I recently finished work on a paper that will be published by the University of Queensland Law Journal in December 2017, in a special issue edited by Richard Ekins and Graham Gee on the topic of ‘Reflections on the Rise of Judicial Power’. In the paper, I begin from the premise that judicial power, in any rule of law-based system, is a given. But that leaves open the hard question: how much judicial power is too much? That question has risen to particular prominence in recent years in the United Kingdom, where the judicial role has changed and expanded in notable ways. As those developments have unfolded, they have attracted strong criticism from some quarters. In particular, charges of overreach have been levelled at the judiciary, and there have been prominent calls — from sections of both the political establishment and the academy — for the clipping of the courts’ wings .
My paper charts the growth of judicial power in the UK and considers how, given the particularities of the UK’s constitutional system, one might go about identifying the proper limits of judicial power. The paper thus begin by addressing the key constitutional parameters by reference to which the notions of judicial power and overreach have traditionally been calibrated in the UK. It then proceeds to trace the many senses in which the exercise of judicial power has grown, and considers the forces that have brought such developments about. Against that background, the paper contends that while the evolution of the judicial role evidences a reconceptualization, as distinct from the repudiation, of relevant fundamental constitutional principles, it should not be assumed that the UK constitution’s famous flexibility is limitless.
In that light, the paper examines the recent and controversial judgments of the UK Supreme Court in the Evans and Miller cases, in which, in different ways, the proper limits of judicial power have been tested. I conclude that some of the criticism that has been levelled at the judiciary in recent years is unwarranted and reactionary. But I also argue that that should not be taken to mean that ‘anything goes’, and that the growth of the judicial role brings with it heavy responsibilities. Key amongst them is an obligation to engage rigorously and transparently with the questions of fundamental constitutional principle that determine the proper relationship between the various branches of the State, and which thus trace the legitimate parameters of judicial power.
A pre-publication draft of my paper can be downloaded via SSRN.