SEPARATING AND BALANCING POWERS CENTRAL ISSUES An important task for a constitutional system is to determine how power is to be distributed

d across different institutions and public office-holders The main roles !ithin the constitutional system are usually referred to as the exe uti!e"" ##e$is#%ti!e"" and #&udi i%#" roles The re#%tionships between these ro#es" and the institutions and processes throu$h !hich they are carried out" are informed by the principle that powers shou#d be sep%r%ted' The ontent o( this prin ip#e %nd its pr% ti %# %pp#i %tion %re ontentious in the United %in$dom in se&eral !ays

 The on ept o( sep%r%tion o( powers has !%rious (un tions It is a template for desi$nin$ onstitutions and constitutional reform It may prote t indi!idu%# #ibert) by ensurin$ that too much po!er is not concentrated into the hands of one person or institution It may promote e((i ien )" by ensurin$ that appropriate institutions make decisions There is an % %demi %r$ument that" historically" the more import%nt di!ision o( powers within Brit%in w%s between the Crown %nd P%r#i%ment 'rather than the e(ecuti&e)le$islati&e)*udicial distinction that emer$ed first in other constitutional systems+ The on ept o( sep%r%tion o( powers is imp#i it in ourt &ud$ments that ha&e to ad*udicate on ,uestions about the rela-ti&e po!ers of $o&ernment" .arliament and the *udiciary

 In the U% system" sep%r%tion o( powers is % &usti(i %tion (or b%si onstitution%# %rr%n$ements *Ps %nd peers %nnot ser!e %s senior &ud$es' +ud$es %nnot ser!e %s *Ps or in the /ouse of Lords #P%r#i%ment%r) pri!i#e$e" pre!ents ourts s rutini,in$ p%r#i%ment%r) m%tters #Sub &udi e" ru#es $ener%##) pre!ent *Ps %nd peers dis ussin$ %ses before the courts As the U% system is a parliamentary democracy" not a presidential one" there is no sep%r%tion between P%r#i%ment %nd $o!ernment' Indeed" ministers %re re-uired to be in P%r#i%ment to ensure the) %re he#d to % ount'

INTROD.CTION 0ne of the main tasks of a constitutional system is to determine !hich institutions and office-holders ha&e po!er and responsibility for carryin$ out public functions This chapter looks at the traditional di&ision bet!een #executive" #e$is#%ti!e"" and /&udi i%# roles1a three-part distinction that is central to much thin0in$ %bout the onstitution%# prin ip#e o( sep%r%tion o( powers As !e !ill see" there is debate as to whether1 wh)1 %nd how sep%r%tion o( powers shou#d o ur in the United %in$doms constitutional system

 At the heart of the idea of separation of po!ers is the proposition that there %re di((erent 0inds o( pub#i (un tion that2 ou$ht to be distin$uished from each other" and ou$ht either to be exer ised b) di((erent institutions or personne#" or somehow /b%#%n ed" to pre&ent an o&erconcentration of po!er in the hands of a sin$le person or institution

Ar$ument2 No sense if totally unconnected" it should be sho!ed the !ay connected and blended Some commentators are" ho!e&er" sceptical about stressin$ separation" pre(errin$ inste%d to hi$h#i$ht the need (or institutions to wor0 to$ether' Ralf 3ahrendorf2 Like the di&ision of labour" the sep%r%tion o( powers is % !er) theoreti %# on ept indeed It is %bo!e %## % on ept1 %nd not % (% t4 !hat !e see is not the di&ision of labour" but its combination in the co-operati&e structure of or$anisations It is not the separation of po!ers" but their co-ordination and sometimes their confusion

 It is useful to think of $o&ernment" parliament and the *udiciary as separate functions4 it may to some e(tent be important to institutionalise this separateness" for e(ample by safe$uardin$ the independence of the *udiciary4 but the theoretical separation of po!ers is merely the preface to the main &olume of practical problems of ho! the different and possibly separate po!ers should be coordinated 5ames 6adison 789:8-8;<=" one of the foundin$ fathers of the USA> sa! this e&en more clearly than 6ontes,uie himself" !ho of course realised that the po!ers of le$islature and e(ecuti&e in ?ritain !ere anythin$ but separate Like 6ontes,uieu" 6adison preferred the term @distribution of po!er@ and proceeded to look for @the sense in !hich the preser&ation of liberty re,uires that the three $reat departments of po!er should be separate and distinct @

 And this seems ,uite clear to 6adison" %s it does to ommon sense1 th%t it does not m%0e sense to %ssume /th%t the #e$is#%ti!e1 exe uti!e %nd &udi i%r) dep%rtments shou#d be who##) un onne ted !ith each other@4 on the ontr%r)1 the re%# -uestion is how the) %re / onne ted %nd b#ended'/

