The Judicial Mind: A Festschrift for Lord Kerr of Tonaghmore

Description

This collection of essays is a tribute to Lord Kerr of Tonaghmore, who died aged 72 on 1 December 2020 after having retired from the UK Supreme Court just two months earlier. Brian Kerr was appointed as a judge of the High Court of Northern Ireland in 1993. He became the Lord Chief Justice of Northern Ireland in 2004 before being elevated to a peerage and appointed as the last Lord of Appeal in Ordinary in June 2009. Four months later, as Lord Kerr, he moved from the Appellate Committee of the House of Lords to the UK Supreme Court where, after exactly 11 years, he concluded his distinguished judicial career as the longest-serving Justice to date. During his career he established an exceptional reputation for independence of thought, fairness and humanitarianism. Lord Kerr’s judicial mind has inspired and influenced a significant number of scholars and jurists throughout the UK and beyond. In this book, his unique brand of jurisprudence is examined alongside a catalogue of broader issues in which he displayed a keen interest during his lifetime. The volume includes topical contributions from a range of legal experts in Britain and Ireland. Lord Kerr’s particular interests in public law, human rights law, criminal law, and family law are featured prominently, but so too is the importance of his dissenting judgments, some influential jurisprudence of the Judicial Committee of the Privy Council (where he sat on many occasions), the legacy of his influence on the law and legal system of Northern Ireland and the significance of his place in the development of judicial roles and responsibilities more generally. Foreword by Lord Reed, President of the UK Supreme Court Preface Contents Notes on Contributors Table of Cases Table of Statutes Table of Statutory Instruments Table of International and EU Legislation Table of National Legislation 1. The Development of Lord Kerr's Judicial Mind Introduction The Barrister The High Court Judge The Lord Chief Justice Appeals to the House of Lords or Supreme Court The Supreme Court Justice Supreme Court Judgments on Human Rights, Discrimination and Asylum Supreme Court Judgments on Other Issues Dissenting Judgments in the Supreme Court Conclusion Part I:
The Judicial Mind of Lord Kerr 2. Women and Children First Children First Women First 3. Human Rights, Gender Equality and the Judge's
Toolbox in the UK Supreme Court Introduction Identifying Judging Tools Human Rights Case Law and the Judge's Toolbox in the UKSC Further Strengthening Human Rights Judging Attentive to Gender Equality 4. Lord Kerr's Dissents: Jewels in the Crown of the Supreme Court Introduction The Values of Dissent The Value of Dissent: Refining Judicial Decision Making Cognitive Bias and Effective Dissent Delivering Dissent: Robust Opposition Values and the Consistency of the Lone Dissent Listening to Dissent: The Importance of Engagement Conclusion 5. Lord Kerr and the Northern Ireland Constitution: Three Key Cases Introduction Conclusion 6. Lord Kerr and Articles 2 and 3 of the ECHR Introduction Article 2 of the ECHR – The Right to Life Article 3 of the ECHR – The Right not to be Ill-Treated Conclusion 7. Scrutinising Social Security Law and Protecting Social Rights: Lord Kerr and the Benefit Cap Introduction The Development of Social Security Making Social Security Law Judicial Review The Benefit Cap Legislation The Benefit Cap Cases Adding Value(s) to Social Security Law Conclusion 8. Two Journeys Intertwined: Lord Kerr and EU Law Lord Kerr, EU Law and Northern Ireland Lord Kerr, EU Law and the Supreme Court Lord Kerr on EU Law Lord Kerr in Dissent in EU Law Cases The Preliminary Reference Cases Conclusion 9. Lord Kerr and the Judicial Committee of the Privy Council Introduction Public Service Commissions Judges Death Penalty Discrimination Administrative Law Conclusion 10. Lord Kerr and the New Judiciary in Northern Ireland Introduction: The Changing Legal World in Northern Ireland The Legal Context in Post-Agreement Northern Ireland The Development of the Northern Ireland Judicial Appointments Commission The Task for NIJAC Part II: Judicial Minds More Generally 11. The Life and Career of Denis Henry (1864-1925): Barrister, Ulster Unionist Politician and First Lord Chief Justice of Northern Ireland 12. Giving Substance to Sovereignty: Parliamentary Sovereignty and Parliamentary Effectiveness Introduction The Dimensions of Parliamentary Effectiveness The Doctrine of Parliamentary Sovereignty: Formal or Substantive? Parliamentary Sovereignty, Parliamentary Effectiveness and the Substantive Turn in UK Constitutional Law 13. The Three Tiers of Executive Power in Northern Ireland Introduction Primary Executive Power Secondary and Tertiary Executive Power Conclusion 14. Beyond Carltona: R v Adams, Accountability and the Delegation of Powers Introduction The Exercise of Crown Power The Rule against Sub-Delegation of Powers Delegation and Ministers: The Carltona Principle The Boundaries of the Carltona Principle What is the Impact of the Decision in Adams? The Wider Public Sector: Could Carltona Reach Beyond Central Government? The World Beyond Whitehall: Permissible Sub-Delegation Delegation in the Devolved Administrations Moving Beyond Carltona? 15. Protecting the Right to a Fair Trial in an Era of Criminal Justice Transformation Introduction Upholding Fundamental Fairness Maintaining Fair Criminal Trial Standards Keeping up with Evolving Standards Conclusion 16. A Dialogue on Discrimination and Equality: The UK Supreme Court and Article 14 of the ECHR Article 14 of the ECHR Ambit Status Different Treatment or Differential Impact Compared to an Analogous Situation Objective and Reasonable Justification Intensity of Review The Justification Test Conclusions 17. The Next Chapter: Siblings after Adoption Introduction Research on Post-Adoption Contact and the Statutory Framework for Decisions Siblings Separated by Adoption – How are Decisions About Post Adoption Contact Made? Siblings Born after Adoption: Who Decides What and How? Contact with Siblings after Adoption: The Role of the Courts Conclusion Index