'The Constitution and Foreign Affairs' (2016) 69 Current
Legal Problems [FORTHCOMING]
'Rights and Opinion: Or, The Progress of Sentiments' (2016) 10
Law & Ethics of Human Rights [FORTHCOMING]
‘The Law of Emergency and Reason of State’ in Evan Criddle
(ed.), Human Rights in Emergencies (Cambridge University Press, 2016)
'Constitutional Reason of State' in David Dyzenhaus and
Malcolm Thorburn (eds), The Philosophical Foundations of Constitutional Law
(Oxford University Press, 2016)
‘The Mystery of Lawlessness: War, Law, and the Modern State’
in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State
(Cambridge University Press, 2015)
'The Elegiac Tradition: Public Law and Memory'
Public Law (2014)
pp.68-84
Examines the extent to which the public law jurist J.A.G.
Griffith was influenced by the events and conceptual thought of the 19th
century, despite his progressive agenda, and his work may be seen as a series of
conversations with his 19th century predecessors. Compares Griffith with the
19th century constitutionalist scholar Walter Bagehot and the philosopher Edmund
Burke. Considers how the First World War created a watershed between Griffith
and the 19th century and otherwise may have influenced his thought.
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‘Rights, Interveners and the Law Lords’ (with Sangeeta
Shah and Michael Blackwell) Oxford Journal of Legal Studies (2014)
34 pp.295-324
This article presents the findings of an empirical
investigation into the role of third party interventions in the House of Lords.
It examines all the judgments in that court from 1994 to 2009 and tests four
hypotheses concerning the impact of the Human Rights Act 1998 upon the incidence
of interventions and their influence on the decision-making of the Law Lords.
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'Hobbes on Law and Prerogative' in Hobbes and the Law,
edited by Thomas Poole, David Dyzenhaus (Cambridge University Press, 2012)
‘Sovereign Indignities: International Law as Public Law’
(2011) 22 European Journal of International Law 351-361
Two analogies lie at the core of Professor Waldron's article.
The first is the claim that the standard analogy by which the state in
international law is like the individual in domestic law is misleading; the
state in international law is more like a government agency in domestic law. The
second is that international law is (or is like) a species of public law and
should be treated as such by domestic legal systems. I examine both claims,
arguing (a) that even if we accept the first analogy it does not get us to the
deeper levels of respect and commitment to international law that Waldron argues
for, and (b) that the ‘floating normativity’ inherent in the second claim leads
Waldron to overlook the specific organizational and structural conditions of
international law. This leaves Waldron's position weakest where it should have
most to offer: namely, in instances where our commitment to international law on
one hand and the rule of law on the other seem to pull in opposite directions.
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Thomas Poole, ‘Wissenschaft vom Verwaltungsrecht:
Großbritannien (England und Wales)’ in von Bogdandy, Cassese and Huber (Hg.),
Handbuch Ius Publicum Europaeum, Band IV: Verwaltungsrecht in Europa:
Wisshenschaft (Heidelberg: C.F. Müller, 2011), pp 121-153
The Law Lords and Human Rights' (2011) 74 Modern Law Review
79-105 (with Sangeeta Shah)
This article presents an empirical analysis of the impact of
the Human Rights Act on the House of Lords. Drawing on a database of judgments
from 1994 to 2007, changes in judgment‐giving behaviour are identified by
charting patterns of agreement and dissent across different categories of case.
Voting records are also examined in order to identify whether significant
differences exist between individual Law Lords in their approach to human rights
cases.
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'Proportionality in Perspective' (2010) New Zealand Law
Review 369-391
'Judicial Review at the Margins: Law, Power, and Prerogative'
(2010) 60 University of Toronto Law Journal
This essay on judicial review approaches its subject obliquely.
It focuses on a particular site of constitutional abnormality: prerogative
power. An analysis of the various iterations, historical and contemporary,
between law and prerogative in its specific, rooted setting provides the basis
for a more general account of the contemporary nature and role of judicial
review, at a time when we appear to be entering a new ‘age of prerogative’ based
on the politics of security and fear.
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'United Kingdom: The Royal Prerogative' (2010) 8
International Journal of Constitutional Law 146-155
Reflects on the exercise of the royal prerogative under the UK constitution,
with reference to the House of Lords decision in R. (on the application of
Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, which
considered whether Orders in Council which ended the Chagos Islanders' right of
abode on their islands were ultra vires or were immune from judicial review,
having been made under prerogative powers. Examines the court's approach to the
reviewability of prerogative legislation and whether the prerogative power in
question was lawful.