PRACTICAL SCENARIOS If this all sounds rather abstract" consider the follo!in$ practical scenarios These are situ%tions in whi h dis%$reements h%!e erupted o!er whether the wron$ person or wron$ institution w%s %rr)in$ out the pub#i (un tion in ,uestion C%se be#ow show th%t it is % ontentious m%tter to de ide the (un tion o( the respe ti!e institution

Po#iti i%ns %nd murderers - .olitician cannot order the period remain in prison as it is courtAs duty and a$ainst Con&ention ri$ht Bhen a ourt p%sses % #i(e senten e on a person on!i ted o( murder" who shou#d h%!e power to order (or how #on$ the person must rem%in in prison for the purposes of punishment before bein$ eli$ible for release #on licenceA 'if he or she is no lon$er a dan$er the public+C Should a $o&ernment minister1a politician accountable to .arliament and influenced by public opinion1 ha&e this function" or should it be e(ercised by the *udiciaryC Section 23435 o( the Crimin%# +usti e A t 3627" passed !hen the death penalty for murder !as abolished in the United %in$dom" $%!e the (un tion to the 8ome Se ret%r)

 The po!er !as re-enacted" in s#i$ht#) modi(ied (orm1 in s' 96 o( the Crime 4Senten es5 A t 3667' Anderson1 % #i(e prisoner brou$ht % &udi i%# re!iew h%##en$e' R ! Se ret%r) o( St%te (or the 8ome Dep%rtment ex p%rte Anderson :9;;9< U%/L Lord Ste)n <D In a series of decisions since 3oody in 8DD< 7 >" the /ouse of Lords has described the /ome Secretary@s role in determinin$ the tariff period to be ser&ed by a con&icted murderer as punishment akin to a sentencin$ e(ercise In our system of la! the sentenc-in$ of persons con&icted of crimes is classically re$arded as a *udicial rather than e(ecu-ti&e task 0ur constitution has" ho!e&er" ne&er embraced a ri$id doctrine of separation of po!ers The relationship bet!een the le$islature and the e(ecuti&e is close 0n the other hand" the separation of po!ers bet!een the

*udiciary and the le$islati&e and e(ecuti&e branches of $o&ernment is a stron$ principle of our system of $o&ernment The /ouse of Lords and the .ri&y Council ha&e so stated2 Attorney-Eeneral for Australia & The Fueen and the ?oilermakers@ Society of Australia 78D:9> AC G;;" <8:4 Liyana$e & The Fueen 78D=9> 8 AC G:D" GD84 /inds & The Fueen 78D99> AC 8D:4 3uport Steels Ltd & Sirs 78D;H> 8 BLR 8IG" 8:9? It is reinforced by constitutional principles of *udicial independence" access to *ustice" and the rule of la! ?ut the supremacy of .arliament is the paramount principle of our constitution Bhate&er ar$uments there !ere about the precise nature of the /ome Secretary@s role in controllin$ the release of con&icted murderers" .arliament had the po!er to entrust this particular role to the /ome Secretary It did so unambi$u-ously by enactin$ section GD of the 8DD9 Act and its precursors Bhile a series of /ouse of Lords@ decisions ha&e re&ealed concerns about the compatibility of the operation of the system !ith the rule of la!" the la!fulness in principle of the /ome Secretary@s role !as not in doubt

 IH The ,uestion is no! !hether the /ome Secretary@s decisionmakin$ po!er o&er the terms to be ser&ed by mandatory life sentence prisoners is compatible !ith a later statute enacted by .arliament" namely the /uman Ri$hts Act 8DD; by !hich .arliament incorpo-rated the European Con&ention on /uman Ri$hts into the la! of the United %in$dom Article ='8+ of the Con&ention" so far as it is material" pro&ides2 In the determination of his ci&il ri$hts and obli$ations or of any criminal char$e a$ainst him" e&eryone is entitled to a fair and public hearin$ !ithin a reasonable time by an independent and impartial tribunal established by la! @ 7 > :8 The power o( the 8ome Se ret%r) in En$land and Bales to de ide on the t%ri(( to be ser&ed by mandatory life sentence prisoners is a stri0in$ %nom%#) in our #e$%# s)stem It is true th%t P%r#i%ment h%s the power to punish ontemnors b) imprisonment

