Legislatures and the courts: a featured piece

In an earlier post, I drew attention to my article, ‘Legislatures and the Courts: The importance of place’, published in the Journal of International and Comparative Law.  It identifies the importance of place – where institutions are based can affect the relationship between them.  It examined the effect of moving the UK’s highest court of appeal from the Palace of Westminster to the Supreme Court on the west side of Parliament Square.

The publishers have now published a list of featured articles drawn from the journal.  You can see the list here.  Mine, I am pleased to report, is the lead article.  Perhaps more importantly, the list links to the text of the article, for those who may be interested in reading it.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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3 Responses to Legislatures and the courts: a featured piece

  1. Croft says:

    I suppose it might be deemed to fall outside the terms of your paper but:

    “Judicial obedience to the doctrine, according to HWR Wade, constitutes “the ultimate political fact upon which the whole system of legislation hangs”. Some obiter dicta in recent cases suggest that this obedience cannot be taken for granted, with some jurists treating the rule of law as the superior pillar.”

    This is an understatement! This is a direction of travel in progress long before the SC/LL moved out of parliament. Though I think that building the SC its Ivory Tower insulated from other institutions cannot but make judicial activism and the development of the SC as a rival to parliament more likely.

    Related to the above I think both EU law and the ECHR have changed judges mindset into a place where they have crossed the Rubicon on parliamentary sovereignty . Parliament seems unwilling or unable to do very much about it. The consequence of which is apparent.

    • Lord Norton says:

      Croft: You touch upon a very relevant, indeed constitutionally crucial, issue and one that raises an important question. Even if Parliament was willing, it is not clear that it is able to do much about it, given the extent to which the doctrine is itself a product of common law.

    • Croft says:

      A former parliamentarian and lawyer suggested to me once that judicial oaths of office should explicitly require an acceptance of the primacy of parliament. They described that as putting a ‘shot across the bows’ of the courts. I quite liked that. You could of course combine that with requiring the independent panel that select judges to only submit names that it was satisfied accepted this constitutional settlement.

      There are probably some other measures around subordinating natural justice to statue in a more substantive way (Oliver Wendell Holmes distinction between courts of law and justice applies here) and the extent to which SIs are justiciable that would probably also help.

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