‘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.
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‘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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‘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
Thomas
Poole