The legitimate extent of judicial authority is a perennial and thorny question. In this lecture, I address the question from the perspective of public law — and, in particular, with reference to the role that judges play in relation to “constitution-making”.
I recently addressed the Public Law Project’s 2016 Judicial Review Trends and Forecasts Conference on the subject of ‘The Limits of Judicial Authority’. In my talk, I examined the notion of ‘judicial constitution-making’, with particular reference to the role played by the courts in the development of the architecture of the common law constitution. To that end, I considered cases such as Thoburn v Sunderland City Council  EWHC 195 (Admin), R (HS2 Action Alliance Ltd) v Transport Secretary  UKSC 3, R (Evans) v Attorney General  UKSC 21 and R (Jackson) v Attorney General  UKHL 56. (The High Court had not, by the time I gave my talk, delivered its judgment in R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin); if it had, that case, on which I have written with Hayley Hooper, would certainly have featured.)
I argued that the case law evidences judicial constitution-making in three — increasingly interventionist — ways, pertaining to the recognition of ‘constitutional legislation’, the acknowledgment of ’embedded constitutional values’ and the tentative identification of ‘impervious constitutional values’, i.e. constitutional values that are invulnerable to legislative displacement. In relation to the latter, I argued that the act of tentatively identifying such values might itself be considered an act of judicial constitution-making — which, depending on the perspective adopted, might or might not itself be regarded as an instance of judicial overreach.
The slides that accompanied my talk can be found here, while an audio recording of the talk, and of the Q&A that followed it, can be accessed here: