Contact

Address

St John's College

Oxford, OX1 3JP

Other affiliations

Phone

01865 610872

Biography

Richard Ekins is Professor of Law and Constitutional Government in the University of Oxford.  He works on questions in constitutional law and practice and in legal and political philosophy, with a particular focus on lawmaking, interpretation and self-government.  He has been a fellow of St John's College, Oxford since 2012.

He is co-author of Legislated Rights: Securing Human Rights through Legislation (CUP, 2018) and author of The Nature of Legislative Intent (OUP, 2012).  He received his BA, LLB (Hons) and BA (Hons) degrees from The University of Auckland, before going on to read for the BCL, MPhil and DPhil at Oxford. He has worked as a Judge's Clerk at the High Court of New Zealand at Auckland, and a Lecturer at Balliol College, and was a Senior Lecturer in Law at The University of Auckland for several years before moving (back) to Oxford. 

He leads Policy Exchange's Judicial Power Project and, with Nick Barber, the Programme for the Foundations of Law and Constitutional Government.

He discusses his research, and other matters, in this interview.

 

Publications

Recent additions

  • R Ekins, 'Joint action, intended meaning and (statutory) interpretation' (2022) 23 Journal of Contemporary Legal Issues (forthcoming)
  • R Ekins, 'Self-Government and the Kingdom of Heaven' in N Aroney and I Leigh (eds), Christianity and Constitutionalism (Oxford University Press 2022) (forthcoming)
  • R Ekins, 'Legislatures' in R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press 2022) (forthcoming)

Journal Article (40)

