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 Parliament’s lawmaking choices or to overrule the executive’s policy choices. These limits have come under some pressure in recent years. Judges throughout the common law world have been invited to exercise, or have assumed, powers and responsibilities that depart from our historical separation of powers. In the United Kingdom, senior judges have noted the change, sometimes (but not always) with approval. And others in public life have also started to notice and to consider the implications for the balance of our constitution, and its capacity to realise self-government and the rule of law.
The point of this collection is to reflect on the place of judicial power in the common law constitutional tradition and thus to contribute to a public conversation about the constitution. The collection brings together two lectures by John Finnis, as well as a series of comments on the first lecture, to which Finnis replies in turn. The lectures, commentary, and rejoinder aim to illuminate the past, present and future of judicial power’s exercise in the common law world, especially in the United Kingdom, to outline the balance that has long characterised the Westminster constitution, and to consider the extent to which the changing scope of judicial power puts that balance in doubt. The collection’s ambition is to help recall our historical constitutional tradition, to outline and evaluate contemporary judicial practice, and to inform reflection about its future development.
The Gray’s Inn lecture
The first of the two lectures, held in Gray’s Inn, London, on 20 October 2015, was convened by Policy Exchange’s Judicial Power Project and introduced by the Rt Hon Michael Gove MP, then Lord Chancellor. Entitled “Judicial Power: Past, Present and Future”, the lecture traces some fundamentals of our constitutional tradition, extending Finnis’s long engagement, across an extraordinary academic career, with accounts of the separation of powers in jurisprudence and in constitutional practice and history. Finnis begins by recounting the High Court of Australia’s partial subversion of constitutional law, in which a bare majority of the Court introduced a doctrine whereby federal judicial power cannot be exercised by bodies other than the federal courts. The lesson is bracing: courts, even apparently conservative courts, may unsettle fundamental constitutional law and may do so in the name of the principles of the separation of powers and the rule of law.
The lecture is grounded on an account of the separation of powers — or the separation of what Finnis tellingly terms “responsibilities”. The court applies to the parties the legal commitments that the community should be judged to have made at the time in the past that the parties acted. The legislature acts to amend or revise the legal commitments that are to hold in the future. The executive carries out and upholds those commitments and takes action within their scope in the way it thinks is here and now warranted. These distinctions ground the argument and are amplified, developed, and qualified throughout the lecture, in the later rejoinder and in different ways in the second lecture. The whole discussion implicitly recalls and relies on Finnis’s work in legal philosophy, which makes clear that the moral point of law is to secure the common good and reciprocity between persons by bringing order to social life in systemically good forms and ways.[1] The law’s distinctive method or mode of operation is to let some past act of authority settle what now is to be done, a method which entails a principle of continuity whereby we have reason now to take past legal settlement to persist, to govern how past (and indeed present) actions are now to be judged.[2]
Judicial responsibility is illuminated, Finnis argues, partly by thinking about the moral of the “fairy tale” that the common law is declared rather than made.[3] The declaratory theory should not be understood to be a dubious assertion about history but rather as a way of articulating the sound judicial responsibility to uphold what should have been judged to be the law in the past. This responsibility requires and permits courts to correct some long-standing errors — but only when they are out of line with what should be judged now (and should have been then) to be the proposition that best coheres with other parts of the law. This discussion, carried out by way of analysis of the Kleinwort Benson judgment,[4] helps explain the artificial reason of the common law. The distinctions are fine and the discipline demanding. The complexities are taken up elsewhere in Finnis’s work,[5] including in his exchanges with Sir Patrick Elias, in this volume, and with Mrs Justice Laing on the Judicial Power Project website.[6]
Judicial attempts at law reform are liable to go badly wrong, even in relation to the common law, as the saga of the “impossible attempts” cases helps demonstrate.[7] Finnis argues that the succession of judgments confirms that even very able judges are vulnerable to being led into error by artful slogans deployed by clever counsel, by the tangles of precedent, by recurring blind spots in legal learning, and by virtue of the procedural context of (appellate) litigation. The inaptness of litigation as an occasion for lawmaking is made clear — a point that arises repeatedly in the lecture and indeed throughout the whole collection, as does the need for Parliament, from time to time, to rescue the courts from error. The standing risk of judges making bad law in the course of adjudication should warrant humility and circumspection. The risk of adjudication being distorted by concessions of counsel is also striking. The Belmarsh case,[8] widely lauded but in truth misconceived, makes the point vivid. As Finnis shows, the House of Lords did not consider a highly relevant argument, which the Human Rights Act 1998 required them to consider, partly because of undue haste but also with the help of concession by the lawyers arguing the case.
