In the meantime, however, it may be possible to draw together some provisional conclusions. Without pushing the transplant imagery too far, there will inevitably be an interest in assessing its prospects for success whether the transplanted items of public law will – ‘take’ by proving compatible with their new environment and flourishing or whether, on the other hand, they will be rejected. The criteria relevant to such an assessment may fall under two broad heads in the first – place, providing a measure of contribution to contracting parties looking to the Braganza’s courts for the resolution of disputes according to their intentions and with a sufficient degree of certainty and predictability; and secondly providing for courts themselves the legitimacy they seek as institutions in this area, with only a supervisory role. And, according to both those measures and drawing on the observations offered in the previous section, there are considerable grounds for scepticism. Against the general drift of opinion of expert commentators and against the general run of previous cases, the Supreme Court has pushed out the boat of judicial activism in the direction of greatly extended grounds of review without the protection of the of Parliament’ and without the cover of the ‘will limited remedial scope of judicial review. It seems unlikely that, whether by the ‘public’ standards of certainty and predictability or of the legitimacy of their own operation, they have embarked on a successful venture.
In the meantime, however, it may be possible to draw together some provisional conclusions. Without pushing the transplant imagery too far, there will inevitably be an interest in assessing its prospects for success – whether the transplanted items of public law will ‘take’ by proving compatible with their new environment and flourishing or whether, on the other hand, they will be rejected. The criteria relevant to such an assessment may fall under two broad heads – in the first place, providing a measure of Braganza’s contribution to contracting parties looking to the courts for the resolution of disputes according to their intentions and with a sufficient degree of certainty and predictability; and secondly providing for courts themselves the legitimacy they seek as institutions in this area, with only a supervisory role. And, according to both those measures and drawing on the observations offered in the previous section, there are considerable grounds for scepticism. Against the general drift of opinion of expert commentators and against the general run of previous cases, the Supreme Court has pushed out the boat of judicial activism in the direction of greatly extended grounds of review without the protection of the ‘will of Parliament’ and without the cover of the limited remedial scope of ‘public’ judicial review. It seems unlikely that, whether by the standards of certainty and predictability or of the legitimacy of their own operation, they have embarked on a successful venture.