R Ekins, 'Joint action, intended meaning and (statutory) interpretation' (2022) 23 Journal of Contemporary Legal Issues (forthcoming)
R Ekins, 'The State and Its People' (2021) 66 The American Journal of Jurisprudence 49
DOI: https://doi.org/10.1093/ajj/auab011
This article considers the relationship between the state and its people, reflecting on Nick Barber’s principles of constitutionalism. The joint intention of the people is central to the social reality of the good state, which is an institutionally ordered people. Other forms of political order, including empire, are possible, but there is good reason for a people to form a state and to exercise political agency. While under some conditions non-democratic rule is legitimate, there is good reason for authority to be shared widely and for rulers to foster close connections with the ruled, which makes self-government possible. Barber’s account of subsidiarity risks neglecting social solidarity in general, and nationality in particular, which would undermine the joint intention of the people. The sovereign state is the means by which a people participates in the international realm, but sovereignty may be misused to alienate a people from the state.
G Webber and R Ekins, 'Legislated Rights and contemporary constitutional government: a reply' (2020) 11 Jurisprudence 632
This reply, written for a symposium in (2020) 10 Jurisprudence on Legislated Rights: Securing Human Rights Through Legislation (Cambridge University Press 2018, pb 2019), engages with the careful, constructive, and critical challenges of Timothy Endicott, Dimitris Tsarapatsanis, and Lael Weis. Organised around the theme of the relevance of Legislated Rights for modern constitutional government, the reply explores four themes: (1) institutional analysis and the nature of rights; (2) the role of the executive in the legislature and beyond it; (3) the relationship between legislation, adjudication, and interpretation; and (4) the continuing relevance of Dworkin’s policy/principle dual-forum thesis, including among several proponents of weak-form, dialogic, or Commonwealth conceptions of judicial review.
R Ekins, 'Intentions and Reflections: The Nature of Legislative Intent Revisited' (2019) 64 The American Journal of Jurisprudence 139
This article reflects on the argument of The Nature of the Legislative Intent, replying in part to thoughtful comments and criticisms made by contributors to this symposium. The reply opens by considering the methodology that underpins the book and the choices made in its deployment. The focus on the central case of legislative action is grounded in sound philosophy, which recognizes the explanatory priority of good reasons over bad. Reflecting on the moral need for legislation helps to articulate the internal point of view of the reasonable legislator, from which perspective the structure of legislative action is made clear. Likewise, reflection on the social ontology of group action confirms that legislators are able to act jointly to make reasoned choices together despite disagreeing about what ought to be done. The legislative assembly represents the people, leading and sharpening a public conversation about the common good. In enacting a statute, the legislature articulates a lawmaking choice by uttering the statutory text in its context. Interpreters can and should infer the legislature’s intentions in enactments and skepticism about the relevance of legislative intentions to statutory interpretation is unwarranted.
R Ekins and G Webber, 'Legislated Rights in the Anglo-American Tradition' (2018) 10 Faulkner Law Review 129
This article is a reply to critics and readers of a symposium issue published in volume 10 of the Faulkner Law Review on Legislated Rights: Securing Human Rights through Legislation (Cambridge University Press 2018; paperback, 2019). Richard Ekins and Grégoire Webber, two of the six authors of Legislated Rights, respond to essays by Victoria Nourse, Robert Lowry Clinton, Andy G. Orlee, and Adam J. MacLeod. The article is organised around the following themes: central case method; rights protection in the United States in comparative perspective; legislated rights and constitutional structure; scepticism about judicial review; oppressive 'rights' legislation; and legislated rights and common law.
R Ekins, 'Restoring Parliamentary Democracy' (2018) 39 Cardozo Law Review 997
Any good constitution is a framework for reasoned selfgovernment, making it possible for citizens jointly to reason and act to secure their common good. The Westminster constitution makes provision for such reason and action by way of a scheme for representative, parliamentary democracy, the two pillars of which are the doctrine of parliamentary sovereignty and the principle of responsible government. The United Kingdom (U.K.) entered into and is now exiting from the European Union (E.U.) in accordance with this scheme. Membership of the E.U. could formally be squared with— accommodated by—the Westminster constitution but there was a fundamental discordance between the European project and parliamentary democracy. The discordance increased over time and the U.K.’s choice to withdraw from the E.U. is a rational decision to restore robust self-government. This Article considers the constitutional dimensions of the U.K.’s fraught membership of, and now departure from, the E.U., contending that the U.K. reached and is implementing that decision in a way that was and is faithful to its constitutional order. Withdrawal from the E.U. has involved neither substitution of popular sovereignty for parliamentary sovereignty nor surrender to executive tyranny—and it was not the ill-judged intervention by the courts that saved the country from such. On the contrary, the process by which the U.K. has come to withdraw from the E.U. confirms the underlying strength and continuing promise of the U.K.’s parliamentary democracy.
