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Legal Studies. Volume 24, Issues 1/2 (2004), p. 275-293.


It is said of statistics that what they reveal is interesting, but what they hide is crucial. Much the same can be said of the present British debate over constitutional change and the courts. The various constitutional reforms proposed seem to be obvious and long overdue - abolishing the post of Lord Chancellor, setting up a Supreme Court separate from the House of Lords, and establishing a judicial appointments committee. However, at least as presented and dealt with by the government and the judges, while these innovations are interesting and generally positive, what they fail to mention or address is much more crucial and revealing. The government papers and the judiciary's response resolutely refuse to tackle the central issue of what it is that judges do and whether it is done in a suitably legitimate and proper way. For all the sound and fury of constitutional engagement, the main antagonists share a deep and disturbing assumption that judicial power has and will continue to be exercised in a non-political, objective and neutral manner. In this paper, by reference to the Canadian experience, I will challenge that assumption: it is not that judges are unprofessional or corrupt, but that adjudication is inescapably political and non-objective. Instead, I will offer a very different account of the adjudicative performance and propose a more complementary set of institutional reforms.

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