More generally, the lecture argues that lawmaking is taking responsibility for the future, which is a responsibility much better discharged by legislatures than by appellate courts. The adversarial character of litigation makes it an inept means of lawmaking, Finnis contends, for the relationship between parties and court does not provide for a clear-eyed choice to be made about what is to be done, a choice that should be made by persons who, quite unlike judges, are and can be held responsible for that choice. No better, indeed even worse, is the situation when litigation is initiated in order to invite lawmaking — for here there is often an inequality of arms. Legal changes, especially far-reaching ones, ought to be introduced by representative legislatures with the capacity to think widely and the processes to deliberate and choose fairly, rather than misrepresented as somehow already part of the community’s commitments. Lawmaking under the guise of adjudication is incompetent and unfair. Finnis rejects Ronald Dworkin’s influential claims that courts are the main forum of rights and principle, charged with protecting minorities, whereas legislatures act for interests or welfare, and discharge majority will. Enthusiasm for litigation rather than legislation, including amongst many in the legal academy, relies on these claims, which ought to be abandoned as unsound and fanciful accounts of institutional responsibility.[9]
The constitutional division of authority is itself a matter of positive law. The lecture makes this fundamental point in clear and powerful terms, teasing out its implications. Likewise, Finnis makes clear that judges did not establish the constitution: the rule of law is not the rule of judges, and judicial power is not power to remake the constitution. The risk of confusion about all this is made clear in a series of recent leading judgments, from Purdy to Evans (and now Miller).[10]
Much of the lecture considers the historical foundations of our constitution and the features of lawmaking and adjudication in general, quite apart from the context of contemporary human rights law. However, the enactment of the Human Rights Act 1998 undeniably changes the constitutional position of our judges, inviting and requiring them to engage with Strasbourg jurisprudence, to consider the proportionality of legislation and executive action, as well as to interpret legislation consistently with convention rights or, alternatively, to declare legislation incompatible with rights. The rise of proportionality analysis introduces arbitrary lawmaking into constitutional adjudication. This arbitrariness Finnis explores by way of prisoner voting case law, in which the Strasbourg Court made choices about our future without responsibility (or accountability). Similarly problematic, he continues, is that Court’s disposition, echoed in domestic jurisprudence, to interpret an authoritative legal measure (a treaty, a statute) as a “living instrument”, to update its meaning over time. This is an intellectually bankrupt technique, which empowers judges to substitute for settled law their own lawmaking choices, which are passed off as choices to which the community is already committed and from which it cannot easily escape. The lecture develops its critique in a striking context, viz. the Strasbourg Court’s explosion of the Refugee Convention.
The lecture does not comment on proposals for human rights law reform. It has nothing to say about the Court of Justice of the EU in particular. But it does articulate with striking force how the common law constitutional tradition conceives of the limited but indispensable contribution that judicial power makes to the rule of law and constitutional government. It speculates briefly on why this tradition has come under pressure, noting the loss of understanding of the historic constitution, the rise of dubious theories (like Dworkin’s) about what courts and legislatures are for, theories that resonate with the legal academy’s easy cynicism about the political process (and public). Finnis reasons that many in the academy, and some on the bench, disdain the commitment of a people to rule themselves by way of joint deliberation and choice, preferring instead a global, juridical discourse which disarms and disables those outside a narrow caste. The lecture’s robust conclusion, which animates the Judicial Power Project, is that some pushback may be in order.
Five comments and one rejoinder
The Gray’s Inn lecture was published on the Judicial Power Project’s website, itself launched on the day of the lecture. The lecture has since been widely discussed. It is a target of Conor Gearty’s ire in his polemic Fantasy Island,[11] as Lord Sumption acidly notes in his review of that book,[12] and has been considered by many other academics. In this collection are to be found comments on the lecture from four judge-jurists, drawn from across the common law world, and one philosopher-legislator.
