Richard Ekins KC (Hon)
Head of the Judicial Power Project
Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project. He is Professor of Law and Constitutional Government in the University of Oxford and a Fellow of St John’s College. His published work includes The Nature of Legislative Intent (OUP, 2012), the co-authored book Legislated Rights: Securing Human Rights through Legislation (CUP, 2018) and the edited collections The Rise and Fall of the European Constitution (Hart Publishing, 2019), Judicial Power and the Balance of Our Constitution (Policy Exchange, 2018), Judicial Power and the Left (Policy Exchange, 2017), Lord Sumption and the Limits of the Law (Hart Publishing, 2016), and Modern Challenges to the Rule of Law (LexisNexis, 2011). He has published articles in a range of leading journals, and his research has been relied upon by courts, legislators, and officials in New Zealand and the United Kingdom.
Related News
Home Secretary to examine Treason law proposal
Policy Exchange’s proposal for a new law of Treason, which would help prosecute returning Isis fighters, was discussed in the House of Commons this week and received front page coverage in The Daily Telegraph.
Policy Exchange’s Judicial Power Project submits evidence to Joint Committee on Human Rights inquiry on the 20th anniversary of the Human Rights Act 1998
Richard Ekins (University of Oxford and Head of the Judicial Power Project) and Graham Gee (University of Sheffield) have submitted written evidence to the inquiry by Parliament’s Joint Committee on Human Rights on 20 Years of the Human Rights Act. Download our submission or read online via Parliament’s website.
Peers back Policy Exchange proposal to update treason laws
On the first day back after Parliamentary recess, Policy Exchange’s proposal to update the Law of Treason was raised by two former ministers as the House of Lords debated the Government’s latest Counter Terrorism Bill.
The Times publishes letter on combat immunity by authors of Policy Exchange's 'Clearing the Fog of Law' paper
In a letter published in The Times, the authors of Policy Exchange's Clearing the Fog of Law paper address the President of the Law Society's misplaced criticism of government proposals to revive combat immunity. The point of the proposals is to restore the law as it stood before the landmark decision of Smith & Others v Ministry of Defence and thus to beat back the judicialisation of war. The Law Society is wrong to say that this is an attack on compensation or accountability.
Policy Exchange's Judicial Power Project responds to Government paper on European Court of Justice post-Brexit
Policy Exchange's Judicial Power Project responded to the paper released by the Government on leaving the jurisdiction of the European Court of Justice after Brexit. Visiting Fellow Dr Gunnar Beck writes in The Telegraph and Professor Richard Ekins, head of the Judicial Power Project, writes in The Spectator, while Senior Fellow Christopher Forsyth writes for CapX and Richard and Gunnar for ConservativeHome.
Policy Exchange Judicial Power Project's letter to Financial Times Editor published
Policy Exchange's Judicial Power Project Head, Professor Richard Ekins and Professor Graham Gee wrote to the Financial Times in responce to a recent editorial, 'Brexit places Britain’s judges in the line of fire', explaining that it wrongly states that refusal to concede a continuing role for the European Court of Justice after Brexit creates a predicament for UK judges. Their letter, entitled 'UK judges’ future looks robust, not fragile' was published in the paper and online.
Policy Exchange's Richard Ekins writes about the Great Repeal Bill for The Spectator
Following the publication of the White Paper in advance of the Government's Great Repeal Bill, Richard Ekins — Head of Policy Exchange's Judicial Power Project — explains that 'the Bill is at least as much about continuity as it is about change'.
Policy Exchange's Richard Ekins in The Spectator: 'What the Supreme Court got right and wrong in today’s judgment'
Richard Ekins — Head of Policy Exchange's Judicial Power Project — reflects on the judgment, concluding that while it is 'perhaps less important than once assumed', its wider significance 'remains to be seen'
Policy Exchange's Richard Ekins in the Daily Telegraph: The High Court is badly mistaken about Article 50. To uphold its judgment would be madness
Richard Ekins — Head of Policy Exchange's Judicial Power Project — discusses this week's Article 50 case: 'the most important constitutional case the Supreme Court has ever heard'
War and Justice
Richard Ekins, head of Policy Exchange's Judicial Power Project, responds to The Times on the topic of the ECHR.
