Judicial Power Project: Dame Elisabeth Laing’s ‘Two Cheers for Judicial Activism’

November 24, 2016

One of the principal aims of this website, launched just over a year ago now, has been to encourage debate about the proper bounds of judicial power. Our aim has not been simply to contribute to the academic discourse about the separation of powers, but rather to inform and engage politicians, practitioners, and the public at large. Thus, in conversation with colleagues who take a different view, we have sought to point out that judicial power in the British constitution has for some time been on the rise and to outline what we see as some of the causes and drawbacks of this state of affairs.

The Constitutional and Administrative Law Bar Association (‘ALBA’) summer conference, held in Cambridge in July 2016, was the site of one such conversation.  The first day of the conference programme was entitled: Judicial Activism: Is It Time to Rein the Judges In?  Judicial activism is not a phrase that we tend to use, but it captures some of the anxieties that underlie contemporary debates about the constitutional role of the judiciary.  The ALBA Chair, Nathalie Lieven QC, remarked, in opening the conference, that the work of the Judicial Power Project was part of the impetus for this choice of theme and that work was discussed at various point throughout the day.

The conference saw a robust exchange of views about the proper role of the judge, which participants approached from a range of constitutional perspectives.  Over the next few weeks we are pleased to be able to publish the papers presented at the conference by Dame Elisabeth Laing, Sir John Laws, Maya Lester QC, Jonathan Swift QC, Richard Ekins and Paul Craig. We are very grateful to each of these contributors for allowing us to publish their papers and to the organisers of the ALBA conference for their support to this end. We will also publish commentary on each of the papers.

Today we launch this series with a paper by High Court judge Dame Elisabeth Laing entitled ‘Two Cheers for Judicial Activism’. Later this week John Finnis will offer a comment on Dame Elisabeth’s paper. The premise of the paper is that ‘there is a thing, which for want of a better label, we can call “judicial activism”’. Noting that it is all too easy to dismiss criticisms made under this label as ignorant or politically motivated, she encourages us to take such criticisms seriously, unless they can be shown to be unfounded. As Laing puts it, ‘if people think judges are not following the rules, or are colouring too far outside the lines, or are making the rules up as they go along, they will ask themselves why’.

The paper draws on three case studies: (1) Kleinwort Benson Ltd v Lincoln City , seen in light of the Supreme Court’s 2012 decision in the FII litigation on the availability of restitutionary claims to litigants seeking repayment of tax paid contrary to EU law; (2) the Supreme Court’s 2016 decision in R v Jogee revising the legal principles of criminal joint enterprise in murder trials; and (3) the 1984 High Court decision in ex parte Hardial Singh, which concerned the extent of a ministerial power under the Immigration Act 1971 to detain a person subject to a deportation order.

By design, Laing selects case studies from private law, criminal law and public law in order to tease out some of the different ways that concerns about judicial expansionism play out in different contexts. She points, for example, to how expansionism can undermine the central importance of legal certainty in private law and criminal law, with the FII litigation demonstrating in particular that the consequences of changing the law are often ‘unknowable and far-reaching’. The public law case of ex parte Hardial Singh receives a more sympathetic reaction, with Laing emphasising that the courts have an important role to play ‘in supervising the exercise of unlimited power of administrative detention, in the dark corners of the Immigration Removal Centres where public law and the law of tort intersect’.

We are very pleased to be able to publish this interesting and important paper and hope that this series of ALBA papers, and commentary thereon, will help illuminate some of what is at stake in debates about the proper scope of judicial power.

Richard Ekins
Graham Gee

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