scholarly journals JUDICIOUS REVIEW: THE CONSTITUTIONAL PRACTICE OF THE UK SUPREME COURT

2018 ◽  
Vol 77 (2) ◽  
pp. 349-374
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Judicial Intervention ◽  
Parliamentary Sovereignty ◽  
The Will ◽  
Uk Supreme Court ◽  
The Uk ◽  
Constitutional Jurisprudence

AbstractThe role of the UK Supreme Court (UKSC) as conventionally understood is to give effect to, and not to challenge, the will of Parliament. At the same time, the UK's constitution forces the UKSC to develop a constitutional jurisprudence to resolve clashes of higher-order principles, for instance between parliamentary sovereignty and the rule of law. This development puts the legitimacy of unelected and unaccountable judges invalidating legislation under the spotlight. Instead of arguing for US-style strike-down powers, I argue that cautious and corrective judicial intervention is constitutionally mandated and democratically legitimate.

The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?

2020 ◽  
Vol 71 (2) ◽  
pp. 285-302
Author(s):  
Roger Masterman
Keyword(s):  
Supreme Court ◽  
Ad Hoc ◽  
Court Decisions ◽  
Privy Council ◽  
House Of Lords ◽  
Uk Supreme Court ◽  
Proportionality Test ◽  
The Uk ◽  
The Relationship

It is often claimed that the constitutional role of the UK’s apex court is enriched as a result of the experiences of the Judicial Committee of the Privy Council as interpreter of constitutions within its overseas jurisdiction. This paper considers the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system(s), further seeking to assess how far the jurisprudence of the Judicial Committee has influenced constitutional decision-making in the UK apex court. While ad hoc citation of Privy Council authorities in House of Lords/Supreme Court decisions is relatively commonplace, a post-1998 enthusiasm for reliance on Judicial Committee authority – relating to (i) a ‘generous and purposive’ approach to constitutional interpretation and (ii) supporting the developing domestic test for proportionality – quickly faded. Both areas are illustrative of a diminishing reliance on Judicial Committee authority, but reveal divergent approaches to constitutional borrowing as the UK apex court has incrementally mapped the contours of an autochthonous constitutionalism while simultaneously recognising the trans-jurisdictional qualities of the proportionality test.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

Too cramped for comfort? Constraints on the Government's room to manoeuvre

1999 ◽  
Vol 23 ◽  
pp. 93-100
Author(s):  
M. Radford
Keyword(s):  
Rule Of Law ◽  
Political Process ◽  
Protection Measures ◽  
The Rule Of Law ◽  
Animal Protection ◽  
Domestic Courts ◽  
Treaty Of Rome ◽  
The Will ◽  
The Uk ◽  
Ec Law

AbstractTraditionally, the UK parliament has been legislatively supreme: it can pass or repeal whatever measure it wishes. Membership of the European Community and the World Trade Organization has fundamentally changed this situation. Parliament and government are both constrained in what they may do if their action would conflict with the principle of free trade, to the extent that, under EC law, the domestic courts may override the will of Parliament. Provisions which allow nations to introduce restrictions in order to protect public morality, or the life and health of animals, have not been effective in providing a basis for the introduction of animal protection measures. Amendments to the Treaty of Rome, recognizing the sentiency of animals, is an advance, but what difference it will make in practice is as yet unclear. The apparent inability of a nation state to give effect to the will of its citizens raises important constitutional issues: it has serious implications for democracy and the rule of law and undermines the legitimacy of the political process.

13. The judiciary

2021 ◽  
pp. 303-326
Author(s):  
Anne Dennett
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Judicial Power ◽  
Executive Power ◽  
The Rule Of Law ◽  
External Influences ◽  
Political Interference ◽  
The Uk

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

3. The features and sources of the UK constitution

2021 ◽  
pp. 43-70
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
International Treaties ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
Constitutional Conventions ◽  
The Common ◽  
The Uk

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

13. The judiciary

2019 ◽  
pp. 288-310
Author(s):  
Anne Dennett
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Judicial Power ◽  
Executive Power ◽  
The Rule Of Law ◽  
External Influences ◽  
Political Interference ◽  
The Uk

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

Unelected does not Equate with Undemocratic: Parliamentary Sovereignty and the Role of the Judiciary

2008 ◽  
Vol 13 (2) ◽  
pp. 1
Author(s):  
Marilyn Warren
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
Judicial Power ◽  
Executive Power ◽  
Judicial Activism ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
The Common

<p>One feature of judicial life that strikes most appointees to judicial office early on is the silence of the Judiciary outside our judgments and statements in court. We are also struck, when we deliver our first judgment that raises controversy or higher public interest, by the vulnerability of the Judiciary to<br />criticism, sometimes vehement and trenchant. Judges do not answer back. With the exception of Chief Justices, judges are generally only heard in court, unless the speaking occasion involves an extra-curial or academic discussion on the law or judicial life. This is properly so. Yet, when the criticism comes, it is troubling. Judges understand the constitutional and<br />governmental conventions that operate and within which they work. The conventions are not complicated, in fact quite simple. The only regret is that they are forgotten or overlooked when the criticism is made. For this<br />evening’s purpose I would wish to reflect on the conventions that judges work within. I will set out the traditional and modern views on parliamentary sovereignty. I will address the doctrine of separation of powers and the role of judicial power. I will postulate that, in modern government, it is the rule of law that is sovereign. I will consider the judicial role and the development of the common law. I will address the topics of<br />judicial activism, the election of judges and judicial accountability. I will conclude with the view that the complaint of judicial activism is misplaced and involves a misapprehension of the judicial function. For some, the high<br />water mark of judicial activism was Mabo.1 For some, the nadir of judicial ‘inactivism’ was Al Kateb.2 These swings of the pendulum in the discussion of judges’ work are not new. In 1956, Boilermakers’3 was an unsatisfactory outcome for some. Similarly, in 1948, the Bank Nationalisation4 decision provoked criticism. When Chief Justice Dixon restrained the Victorian Government from carrying out the execution in Tait,5 criticism ensued. However, each time judicial power prevailed over parliamentary and executive power. Was that undemocratic? My discussion does not say anything new. It has been said before. But, it needs to be said again. I turn then to the topic for consideration.</p>

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada

2017 ◽  
Author(s):  
Newman Warren J
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Constitutional Theory ◽  
First Principle ◽  
The Rule Of Law ◽  
Administrative Action ◽  
Parliamentary Sovereignty

This chapter considers the meaning, scope, and application of three constitutional principles of surpassing importance in Canada. The rule of law is foundational to Canada’s constitutional framework and may properly be characterized as the first principle of Canadian constitutional law. It is linked to, and in some respects, forms the underpinning for other fundamental principles, including constitutionalism, federalism, democracy, and parliamentary sovereignty. As the latter principles are the focus of chapters by other commentators in this Handbook, this chapter will examine the rule of law primarily in relation to the separation of powers and judicial independence. The principle of judicial independence is also essential to the functioning and structure of the Constitution, given the role the courts are called upon to play in policing the constitutional limits of legislative power and administrative action. The separation of powers is still an emerging principle in Canada, but also increasingly viewed as fundamental.

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