R Ekins, 'Legislative Freedom in the United Kingdom' (2017) 133 Law Quarterly Review 582
Evaluates the claims that the legislative freedom of the UK Parliament is limited by: Scottish devolution; the duties with respect to EU law laid down in the European Communities Act 1972 s.2; the provisions of the Human Rights Act 1998; and judicial assessments of whether the process of producing particular legislation adhered to the rule of law.
R Ekins, 'Objects of Interpretation' (2017) 32 Constitutional Commentary 1
R Ekins and G Gee, 'Putting Judicial Power in its Place' (2017) 36 University of Queensland Law Journal 375
The rise of judicial power throughout the common law world is a departure from a shared constitutional tradition. In this article we consider how and why the UK is departing from that tradition, and outline why and how this departure ought to be resisted. Our argument is that the rise of judicial power in the UK is a function in part of the exercise of political responsibility (notably, dubious political choices to confer new powers and responsibilities on domestic courts and to accept the jurisdiction of foreign courts) and in part of how many judges, lawyers and scholars are coming to understand the idea of judicial power itself. These changes to constitutional law and practice compromise the rule of law, privilege irresponsible law-making, and undercut democratic self-government. They ought to be wound back. We suggest that this requires both the revitalisation of political responsibility by elected representatives and an accompanying cultural change within the legal class. We outline how the task of restoring sound constitutional principle in the UK ought to proceed, both in general and, in conversation with Professor Paul Craig, in relation to some of our own work to this end with Policy Exchange’s Judicial Power Project. We begin, however, by restating the common law’s constitutional tradition and the place of courts within it. The broad contours of the tradition traced below are (or at least ought to be) very familiar. Yet, appreciation of and commitment to the traditional constitutional learning amongst the political and legal classes are — it seems to us — waning, which is a main part of the problem. For only if the tradition is kept in clear sight can the real risks associated with the rise of judicial power be fully grasped.
R Ekins, 'Sentences, Statements, Statutes' (2016) Analisi & Diritto 321
R Ekins and N Barber, 'Situating Subsidiarity ' (2016) 61 American Journal of Jurisprudence 5
R Ekins, 'The Bounds of Compassion and the Dissolution of Nations' (2016) 2 Politics & Poetics 5
R Ekins, 'Human Rights and the Separation of Powers ' (2015) 33 University of Queensland Law Journal 217
R Ekins, 'Facts, Reasons and Joint Action: Thoughts on the Social Ontology of Law' (2014) 45 Rechtstheorie 313
R Ekins, 'Interpretive Choice in Statutory Interpretation' (2014) 59 American Journal of Jurisprudence 1
R Ekins and J Goldsworthy, 'The Reality and Indispensability of Legislative Intentions' (2014) 36 Sydney Law Review 39
R Ekins, 'How to be a Free People' (2013) 58 American Journal of Jurisprudence 163
R Ekins, 'Equal Protection and Social Meaning' (2012) 57 American Journal of Jurisprudence 21
ISBN: 0065-8995
R Ekins, 'Legislative Intent in Law’s Empire' (2011) 24 Ratio Juris 435
ISBN: 0952-1917
R Ekins and C Huang, 'Reckless Lawmaking and Regulatory Responsibility' (2011) New Zealand Law Review 407
R Ekins and Mr Justice Sales, 'Rights-Consistent Interpretation and the Human Rights Act 1998' (2011) 127 Law Quarterly Review 217
ISBN: 0023-933X
R Ekins, 'Reckless Lawmaking' (2010) New Zealand Law Journal 127
R Ekins, 'Regulatory Responsibility?' (2010) New Zealand Law Journal 25
R Ekins and W Brookbanks, 'The Case Against the 'Three Strikes' Sentencing Regime' (2010) New Zealand Law Review 689
R Ekins, 'The Intention of Parliament' [2010] Public Law 709
R Ekins, 'The Regulatory Responsibility Bill and the Constitution' (2010) 6 Policy Quarterly 9
R Ekins, ''Light Smacking' and Discretion' (2009) New Zealand Law Journal 427
R Ekins, 'Acts of Parliament and the Parliament Acts' (2007) 123 Law Quarterly Review 91
ISBN: 0023-933X
R Ekins, 'Acts of Parliament and the Parliament Acts' (2007) 123 Law Quarterly Review 91
R Ekins, 'The Relevance of the Rule of Recognition' (2006) 31 Australian Journal of Legal Philosophy 95
R Ekins, 'Secular Fundamentalism and Democracy' (2005) 8 Markets & Morality 81
R Ekins, 'The Authority of Parliament — A Reply to Professor Joseph' (2005) 16 King?s College Law Journal 51
R Ekins, 'A Critique of Radical Approaches to Rights-Consistent Statutory Interpretation' (2003) European Human Rights Law Review 641
R Ekins, 'Judicial Supremacy and the Rule of Law' (2003) 119 Law Quarterly Review 127
R Ekins and J Ip, 'Legislative Confirmation and the Supreme Court' (2003) New Zealand Law Journal 151
R Ekins and J Ip, 'Opening Pandora's Box?' (2002) 124 New Zealand Law Journal 117
R Ekins and Justice Judith Potter, 'The New Zealand Bill of Rights Act 1990: A Judicial Perspective' (2002) 12 Journal of Judicial Administration 85
R Ekins, 'Defence Counsel Incompetence and Post-Conviction Relief: An Analysis of How Adversarial Systems of Justice Assess Claims of Ineffective Assistance of Counsel' (2001) 9 Auckland University Law Review 529
R Ekins, J Ip and A Killeen, 'Undermining the Grundnorm?' (2001) 308 New Zealand Law Journal 299