What the PM gets right about the Brexit litigation
The Government’s legal authority to invoke Art 50 is being challenged in the courts. In her speech on Sunday, the Prime Minister stated in strong terms that it is up to the Government – not the Commons or Lords – to invoke Art 50. Those who argue the contrary are not standing up for democracy, she said, but seeking to subvert it, insulting the intelligence of the British people and […]
Brexit Vote Showed How a Referendum Can Reflect a Nation’s True Feelings
Referendums are not generally a good idea. The electorate is not well placed to rule directly. In general, self-government should be by way of representative institutions. Still, there are times when it is reasonable for the legislature to put some question to the voters themselves for decision by way of a referendum, especially in relation to constitutional change. The constitutional referendum is a legitimate technique of representative democracy. Referendums are […]Related Publications
Legislating about Gerry Adams and Carltona
Download Publication Online Reader This paper builds on a paper published in January 2025 and explains how the Government can legislate (a) to stop Gerry Adams being paid public money for his detention in the 1970s and (b) to restore the Carltona principle. While new legislation is not strictly necessary, if the Government is determined to legislate, the paper sets out a draft enactment that will solve the problem that the Government has […]
Parliament’s role in ratifying the UK-Mauritius Agreement concerning the Chagos Islands
Download Publication Online Reader This research note considers the role of Parliament in relation to the cession of the Chagos Islands to Mauritius. A treaty ceding sovereign British territory to a foreign power cannot be ratified unless Parliament enacts legislation enabling ratification. In considering whether to enact such legislation, Parliament will have an opportunity to reject ratification of the Treaty – or to impose conditions on ratification. In deliberating about […]
The Attorney General, the Iran-Israel war, and the future of Diego Garcia
Download Publication Online Reader This short note considers the Attorney General’s maximalist approach to international law in the context of the advice he is reported to have given about the lawfulness of UK military action in support of Israel against Iran. The Attorney’s advice may result in the UK Government obstructing US military action against Iran insofar as those operations rely on the joint base in Diego Garcia. The new […]
The Chagos Debacle
Download Publication Online Reader A new paper from Policy Exchange strongly challenges the Government’s claim that a deal must be signed with Mauritius to protect the joint UK-US exclusive access to the electromagnetic spectrum on Diego Garcia, one of the Chagos islands. This vital intervention is backed by Rt Hon Tom Tugendhat MP – Former Minister of State for Security and former Chair of the Foreign Affairs Select Committee. He […]
State or Diplomatic Immunity and the Limits of International Criminal Law
Download Publication Online Reader The Government has asserted that it is up to the courts to decide whether Prime Minister Netanyahu has immunity from arrest. This new Policy Exchange paper shows that the Government’s position is an irresponsible surrender of the Government’s duty under the International Criminal Court Act 2001, which gives effect to the UK’s duty under international law – not to violate the state or diplomatic […]
Misjudging Parliament’s reversal of the Supreme Court’s judgment in R v Adams
Download Publication Online Reader The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 is a controversial Act of Parliament. But sections 46 and 47 were not controversial when enacted. These two provisions were adopted unanimously by Parliament in response to the Supreme Court’s 2020 judgment in R v Adams, in which the Court wrongly allowed Gerry Adams’s appeal against his 1975 conviction for attempting to escape from lawful custody. However, […]
Averting a Strategic Misstep
Download Publication Online Reader This report urges the UK Government to withdraw from the arrangement to cede sovereignty over the Chagos Islands to Mauritius – arguing that consequential developments since the proposed deal’s announcement provide an opportunity to withdraw with honour. Backed by former First Sea Lord and former Labour Security Minister, Rt. Hon Admiral Lord West of Spithead GCB DSC PC, the report argues that the deal […]
The International Criminal Court Act 2001 and State or Diplomatic Immunity
Download Publication Online Reader The Government has equivocated about whether it would attempt to enforce the International Criminal Court (ICC) arrest warrant against Prime Minister Netanyahu. This paper shows that any such attempt would be clearly unlawful. The International Criminal Court Act 2001 carefully preserves the immunity of the Head of Government of a State that is not party to the Rome Statute that established the ICC. The only exceptions […]
