John Finnis delivered a stimulating and provocative lecture earlier this week on the subject of “Judicial Power: Past, Present and Future”. The lecture forms part of Policy Exchange’s Judicial Power Project, which is being led by Richard Ekins and Graham Gee of the Universities of Oxford and Sheffield respectively. In a lecture that was — significantly, no doubt — introduced by Justice Secretary and Lord Chancellor Michael Gove, Finnis subjects a number of recent high-profile public-law judgments — including Belmarsh, Nicklinson and Evans — to withering criticism.
The lecture is thus a riposte to what Ekins and Gee, in a post introducing their project, refer to as “an expansive, adventurous understanding of judicial power” that is today shared by “[m]any in the academy and the legal profession” and which calls into doubt the “good sense” embodied in the separation-of-powers doctrine. Thus, for instance, Ekins and Gee assert that in the Evans case the majority in the Supreme Court were “wrong” to intervene by way of quashing the Attorney-General’s use of the governmental veto power in the Freedom of Information Act 2000. (I do not agree, for the reasons given in my recent article in Public Law on Evans.)
Ekins and Gee do, however, concede that the questions with which their project is concerned “are difficult ones about which reasonable minds can and do often disagree”. I am pleased, therefore, to have been invited to write a response to Finnis’s lecture which will be published on the Judicial Power website in the next couple of weeks. In the meantime, I strongly recommend the lecture to anyone who is interested in the discussion about the proper extent of judicial power. It is, unsurprisingly, an extremely thoughtful and powerful piece of work, and one that articulates and defends an understanding of the judicial role that has been somewhat eclipsed in recent years by the emergence of a new orthodoxy. Whether that new orthodoxy is in fact as heterodox as Finnis argues is another matter — and one that I will address in my response.