Chapter (15)

R Ekins, 'Legislatures' in R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press 2022) (forthcoming)
R Ekins, 'Self-Government and the Kingdom of Heaven' in N Aroney and I Leigh (eds), Christianity and Constitutionalism (Oxford University Press 2022) (forthcoming)
R Ekins and G Gee, 'Ten Myths about Parliamentary Sovereignty' in A Horne, L Thompson and B Yong (eds), Parliament and the Law (3rd Ed.) (Hart Publishing 2022) (forthcoming)
R Ekins, 'Constitutional Conversations in Britain (in Europe)' in G Sigalet, G Webber and R Dixon (eds), Constitutional Dialogue: Rights, Democracy, Institutions (Cambridge University Press 2019)
DOI: https://doi.org/10.1017/9781108277938.017
In the Westminster tradition, Parliament stands at the centre of a public conversation about what is to be done. The courts have not been parties to this conversation, but have upheld settled law, which forms part of the framework within which deliberation takes place and is itself the object of public deliberation and decision. This arrangement has been unbalanced by a changing understanding of the judicial role and by the reach of international obligations that subject the UK to the jurisdiction of international courts. In this way, new conversations have been introduced to the British constitution, including exchanges between domestic and European courts, the main significance of which has been to compromise parliamentary democracy. The UK’s decision to leave the EU follows in part from the alienation of citizens from European lawmaking and action and from a corresponding concern to restore self-government. In reaching and implementing that decision to leave, one sees the capacity of parliamentary democracy to enable the political community to reason and act together, but also the risks posed by wayward domestic judicial action.
N Barber, M Cahill and R Ekins, 'Introduction' in N Barber, M Cahill and R Ekins (eds), The Rise and Fall of the European Constitution (Hart Publishing 2019)
DOI: 10.5040/9781509910977.ch-001
The Draft European Constitution could have been, and almost was, one of the defining constitutional events of the early part of the twenty-first century. It was certainly amongst the most ambitious. It drew elements from the constitutional traditions of the nation state, and applied these features to the European Union. Though the extent of its ambitions is debated in this volume, it can be seen both as an attempt to constitutionalise the Union, re-framing that project in the language of the state and as an attempt to stretch the boundaries of constitutionalism itself, re-imagining that concept to accommodate the sui generis European Union. The (partial) failure of this project is the subject of this collection of essays.
ISBN: 9781509911004
R Ekins, 'Models of (and Myths About) Rights Protection' in L Crawford, P Emerton and D Smith (eds), Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Hart Publishing 2019)
DOI: 10.5040/9781509920884.ch-011
The doctrine of parliamentary sovereignty is the centrepiece of the British constitutional order, an order in which Parliament is free to choose what should be law and in which courts enjoy no authority to quash statutes by reference to human rights law. Jeffrey Goldsworthy is today the foremost scholar of that doctrine, as was Albert Venn Dicey in an earlier age. The significance of Goldsworthy’s work lies not only in its painstaking exposition of the historical and jurisprudential foundations of the doctrine, but also in its measured yet forceful defence of entrusting Parliament with responsibility for final lawmaking choice. This chapter evaluates and elaborates that defence, aiming to elucidate the constitutional architecture of representative self-government. It begins, in section II., by considering Goldsworthy’s contingent case for legislative supremacy. The argument is powerful, but at times risks understating the strength of the case for the British