The Impact of the Human Rights Act 1998 in Twenty-Five Cases
Download Publication Online Reader This new paper for Policy Exchange’s Judicial Power Project shows how the Human Rights Act has had a major, negative impact on how the UK is governed – and on the way in which many important questions about public policy have been resolved. The paper contributes to the study of the impact of the Human Rights Act by picking out, from each year of the Act’s […]
Human Rights and the Rule of Law
Download Publication Online Reader A new report from Policy Exchange published today, ‘Human Rights and the Rule of Law’, challenges the common assumption that the idea of the rule of law supports European human rights law. The report, written by Professor Richard Ekins KC (Hon) – Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford – is based […]
Judicial Independence, Rule 39 and the Safety of Rwanda Bill
Download Publication Online Reader This new paper for Policy Exchange considers clause 5 of the Safety of Rwanda Bill, which authorises Ministers to decide whether or not the UK will comply with a Rule 39 interim measure made by a judge of the Strasbourg Court. The paper considers amendments to clause 5 that set to be debated in the House of Lords, denying that they are justified by the moral […]
Safety of Rwanda (Asylum and Migration) Bill
Download Publication Online Reader A new research note published by Policy Exchange today recommends that the House of Commons support the Safety of Rwanda (Asylum and Migration) Bill when it receives its second reading tomorrow (Tuesday 12 December). The Bill is described as an “intelligent and broadly effective response to the Supreme Court’s recent Rwanda judgment”. The Bill does not reject that judgment, or disrespect the Supreme Court […]
Government Lawyers, the Civil Service Code, and the Rule of Law
Download Publication Online Reader A new research note published by Policy Exchange today argues that there is no constitutional or legal basis for any Government lawyer, even the Attorney General, to refuse to approve the introduction of legislation to Parliament seeking to change domestic law – even if the legislation risks creating tension with the UK’s international law obligations. Related Publications
Sovereignty and Security in the Indian Ocean
Download Publication Online Reader This paper makes the urgent case for the Government not to cede control of the Chagos Islands. In November 2022, the Foreign Secretary announced that the UK was entering into negotiations with Mauritius about the exercise of sovereignty over the British Indian Ocean Territory (BIOT), one of the United Kingdom’s fourteen overseas territories. The BIOT is situated in the middle of the Indian Ocean and is […]
Reversing the Supreme Court’s judgment in R v Adams
Download Publication Online Reader In 2020, the Supreme Court allowed Gerry Adams’s appeal against his conviction, in 1975, for attempting to escape from lawful custody. The judgment was a bad mistake and opened the door for Gerry Adams and others wrongly to sue for compensation for their detention. The judgment also undermined the application of the Carltona principle, which is foundational to modern government. This paper considers an amendment to […]
Rule 39 and the Rule of Law
Download Publication Online Reader This report considers the legal status of “interim measures” that are indicated by (a single judge of) the European Court of Human Rights under Rule 39 of the Rules of Court. Many lawyers and jurists argue that failure to comply with a Rule 39 measure would breach the UK’s international legal obligations and would undermine the rule of law, in much the same way […]
How to legislate about small boats
Download Publication Online Reader New legislation is needed to give effect to a policy that persons who arrive (or attempt to arrive) in the UK unlawfully on a small boat will be removed from the UK and will never be allowed to settle here. There is a strong risk that legislation will be proposed which only appears to address the problem, but which in practice does not enable […]
Amending the Public Order Bill
Download Publication Online Reader The Public Order Bill is an important opportunity to reform the law relating to protest and thus to restore public order to our streets. The Bill as introduced created several new offences which were likely to prove unworkable because they had a “reasonable excuse” defence, which would have left it open to protestors to argue that a conviction would breach their so-called “right to protest”. This […]
From the Channel to Rwanda
Download Publication Online Reader The government’s Rwanda plan has been roundly denounced by the leaders of the main Christian churches in Britain. Notably, the Archbishop of Canterbury devoted his Easter sermon to the subject and the Lords Spiritual have jointly attacked the Rwanda plan in the press. Policy Exchange’s new paper answers the moral and theological critique which has been advanced in recent months. The contributors to the paper, two […]
The ‘Just Stop Oil’ protests