 This power deri!es (rom the medie&al concept of .arliament bein$" amon$st other thin$s" a ourt o( &usti e2 Sub*ect to this ,ualification" there is in our s)stem o( #%w no ex eption to the proposition th%t % de ision to punish %n o((ender by orderin$ him to ser&e a period of imprisonment m%) on#) be m%de b) % ourt o( #%w2 It is % de ision whi h m%) on#) be m%de b) the ourts' /istorically" this has been the position in our le$al system since at least 8=;; And this ide% is % prin ip%# (e%ture o( the ru#e o( #%w on whi h our unwritten onstitution is b%sed'

 It !as o&erridden by .arliament by &irtue of section GD of the 8DD9 Act Now the dut) to de ide on the omp%tibi#it) o( th%t st%tutor) pro!ision with %rti #e 2435 has been p#% ed b) P%r#i%ment on the ourts under the /uman Ri$hts Act 7 > The /ouse of Lords m%de % de #%r%tion o( in omp%tibi#it) under the 8um%n Ri$hts A t 8DD; that s GD of the Crime 'Sentences+ Act 8DD9 w%s in omp%tib#e with Art' 2 of the European Con&ention on /uman Ri$hts 'EC/R+

The u#tim%te ourt o( %ppe%# %s % p%r#i%ment%r) ommittee- Even appear to be partial, will affect the independence of judiciary A second scenario is the back$round to the creation of the U% Supreme Court .nti# =; September 9;;6" the .nited >in$dom"s hi$hest ourt1 the Appellate Committee of the 8ouse o( Lords1operated as a committee of one o( the 8ouses o( P%r#i%ment' The courts pro(ession%# &ud$es1 the Lords of Appeal in 0rdinary1 were peers %nd too0 p%rt in some %spe ts o( the 8ouse o( Lord"s #e$is#%ti!e and s rutin) wor0 when not sittin$ %s &ud$es1 includin$ chairin$ a select committee on scrutiny of EU le$al proposals4 hearin$s !ere held in committee rooms in .arliament4 *ud$ments !ere deli&ered in the chamber of the Lords 'before le$islati&e and scrutiny business started+

 In GHH<" Tony ?lairAs $o&ernment adopted a policy" e&entually put into la! by the Constitutional Reform Act GHH:" that there should be an institutional separation of the #*udicial businessA from the le$islati&e and scrutiny !ork of the /ouse of Lords" !ith *udicial functions transferred to a ne!ly created Supreme Court of the United %in$dom The $o&ernmentAs thinkin$ is set out in the follo!in$ e(tract from a consultation paper issued by the department responsible for the reforms

 Dep%rtment (or Constitution%# A((%irs1 Constitution%# Re(orm2 A Supreme Court for the United %in$dom '5uly GHH<+" para <2 It is not al!ays understood that the decisions of the @/ouse of Lords@ are in practice decisions of the Appellate Committee and that non-*udicial members of the /ouse ne&er take part in the *ud$ments Nor is the e(tent to !hich the La! Lords themsel&es ha&e decided to refrain from $ettin$ in&ol&ed in political issues in relation to le$islation on !hich they mi$ht later ha&e to ad*udicate al!ays appreciated The fact that the Lord Ch%n e##or1 %s the 8e%d o( the +udi i%r)" !as entitled to sit in the Appe##%te %nd +udi i%# Committees %nd did so %s Ch%irm%n" %dded to the per eption th%t their independen e mi$ht be ompromised by the arran$ements

 The 8um%n Ri$hts A t1 spe i(i %##) in re#%tion to Arti #e 2 of the European Con&ention on /uman Ri$hts" no! re-uires % stri ter !iew to be taken not only of anythin$ !hich mi$ht undermine the independence or impartiality of a *udicial tribunal" but e!en o( %n)thin$ whi h mi$ht %ppe%r to do so' So the fact that the L%w Lords %re % Committee o( the 8ouse o( Lords %n r%ise issues %bout the %ppe%r%n e o( independen e (rom the #e$is#%ture Lookin$ at it from the other !ay round" the re-uirement (or the %ppe%r%n e o( imp%rti%#it) %nd independen e also increasin$ly #imits the %bi#it) o( the L%w Lords to ontribute to the wor0 o( the 8ouse o( Lords" thus reducin$ the &alue to both them and the /ouse of their membership

Ar$ument2 Le$islature and 5udiciary no need to be distinct" *udiciary ne&er need decide on le$islature The need to sep%r%te &ud$es from .arliament !as not % epted by e&eryone Ei&in$ e&idence to the /ouse of Commons Constitutional Affairs Committee after the $o&ernment announced their reform plans" Lord L#o)d o( Berwi 0" a retired La! Lord" made the follo!in$ statement to members of .arliament '6.s+2 Since it is the &ud$es who h%!e to de ide whether ministers %re bre%0in$ the #%w or e(ceedin$ their po!ers or !hate&er it may be" it is ob!ious#) !it%# th%t the &udi i%r) %nd the exe uti!e shou#d be sep%r%te and distinct But there has ne!er been % re%son1not one that I can see1 !hy the &ud$es %nd the #e$is#%ture shou#d be distin t %nd sep%r%te