model of rights protection, as Goldsworthy terms it. Like Goldsworthy, I argue that it is not for judges freely to choose how to protect rights: the positive law of the constitution settles whether they have authority to quash statutes. The chapter goes on, in sections III. and IV., to consider Goldsworthy’s refutation of two myths: first, that there is an ancient common law constitution which transcends and disciplines parliamentary sovereignty; and second, that immanent within all democracies in the common law tradition is one model of rights protection. He refutes the second myth in part by noting the Canadian, British and New Zealand experiments in empowering courts in relation to human rights law, while preserving the capacity of legislatures to override judgments. The final part of the article, section V., considers Goldsworthy’s argument that this hybrid model avoids the democratic critique of judicial review. I argue that the hybrid model is not a stable, attractive alternative to the British model that Goldsworthy’s work does so much to explain.
R Ekins, 'Self-Government in an Age of Over-Mighty Courts' in G Valditara (ed), Sovranità, democrazia e libertà (Aracne editrice 2019)
ISBN: 978-88-255-2429
R Ekins, 'The State’s Right to Exclude Asylum-Seekers and (Some) Refugees' in D Miller and C Straehle (eds), The Political Philosophy of Refuge (Cambridge University Press 2019)
DOI: https://doi.org/10.1017/9781108666466
The plight of those seeking refuge calls for action. The question this chapter considers is how far, if at all, that action should take the form of disabling states from excluding asylum-seekers or refugees. The argument of the chapter is that while states have wide-ranging responsibilities to vulnerable non-citizens, these responsibilities do not extinguish the state’s right to prevent asylum-seekers from entering its territory or to expel (some) refugees who have entered. This freedom is carefully preserved in the Refugee Convention 1951 and is important if states are to safeguard the common good which is their paramount responsibility and to decide prudently how best to discharge their responsibilities. The chapter begins by considering the distinction between citizens and non-citizens and defending the general liability of the latter to exclusion. Refugees are a special subset of non-citizens whom the Convention protects in various ways. The chapter traces these modes of protection and argues that they rightly do not eliminate the state’s freedom to deny entry to asylum-seekers or to expel some refugees. Undermining this freedom encourages refugees to become economic migrants and economic migrants to misrepresent themselves as asylum-seekers. The state’s responsibility to vulnerable non-citizens will often best be discharged by supporting other states adjacent to the country of origin. The chapter concludes by considering the significance of the atrophy of the right to exclude in the context of the European migration crisis.
R Ekins, N Barber and P Yowell, 'Introduction' in N Barber, R Ekins, and P Yowell (eds), Lord Sumption and the Limits of the Law (Hart Publishing 2016)
R Ekins, 'Legislating Proportionately' in G Huscroft, B Miller and G Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (2014)
DOI: http://dx.doi.org/10.1017/CBO9781107565272.020
ISBN: 9781107064072
R Ekins, 'Constitutional Principle in the Laws of the Commonwealth' in R. George and J. Keown (eds), Reason, Morality and Law: The Jurisprudence of John Finnis (Oxford: OUP 2013)
ISBN: 978-0199675500
R Ekins, 'Introduction' in R. Ekins (ed), Modern Challenges to the Rule of Law (Wellington: LexisNexis 2011)
R Ekins, 'Rights, Interpretation and the Rule of Law' in R. Ekins (ed), Modern Challenges to the Rule of Law, (Wellington: LexisNexis 2011)
R Ekins, 'The Value of Representative Democracy' in C. Charters and D. Knight (eds), We the People(s): Participation in Governance (Wellington: Victoria University Press 2011)