I
The first comment, by Justice Brown, is a sympathetic treatment of how Finnis’s understanding of the separation of powers does and does not extend to the Canadian constitutional context. Brown notes that the classic separation of powers is increasingly blurred in practice, as delegation of lawmaking powers to the executive may confirm. More importantly still, in Canada, the supremacy of the Constitution strips the legislature of its final responsibility for lawmaking, insofar as its lawmaking choices are subject to the test of consistency with the Canadian Charter of Rights and Freedoms. Nonetheless, there are good reasons, Brown suggests, for courts to defer to the legislature. The tricky question is how much courts ought to defer. Pace Finnis, total deference is not legally open in Canada. In any case, Brown suggests that Finnis may be overlooking the important role judicial review plays at times in correcting injustices. He agrees with Finnis about the technical deficiencies of litigation as a vehicle for legal change, discussing some recent Canadian examples. Interestingly, Brown notes that while Canadians might well agree with Finnis that legislatures are not inherently antithetical to rights, the stress in Canadian jurisprudence on “autonomy” may encourage, or enable, constant challenge to legislation. Brown concludes that Canadian law will have to grapple with this standing invitation, and its potential to destabilise and distort law and adjudication. These features of Canadian constitutional practice and culture seem to me to confirm the extent to which Canada has chosen to depart from the common law tradition Finnis outlines, and to indicate some of the consequences of this departure.
II
Lord Justice Elias, as he then was, delivered a generous vote of thanks at the conclusion of the Gray’s Inn lecture. Here, in the second comment on the lecture, Sir Patrick develops a partly sympathetic and partly critical reflection on Finnis’s argument. There is much agreement to be had. Parliament is better placed than the courts to make law: it has greater expertise, better access to information, and can take into account a wider range of relevant interests and perspectives. Making law by way of the adjudicative process may have significant impacts on unrepresented parties. Limited judicial perspective is a basic problem, not answered by allowing ever more parties to join the litigation. Still, Elias continues, the same analysis does not hold in relation to the courts’ relationship to the executive. And while Finnis is right to take Lord Steyn to task for his scepticism about parliamentary sovereignty,[13] it bears noting that Parliament can at times undermine the constitution too. Elias concludes that many, perhaps most, judges would agree with Finnis’s theoretical framework. Where they might disagree is whether Finnis has adduced evidence of widespread abuse.
The balance of Elias’s comment considers three distinct modes of judicial action: the development of the common law, interpretation of statutes, and execution of human rights law. He notes how fine the difference may be between justified correction of error and illicit common law lawmaking. He outlines a different perspective on Kleinwort Benson and the impossible attempts cases, suggesting that the Lords in those cases were probably wrong but were not reckless. Judges are not usurping the legislative role in developing the common law, Elias concludes. However, his striking caveat to this conclusion concerns the principles of judicial review of executive action, where the courts are at risk of illegitimately expanding their powers, most notably by virtually introducing proportionality as a general ground of review. Elias’s concern for charitable reading of judgments is well taken, which makes all the more remarkable his own assessment of the drift in recent judicial review.
Turning to the interpretation of statutes, Elias notes that judicial practice has changed a little in recent years, with strong statements of the principle of legality. He shares the concern about the statutory interpretation in play in Evans, speculating that one may see here the indirect effect of the new habits of mind introduced by the Human Rights Act. However, Elias takes issue with Finnis on Belmarsh, doubting that the interpretive argument he raises would have succeeded and maintaining in any case that the court’s avoidance of it was proper in view of the concession of counsel. In relation to the Human Rights Act more generally, Elias agrees that it invites and requires radical action on the part of courts: proportionality cannot be squared with the nature of judicial power, but then courts have no legal alternative save to deploy the technique. However, old ideas about the separation of powers persist in the new regime, with different judges being more or less willing to respect other institutions or to prefer their own policy choices. The problems that can arise are to be seen, Elias states, in the Nicklinson case,[14] where a majority of the Supreme Court came close to imposing its own views on the controversy about assisted suicide, which should clearly be for Parliament to settle. Overall, Elias argues, judges are not developing the common law or interpreting statutes improperly, but that there are reasons for concern in relation to human rights law. There is no easy solution, he says: the Strasbourg Court overreaches at time, but withdrawal from the Convention would be very costly. Politicisation of the courts is a risk.
