Judicial Power: 50 Problematic Cases

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One of the aims of the Judicial Power Project is to stimulate debate about the proper bounds of the judicial role. As visitors to this website will know, our concern is that the judicial role is expanding in ways that threaten constitutional self-government and the rule of law. A particular concern is to draw attention to the many different ways in which judges fail to respect the limits of their role. Criticism about judicial overreach often focuses on the decisions of the European Court of Human Rights and the EU’s Court of Justice. Equally important are the many cases in which domestic judges have improperly ventured beyond the limits of their role. Ascendant judicial power is often most visible in the context of questions about how to protect human rights, but it also extends much more widely than this. And the cumulative consequences of this expansion of judicial power are troubling, with some of those consequences so ably discussed by the lecture by Professor Jeffrey Goldsworthy that launched this project just over a year ago.

To give a sense of some of the ways in which different courts deciding different types of case have departed from the proper limit of the judicial function, we have compiled a list of 50 ‘problematic’ cases. Courts, of course, have an indispensable role to play in securing justice according to law. No serious-minded critic of judicial power would deny this. Nor would such critics deny that opinions can and do differ on where exactly the limits of judicial power should to drawn. That said, some of the traditional parameters of that role are fairly well established, as Professor John Finnis outlined in his lecture at Gray’s Inn in the autumn. Our list collates some of the more flagrant and well-known occasions (as well as some less well-known occasions) where the courts ignored well-established and (as we see it) appropriate limits on their role.

To compile the list, we wrote to around 40 academics, lawyers and retired officials inviting them to nominate five or more problematic cases. We are very grateful to all of those who took the time to nominate cases. Several of those to whom we wrote share our concerns about judicial overreach, but not all of them. We invited nominations from lawyers and academics in different areas of law. Finally, we solicited nominations from people known to have opposing political leanings as well as those with no known leanings. All that said, this was not a scientific exercise, and we make no claims about the robustness of our methodology. We have listed the cases in no particular order.

We decided not to be prescriptive in defining what might be meant by ‘problematic’, beyond requesting that nominations concentrate on cases where judges had in some way transgressed the proper limits of the judicial role. Even with this focus, there are of course a great many ways in which cases might be problematic (e.g. judges might wade into policy spheres traditionally and properly left to elected officials; a court might upend a statutory scheme in a way that is not only at odds with legislative intent but that also does violence to the rule of law; or judges might defer much too readily to the executive; or when discharging their important if limited responsibility to develop the common law, judges might introduce additional uncertainty or confusion into the law). Our list illustrates some of the many ways in which judges can fail to heed the limits of their role.

There was a substantial degree of overlap in the nominations, with several of the most (in)famous examples of judicial adventurism receiving multiple nominations (e.g. R v A (No 2), Evans v AG, Al-Skeini v UK and Hirst v UK). Our list includes the most frequently nominated cases. It also reflects the diversity of nominations, with decisions from European courts as well as domestic courts, cases raising questions of private law as well as public law, and cases from the last few years alongside those of a rather older vintage. Some of the cases included are unsurprising, but also included are much less well known cases that indicate the spread of judicial power in areas that do not attract the sort of celebrity as high profile cases. Some decisions disclose a problematic exercise of judicial power, even if the substantive outcome in the cases is desirable. We include an admittedly rather rough and ready description of each case, and (where available) a link to the full judgment. Some might characterise some of the cases included on the list differently than we do. This is all to the good: our list aims to generate debate!

In recent months, others have published lists that shone a spotlight on important cases (See e.g. Rights Info’s list of 50 cases that ‘changed the UK’ and the Incorporated Council of Law Reporting list of 15 ‘important cases’). Some might find such lists gimmicky. On balance, however, we think these lists are a useful focal point of debate. For our part, compiling the list has been the starting point for fascinating discussions about what we understand by a problematic case, as well as for equally interesting discussions about those tricky cases where the judges have played a difficult hand adroitly. No doubt, some will broadly agree with the cases included, even if disagreeing with the inclusion of this or that decision. And others will disagree with most of the cases that we have included. In the coming days, the Judicial Power website will publish a series of comments on our list of cases. And in the months ahead, several of the cases will feature prominently in the papers that the Project will publish. Above all, we hope that our list—and the comments on it—will give you food for thought.

To view the full list, click here:

50 Problematic Cases

Richard Ekins

Graham Gee