The Constitutional Limits of Judicial Activism: Judicial Conduct of International Relations and Child Abduction

Publication Date01 November 2003
AuthorJames Young
Volume 66 November 2003 No 6
The Constitutional Limits of Judicial Activism:
Judicial Conduct of International Relations and Child
James Young
Judges are increasingly visible in their participation in activities of‌f the bench. This
may create dif‌f‌iculties in drawing the line between their duties in court and their
other activities. However, if judges are not acutely aware of the importance of this
line their extra-curial activities may interfere with their judicial duties. This article
considers the failure to observe the importance of this dif‌ferentiation in the context
of international child abduction. It is argued that some judges, on and of‌f the
bench, have wrongly taken over the role of the executive in international relations
and that such activity jeopardises the independence of the judiciary. This raises
broader issues, in particular it suggests that some judges are being seduced into
exceeding their proper judicial role, by working with government in policy-making
and by their increasing contacts with judges from other countries.
There have been signif‌icant and well-documented changes in the English
judiciary’s perceptions of its role over the last thirty years.
The development of
judicial review has brought the courts into more open conf‌lict with politicians.
European Community law and the Human Rights Act have both required the
courts to redef‌ine their relationship with Parliament and the Executive. It is not
only the role of the judges on the bench that has changed, but also their public
participation in controversial issues of‌f the bench. Since the relaxation of the
‘Kilmuir rules’ restricting extra-curial public pronouncements by judges,
judges have contributed more publicly to debates about legal and constitutional
change. Of course, judges have in the past made their views on controversial issues
known, but what is dif‌ferent now is the public nature of their pronouncements,
their frequency and quantity. Cautious, even sometimes anodyne, public pronounce-
ments of the past have been replaced by robust lectures and articles in which
Cardif‌f Law School. Thanks to my friends and colleagues David Campbell and Urfan Khaliq,
and to anonymous referees, for their valuable and positive comments.
1 See in particular, J. A. G. Grif‌f‌ith, The Politics of the Judiciary (London: Fontana, 5th ed, 1997);
K. Malleson, The New Judiciary (Aldershot: Ashgate, 1999); R. Stevens, The English Judges: Their
Role in the Changing Constitution (Oxford: Hart Publishing, 2002).
2 Named after Lord Kilmuir LC, but abolished by Lord Mackay LC in 1987. They are reproduced
with a comment by A. W. Bradley in [1986] PL 383.
rThe Modern Law Review Limited 2003 (MLR 66:6, November). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 823

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