The judiciary’s self determination, the common law and constitutional change

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The Brexit debate is often analysed from the perspective of politicians, and in particular their views on and understandings of European law and politics. In contrast, this article concentrates on identifying the views of the senior judiciary. To do so, it analyses five extra-judicial speeches made between October 2013 to February 2014, a period particularly fertile in cases in the UK’s top courts concerning the law of the European Union or the European Convention of Human Rights. In doing so the article charts the senior judiciary’s vision of Europe. More particularly, it highlights the judiciary's strategies to limit the impact of both European treaties on the British constitution in what might be termed "a search for judicial self-determination". In addition, the article argues that a new extra-judicial process of constitutional change might be emerging. Finally, it concludes on the advantages and drawbacks of such a process of change.
Original languageEnglish
Pages (from-to)149-168
JournalEuropean Public Law
Issue number1
Publication statusPublished - Feb 2016


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