Monthly Archives: October 2017

The Court’s powers under the inherent jurisdiction are NOT theoretically limitless

“Regular readers will know that when I read the phrase “The Court’s powers under the inherent jurisdiction are theoretically limitless” it makes me bristle, and hence my coining the name “magical sparkle powers” for the use of these, to remind ourselves that the Court is effectively inventing powers for itself out of thin air.”

Thus writes Andrew Pack over at suesspicious minds, introducing yet another case in which the High Court has seemingly further extended its powers in reliance on this mantra.

Immediately, I know I have a challenge. On the one hand, I have defended the inherent jurisdiction. On the other hand, I, too, have written expressing my concern about the extension and misuse of the jurisdiction. So where will I stand on this latest case?

Fundamentally, I agree that we need a judicial decision that points out that what happened in this case was wrong. And I agree that it is frustrating but correct that this is the wrong case to do it. (The case targets the judge for an alleged human rights breach; but the judge had been fed faulty information by the NHS Trust…) But here, I want to argue that what went wrong was not a case of “inevitable judicial mission creep”. I want to argue that it was misdirection, and that the misdirection is contained within the very proposition that the court’s powers under the inherent jurisdiction are theoretically limitless. To put it another way, my contribution to putting this genie back into the box is to try to set out why, legally, I do not believe that the court’s powers under the inherent jurisdiction are theoretically limitless, because we can identify what the limits are. Continue reading The Court’s powers under the inherent jurisdiction are NOT theoretically limitless

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