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'The Impact of the Human Rights Act on the House of Lords'
(2009) Public Law
(with Sangeeta Shah) Apr, 347-371
Reports on a survey analysing the impact of the Human Rights
Act 1998 on cases heard by the House of Lords between 1994 and 2007. Outlines
the background to the research, the methodology adopted and the main findings on
whether the House showed a greater willingness after the Act's commencement to
grant leave to appeal in cases raising human rights issues, the number of cases
in which human rights arguments were advanced, the success rate of such
arguments and the human rights questions raised in devolution cases before the
Privy Council.
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‘The Reformation of English Administrative Law' (2009) 68
Cambridge Law Journal 142
'Constitutional Exceptionalism and the Common Law' (2009) 7 (2) International
Journal of Constitutional Law 247
Analyses the constitutional theory identifying the
antiterrorist legislation that has been introduced in the wake of the September
11, 2001 attacks in New York as being "exceptional" deviations from
constitutional norms, which are unwelcome and arguably illegitimate. Discusses
how John Locke's theory of the prerogative illustrates the difficulty of
identifying the exceptional in a common law jurisdiction. Evaluates the account
of common law constitutionalism in the examinations of emergency powers by
Dyzenhaus, Gross and Tushnet.
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‘The Devil's Account: Men, Morals, and Constitutional Goods'
(2009) 22 Canadian Journal of Law and Jurisprudence 113
‘Courts and Conditions of Uncertainty in “Times of Crisis'
(2008) Public Law 234-259.
‘Between the Devil and the Deep Blue Sea: Administrative
Law in an Age of Rights’ in Linda Pearson, Carol Harlow and Michael Taggart
(eds), Administrative Law in a Changing State
(Hart Publishing, Oxford, 2008) pp.15-44
This book of essays celebrates Mark Aronson's contribution
to administrative law. As joint author of the leading Australian text on
judicial review of administrative action, Aronson's work is well-known to
public lawyers throughout the common law world and this is reflected in the
list of contributors from the US, Canada, Australia, New Zealand and the UK.
The introduction comes from Justice Michael Kirby of the Australian High
Court. The essays reflect Aronson's interests in judicial review,
non-judicial grievance mechanisms, problems of proof and evidence, and the
boundaries of public and private law. Amongst the contributors, Peter Cane,
Elizabeth Fisher, and Linda Pearson write on administrative adjudication and
decision-making, while Anita Stuhmcke and Peter Leyland deal with other
grievance mechanisms and accountability. Robin Creyke and John McMillan, the
Commonwealth Ombudsman, write on charters, codes and 'soft law'. There are
evaluations of the profound influence of human rights law on judicial review
from the UK by Sir Jack Beatson and Thomas Poole and from Canada by David
Mullan. Mathew Groves, Enid Campbell, Christos Manztiaris, and Chief Justice
James Spigelman address developing themes in judicial review, including
purpose and expectations., Carol Harlow and Richard Rawlings, Michael
Taggart and Janet McLean follow Aronson's interests into the private side of
public law. An American perspective is added by Alfred Aman and Jack
Beermann.
click here for publisher's site
‘The Return of Grand Theory in the Juridical Sciences?’
(2007) 70 Modern Law Review
484-504
‘Tilting at Windmills? Truth and Illusion in “The
Political Constitution”’ (2007) 70 Modern Law Review
250-277
This article examines the constitutional scholarship of
John Griffith. Centring on Griffith's seminal article ‘The Political
Constitution’, the analysis reveals a more complex and pessimistic thinker
than the standard image of Benthamite radical would allow. The article then
examines the cogency of Griffith's vision – particularly his thesis that
rights discourse ‘corrupts’ law and politics – against recent developments.
It concludes by reflecting on Griffith's radical debunking style.
