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...
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...
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...
26 Jan 2017 | Uncategorized
Article 50 (1) of the Treaty of the European Union states that “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” The Supreme Court in Miller was asked the narrow legal question of whether the government...
25 Jan 2017 | Uncategorized
“The fact that a statute says nothing about a particular topic can rarely, if ever, justify inferring a fundamental change in the law.” Those are the words of the majority of Supreme Court justices in today’s Miller judgment (at paragraph 108). Yet they have done...
25 Jan 2017 | Uncategorized
Although the headlines record that the government lost the Brexit judicial review in the Supreme Court, in fact it might be more accurate to see the result as a draw. While the government lost on the question of whether the prerogative could be used to trigger article...
25 Jan 2017 | Uncategorized
The judgment‘s conclusions on the Sewel convention are welcome. Enacting the convention for Scotland had been risky. Would the courts construe it with an irrebuttable presumption of an intention to produce something legally enforceable? It is good that the Supreme...
25 Jan 2017 | Uncategorized
The reasoning of the majority of the UK Supreme Court is undermined by Lord Reed’s rather beautiful explanation of the European Communities Act ([183]-[187], [197]). But at least the majority decision is not based on the mere fallacy in the argument for the claimants...
25 Jan 2017 | Uncategorized
The majority of the Supreme Court in Miller decided to uphold the High Court judgment. They did so relying mainly on their construction of the European Communities Act 1972. This was the right approach to take, but the majority executed it in ways incompatible with...
25 Jan 2017 | Uncategorized
In Miller, the Supreme Court touched on the difficult divide between ‘law’ and ‘politics’. Applicants may be politically motivated when bringing an action for judicial review. Decisions of the court will frequently have political consequences – here the need for...
25 Jan 2017 | Uncategorized
Like the decision of the High Court before it, the majority judgment begins by reciting a set of orthodox constitutional principles. ‘Parliamentary sovereignty is a fundamental principle of the UK constitution’, ([43]) which constrains courts and the executive. While...
25 Jan 2017 | Uncategorized
Perhaps the most challenging aspect of the Miller case was how to navigate the judicial role in a complex constitutional environment which is only partially regulated by law. While the dissenting judges were largely content to leave it to the political sphere to...
25 Jan 2017 | Uncategorized
‘[A]t some risk of over-simplifying,’ Lord Hughes said in his dissenting judgment in the Miller case, the main question for decision centred on two well-accepted constitutional rules. The first rule, he said, is that the executive government cannot change the law made...
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...
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 –...
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,...
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...
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...
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...
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,...
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...
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...
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...
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”,...
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...
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...
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...
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...
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...
25 Nov 2016 | Events
Time & Date Wednesday 30th November Registration: 12.45 Start: 13.15 Sandwich buffet: 14.15 – 14.45 Venue Policy Exchange 6th Floor 8-10 Great George Street Westminster SW1P 3AE With Professor Timothy Endicott Professor of Legal Philosophy...