Download Publication Online Reader An urgent new report released by Policy Exchange, ‘Just Stop Oil’ protests: A legal and policing quagmire’ sets out how the police can more effectively tackle the chaos that disruptive protests are bringing to our streets. Over the last month ‘Just Stop Oil’ protestors have brought London to a standstill – causing Criminal Damage, obstructing the highway, blocking ambulances and fire engines, disrupting Londoners from going about […]
The Limits of Judicial Power
Download Publication The system for appointing senior judges needs to be reformed. In this paper, we explain what has gone wrong and what should now be done to put it right. We take senior appointments to include the High Court, the Court of Appeal, leadership roles such as the Lord Chief Justice (the Head of the Judiciary in England and Wales) and Heads of Division (Master of the Rolls, President […]
Thoughts on a Modern Bill of Rights
Download Publication This paper is the text of a response to the Consultation on Human Rights Act Reform. The response addresses the main points relating to design of a modern Bill of Rights, focusing in particular on the rights the Bill would introduce and the mechanisms that it would provide in relation to the application of those rights in domestic law. Related Publications
The Nationality and Borders Bill and the Refugee Convention 1951
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo. Download Publication What rights and protections does the Refugee Convention 1951 require the UK to afford to persons it recognises as Convention refugees? In answering this question, the Ninth and Twelfth Reports of the Joint Committee on Human Rights on the Nationality and Borders Bill fundamentally misunderstand the Convention, unwarrantably truncate its […]
Human Rights Law Reform
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo. Download Publication This paper is the text of the submission made on behalf of Policy Exchange’s Judicial Power Project to the Independent Human Rights Act Review, chaired by Sir Peter Gross. This paper argues that the Human Rights Act 1998 is not a good means to secure, protect and promote human rights. […]
How to Improve the Judicial Review and Courts Bill
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo. Download Publication The system for appointing senior judges needs to be reformed. In this paper, we explain what has gone wrong and what should now be done to put it right. We take senior appointments to include the High Court, the Court of Appeal, leadership roles such as the Lord Chief Justice […]
How to Reform Judicial Review
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo. Download Publication This paper is the text of Policy Exchange’s response to the Government’s Consultation on Judicial Review Reform. It builds on submissions made by Policy Exchange’s Judicial Power Project to the Independent Review on Administrative Law (one written by me, the other by Sir Stephen Laws), which were quoted in the […]
Reforming the Lord Chancellor’s Role in Senior Judicial Appointments
Download Publication Online Reader The system for appointing senior judges needs to be reformed. In this paper, we explain what has gone wrong and what should now be done to put it right. We take senior appointments to include the High Court, the Court of Appeal, leadership roles such as the Lord Chief Justice (the Head of the Judiciary in England and Wales) and Heads of Division (Master of the […]
Ten Ways to Improve the Overseas Operations Bill
Download Publication Online Reader This short paper sets out ten ways in which the Overseas Operations Bill could be amended to improve its effectiveness and to minimise the risk of unintended consequences. None of the proposed changes are wrecking amendments. Like many parliamentarians, we share the concern about the way in which the law has been applied to UK forces and about the risks that litigation may pose to the UK’s […]
The Case for Reforming Judicial Review
Download Publication Online Reader This paper is the text of a submission made on behalf of Policy Exchange’s Judicial Power Project to the Independent Review of Administrative Law. It complements the related submission made by Sir Stephen Laws. Since its foundation, a little over five years ago, Policy Exchange’s Judicial Power Project has argued that the inflation of judicial power unsettles the balance of our constitution and threatens to compromise […]
Reforming the Supreme Court
Download Publication Related Publications
Against Executive Amendment of the Human Rights Act 1998
On 20 March 2020, three days before the UK went into lockdown, the Joint Committee on Human Rights (JCHR) recommended that the Houses of Parliament approve the draft Human Rights Act 1998 (Remedial) Order 2019, which had been laid before Parliament on 15 October 2019. The JCHR concluded that there were no reasons why the draft order should not be agreed to by both Houses of Parliament and recommended that the draft order be approved. This conclusion was unsound. The Committee’s recommendation – and the Government’s draft order – should be rejected.
