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...
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...
4 Nov 2016 | Uncategorized
Talk of this judgment creating a “constitutional crisis” are overdone. But I do think Miller is wrongly decided, and problematic. What’s gone wrong is that a heady mixture of two fashionable interpretative doctrines brewed at home by British judges – the idea that...
4 Nov 2016 | Uncategorized
If ever there is a case for interested ‘third’ parties to appear, or at least intervene through written submissions, now is the time for Professor John Finnis, the Judicial Power Project and other constitutional experts to present their views. It will then be for the...
4 Nov 2016 | Uncategorized
I can understand the reaction that Miller is an example of ‘judicial activism’. The High Court did not adopt a narrow interpretation of earlier case law on the relationship between prerogative powers and legislation. Instead it interpreted earlier cases as...
4 Nov 2016 | Uncategorized
The decision of the Court, and the case itself, in Miller v Secretary of State, seems pointless and futile. It may be hailed as a great victory: but it is nothing of the sort. The Brexit process can, and will, continue uninterrupted. All that the Court has decided is...
4 Nov 2016 | Uncategorized
Some of today’s press coverage of the judgment in Miller, accusing judges of acting undemocratically, is deplorable. It is entirely right and proper that the Court should determine the legal extent of executive authority. That is an axiomatic judicial function in a...
4 Nov 2016 | Uncategorized
Irrespective of whether you agree with the judgment – and, for many of the reasons detailed by other contributors, I regard it as mistaken – there is something slightly quizzical about how the High Court answered the question before it. As Aileen McHarg noted, the...
4 Nov 2016 | Uncategorized
The decision in in R (Miller) v Secretary of State for Exiting the European Union rested on the Sovereignty of the Parliament at Westminster. But the referendum was an expression of the will of the People. It is not at all obvious how these competing claims can be...
4 Nov 2016 | Uncategorized
The notion that Parliament needs the courts’ help to manage its relationship with Government actually undermines Parliamentary Sovereignty and wrongly puts unaccountable judges in overall control of the whole constitutional system. Most dispiriting is the extent to...
4 Nov 2016 | Uncategorized
Miller reorientates our attention: away from the relationship between judicial and legislative power towards the relationship between the legislature and the executive. It reminds us of the importance of events preceding 1688, and the fact that many constitutional...
4 Nov 2016 | Uncategorized
The judgment’s basic thesis: the ECA’s requirement that no new EU treaty-based obligations and rights be introduced into UK law without “Parliamentary control” implies a “converse intent that the Crown should not be able, by exercise of its prerogative powers, to make...
4 Nov 2016 | Uncategorized
The High Court made a bad mistake of law in its judgment yesterday. But it was a mistake not a conspiracy and one into which the Court was led by counsel. The Supreme Court should put it right. The mistake was to take Parliament in enacting the European Communities...
2 Nov 2016 | Brexit and Judicial Power, Publications, Publications: Brexit and Judicial Power
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...
26 Oct 2016 | Brexit and Judicial Power, Publications, Publications: Brexit and Judicial Power
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...
20 Oct 2016 | Publications, Publications: Brexit and Judicial Power
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...
28 Jul 2016 | Brexit and Judicial Power, Posts
Panel Discussion of Judicial Power and Brexit On 21 July 2016, Policy Exchange’s Judicial Power Project hosted a panel discussion on Brexit and Judicial Power. Key issues addressed included: what Brexit means for judicial power in the UK constitution, the role of...