Ci!i# ser!%nts imposin$ pen%#ties on irresponsib#e (%thers - Ri$ht to impose penalties should be ri$ht of 5udiciary This third scenario is about desi$nin$ a system for applyin$ pressure on non-resident parents 'usually fathers+ to pay child maintenance The $o&ernment de ided on % po#i ) o( on(is %tin$ non?p%)ers" p%ssports Bho" in such a scheme" !as to make decisions about imposin$ this sanctionC Bas it ob&e tion%b#e on onstitution%# $rounds (or % i!i# ser!%nt 'ci&il ser&ants are responsible for the administration of central $o&ernment and !ork !ithin the e(ecuti&e+ wor0in$ in the Chi#d *%inten%n e En(or ement Commission 4C*EC5 to h%!e these powersC

 The $o&ernment and the /ouse of Lords Constitution Committee disa$reed about this

8ouse o( Lords Constitution Committee@ ; Be remain of the &ie!" e(pressed in our 3ecember GHH9 report 7!hich criticiJed pre&ious proposals>" that it is constitutionally unsatisfactory for C6EC and its contractors1rather than the courts1to ha&e a sanction po!er to !ithdra! a person@s ri$ht to hold a passport The (reedom to tr%!e# to %nd (rom one/s ountr) is % onstitution%# ri$ht of such si$nificance that restrictin$ this ri$ht as a punishment demands ri$orous e(amination by an independent and impartial *ud$e D In recent years" there has been a notable transfer of sanction po!ers from the courts to the e(ecuti&e In recent reports and correspondence !ith ministers" !e ha&e sou$ht to ensure that !here the e(ecuti&e is conferred !ith coerci&e sanction po!ers there are safe$uards for ensurin$ fair procedures are follo!ed and that there is an effecti&e appeal to the courts to ensure *udicial o&ersi$ht In relation to the present bill" !e ackno!led$e that a person

!ho is dis,ualified by C6EC from holdin$ a passport !ould ha&e a ri$ht of appeal to a court and that if such a ri$ht of appeal is e(ercised" the dis,ualification !ill be suspended until the appeal is determined The possibility of an appeal does not" ho!e&er" ans!er the prior ,uestion2 is the sanction po!er one !hich the e(ecuti&e" rather than the courts" should be allo!ed to e(ercise 8H In the present bill" the Eo&ernment seek to transfer sanction po!ers from the courts to ci&il ser&ants in relation to passports and dri&in$ licences It should be noted that the Child 6aintenance and 0ther .ayments Act GHH; created other sanction po!ers" includin$ the imposition of curfe! orders and an associated po!er to search premises and confiscate any money found Curfe! orders and search po!ers are" under current arran$ements" made and authorised by the courts follo!in$ an application by C6EC Bhile the Eo&ernment ha&e not proposed that the e(ecuti&e should ha&e po!er to impose curfe! orders or search premises !ithout reference to the courts" !e are concerned that an unintended chan$e in the constitution is occurrin$ in !hich the

e(ecuti&e is ac,uirin$ e&er more po!ers to impose sanctions and punish people that a $eneration a$o !ould ha&e been re$arded as fallin$ !ithin the remit of the courts A line needs to be dra!n around the type of po!er that ci&il ser&ants can appropriately e(ercise and those for !hich *ud$es should be responsible In our &ie!" suspendin$ % person/s ri$ht to ho#d % p%ssport1 be %use o( its imp% t on % onstitution%# ri$ht" shou#d (%## into the #%tter %te$or) :&udi i%r)< 'alon$ !ith po!ers to impose curfe! orders and order searches of premises+

Con #usion@ Contentious m%tter to de ide the (un tion o( institution The on #usion th%t %n be dr%wn from these three scenarios is that (%r (rom bein$ dr)1 abstract" te(tbook topics" deb%tes %bout wh%t 0ind o( institution or person exer ises di((erent pub#i (un tions t%0e p#% e re$u#%r#) These ex%mp#es %#so show that the !ay in !hich powers %re %##o %ted %nd sep%r%ted is often a ontentious m%tter