Mishandling the Law
The Supreme Court has allowed Gerry Adams’s appeal against his 1975 convictions for escaping from lawful custody. When a court quashes a conviction 45 years later, one might imagine that new evidence must have come to light. Not this time: the case turned on a question of law. The Supreme Court ruled that Mr Adams had not been lawfully detained at all, hence his “escape” was not from lawful custody. As Prof Richard Ekins and Sir Stephen Laws set out, this ruling opens the door for Mr Adams, and for others, to bring proceedings against the government for compensation for false imprisonment. It also poses a very serious challenge to the ordinary functioning of government.
Protecting the Constitution
The rise of judicial power in the UK in recent years is a striking change in our constitutional arrangements – in how we are governed – a change that threatens good government, parliamentary democracy, and the rule of law. The expansion of judicial power is a function both of Parliament’s decision to confer new powers on courts, most notably by enacting the Human Rights Act 1998, and of the changing ways in which many judges, lawyers and scholars now understand the idea of judicial power. Prof Richard Ekins argues that Parliament is responsible for maintaining the balance of the constitution and should restate limits on judicial power, restoring the political constitution and the common law tradition.
Lawfare
Policy Exchange’s latest paper on lawfare, endorsed by General David Petraeus, sets out new measures on how the next Government must protect our soldiers from the assault of lawfare. The paper recommends that the next government should:
Parliamentary Sovereignty and the Politics of Prorogation
This paper addresses the question of whether the Supreme Court should rule that the Government’s advice to Her Majesty to prorogue Parliament was unlawful. It argues that the prerogative power to prorogue Parliament is not subject to judicial control. Proroguing Parliament does not flout parliamentary sovereignty; the exercise of the prerogative should be challenged by political action not litigation.
Securing Electoral Accountability
The policy of Her Majesty’s Government is to leave on 31 October and not to apply for an extension; the House of Commons does not support this policy, which is the central policy of this Government, but the House has nonetheless held back from formally withdrawing its confidence in the Government
Prorogation after the Northern Ireland (Executive Formation etc) Act 2019
Senior parliamentarians have asserted that the Northern Ireland (Executive Formation etc) Act 2019 was enacted to prevent prorogation of Parliament in the autumn. This understanding of the Act’s legal effect was very widely reported. Closer analysis suggests that the true position is otherwise.
Lost in Transition
This paper challenges some claims made about the constitutional obligations of Her Majesty the Queen, the current Prime Minister and the next Prime Minister.
Protecting Those Who Serve
The next Prime Minister has a responsibility to act urgently to protect UK troops, whether serving or retired, from ongoing exposure to legal risk and to unfair legal processes.
Endangering Constitutional Government
The risks of the House of Commons taking control.
A Second Look
The UK’s legal position in relation to the backstop.
Strengthening the UK’s position on the Backstop
“The UK continues to be too timid” in its negotiations with the EU over the Backstop and its relationship to the 1998 Good Friday Agreement
How to Exit the Backstop
This paper explains how Parliament and Government jointly could mitigate the risk that the backstop becomes a permanent feature of the UK’s future relationship with the EU.
The Collapse of the Kenyan Emergency Group Litigation: causes and consequences
The ongoing pursuit of historical allegations against UK forces represents a failure on the part of the British state to protect those it asks to serve.
Aiding the Enemy
The UK urgently needs a new definition of treason that will recognise the nature of the threats we face today, argues a new paper from Policy Exchange, Aiding the Enemy: How and why to restore the law of treason, by Tom Tugendhat MP, Khalid Mahmood MP, Head of Policy Exchange’s Judicial Power Project Professor Richard Ekins and barrister and former army officer Patrick Hennessey.
Brexit and Judicial Power
Policy Exchange’s Judicial Power Project new paper by Richard Ekins commenting on ‘Brexit and Judicial Power’ coincides with a panel event on the same theme, chaired by Lord Judge, former Lord Chief Justice of England and Wales.
Judging the Public Interest: The rule of law vs. the rule of courts
Judging the Public Interest examines the Supreme Court's quashing of the Attorney General’s decision to block disclosure of the Prince of Wales’ correspondence with ministers. The report argues that, in doing so, the judiciary confused the rule of law with the rule of courts and overstepped its constitutional limits. It recommends that Parliament act swiftly to overturn this wayward judgment, reaffirming the rule of law and Parliamentary authority.
Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat
Clearing the Fog of Law shows that misguided human rights laws mean British troops operating in the heat of battle are now being held to the same standard as police officers patrolling the streets on a Saturday night in the West End. The report calls for British forces to operate under the rules of the Geneva Conventions, rather than the ECHR, in future conflicts.Related Blogs
In memory of Lord Brown
The death of Lord Brown of Eaton-under-Heywood means that Britain has lost a great jurist – but also, unusually in this era, a formidable parliamentarian as well. He was a modest, unassuming man (few non-lawyers will know his name), yet he made a remarkable contribution to the law and government of this country, embodying the best of the common law constitutional tradition, which requires judges to be independent, not only from […]
Government by proclamation? A symposium
The events of recent years have brought into sharp focus the relationship between government and Parliament, with many jurists lamenting the former’s dominance of the latter. The balance of powers within the political constitution is a matter of the highest constitutional importance, which warrants reflection on the historical balance and its contemporary outworking. How best to situate government in relation to Parliament is a fundamental question of constitutional design. In […]
Debating the morality of asylum: some critical reflections
Remember the Huguenots? The Archbishop of Canterbury says we should. In the 9 December debate about the principles behind asylum and refugee policy and the challenges of forced migration, an Advent debate called by the Archbishop himself, he reminded the House of Lords of the welcome they received in England, and from the Church of England in particular. The plight of the Huguenots – French Protestants persecuted by Catholic France […]
The APPG on Democracy and the Constitution misfires in “the attack on judges”
Judges take an oath “to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” If a new report by a group of parliamentarians is to be believed, there are reasons to fear that Justices of the Supreme Court have betrayed their oath, yielding to (indirect) pressure from, and even threats made by, ministers. The report’s assertions are groundless […]
Sanctions and the Economic Crime Bill: the backbench amendments
The House of Commons is today considering the Economic Crime (Transparency and Enforcement) Bill. Ministers have tabled nine amendments to the Bill that would amend the Sanctions and Anti-Money Laundering Act 2018 and are intended to streamline the process of imposing sanctions. In an article published today on the Spectator’s Coffee House blog, I consider the amendments, arguing that while they may do some good they are an indirect, overly general way […]
Legislating about sanctions
The UK’s delay in imposing sanctions on Russian oligarchs and officials is verging on national embarrassment. The delay undermines the foreign policy imperative of acting swiftly to punish Russia for its aggression, raising the material and psychological cost to the regime and chipping away at the Russian state’s capacity to maintain its lawless invasion. For obvious reasons, sanctions delayed may be much less effective than sanctions speedily imposed, because those […]
Small boats. How the UK can honour its commitments to refugees and thwart the people smugglers
Before 2017, almost no one unlawfully entered the UK in a small boat. The numbers have since risen – to over 530 persons in 2018, then to about 1,800 persons in 2019, about 8,500 in 2020, and well over 28,000 in 2021. Many tens of thousands more are likely later this year. While many will be economic migrants, nearly all will claim asylum, and some proportion will be genuine refugees, […]
Notice and removal of citizenship: The problem with Clause 9 of the Nationality and Borders Bill
The Nationality and Borders Bill is under fire in the House of Lords. Some of the criticism is misconceived, as a recent Policy Exchange paper argues. However, much of the criticism directed at clause 9 of the Bill is warranted. This clause would make it lawful for the Home Secretary to deprive someone of their British citizenship without notifying them – or even attempting to notify them – of the decision […]
The significance of the Supreme Court's Begum judgment
In allowing the Home Secretary’s appeal in the Begum case, the Supreme Court has corrected a misconceived Court of Appeal judgment, which had put national security in doubt and undermined the law Parliament made. The Supreme Court’s judgment is a powerful and welcome, if somewhat overdue, affirmation of constitutional principle and the limits of judicial power. The Home Secretary has a statutory power to deprive a person of British citizenship if this […]
Further thoughts on Supreme Court reform
In our recent paper, Reforming the Supreme Court, Professor Wyatt and I discussed the merits of his proposal to authorise changing panels of Court of Appeal judges to act as the apex appellate court. I noted that my initial view had been that the proposal was too bold, and that it might undermine an important feature of any legal system, which is a stable appellate hierarchy. However, there was clearly much […]
Supreme Court Reform
In the wake of our August paper, Reforming the Supreme Court, Policy Exchange’s Judicial Power Project is pleased to publish a new symposium on Supreme Court reform, in which distinguished legal commentators engage with the question of how and by whom appellate authority should be exercised. Richard Ekins, Further thoughts on Supreme Court reform Robert Stevens, Our ultimate appellate court Kate Malleson, The problem of judicial diversity John Larkin, […]
Some reasons for scepticism about a new War Powers Act
The Labour Party manifesto, published last week, promises that the first year of a Labour government would see the introduction of “a War Powers Act to ensure that no prime minister can bypass Parliament to commit to conventional military action”. Enacting legislation of this kind would be a major change in our constitutional arrangements. The risk is that it would distort decision-making about the use of force and would undermine political responsibility for its use.
