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The Law of the Constitution before the Court

The Law of the Constitution before the Court

8 Feb 2020 | Judicial Power and the Balance of Our Constitution, Publications

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

The Future for Constitutional Reform

27 Jan 2020 | Judicial Power and the Balance of Our Constitution, Publications

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

Protecting the Constitution

28 Dec 2019 | Judicial Power and the Balance of Our Constitution, Publications

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

The Case of Prorogation

15 Oct 2019 | Judicial Power and the Balance of Our Constitution, Publications

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?

Putting Royal Assent in Doubt?

7 Oct 2019 | Judicial Power and the Balance of Our Constitution, Publications

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

Lord Burnett of Maldon | Foreword to Judicial Power and the Balance of Our Constitution

2 Feb 2018 | 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

Richard Ekins | Introduction to Judicial Power and the Balance of Our Constitution

2 Feb 2018 | 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

John Finnis | Judicial Power: Past, Present and Future

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

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

Justice Brown | Comment

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

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...
Justice Brown | Comment

Sir Patrick Elias QC | Comment

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

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 Brown | Comment

Justice Glazebrook | Comment: Mired in the past or making the future?

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

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...
Justice Brown | Comment

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...
Justice Brown | Comment

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

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”

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

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

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...

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