About the Judicial Power Project
The focus of this project is on the proper scope of the judicial power within the constitution. Judicial overreach increasingly threatens the rule of law and effective, democratic government. The project aims to address this problem – restoring balance to the Westminster constitution – by articulating the good sense of separating judicial and political authority. In other words, the project aims to understand and correct the undue rise in judicial power by restating, for modern times and in relation to modern problems, the nature and limits of the judicial power within our tradition and the related scope of sound legislative and executive authority.
The judicial power has a central, strategic place in any well-ordered constitutional arrangement: no state is well-governed without an independent judiciary, exercising legal and constitutional authority to adjudicate disputes, including disputes between citizens and officials, fairly and in accordance with settled positive law. Our constitutional tradition has long recognised this truth, making provision since the Act of Settlement 1701 for judicial independence and adopting conventions that support mutual respect between the Queen-in-Parliament, the Queen’s ministers and other servants, and the Queen’s courts.
The central, important place of the courts in securing the rule of law, by fairly adjudicating disputes in accordance with settled law, has not involved, in our tradition, general oversight of the justice or prudence of the laws that fall to be applied. While the courts have had a limited capacity to develop the common law, it is Parliament that has enjoyed the main responsibility for overseeing the content of the law and changing it when required.
The supremacy of Parliament within the constitution has not been a departure from the rule of law or a failure to recognise the importance of human rights. On the contrary, our tradition has taken the view that the body that ought to have authority to decide what the law should be is Parliament, in part because it represents the community but in part also because it is best placed to change the law wisely and in a way that secures the rule of law. In abolishing slavery, extending the franchise, establishing the NHS, protecting workers who form unions, abolishing capital punishment, and decriminalising homosexual acts, to give only a few examples, Parliament acted to secure justice and right.
The British constitutional tradition has thus long centred on a disciplined account of the proper scope of judicial authority, which has been held rightly subject to the legislature’s final authority to choose the content of the law and not to undermine the executive’s constitutional responsibility to choose how best to act within the scope of its lawful powers.
But the good sense of this separation of powers is now increasingly doubted, within Britain and, in different ways, in other common law countries. Many in the academy and legal profession now share an expansive, adventurous understanding of judicial power and the willingness and authority of the courts to oversee Parliament’s lawmaking actions or to overrule the executive’s exercise of its lawful powers has sharply expanded.
This expansion of judicial power is a complex phenomenon. It is driven in part by a wider global trend, in which the American constitutional structure is taken as a model, in part by the increasing self-confidence of the legal community and a corresponding failure of confidence in the adequacy of parliamentary government or democratic politics. No single political or legal decision, including the enactment of the Human Rights Act 1998, alone explains the rise of judicial power within the United Kingdom. And the expansion of judicial authority, and the willingness of some judges to adopt an adventurous understanding of their jurisdiction, is not limited to the field of human rights law.
Importantly, the rise in judicial power within the United Kingdom has taken place without sustained public debate. This is a problem: the constitution should not be fundamentally unsettled in so haphazard or surreptitious a way. The point of this project is to address this problem, making clear the ways in which the judiciary’s place in the constitution has been changing, and might well change in the future, and then giving these developments and possibilities the close attention that they deserve.
The project’s concern is with how and by whom public power is exercised. Doubts about the wisdom of an expansive, adventurous understanding of judicial power have been, are and should be shared by people and groups who otherwise have very different political commitments. The project’s central idea is that the decisions of Parliament ought not to be called into question by the courts and that the executive ought to be free from undue judicial interference, which fails to respect political judgment and discretion. These are broad propositions – the devil will often be in the details – but nonetheless they warrant restatement and application to new problems in our law and practice. They are open to adoption by all who share a commitment to parliamentary democracy and the rule of law.