III
The third comment, by Justice Glazebrook, takes issue with the Gray’s Inn lecture in some important ways. Glazebrook notes that courts are one of the guardians of the constitution. She agrees in part with Finnis’s case for caution in judicial development of the law, adding a further reason for restraint, namely that judicial decisions are retrospective. However, this case applies with less force, Glazebrook maintains, in relation to constitutional matters, where courts may simply need to change the practice when justice requires. The institutional differences between courts and legislature of course matter, equipping courts relatively better for incremental change. Glazebrook reflects on the accountability of judges and MPs, gently suggesting that the former may be more responsible, and the latter rather less so, than the lecture claims.
The Human Rights Act was based on the New Zealand Bill of Rights Act 1990 and Glazebrook considers the judicial role under that Act. Particular cases invite disagreement, but this does not amount to a constitutional crisis. It is not problematic, Glazebrook continues, for Parliament to uphold legislation that the courts think inconsistent with rights, provided the institutions engage with respect and the court’s contribution is duly considered. (I note that this perspective, while developed in the New Zealand context, has its counterpart in British legal thought. But in the UK context that perspective comes under considerable pressure from appeals to the international rule of law, to alleged conventions requiring legislative conformity to declarations and to the realpolitik threat of adverse findings in the Strasbourg Court.) Interestingly, and plausibly, Glazebrook notes that quite apart from the 1990 Act, courts would strive to uphold New Zealand’s human rights obligations in international law, both by interpreting legislation consistently with those obligations and by requiring the executive to consider them in its action. This is important and signals another parting of the ways in the common law tradition, with New Zealand having adopted a more robust presumption of conformity with international law than other jurisdictions.[15]
Glazebrook takes a different line from Finnis in relation to ambulatory interpretation. The rule of law makes the contemporary understanding of statutory language decisive, she maintains, and in New Zealand this is reinforced by the statutory injunction to treat enactments as “always speaking”.[16] The disagreement is sharper still, in tone and substance, in relation to the Strasbourg Court’s interpretation of the ECHR, and thence the Refugee Convention, in Hirsi Jamaa.[17] Does not Finnis’s position, Glazebrook asks, amount to condoning torture in some cases? She contrasts New Zealand legislation which requires protection of persons exposed to torture and forbids deportation if a risk of torture arises. The contrast to which Glazebrook refers is thought-provoking, for of course the Strasbourg Court does not (or should not) stand to Europe as Parliament stands to New Zealand and, for now, it is only Europe that faces a migration crisis. Like Brown’s exploration of the Canadian context, Glazebrook’s articulation of a different common law perspective is valuable. Her concluding remark is well taken and warrants further thought: the scope of powers of particular institutions falls to be considered in relation to the state’s constitutional arrangements and, especially, its constitutional culture and values.
IV
In his comment, Dyson Heydon develops further our understanding of the exercise of judicial power by taking up a point arising out of Finnis’s critique of the vagaries of litigation. The premise of adjudication in an adversarial context is undercut by an inequality of arms, Heydon notes with agreement, but also, he adds, by incapacity because of ignorance, when the parties are surprised by points that arise for the first time in final judgment. Australian law provides some examples of this practice, which Heydon argues is fundamentally unfair. It is unfair not only on the losing party in litigation, but also on the winning party, the judgment in whose favour is then vulnerable on appeal. Moreover, this is a mode of adjudication that tends to produce bad law.