LEGISLATIAE1 EBEC.TIAE1 AND +.DICIAL C.NCTIONS Contentious ar$ument about the tripartite di&ision The three-part distin tion between #e$is#%ti!e1 exe uti!e1 %nd &udi i%# powers has its ori$ins in the ei$hteenth century This mode# is1 howe!er1 open to riti ism" as !e shall see Some omment%tors doubt !hether the comple( ran$e of $o&ernmental functions in modern constitutional systems %n be redu ed to on#) three t)pes o( power' It is %#so %r$ued by some scholars that this trip%rtite di!ision is not $rounded in the histori %# de!e#opment of the ?ritish constitution" !hich" as !e ha&e noted" did not under$o the re!o#ution%r) tr%ns(orm%tions e(perienced to!ards the end of

ei$hteenth century in Cr%n e %nd the .SA

TK.ES 0L LUNCTI0N AT A ELANCE Le$is#%ti!e? 6akin$ le$ally bindin$ sets of rules that apply to people $enerally Exe uti!e? Lorei$n relations4 military action4 administration4 de&elopin$ national policy on a !ide ran$e of sub*ects +udi i%#? Applyin$ the la! to resol&e ci&il disputes4 conduct of criminal trials

Institutional separation- one function for each In its institution%# (orm 'applied in fe!" if any" constitutional systems+" the concept of separation of po!ers su$$ests that these three (un tions must be exer ised b) omp#ete#) di((erent institutions2 #e$is#%tion should only be made by le$islati&e bodies 'parliaments+4 exe uti!e functions should only be carried out by $o&ernments 'ministers and ci&il ser&ants+4 and ourts alone should be responsible for *udicial functions In pr% ti e" in m%n) onstitution%# s)stems" institutions exer ise (un tions (rom more th%n one o( the %te$ories2 for e(ample" the $o!ernment m%) h%!e ru#e? m%0in$ powers 'a le$islati&e function+

.ersonnel should not ha&e more than one function In its personne# form" the idea of separation of po!ers stresses that a sin$le person should not e(ercise more than one of the functions Lor e(ample2 o a person !ho is a member of the exe uti!e branch 'a minister or an official+ should not also be a member of the *udiciary or of the le$islature4 o a person !ho is a member of the &udi i%r) should not simultaneously be a member of the le$islature '.arliament+ or the $o&ernment 'as a minister or official+4 and o a person !ho is a member of the #e$is#%ture 'an 6.+ should not be a *ud$e or a member of the e(ecuti&e 'as a minister or ci&il ser&ant+

U% constitution- not entirely separate in personnel Be !ill see shortly that the .> onstitution%# s)stem does not m%t h up to all of these re,uirements '!hich leads some omment%tors to su$$est that the sep%r%tion o( powers is not p%rti u#%r#) import%nt in the United %in$dom+ There is one !er) ob!ious w%) in !hich the United %in$dom1alon$ !ith many other ma*or constitutional systems around the !orld1does not (it the personne# sep%r%tion model2 ministers '!ho e(ercise e(ecuti&e functions+ %re re-uired to be members o( the #e$is#%ture '.arliament+" in !hich they h%!e % domin%nt ro#e in the #e$is#%ti!e pro ess' There is therefore an important distin tion to be m%de between presidenti%# s)stems 'in !hich executive and legislature are separate1as in the .SA" 6e(ico" and ?raJil+ %nd p%r#i%ment%r) s)stems 'in !hich they are not1as in the United %in$dom" Ireland"

Australia" Canada" and the Netherlands+ Check and balance e(ist but not totally separated It is often stressed that the sep%r%tion o( powers does not %im only" or m%in#)" to sep%r%te di((erent (un tions" but to ensure that there %re he 0s %nd b%#%n es" !ithin the constitution so th%t power is not o!er#) on entr%ted in one institution Lor e(ample" i( the #e$is#%ture were to de#e$%te some #%w? m%0in$ powers to ministers" the ourts 'e(ercisin$ their *udicial function+ should h%!e powers to re!iew !hether those po!ers are la!fully e(ercised in accordance !ith the intention of the le$islature

Tension bt! .olitic 7do!nplay the court> and Le$al 7Court used as check and balance> constitutionalist In Chapter G" the deb%te between the po#iti %#" %nd D#e$%#" onstitution%#ists !as introduced in the conte(t of the principles of parliamentary supremacy and the rule of la! It should be no surprise that the tensions surface a$ain in relation to debates o&er the meanin$ and application of the doctrine of separation of po!ers Po#iti %# onstitution%#ists tend to downp#%) the ro#e o( ourts2 as !e see shortly" Tomkins" for e(ample" ar$ues that it is wron$ in the En$#ish onstitution%# set?up to &ie! the &udi i%r) %s % Dthird br%n h"' Le$%# onstitution%#ists" on the other hand" tend to be 0een on usin$ the ide% o( sep%r%tion o( powers to bo#ster the import%n e o( the ourts %s % m%&or he 0 %nd b%#%n e" on the

institutions that carry out the other t!o functions 'le$islati&e and e(ecuti&e+ Wh%t is the point o( sep%r%tin$ powersE- design a constitution, protect liberty, increase efficiency There are three m%in re%sons !hy theorists and more practically minded people ha&e been interested in the idea of separation of po!ers Cirst" it may be thou$ht of as a temp#%te (or the desi$n o( % onstitution%# s)stem o If a country is startin$ from scratch '%(ter % re!o#ution o( some 0ind" for e(ample+" the ide% o( sep%r%tion o( powers o((ers $uidin$ prin ip#es on allocatin$ le$islati&e" e(ecuti&e" and *udicial functions to &arious kinds of institution