Debating the Supreme Court’s prorogation judgment
The Supreme Court’s judgment in Miller/Cherry UKSC 41, holding that Parliament was not prorogued on 10 September, is by any measure a momentous judgment. Policy Exchange’s Judicial Power Project commented on the litigation before this judgment was handed down, including by outlining our understanding of the legal issues in question and how the Supreme Court should resolve them: see especially Parliamentary Sovereignty and the Politics of Prorogation. We have had […]
Reflections on Democracy’s Foundations
In his fifth and final Reith lecture, “Shifting the Foundations”, Jonathan Sumption brings to a conclusion his reflections on “the decline of politics and the rise of law to fill the void”. The lecture encourages us to resist calls for a written constitution, calls which, Sumption says, “mark the extreme point” of “our persistent habit of looking for legal solutions to what are really political problems”. He makes the case instead […]
Constitutional Lessons from America
In his fourth Reith lecture, entitled “Rights and the Ideal Constitution”, Jonathan Sumption turns to the American experience of struggling to reconcile democracy with rights adjudication. It is a cautionary tale, illustrating some of the damaging political consequences of relying on courts in an attempt to ward off majoritarian tyranny. The lecture opens by noting and quoting Alexis de Tocqueville’s observation, in the 1830s, that American lawyers had become the new […]
Human Rights and the Morality of Law
In his third Reith lecture, broadcast yesterday and entitled “Human Rights and Wrongs”, Jonathan Sumption examines international human rights law, “the main battleground between law and politics”. His strategy is to consider the nature of rights before explaining what human rights law requires of judges and pointing out how this threatens democracy. It is a powerful argument, but may in the end understate the problems with human rights law. The idea that […]
Representative Politics and the Limits of Law
In his second Reith lecture, “In Praise of Politics”, broadcast on Tuesday, Jonathan Sumption aims “to make the case for the political process, with all its imperfections.” He develops a forceful argument for the capacity of representative politics to secure political legitimacy and elucidates, in sharp contrast, the limits of law as a technique to restrain majority rule. Sumption is no radical democrat. Even more than his first lecture (on which […]
Commentary on Lord Sumption’s Reith Lectures
Former Supreme Court Justice Lord Sumption gave the 2019 Reith Lectures, covering the relationship between the law and politics. Richard Ekins, Head of the Judicial Power Project and co-author of Lord Sumption and the Limits of the Law, responds with this series of commentaries on the lectures.
Questioning Law’s Empire
Judges are ever more significant in our public life. This was true before the Brexit process began and it will remain true even if the UK leaves the EU. Courts, domestic and European, have come to exercise ever more authority over an ever wider range of public questions. For some judges and lawyers, this is a development in which to delight. Others are less enthusiastic, doubting the wisdom of reposing […]
Constitutional government, parliamentary democracy and judicial power
Richard Ekins revisits the nature of constitutional government in a parliamentary democracy, answering some related criticisms of the Judicial Power Project.
Terrorism and treason once more
Following the latest attack in Westminster and another planned against Oxford Street, Professor Richard Ekins, Head of Policy Exchange's Judicial Power Project, reiterates the need to update our law of treason.
Will the UK’s new senior judge change the Supreme Court?