Heydon develops a discussion of the dangers “in enunciating propositions without argument” by way of the Supreme Court’s judgment in Horncastle.[18] The context was the English courts (in the end successful) attempt to push back hard against Strasbourg case law which held that by allowing hearsay evidence English law resulted in unfair trials. The aim of the Supreme Court’s judgment was to make clear the robustness of English trials, to stress the safeguards against abuse. Heydon has nothing but sympathy for the English judges and commends their success in fending off the Strasbourg Court. However, the episode has a dark side, viz. that the Strasbourg Court was led to accept that in English courts anonymous hearsay is inadmissible. This was an idea introduced in the Supreme Court judgment, but neither properly grounded in close analysis of relevant legislation nor argued by counsel. The Supreme Court’s remarks were relied on in at least some of the cases that followed, with unfortunate consequences. This was not, Heydon makes clear, a deliberate error on the Court’s part. It stumbled into error by way of the imperative of mollifying, or repelling, the Strasbourg Court, and especially by not putting the point to the parties. The episode was understandable but problematic, Heydon concludes, and helps confirm Finnis’s incisive reflections into the rightful limits of common law adjudication.
V
The final comment, by Baroness O’Neill, is different in kind from the other four insofar as O’Neill is a distinguished philosopher-legislator rather than judge-jurist. Her reflection aims to discern the different acts of judgement that are in play in judicial action. The temporal perspective that anchors the Gray’s Inn lecture is illuminating, O’Neill says, but also incomplete. Lawmaking rightly looks to past and present as well as future. And judicial action must at least sometimes look to the future. Following Kant, O’Neill aims to outline three types of judgement, a distinction which chimes with parts of Finnis’s analysis but challenges it in other respects. She contrasts determinant judgement, in which one applies a universal to a particular case, reflective judgement, in which there is a case to hand but one has to select or find a universal, and practical judgement, where there is no case yet to hand but one nonetheless has to frame the future. The tricky question, O’Neill argues, is whether judges should be making reflective judgements, especially by way of proportionality.
The need to resolve indeterminacy invites and requires judgement. It is not plausible for judges never to exercise reflective judgement, O’Neill insists, for interpretation is necessary. True, authority is especially important in legal interpretation (as in other domains too), but it is difficult, O’Neill reasons, to limit reflective judgement to cases where authority is incomplete, for the facts may be open to many interpretations and there may be many laws given. Proportionality is controversial, O’Neill concludes, in part because it assumes not just that courts must balance considerations in this case but that the balance now struck should settle other like cases in future. She concludes that the merits of the technique of proportionality should be evaluated with this in mind.
VI
The Gray’s Inn lecture was framed around 10 theses. The rejoinder poses and answers ten questions arising out of the commentary, clarifying and elaborating the lecture’s argument. Finnis welcomes Elias’s charitable reflection on the impossible attempts cases and makes clear that his concern is not only with judicial usurpation, but also with the risks of courts simply going wrong in attempting to make law by way of adjudication. He also welcomes Glazebrook’s recognition that judges are not the guardians of the constitution, and recalls some rather less careful judicial utterances in recent times. The rejoinder returns to the merits of allowing judges to declare legislation rights-incompatible, outlining reasons for concern about the constitutional dynamic that this will introduce. The analysis focuses on New Zealand’s prisoner voting litigation but is informed by Brown’s observations about the use of “autonomy” in Canadian constitutional law.
In conversation with his commentators, Finnis elaborates the temporal account of the separation of powers (noting that legislatures indeed must consider past and present as well as future) and tackles the alleged necessity of courts sometimes having to develop (improve) the law. With Heydon, he stresses the particular dangers for courts in seeking to develop the law without the aid of arguments from counsel. The rejoinder resists the alleged inevitability of courts deploying international human rights in domestic law and defends the lecture’s theses about “living instrument” interpretation and its domestic analogues. In response to Glazebrook, Finnis denies that his criticism of the Strasbourg Court and House of Lords condones torture and maintains that his analysis is grounded in the facts and legal materials. Academic and judicial reticence and subterfuge have disarmed clear-eyed analysis, Finnis argues, which is unwise. The rejoinder also considers whether courts are bound by concessions, taking Elias’s perspective as a valuable report on the self-understanding of our highest courts but preferring the analysis of its merits by Heydon. Finally, Finnis considers O’Neill’s argument from Kant and disavows the claim that questions of right have no place in legal thought or decision-making. Better to say, Finnis continues, that moral reflection is vital but supports rather than dissolves the constitutional allocation of authority.
