle are now being held to the same standard as police officers patrolling the streets on a Saturday night in the West End, according to Clearing the Fog of Law. The report,...
The Fog of Law: An introduction to the legal erosion of British fighting power
Download report Britain’s Armed Forces are under threat from a sustained legal assault which could paralyse the effectiveness of the military with catastrophic consequences for the safety of the nation. A new Policy Exchange report, The Fog of Law, co-authored by Tom...