Richard Ekins and Graham Gee of Policy Exchange's Judicial Power Project ask what the appointment of Lady Hale as President of the UK's Supreme Court means for the law. Pointing out that 'one should not overstate the importance of her new office', and that she will retire no later than 2020, they explain that she is, nonetheless, taking up 'an important public office, which she will discharge conscientiously and with good humour', and that, from her long judicial service, it is clear that she adopts a 'relatively expansive view of judicial power'.
The panic about a Brexit legal limbo isn’t justified
Richard Ekins, Head of Policy Exchange's Judicial Power Project, addresses the way in which Lord Neuberger — the outgoing President of the Supreme Court — has called for Parliament to tell our judges very clearly how rulings of the Court of Justice of the European Union (CJEU) are to be dealt with after Brexit.
Only Parliament can decide the law on assisted dying
Richard Ekins — Head of Policy Exchange's Judicial Power Project — responds to news that the question of whether assisted suicide should be legalised is back before the courts, in an article for The Spectator. Ekins contends that the argument in the High Court this week is likely to focus on whether it is possible to design a system that permits assisted suicide without endangering the vulnerable, which he claims is 'not a sensible question for a court to be asked to decide'. He conclude that 'this continuing attempt to use the courts, with the encouragement of some (but certainly not all) judges, to usurp Parliament’s freedom to decide what the law should be is a constitutional travesty'.
The Charter of Fundamental Rights gives judges too much power, and is bad for accountable government
Richard Ekins – Head of Policy Exchange’s Judicial Power Project — considers the Labour Party's objection to the European Union (Withdrawal) Bill's provision that the Charter of Fundamental Rights will cease to have effect on 'exit day'. He finds the party's newfound enthusiasm for the Charter hard to square with its nature or history, arguing that its 'removal from our law should be welcomed, regardless of one’s views on Brexit'.
Lawfare and the Judicialisation of War in the Conservative Party Manifesto
Professor Richard Ekins, Head of Policy Exchange's Judicial Power Project, comments on the way in which the Conservative manifesto 'sets out an ambitious agenda in response to the problem of judicialisation of war'. He points out that this was first placed on the wider public agenda 'by Policy Exchange in two landmark papers, Fog of Law and Clearing the Fog of Law'.
Lawfare against the Armed Forces must be on the next Government’s agenda
Policy Exchange placed lawfare against our Armed Forces and the “judicialisation of war” on the map with two seminal studies -- The Fog of Law and Clearing the Fog of Law. Professor Richard Ekins, Head of Policy Exchange’s Judicial Power Project, outlines the next Government’s options on this vital topic, which is of growing concern to the British public as well as the professionals.What the JCHR Gets Wrong about Fundamental Rights
Head of Policy Exchange's Judicial Power project, Richard Ekins — along with Gunnar Beck, John Finnis, Christopher Forsyth, Graham Gee, and John Tasioulas — responds to the Joint Committee on Human Rights report, 'The Human Rights Implications of Brexit'Policy Exchange's Richard Ekins in the Telegraph: 'Day two in the Court: a tale of two Acts (with a devolution interval)'
Richard Ekins — Head of Policy Exchange's Judicial Power Project — assesses the case’s second day for the TelegraphPolicy Exchange's Richard Ekins in the Telegraph: 'Article 50 Case Day One: How the arguments played out'
Professor Richard Ekins — Head of Policy Exchange's Judicial Power Project — assesses the case's first day for the TelegraphRichard Ekins in The Spectator: 'A guide to the Supreme Court justices'
Writing for The Spectator, Richard Ekins — head of Policy Exchange's Judicial Power Project — discusses the ways in which the eleven justices 'differ in philosophy, temperament and in how they understand their role'Judicial Power Project: Dame Elisabeth Laing's 'Two Cheers for Judicial Activism'
This paper was given at the Constitutional and Administrative Law Bar Association (‘ALBA’) summer conference, held in Cambridge in July 2016
Making the Case Against Expansive Judicial Power
Reflecting on Professor Finnis’ recent lecture on the past, present and future of judicial power, and on responses to the lecture, Professors Ekins and Gee consider how best to make the case against expansive judicial power. They argue that the public and politicians should be free to debate frankly the role of the courts in our constitution, welcoming the willingness of some in the political class to restate the traditional limits on judicial power and emphasising the primacy of an elected Parliament as the safeguard against injustice and the disadvantages of remaking the law by judicial process.