Informality has long been valued in England, and this is true of the political process as well as the institution of the judiciary. In both cases, it is assumed that the senior figures will have absorbed unwritten conventions and will by osmosis naturally understand their respective role in the UK constitution. Much is now starting to change, at least as far as the English judiciary is concerned. It is, first, argued that informal judicial institutions did not become redundant when the separation of powers was formally introduced with a program of modernization of the judiciary in the Constitutional Reform Act 2005. Selected illustrations of persisting informal judicial institutions are then discussed in relation to the deliberative processes in senior courts; to judicial selection and appointments; and to the disciplinary process. Second, informal judicial institutions are deeply connected with the UK constitutional tradition. The Brexit litigation laid bare the challenges of containing political behavior within certain boundaries, and the unwritten conventions which have bound the judiciary and the executive might now be instinctively understood and shared by only one of these two parties.

In this article, we challenge that assumption that the Court of Justice of the European Union does not need to accommodate dissenting opinions because the necessary arguments and policy perspectives can be outlined in the AG’s Opinion. We examine the greater legitimacy that may be gained from permitting dissenting and concurring opinions in cases which involve the determination of fundamental rights before the Court. We ultimately argue that our discussion on the quality of judgments is closely related to a discussion on the selection process and criteria for membership of the Court. In the current context, however, the AG’s Opinions continue to provide a more robust field for articulating national and European norms and a larger space for interpretive innovation than the Court’s ordinary forum.

AT the behest of the Law Commission, Contempt of Court: Scandalising the Court (18 December 2012), Parliament recently abolished the common law offence of scandalising the court (s. 33 of the Crime and Courts Act 2013). But the offence is still frequently found in many parts of the common law world and the decision of the Judicial Committee of the Privy Council in Dhooharika v DPP of Mauritius [2014] UKPC 11; [2014] 3 W.L.R. 1081 may indicate its future in common law jurisdictions. The Privy Council was asked to decide, inter alia, whether the common law offence was compatible with s. 12 of the Constitution of Mauritius. Section 12 protects a person's freedom of expression but also makes saving for any law, or any act done pursuant to law, which aims to maintain the authority and independence of the courts and which is reasonably justifiable to that end.