Report (27)

R Ekins and C Huang, In Search of Better Lawmaking: Why the Regulatory Responsibility Bill won't deliver what it promises (Guest Paper, February 2011, Maxim Institute 2011)
R Ekins and W Brookbanks, Criminal Injustice and the Proposed "Three Strikes" Law (Guest Paper, April 2010, Maxim Institute 2010)
R Ekins, A Government for the People: The value of representative democracy (Guest Paper, October 2009, Maxim Institute 2009)
R Ekins, S Hinek and J Ip, 'Appeal and Review', Chapter 13 in, Legislation Advisory Committee Guidelines: guidelines on process and content of legislation (Wellington 2003)

Review (5)

R Ekins, 'Review of N. Barber, "The Constitutional State", (Oxford: OUP, 2010)' (2012) 128 The Law Quarterly Review 308 [Review]
R Ekins, 'Review of E. W. Thomas, "The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles", (Cambridge: CUP, 2005)' [2006] Public Law 870 [Review]
R Ekins, 'Review of M. Loughlin, "The Idea of Public Law", (Oxford: OUP, 2003)' [2005] Public Law 636 [Review]

Edited Book (5)

N Barber, M Cahil and R Ekins (eds), The Rise and Fall of the European Constitution (Hart Publishing 2019)
DOI: 10.5040/9781509910977
The Draft European Constitution was arguably both an attempt to constitutionalise the Union, re-framing that project in the language of the state, and an attempt to stretch the boundaries of constitutionalism itself, re-imagining that concept to accommodate the sui generis European Union. The (partial) failure of this project is the subject of this collection of essays. The collection brings together leading EU constitutional scholars to consider, with the benefit of hindsight, the purportedly constitutional character of the proposed Constitutional Treaty, the reasons for its rejection by voters in France and the Netherlands, the ongoing implications of this episode for the European project, and the lessons it teaches us about what constitutionalism really means.
ISBN: 9781509910984
R Ekins (ed), Judicial Power and the Balance of Our Constitution: two lectures by John Finnis (London: Policy Exchange 2018)
This collection reflects on the place of judicial power in the common law constitutional tradition. With a foreword from Lord Burnett, the Lord Chief Justice of England and Wales, and an introduction by Richard Ekins, the collection is an important contribution to the public conversation about the constitution. It aims to help recall our historical constitutional tradition, and its balance of powers, to outline and evaluate contemporary judicial practice, and to inform reflection about its future development.
ISBN: 978-1-910812-43
R Ekins and G Gee (eds), Judicial Power and the Left: Notes on a Sceptical Tradition (London: Policy Exchange 2017)
In this collection of short essays, leading political and legal thinkers reflect on the left’s traditional scepticism towards expansive judicial power. The collection encompasses the historical, political, social, and academic lineages of that traditional scepticism and offers important insights into the causes and consequences of its waning. Constitutional issues—including vital questions about the proper role of and limits on the courts—will continue to occupy centre-stage in the years ahead. This collection makes especially vital reading for those on the left keen to make sense of the judicial role in the post-Brexit constitution.
ISBN: 978-1-910812-37
R Ekins, N Barber and P Yowell (eds), Lord Sumption and the Limits of the Law (Hart Publishing 2016)
R Ekins (ed), Modern Challenges to the Rule of Law (Wellington: LexisNexis 2011)

Book (2)

G Webber, P Yowell, R Ekins and M Köpcke, Legislated Rights: Securing Human Rights Through Legislation (Cambridge University Press 2018)
DOI: https://doi.org/10.1017/9781108551069
The important aspects of human wellbeing outlined in human rights instruments and constitutional bills of rights can only be adequately secured as and when they are rendered the object of specific rights and corresponding duties. It is often assumed that the main responsibility for specifying the content of such genuine rights lies with courts. Legislated Rights: Securing Human Rights through Legislation argues against this assumption, by showing how legislatures can and should be at the centre of the practice of human rights. This jointly authored book explores how and why legislatures, being strategically placed within a system of positive law, can help realise human rights through modes of protection that courts cannot provide by way of judicial review.
ISBN: 9781108551069
R Ekins, The Nature of Legislative Intent (Oxford: OUP 2012)
ISBN: 978-0199646999

Case Note (6)

R Ekins, 'Constitutional practice and principle in the Article 50 litigation' (2017) 133 Law Quarterly Review 347 [Case Note]
R Ekins, 'Abortion, Conscience and Interpretation ' (2016) 132 Law Quarterly Review 6 [Case Note]
R Ekins and G Verdirame, 'Judicial Power and Military Action' (2016) 132 Law Quarterly Review 206 [Case Note]
R Ekins, 'Amnesty and Abuse of Process ' (2015) 131 Law Quarterly Review 196 [Case Note]
R Ekins, 'Adoption, Intestacy and Interpretation' (2014) New Zealand Law Journal 329 [Case Note]
R Ekins, 'Updating the Meaning of Violence' (2013) 129 Law Quarterly Review 17 [Case Note]

Research projects