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'Recent Developments on the “War on Terrorism” in Canada’
(2007) 7 Human Rights Law Review
633-642
‘Of Headscarves and Heresies: the Denbigh High School case
and Public Authority Decision-Making under the Human Rights Act’ [2005]
Public Law 685-695
Considers the potential impact of the
Court of Appeal ruling in R. (on the application of
Begum (Shabina)) v Denbigh High School Governors on
public authorities' duties under the Human Rights Act
1998 s.6. Outlines the background to the case, which
considered whether a school's exclusion of a Muslim
pupil for wearing a jilbab infringed the European
Convention on Human Rights 1950 Art.9 and the guidance
given by Lord Justice Brooke on the decision making
process to be followed by the school. Criticises the
court's application of the proportionality test when
assessing whether a breach of Art.9 was justified and
reflects on the dangers of its apparent translation from
a strictly judicial context to one involving public
authority decision makers as a whole.
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‘Harnessing the Power of the Past? Lord Hoffmann and the
Belmarsh Detainees Case’ (2005) 32 Journal of Law and Society 534-561
This article examines styles of
judicial reasoning under the Human Rights Act. It uses
Lord Hoffmann's short speech in the Belmarsh Detainees
case as a springboard from which to explore some
important developments. The first part of the article
examines the way in which some judges are `turning to
the local' by using historical examples as a means of
countering powerful lines of argument run by the
government in defence of its anti-terrorist policies.
Later in the article, I turn to investigate the use of
strategic decision-making by judges when applying the
HRA. I conclude by asking whether the introduction of
the HRA might lead to the development of a strange
counterpoint between internationalist and nationalist
rhetoric in judicial decision-making.
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‘Legitimacy, Rights and Judicial Review’ (2005) 25
Oxford Journal of Legal Studies 697-725
This article takes a critical look at
classic rights-based theories of the constitution, as
exemplified in the UK by common law constitutionalism.
Drawing on an analysis of a group of cases decided both
before and after the introduction of the Human Rights
Act 1998, it is argued that even in cases that involve
rights it appears often to be the case that argument
focuses on 'intermediate' issues relating to
constitutional structure and administrative decency
rather than basic or primary issues of justice and
morality. Rejecting an interpretation of the judicial
review process centred on the need to protect rights,
this article advances instead a model of that process
grounded on the idea of legitimacy.
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‘Questioning Common Law Constitutionalism’ (2005) 25
Legal Studies 142-163
This article takes a critical look at
common law constitutionalism, a theory which has
received much support in public law circles of late. The
first part of the article elaborates the common law
constitutionalist position. The second part of the
article assesses the cogency of the theory in terms of
its ability to accommodate certain paradigmatic features
of judicial review. The article concludes with the
suggestions that public lawyers, in their forays into
theory, might do better to look to the special role that
judicial review plays in assessing the legitimacy of
governmental action rather than its supposed connection
with 'fundamental principles of morality.'
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‘What’s God Got to Do With It? Waldron on Equality’ (2004)
31 Journal of Law and Society 387-407
‘Bills of Rights in Australia’ (2004) 4 Oxford
University Commonwealth Law Journal 197-212
This article examines Australia’s first
Bill of Rights: the Human Rights Act for the Australian
Capital Territory (ACT). The sponsors of the Act hope
that it will act as a model for future developments
elsewhere in Australia. The article considers the
background to the Act and assesses the credibility of
the provisions it contains for pre- and post-legislative
scrutiny. Comparisons are drawn throughout with the UK
Human Rights Act 1998, which provided the primary model
for the ACT provision.
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campus]
‘Back to the Future? Unearthing the Theory of Common Law
Constitutionalism’ (2003) 23 Oxford Journal of Legal Studies 435-454
This article charts the rise of a new,
and increasingly influential, theory of public law:
common law constitutionalism. The theory can best be
seen as a response to a ‘crisis’ within contemporary
public law thought produced by an array of different
pressures: Thatcherite reformation of the state; the
growing prominence (and potential politicization) of
judicial review; constitutionalization of the EU; and
trends towards globalization. The core of argument
underlying the theory is elucidated by means of an
analysis of the work of a number of leading public law
scholars. The essence of the theory is the
reconfiguration of public law as a species of
constitutional politics centred on the common law court.
The theory constitutes, it is suggested, an attempt to
turn inwards, in the face of change, towards the
familiar form of the common law, reinvigorated as a
burgeoning site of normativity.
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‘Dogmatic Liberalism? T.R.S. Allan and Common Law
Constitutionalism’ (2002) 65 Modern Law Review
463-475
Email:
T.M.Poole@lse.ac.uk
