Judicial Power and the United Kingdom's Changing Constitution
University of Queensland Law Journal, edited by Richard Ekins and Graham Gee, December 2017
18 Pages Posted: 20 Oct 2017 Last revised: 1 Nov 2017
Date Written: October 19, 2017
Judicial power, in any rule of law-based system, is a given. But how much is too much? That question has risen to particular prominence in recent years in the United Kingdom, where the judicial role has changed and grown in notable ways. In doing so, it has attracted criticism from some quarters, with charges of judicial overreach being made. This 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 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. To that end, the paper concludes by examining 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.
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