Lisa Burton Crawford: The limits of Australian administrative law
In 2008, Michael Taggart famously described Australian administrative law as ‘exceptional’. The description has stuck — and it has a hint of the pejorative. It captures a certain sense of frustration if not disapproval: that Australian administrative law has failed to...
Jon Holbrook: Immigration policy is for the people, not the courts
There are two approaches to immigration. The legalist focusses on the migrant, a person seen as bearing legal rights to be asserted against the nation. Legalism sees immigration as primarily a legal issue resolved by lawyers having recourse to law. The democrat...
Richard Ekins and Graham Gee: How not to dismiss human rights law reform
In line with its manifesto commitment, the Government proposes to repeal the Human Rights Act 1998 and to replace it with a British Bill of Rights. The details of the proposal have not yet been made public. Notwithstanding this lack of detail, defenders of the HRA...
Aileen McHarg: 50 Problematic Cases – A Comment
Any list of ‘problematic’ cases is bound to be controversial. There are several reasons why this is so. First, as the editors acknowledge in their introductory essay, there are different ways in which cases might be problematic: They may contain bold or unexpected...
Simon Lee: A Problematic Manifesto?
Only a couple of my own Top 10 problematic cases made the Judicial Power Project Top 50. So is it the judges who are problematic or the critics or just me? For all the fun of this list, it is salutary to wonder if our praise or criticism of a judgment or judge tells...
Judicial Power: 50 Problematic Cases
One of the aims of the Judicial Power Project is to stimulate debate about the proper bounds of the judicial role. As visitors to this website will know, our concern is that the judicial role is expanding in ways that threaten constitutional self-government and the...
Chris McCorkindale: The New Powers of the Judiciary in Scotland – Part I
One of the most remarkable things about the expansion of judicial power that has followed devolution is how little it has been remarked upon. The lack of serious scrutiny is all the more striking given the significant constitutional implications that this carries both...
Jonathan Morgan: On the Intractability of the Human Rights Debate
The human rights debate is frequently rancorous. A major reason for this is that the protagonists are often just talking past each other. Hence not debating the same thing at all. The varying degrees of generality at which human rights may be understood explains...
Richard Ekins: Assisted suicide in the (Scottish) courts
The question of whether the law should prohibit assisted suicide is an ongoing controversy in many Western democracies. It is a question about which reasonable people disagree and which different political communities have answered in different ways. In the American...
Sir Stephen Laws: Policies for change – the role of the courts
The issue 1. Professor John Finnis, in his October 2015 lecture “Judicial Power – Past Present and Future”, said that “‘Past, present and future’ captures a good deal of the truth…about the distinctions between judicial, executive and legislative powers.” On this...
Rebecca Elvin: Who should decide who decides the public interest?
Who is best placed to determine the public interest – judges or politicians? In a lecture at UCL last week Attorney General Jeremy Wright QC MP addressed this question, with the President of the Supreme Court, Lord Neuberger, serving as commentator. This unusually...
James Allan: Wiki-Mouse Reasoning from a UN Panel
A UN Panel has found in favour of the claim made by Julian Assange, of WikiLeaks notoriety, that he has been subjected to ‘arbitrary detention’. This Panel, by a 3-1 count, recommends Mr. Assange’s immediate release and (for good measure) some monetary compensation....
Adam Perry: Who’s Afraid of Mercy?
If one is allowed to have a favourite prerogative power, the prerogative of mercy is mine. The prerogative of mercy’s only uses are to lift punishment and to lessen suffering. Who could object to that? Yet this “most amiable prerogative” is often under attack. The...
Lord Carlile: The Authorisation Processes for Interception Activities
Are the proposed authorisation processes for such interception activities appropriate? Is the proposed process for authorising urgent warrants workable? I have some concerns about the proposed authorisation processes. It is all too easy a refuge for Ministers to pass...
Jason Varuhas: Public Inquiries – Who Decides? The Legal Background to the Litvinenko Inquiry
The publication of the final report of the public inquiry into Alexander Litvinenko’s death has provoked much comment, but lost sight of in all of this debate is the role of the courts in bringing about the inquiry in the first place. It might be thought odd that the...
Christopher Forsyth: The draft Investigatory Powers Bill 2015 – the “double lock” and the “principles of judicial review”
This post contains my edited and corrected evidence given to the Joint Committee on the Draft Investigatory Powers Bill on Monday 21 December 2015 on the “double lock” and the “principles of judicial review”. The “double lock” refers to the provision in clause 14 of...
Richard Ekins and Christopher Forsyth: The Rule of Law vs. the Rule of Courts – A Rejoinder
Editor’s Note: Last month Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project invited comments on the paper from Professor...
Martin Chamberlain: The Supreme Court’s word game – A Response to Ekins and Forsyth
Editor’s Note: Last month Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project invited comments on the paper from Professor...
Mikolaj Barczentewicz: The Legal Duty of UK Officials to Comply with International Law – A Response to Dapo Akande and Eirik Bjorge
In a thought-provoking post on the UK Constitutional Law Association Blog, Dapo Akande and Eirik Bjorge take issue with the defence offered by Richard Ekins and Guglielmo Verdirame of the recent change in the wording of the Ministerial Code. The change in question...
Jan van Zyl Smit: Promoting the rule of courts or resisting the misuse of courts? A Response to Ekins and Forsyth
Editor’s Note: Last week Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project has invited commentators with a range of views...
Se-Shauna Wheatle and Roger Masterman: Courts vs Parliament? A Response to Ekins and Forsyth
Editor’s Note: Last week Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project has invited commentators with a range of views...
Adam Tomkins: Not in the public interest – A Response to Ekins and Forsyth
Editor’s Note: Last week Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project has invited commentators with a range of views...
Richard Ekins: Who judges the public interest? The future of the rule of law
In a Policy Exchange report released today, Professor Christopher Forsyth and I argue that the Supreme Court’s most important constitutional law decision this year was dangerously wrong. The case, Evans v Attorney General [2015] UKSC 21, concerned the Attorney...
Mikolaj Barczentewicz: Judicial Power, the EU and the UK
In a new blog for the Judicial Power Project, Mikolaj Barczentewicz, a Lecturer in Law at the University of Oxford’s Jesus College, looks at the relationship between national law and EU law. Barczentewicz writes that UK domestic courts have never accepted that EU law...
Richard Ekins and Graham Gee: Making the Case Against Expansive Judicial Power
Reflecting on Professor Finnis’ recent lecture on the past, present and future of judicial power, and on responses to the lecture, Professors Ekins and Gee consider how best to make the case against expansive judicial power. They argue that the public and politicians...
Adrienne Stone: Judicial Power – Past, Present and Future – A Response to Professor Finnis
Editor’s Note: Last month Policy Exchange’s Judicial Power Project hosted a lecture by Professor John Finnis on Judicial Power: Past, Present and Future. The Project has invited leading commentators from Australia, Canada and the UK to reply to the lecture. In keeping...
Grégoire Webber: Past, present, and justice in the exercise of judicial power – A Response to Professor Finnis
Editor’s Note: Earlier this month Policy Exchange’s Judicial Power Project hosted a lecture by Professor John Finnis on Judicial Power: Past, Present and Future. The Project has invited leading commentators from Australia, Canada and the UK to reply to the lecture. In...
Mark Elliott: Judicial Power in Normative, Institutional and Doctrinal Perspective – A Response to Professor Finnis
Editor’s Note: Earlier this month Policy Exchange’s Judicial Power Project hosted a lecture by Professor John Finnis on Judicial Power: Past, Present and Future. The Project has invited leading commentators from Australia, Canada and the UK to reply to the lecture. In...