 Se ond1and this is a &ie! taken in different centuries by ?aron 6ontes,uieu '8=;D- 89::+ and .rofessor Eric ?arendt" in the e(tracts that follo!1the point of sep%r%tion o( powers m%) be to prote t #ibert)' o The $ist of the idea is that if too mu h o( one 0ind o( power is concentrated in the hands of one person or institution" there is more o( % ris0 o( th%t power bein$ %bused to curtail freedom than if the po!ers are kept distinct or if there is a system of checks and balancesA Third" !e !ill see that N B ?arber ar$ues that @it is e((i ien )1 not #ibert)" !hich is at the heart of separation of po!ers@ o If the &arious types of po!er are allocated sensibly to the ri$ht kind of institution" it is more #i0e#) to be exer ised e((i ient#)

6ontes,uieu- S0." end of e&erythin$ is po!er concentrated on one body 6ontes,uieu 'Charles-Louis de Secondat+ !as a Lrench aristocrat !ho tra&elled !idely in Europe" !ho li&ed in En$land for t!o years in 89GD-<8" and !ho had $reat kno!led$e of the ancient Roman and Ereek ci&iliJations The o&erarchin$ theme of his book The Spirit of La!s" on !hich he !orked for t!enty years" !as to e(amine ho! *ud$ments should be made about the ,ualities of la!s and systems of $o&ernment '!hich he clas-sified as republicanA" #aristocraticA" and #despoticA+ In that part of his book entitled #0f the la!s that form political liberty" !ith re$ard to the constitutionA" he des ribes % pi ture under the he%din$ DO( the onstitution o( En$#%nd" that bore no resemb#%n e to the % tu%# %rr%n$ements then 'or no!+" so presumably his aim !as to outline an idealiJed system SOP described is not same as now

The Spirit of the Laws: 0f the constitution of En$land In e&ery $o&ernment there are three sorts of po!er4 the le$islati&e4 the e(ecuti&e" in respect of thin$s dependent on the la! of nations4 and the *udicial" in re$ard to thin$s that depend on the ci&il la! ?y &irtue of the first" the prince or ma$istrate enacts temporary or perpetual la!s" and amends or abro$ates those that ha&e been already enacted ?y the second" he makes peace or !ar" sends or recei&es embassies" establishes the public security" and pro&ides a$ainst in&asions ?y the third" he punishes criminals" or determines the disputes that arise bet!een indi&iduals The latter !e shall call the *udicial po!er" and the other simply the e(ecuti&e po!er of the state The po#iti %# #ibert) o( the sub&e t is a tr%n-ui##it) o( mind" arisin$ from the opinion each person has of his safety In order to h%!e this #ibert)" it is re,uisite the $o!ernment be so

onstituted %s one m%n need not be %(r%id o( %nother' Bhen the #e$is#%ti!e %nd exe uti!e powers %re united in the same person" or in the same body of ma$istrates" there %n be no #ibert)4 because apprehensions may arise" lest the s%me mon%r h or sen%te shou#d en% t t)r%nni %# #%ws" to e(ecuti&e them in a tyrannical manner A$ain" there is no #ibert)" if the po!er of &ud$in$ be not sep%r%ted (rom the #e$is#%ti!e %nd exe uti!e powers' Were it &oined with the #e$is#%ti!e" the life and liberty of the sub*ect !ould be exposed to %rbitr%r) ontro#4 for the &ud$e wou#d then be the #e$is#%tor' Were it &oined to the exe uti!e power" the &ud$e mi$ht beh%!e with %## the !io#en e o( %n oppressor

 There wou#d be %n end o( e!er) thin$1 were the s%me m%n1 or the s%me bod)" !hether of nobles or of the people to e(er ise those three powers" that of enactin$ the la!s" that of e(ecutin$ public resolutions" and that of *ud$in$ the crimes and differences of indi&iduals

