Judicial activism


Be wary of judicial slogans – Jonathan Sumption

10 November 2014 by Rosalind English

SumptionIn his lecture to the Administrative Law Bar Association  earlier this month, Lord Sumption surveys the concept of “anxious scrutiny” – a judicial method which he characterises as a forerunner to the principle of proportionality. The term was actually coined by Lord Bridge in Bugdaycay (1986), and was meant to apply where the rights engaged in a case were sufficiently fundamental, and stretched the traditional “Wednesbury” test to public authority decisions or actions which were not, on the face of it, irrational. (The citation given in the PDF of the speech incidentally is incorrect). The same way of thinking had been arrived at in the US courts a few years earlier, with their “hard look” doctrine, but to Lord Sumption there was something peculiarly English about the “crab-like” way in which our courts approached and eventually acknowledged this doctrine, hitherto alien to the judicial toolbox.

But if we apply anxious scrutiny to the doctrine itself, Sumption suggests, it raises more questions than it answers.
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Supreme Court judge on war, intelligence and the retreat of judicial deference

20 May 2012 by Rosalind English

The recent standoff  between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.

Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.

Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance  on judicial activism, particularly in the foreign policy sphere.  I don’t agree. In his  FA Mann Lecture  last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light.
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DNA case analysis: The mystery of the missing purpose

24 May 2011 by Rosalind English

We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.

Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”

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