The Judicial Power Project: what would it have to say about Bermuda’s case law?

The Judicial Power Project is a project recently launched by the Policy Exchange, a centre-right think tank based in the UK: http://judicialpowerproject.org.uk/

In its own words, “The focus of this project is on the proper scope of the judicial power within the constitution. Judicial overreach increasingly threatens the rule of law and effective, democratic government.  The project aims to address this problem – restoring balance to the Westminster constitution – by articulating the good sense of separating judicial and political authority.  In other words, the project aims to understand and correct the undue rise in judicial power by restating, for modern times and in relation to modern problems, the nature and limits of the judicial power within our tradition and the related scope of sound legislative and executive authority“.

The Project is, of course, unique to the United Kingdom, which, in the absence of a formal written constitution, allows considerable scope for argument as to the proper role of the judiciary when it comes to scrutinizing Parliamentary and executive action (whether pursuant to the Human Rights Act 1998, or on ordinary principles of judicial review).

In jurisdictions with a written Constitution, such as Bermuda, the nature and extent of the separation of powers between Parliament, Executive, and Judiciary is perhaps more clearly defined – although not always, as many reported cases have demonstrated.

One particularly interesting debate which the Project has generated relates to its List of “50 Problematic Cases”: http://judicialpowerproject.org.uk/judicial-power-50-problematic-cases/

By ‘Problematic’, the Project is referring to what it describes (from its centre-right perspective) as the “more flagrant and well-known occasions … where the courts ignored well-established and (as we see it) appropriate limits on their role“. In many cases, the complaint effectively amounts to a complaint of ‘judicial activism’ through ad hoc judicial ‘lawmaking’, or legislation from the Bench.

Writing in the Guardian  recently (https://www.theguardian.com/commentisfree/2016/may/12/judge-shaming-list-guardian-freedom-information-request-prince-of-wales-letters), Joshua Rozenberg responded to the list of ’50 Problematic Cases’ as follows:

Nobody wants to go back to the days of Lord Denning’s “palm tree justice”, when the law applied by his court turned out to be pretty much whatever he wanted the law to be. But nobody wants to go back to the time when the law turned out to be pretty much what the government wanted it to be, either.

The law, as applied by the courts, needs to be certain and predictable. But we don’t need the sort of judges who are too frightened to do anything for the first time. It seems from the project’s summaries that many of the cases have been included because the judges who decided them tried not only to follow the law but also to deliver justice. In my book that’s qualifies you for the hall of fame, not shame“.

It would be interesting, in due course, to try to compile a list of Bermuda’s problematic cases, and to track the ebbs and flows between Bermudian judicial activism, on the one hand, and Bermudian judicial restraint, on the other.

For present purposes, however, readers are invited to note the Privy Council’s recent discussion of the separation of powers, as between judiciary and Parliament, in Singularis Holdings Limited v PricewaterhouseCoopers [2014] UKPC 16 (on appeal from Bermuda).

This was recently cited by Chief Justice Kawaley at paragraph 103 of his judgment in Centre for Justice v Attorney General and Minister for Legal Affairs [2016] SC Bda 72 Civ, in the following passage:

There is room for judicial activism when entertaining applications to enforce statutory human rights. There is a need for judicial restraint when courts are invited to thwart the lawfully articulated will of Parliament. For the Judiciary to trespass on the proper domain of the Executive and Judicial branches of Government, it seemed to me, would, as Lord Collins has opined in another context, “have been wholly inconsistent with established principles governing the relationship between the judiciary and the legislature and therefore profoundly unconstitutional”.

The passage cited above is worth contrasting with Chief Justice Kawaley’s comments in another recent decision, addressing the same issue (albeit decided in a completely different context), Uprise Corporation Limited et al v Mingyuan Medicare Development Company Limited [2016] SC Bda 28 Civ, at paragraphs 46 ff:

This distinction between impermissible judicial legislation and what I have extra-judicially described as Bermuda’s ‘common law, common sense’ approach to judging was (in a very general sense) relevant to how to deal with the conundrum … presented to the Court. On the one hand, the Company held the deadly sin of ‘legislating from the Bench’ like a sword of Damocles over my head. On the other hand, the Joinder Applicants raised commercial pragmatism like a torch lighting an escape route to freedom, from a dark prison, in the air

I accepted the submission that the Joinder Applicants were not presently qualified as “members” to seek relief under section 76 as read with section 79 of the Act. But I also found that the Court nevertheless possessed the inherent jurisdiction to grant in substance corresponding relief by way of sensible case management without impermissibly expanding the ambit of the legislative scheme. I further found that substantive justice required that this inherent jurisdiction should be exercised. Although the two Isle of Man decisions referred to above were not directly in point, they formed part of my subliminal thought processes and help to explain why I chose to be a ‘bold spirit’ rather than a ‘timorous soul’ and to grant relief in the face of what, narrowly and superficially construed, were valid standing arguments advanced by the Company…”

 

 

 

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