Putting judicial power in its place

The rise of judicial power throughout the common law world is a departure from a shared constitutional tradition. In this article we consider how and why the UK is departing from that tradition, and outline why and how this departure ought to be resisted. Our argument is that the rise of judicial power in the UK is a function in part of the exercise of political responsibility (notably, dubious political choices to confer new powers and responsibilities on domestic courts and to accept the jurisdiction of foreign courts) and in part of how many judges, lawyers and scholars are coming to understand the idea of judicial power itself. These changes to constitutional law and practice compromise the rule of law, privilege irresponsible law-making, and undercut democratic self-government. They ought to be wound back. We suggest that this requires both the revitalisation of political responsibility by elected representatives and an accompanying cultural change within the legal class. We outline how the task of restoring sound constitutional principle in the UK ought to proceed, both in general and, in conversation with Professor Paul Craig, in relation to some of our own work to this end with Policy Exchange’s Judicial Power Project. We begin, however, by restating the common law’s constitutional tradition and the place of courts within it. The broad contours of the tradition traced below are (or at least ought to be) very familiar. Yet, appreciation of and commitment to the traditional constitutional learning amongst the political and legal classes are — it seems to us — waning, which is a main part of the problem. For only if the tradition is kept in clear sight can the real risks associated with the rise of judicial power be fully grasped.