Tom Bingham and the Transformation of the Law (original) (raw)

THE COMPLEXITIES OF THE RULE OF LAW AS A CONCEPT IN MODERN BRITISH DEMOCRACY

This essay aims to explore the definition of what is meant by the term the ‘rule of law’. This will be achieved from looking at the three principles governing A.V. Dicey’s thoughts on the rule of law to how the rule of law as a concept stands today in modern thought. Also similarities between both Lord Bingham eight guides, and Joseph Raz’s eight postulates. We will briefly explore the contemporary complexity of executive discretion that may have escaped Dicey’s thinking as well as how British civil liberties has been codified and impacted by the Human Rights Act of 1998, and the fallout from joining the European Convention in 1972.

The Politics of Judicial Independence in the UK's Changing Constitution

2015

Relations between Judges and Parliament In the years following the passing of the Constitutional Reform Act 2005, the relationship between Parliament and the judiciary has undergone a structural change. The removal of the UK's highest court of appeal from the House of Lords formally separated the judges from the legislature and this has inevitably changed the institutional architecture within which judges and parliamentarians interact. But the provisions of the Act do not tell the whole story of those changes, which did not begin and end in 2005. The removal of the Law lords was a critical moment, but practices shaping relations between Parliament and judges were changing before then, and have evolved since. In this chapter, we explore how both sides understand this changing relationship. Our focus is on the ways that Parliament acts both as a guardian of judicial independence and also offers new and constructive avenues of judicial accountability. The findings set out in this chapter counterbalance the tendency of lawyers and judges to focus on the high-profile but relatively rare occasions when politicians fail to respect judges and their decisions. There will always be tensions between Parliament and the courts. Recent years have provided a number of high-profile examples: sustained wrangling over the proper scope of judicial review in human rights and national security cases, the role of the European Court of Human Rights, and the boundaries of parliamentary privilege. Decisions by courts in relation to human rights and judicial review are often points of friction between judges and politicians, but this is not our focus here. We are interested

Judiciary Rising: Constitutional Change in the United Kingdom

Northwestern University law review

Britain is experiencing a period of dramatic change that challenges centuries-old understandings of British constitutionalism. In the past fifteen years, the British Parliament enacted a quasi-constitutional bill of rights; devolved legislative power to Scotland, Wales, and Northern Ireland; and created a new Supreme Court. British academics debate how each element of this transformation can be best understood: is it consistent with political constitutionalism and historic notions of parliamentary sovereignty, or does it usher in a new regime that places external, rule-of-law-based limits on Parliament? Much of this commentary examines these changes in a piecemeal fashion, failing to account for the systemic factors at play in the British system. This Article assesses the cumulative force of the many recent constitutional changes, shedding new light on the changing nature of the British constitution. Drawing on the U.S. literature on federalism and judicial power, the Article illumi...

The curious origins of judicial review

2017

This article tells the story of the birth of modern judicial review. In the conventional account, the judge-led development of judicial review is one of the great successes of the twentieth century common law: “the greatest achievement of my judicial lifetime”, as Lord Diplock famously put it. On this interpretation, from the mid-twentieth century onwards, the judiciary abandoned its earlier quiescence and, building on doctrines, approaches and remedies that had been used to control inferior tribunals since Victorian times, fashioned a new body of law capable of subordinating the administrative state to the rule of law. The modern law is thus seen as representing the same common law commitment to the rule of law seen in early cases such as Entick v Carrington and Cooper v Wandsworth. This article challenges this story of continuous unbroken development. On the face of it, the cases from Ridge to GCHQ did indeed draw on an older line of case law. Yet, as we demonstrate, the 1960s and...