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...
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...
10 Nov 2019 | Publications, Publications: 'Lawfare' and Judicial Power
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...
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,...
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...
2 Oct 2019 | Judicial Review and Judicial Independence, Publications
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...
17 Sep 2019 | Judicial Review and Judicial Independence, Publications
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...
28 Jun 2019 | Publications, Publications: 'Lawfare' and Judicial Power
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...
19 Nov 2018 | Publications, Publications: Critiquing Judicial Power
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...
23 Jul 2018 | Judicial Power and the Left
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...
29 May 2018 | Judicial Power and the Left
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...
9 May 2018 | University of Queensland Law Journal special issue
Yesterday we published our essay on ‘Putting Judicial Power In Its Place’ from the recent special issue of the University of Queensland Law Journal. We are pleased to publish the entire special issue as well. Contents Judicial Power and Judicial Responsibility |...
8 May 2018 | University of Queensland Law Journal special issue
Assertions of judicial power and controversies about its proper exercise are nothing new. Still, constitutional law and practice are not static and the scope of judicial power in any particular jurisdiction may wax or wane over time. The common law world has long...
26 Apr 2018 | Judicial Power and the Left
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...
19 Apr 2018 | Judicial Power and the Left
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,...
15 Mar 2018 | Publications
In the UNISON case, the Supreme Court quashed the Government’s use of its statutory power to impose fees for employment tribunal proceedings. It ruled that the fees were unlawful because the level at which they had been set had the effect in practice of limiting...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
9 Jan 2018 | Judicial Power and the Left, Publications
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...
9 Jan 2018 | Judicial Power and the Left, Publications
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...