Cabinet $o&t is fusion and combination 7to be essence and efficient> !hile .resident $o&t is separate L and E 7specific ,uality in this system> Compare this !ith B%$ehot"s %n%#)sis 8GH years later Balter ?a$ehot '8;G=-99+ ,ualified as a la!yer" but !ent into business as a *ournalist and founded The Economist ma$aJine In his &ie!" the nineteenth-century ?ritish constitution !as characteriJed by the fusion" not the separation" of po!ers 1!ith the Cabinet at the epicentre Balter ?a$ehot2 A C%binet is % ombinin$ ommittee1a hyphen !hich *oins" a buckle !hich fastens" the #e$is#%ti!e p%rt o( the St%te to the exe uti!e p%rt o( the St%te

 In its ori$ins it belon$s to one" in its functions it belon$s to the other 7 > The (usion o( the #e$is#%ti!e %nd exe uti!e (un tions may" to those !ho ha&e not much considered it" seem but a dry and small matter to be the latent essen e %nd e((e tu%# se ret o( the En$#ish onstitution4 but !e can only *ud$e of its real importance by lookin$ at a fe! of its principal effects" and contrastin$ it &ery shortly !ith its $reat competitor" !hich seems likely" unless care be taken" to outstrip it in the pro$ress of the !orld That competitor is the .residential system The characteristic of it is that the .resident is elected from the people by one process" and the /ouse of Representati&es by another

 The independen e o( the #e$is#%ti!e %nd exe uti!e powers is the spe i(i -u%#it) o( Presidenti%# $o!ernment" *ust as the (usion %nd ombin%tion is the pre ise prin ip#e o( C%binet $o!ernment'

B%rendt? 5ennin$ ar$ued that no material difference bt! < institution /a&in$ noted that 3icey says almost nothin$ about separation of po!ers" in the ne(t e(tract" .rofessor ?arendt takes issue !ith Sir I&or 5ennin$sA analysis in The La! and the Constitution '8D:D+ Eri B%rendt@ The principal criticism made by Sir I&or 5ennin$s !as that there are no m%teri%# di((eren es between the three (un tions" so the sep%r%tion prin ip#e (%i#s to exp#%in wh) ert%in t%s0s shou#d be $i!en to one bod) rather than another

J and E mixing up: Lor instance" the di((eren es between &udi i%# %nd %dministr%ti!e de isions are in his &ie! not re%##) ones o( subst%n e" but are only formal or procedural. It is better th%t some de isions %re t%0en b) persons or bodies whi h obser!e (orm%# #e$%# pro edures1imp%rti%# tribun%#s onsiderin$ % %se in pub#i and on the e&idence1rather than by administrators !ho are concerned to e(ecute policies !hich they ha&e de&eloped ?ut we %nnot s%) that some de isions %re inherent#) &udi i%# r%ther th%n %dministr%ti!e

L and E not much differences in U : 5ennin$s did admit that the le$islati&e function may be identified as that of makin$ @$en-eral rules of la!@ " but it did not mu h m%tter th%t in pr% ti e in the .'>' 'as in other countries+ ministers issue a #ot o( $ener%# ru#es under de#e$%ted #e$is#%ti!e %uthorit) There wou#d on#) be t)r%nn) if all la!s !ere made in this !ay" or" he mi$ht ha&e added" if they !ere made by the e(ecuti&e without %n) #e$is#%ti!e %uthorit) %t %##' 6oreo&er" it is the uni&ersal practice for $o!ernments to en&o) m%ssi!e de#e$%ted #e$is#%ti!e %uthorit)' Another of his points is that !hile most *urisdictions re$ard the independence of the *udicial branch as sacrosanct" there is fre,uently 'as in the U % + at #e%st p%rti%# (usion o( the #e$is#%ti!e %nd exe uti!e br%n hes'

!"# did not prevent tyranny, democratic is the safeguard: 6oreo&er" he concluded that the sep%r%tion prin ip#e w%s irre#e!%nt %s % s%(e$u%rd %$%inst bure%u r% ) or t)r%nn)4 !hat pre&ented that !as democratic control throu$h the /ouse of Commons and the party system Eeoffrey 6arshall shares 5ennin$s@ &ie! that it is impossible to define !ith precision the separate functions of $o&ernment and conse,uently determine to !hom their performance should be allocated

$onstitutional review of J interfere with legislative and executive: Linally" on some &ersions of the separation principle" e $ the p%rti%# sep%r%tion o( powers (ound in the .nited St%tes" onstitution%# &udi i%# re!iew is %ppropri%te to he 0 the #e$is#%ti!e %nd exe uti!e branches" !hile it !ould be an unw%rr%nt%b#e !io#%tion o( it % ordin$ to the pure theor) The &udi i%r) wou#d then be inter(erin$ with the dis h%r$e b) the #e$is#%ture or exe uti!e of its functions 6arshall@s conclusion is that the do trine is (%r too impre ise %nd in oherent to be of any use in the analysis or criti,ue of constitutions2 @7i>t may be counted little more than a *umbled portmanteau of ar$uments for policies !hich ou$ht to be supported or re*ected on other $rounds@ ?ut he does not e(plain !hat these other ar$uments mi$ht be

