Judicial Power and the United Kingdom's Changing Constitution

University of Queensland Law Journal, edited by Richard Ekins and Graham Gee, December 2017

University of Cambridge Faculty of Law Research Paper No. 49/2017

18 Pages Posted: 20 Oct 2017 Last revised: 1 Nov 2017

See all articles by Mark Elliott

Mark Elliott

University of Cambridge - Faculty of Law

Date Written: October 19, 2017

Abstract

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.

Suggested Citation

Elliott, Mark C., Judicial Power and the United Kingdom's Changing Constitution (October 19, 2017). University of Queensland Law Journal, edited by Richard Ekins and Graham Gee, December 2017; University of Cambridge Faculty of Law Research Paper No. 49/2017. Available at SSRN: https://ssrn.com/abstract=3055862 or http://dx.doi.org/10.2139/ssrn.3055862

Mark C. Elliott (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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