The concepts of judicial independence and the separation of powers are used more as terms of political rhetoric than legal concepts in the British constitution. Responsible government significantly merges the executive and the legislative while parliamentary sovereignty has meant that judicial independence has had a peculiar British meaning, rarely unpacked. In practice, in England, (and presumably in the other UK jurisdictions), individual judges are accorded a high degree of independence, while there is no effective independence of the judiciary collectively as (...) a branch of government. This article then asks what impact current constitutional changes will have on this state of affairs. Adherence to the EU, the growth of judicial review and other factors have already had an important impact; devolution, the Human Rights Act and the reform of the House of Lords may have impacts that will be different in both quality and degree. Coupled with other political changes the end result may well be a more effective separation of powers and more real independence for the judges as a branch of government; but that in turn may call for more open and meaningful democratic control over the appointment of judges. (shrink)

This article charts the rise of a new, and increasingly influential, theory of public law: common law constitutionalism. The theory can best be seen as a response to a ‘crisis’ within contemporary public law thought produced by an array of different pressures: Thatcherite reformation of the state; the growing prominence (and potential politicization) of judicial review; constitutionalization of the EU; and trends towards globalization. The core of argument underlying the theory is elucidated by means of an analysis of the work (...) of a number of leading public law scholars. The essence of the theory is the reconfiguration of public law as a species of constitutional politics centred on the common law court. The theory constitutes, it is suggested, an attempt to turn inwards, in the face of change, towards the familiar form of the common law, reinvigorated as a burgeoning site of normativity. (shrink)

There has been much debate about whether judicial review is premised on legislative intent, specific or general, or whether it is grounded in the common law. It has now been suggested in an article in this journal that legislative intent should be conceived in constructive terms, that the common law model is defective in not recognizing this and that it adopts an inadequate account of the relationship between judicial review and sovereignty. The present article answers this critique. It will be (...) seen that there are major problems with the very idea of constructive legislative intent, and with the relationship posited between judicial review and sovereignty. (shrink)

In this article the relationship between Parliament and courts is examined. The views of writers on sovereignty are considered and criticized. Two criticisms of the sovereignty theorists are made: first, that they wrongly assume that a legal system must attribute supreme legal power to a single source and, second, that they wrongly assume that statutes in the English system constitute absolute exclusionary reasons for decision. It is contended that legal systems, can, and the English Constitution does, contain multiple unranked sources (...) of law. Hart's rule of recognition and Kelsen's Grundnorm are considered and compared, and found to be insufficiently flexible to meet the realities of the English Constitution. A more complicated model of judicial reactions to statutes is proposed, and decisions of the judges that run contrary to the law as set down in the statute are considered. It is contended that the relationship of the courts to Parliament ought not to be considered a purely legal issue; it also has a political dimension. (shrink)