The Lincoln’s Inn lecture
The second lecture which makes up this collection is the Sir Thomas More Lecture, which John Finnis delivered in Lincoln’s Inn on 1 December 2016, almost a month after the Divisional Court judgment in Miller and a few days before the Supreme Court appeal was to be heard. The lecture was preceded by two short papers published by the Judicial Power Project,[19] papers which attracted much scholarly attention and transformed the Government’s presentation of its case. The Judicial Power Project published the text of the Lincoln’s Inn lecture on 2 December and the Government relied extensively on it across three days of the four-day hearing.[20] The lecture is a study of the constitution in action, explaining the UK’s traditional separation of powers, recovering the history and complexity of our constitutional arrangements and defending their intelligibility. The lecture illuminates the background against which Parliament and Government acted in 1972, in taking the United Kingdom into the European Union, explaining the constitutional distribution of authority and responsibility between those two institutions, and teasing out the implications for the Miller case.
Joining the European Union was plainly a major change in our public life: so too leaving. But, the lecture argues, the UK’s entry into the Union (at the time, the European Economic Community) was realised by deliberately familiar means. Finnis traces the shape and spread of Westminster constitutional principle, exploring the legislative craft involved in the making of the Constitution of the Bahamas and identifying the constitutional principle involved in the making and unmaking of treaties by prerogative. This forms the groundwork for the lecture’s approach to the European Communities Act 1972, elucidating Parliament’s intent in that Act by articulating the model of executive-legislative interaction on which it relied and which it maintained in subsequent legislation. Behind this model lay another: the scheme for entering into, giving domestic legal effect to, and exiting from, double-tax treaties. The aptness of this model, made out in Finnis’s earlier Judicial Power Project papers, had been attacked by a number of scholars, attempted rebuttals of which the lecture contests in turn. The assumption that the EU treaties are simply different in kind, being of fundamental constitutional significance, was unfounded, Finnis argued, because it wrongly adopted the EU’s legal self-understanding, ignoring the historic common law constitution by which EU law had been given domestic legal effect. Likewise, assertions about that constitution’s openness to abuse, which were leveraged into demands for judicial intervention, ignored or downplayed vital political-constitutional restraints.
The Lincoln’s Inn lecture complements the Gray’s Inn lecture. It explores in close detail the separation of powers that has long characterised Westminster government, especially in the United Kingdom, showing how it has been an intelligent, workable scheme for self-government. The intervention that the Miller litigation sought was intended to, and succeeded in, unsettling that scheme, inserting the courts into the relationship between House of Parliament and Government. There is muddle as well as usurpation in our constitutional practice. The courts were invited to assume a responsibility for parliamentary control of treaty unmaking, a responsibility they ought to have disavowed (and might have, had it been put squarely to them) but were led into adopting by the inequality of arms in litigation and shaky grasp of constitutional history. Not for the first time either: there is a parallel here with the judicial confusion, only arrested by bare majority in the House of Lords, about the Crown’s power to legislate in ceded or conquered colonies.[21] In Miller, even more than in Bancoult,[22] the litigation received much encouragement from a political-legal culture that looked for adventurous adjudication to limit government action. Finnis adds to the Lincoln’s Inn lecture a postscript reflecting on the Supreme Court’s Miller judgment. The compliment that judgment pays to the common law constitutional tradition is to frame its mishandling of the legal materials, its misreading of the 1972 Act, as necessitated by fundamental legal principle. In truth, the judgment wrongly adopts (inconsistently) the EU’s legal self-understanding and trades on an arbitrary, novel proposition, viz. that important change cannot be realised without primary legislation.
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John Finnis’s two lectures, the comments by his five interlocutors, his rejoinder and postscript jointly constitute a compelling tour of the common law constitutional tradition, in its historic shape and foundation and in its present state of development and divergence. This collection should serve as an invitation to lawyers, judges and scholars to reflect on that tradition, to sharpen their craft, and to parliamentarians and others in public life to recall that tradition and to choose with open eyes whether and when to change it or whether to tolerate its compromise or dilution.
Professor Richard Ekins is Associate Professor of Law in the University of Oxford and a Fellow of St John’s College, Oxford. He leads Policy Exchange’s Judicial Power Project. His published work includes The Nature of Legislative Intent, as well as the edited volumes Modern Challenges to the Rule of Law and Lord Sumption and the Limits of the Law.
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[1] See especially Natural Law and Natural Rights (2nd edn, Oxford: Oxford University Press, 2011), chapter X, and Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), chapter VIII.
[2] John Finnis, “Revolutions and Continuity of Law”, essay 21 in Collected Essays of John Finnis: Volume IV (2011, Oxford, Oxford University Press); see also Richard Ekins, “Constitutional Principle in the Laws of the Commonwealth” in Robert George and John Keown (eds.), Reason, Morality and Law: The Jurisprudence of John Finnis (Oxford: Oxford University Press, 2013) 396-412, 397-398.
[3] Cf. Lord Reid, “The Judge as Law Maker”, (1972) 12 Journal of the Society of Public Teachers of Law 22—29.
[4] Kleinwort Benson v Lincoln City Council [1999] 2 AC 349
[5] John Finnis, “Judicial Law-Making and the ‘Living’ Instrumentalisation of the ECHR” in Nick Barber, Richard Ekins and Paul Yowell (eds.), Lord Sumption and the Limits of the Law (Oxford: Hart Publishing, 2016), 73-120, 74-80.
[6] John Finnis, “Two Too Many?” (24 November 2016), replying to Dame Elisabeth Laing, “Two Cheers for Judicial Activism” (22 November 2016) (see: https://jpp1.wpengine.com/category/debates/alba-papers-on-judicial-activism/); the latter paper was subsequently published as Mrs Justice Laing, “Judicial Activism: Reigning in the Judges” [2016] Judicial Review 276-284.
[7] The cases concerned whether one can be guilty of an attempt to commit a crime if, unbeknownst to the would-be offender, it is in fact impossible for the full crime to be committed.
[8] The Belmarsh case, which concerned detention of foreign terror suspects, is more formally known as A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68.
[9] See also Grégoire Webber, Paul Yowell et al, Legislated Rights: Securing Human Rights through Legislation (Cambridge: Cambridge University Press, 2018, forthcoming).
[10] R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2010] 1 AC 345, Evans v Attorney General [2015] UKSC 21; [2015] AC 1787, and R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2017] 2 WLR 583.
[11] Conor Gearty, Fantasy Island: Britain, Europe and Human Rights (Oxford: Oxford University Press, 2016).
[12] Jonathan Sumption (2017) 133 Law Quarterly Review 338-340.
[13] In Jackson v Attorney-General [2005] UKHL 56; [2006] 1 AC 262, Lord Steyn and Lord Hope argue that parliamentary sovereignty has been qualified and that it is open to courts to assert further limits on Parliament’s authority. For criticism see Tom Bingham, The Rule of Law (London: Allen Lane, 2010), 196 and Richard Ekins, “Legislative Freedom in the United Kingdom” (2017) 133 Law Quarterly Review 582-605.
[14] R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2014] 3 WLR 200.
[15] Dan Meagher, “The Common Law Presumption of Consistency with International Law: Some Observations from Australia (and Comparisons with New Zealand)” [2012] New Zealand Law Review 465.
[16] Cf. Richard Ekins, “Updating the Meaning of Violence” (2013) 129 Law Quarterly Review 17-21.
[17] Hirsi Jamaa v Italy (27765/09) 23 February 2012 (GC).
[18] R v Horncastle [2009] UKSC 14; [2010] 2 AC 373.
[19] John Finnis, Terminating Treaty-based UK Rights (26 October 2016) and Terminating Treaty-based UK Rights: A Supplementary Note (2 November 2016).
[20] The lecture recalls, and is usefully read with, another Judicial Power Project lecture delivered the previous day by Timothy Endicott, also relied on before the Supreme Court, and subsequently published in revised form as The Stubborn Stain Theory of Executive Power: From Magna Carta to Miller (Policy Exchange, 2017).
[21] Richard Ekins, “Constitutional Principle in the Laws of the Commonwealth” in George and Keown (eds.), Reason, Morality and Law: The Jurisprudence of John Finnis (2013) 396, 401-406.
[22] R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453.