!"# will constraint on #!: Linally" the sep%r%tion o( powers prin ip#e ar$uably amounts to a onstr%int on #e$is#%ti!e suprem% )' Lor that reason alone En$#ish omment%tors %re $ener%##) re#u t%nt to t%0e the prin ip#e too serious#) It !ould re,uire" for e(ample" the ourts to stri0e down criminal la! statutes !hich retrospecti&ely amended the la! to deal !ith a particular incident Lor such le$islation !ould be &ie!ed as a usurpation of the *udicial function or an interference !ith the independence of the *udiciary" !hose role is to apply $eneral rules and principles framed for all contin$encies 7 >

Ar$ument@ ?arendt then turns to defend S0. A number of points can be made in reply to the ar$ument deployed by Sir I&or 5ennin$s Lirst" he !as too sceptical about the possibility of a coherent allocation of functions It is possible to define in $eneral terms the le$islati&e" e(ecuti&e and *udicial functions" !hich are allocated by a constitution to particular bodies or institutions Bhat is crucial is that this distribution is enforceable by the courts They are entitled to take the final decision !hether in practice a function is to be re$arded as le$islati&e" e(ecuti&e or *udicial

J and E has the different% liberty by J while distribution of benefit by E: 0f course" 5ennin$s !as ri$ht to point out that the theoretical criteria for determinin$" say" !hether a decision is properly to be characterised as @administrati&e@ or @*udicial@ are unclear and that there are many borderline cases ?ut it is perfectly coherent to claim" for instance" that de isions on person%# ri$hts %nd #iberties %re inherent#) suit%b#e (or &udi i%# reso#ution" and so must be made by a court" !hile the distribution o( other $oods %nd bene(its may be re$arded as a m%tter (or %dministr%ti!e de ision' This particular distinction is captured by Article == of the Constitution o( the Ci(th Cren h Repub#i 2 @:t<he &udi i%# %uthorit)" $u%rdi%n o( the #ibert) of the indi&idual" ensures respect for this principle in conditions determined by the la!@ As a conse,uence a st%tute $i!in$ the po#i e wide powers to inspe t

!ehi #es on the public streets !as de #%red un onstitution%#1in the %bsen e o( either ade,uate standards to $uide the e(ercise of these po!ers or pro&ision for &udi i%# ontro# Similarly" En$#ish ourts h%!e he#d that a st%tute shou#d not be interpreted to %##ow % (in%# de ision on % m%tter o( #e$%# #i%bi#it)" for e(ample" to p%) t%xes" to be t%0en b) %n %dministr%ti!e %uthorit)' These decisions sho! that e!en within the context of %n unwritten1 or un odi(ied" constitution" ourts %re %b#e to dr%w % #e%r #ine between %dministr%ti!e %nd &udi i%# (un tions'

Legislature% unlimited wide range of power &clear from others': E,ually" courts are able to dra! lines bet!een le$islati&e functions on the one hand" and *udicial and e(ecuti&e functions on the other The le$islati&e function is broadly the function of framin$ $eneral rules applicable to a potentially unlimited ran$e of circum-stances 7 >

!"# prevent tyranny but not exact separate the power: ?ut perhaps a more si$ni(i %nt point to make in reply to the criti,ue of 5ennin$s and 6arshall is that the sep%r%tion o( powers is not in essen e on erned with the %##o %tion of functions as such Its prim%r) purpose 7 > is the pre!ention o( the %rbitr%r) $o!ernment" or tyranny" !hich may arise from the concentration of po!er The allocation of functions bet!een three" or perhaps more" branches of $o&ernment is only a means to achie&e that end It does not m%tter1 there(ore1 whether powers %re %#w%)s %##o %ted pre ise#) to the most %ppropri%te institution1although an insensitive allocation would probably produce incompetent government and run counter to Locke@s efficiency rationale

(nother against !"# point: local council in U seemed have ) functions: This point is perhaps most clearly appreciated if !e consider !hat has become one of the most omp#ex %re%s (or sep%r%tion o( powers %n%#)sis@ the or$%ni,%tion1 %nd ontro#1 o( %dministr%ti!e %uthorities %nd %$en ies These ran$e from bodies !hich allocate social security and !elfare benefits 'such as public housin$+" to re$ulatory bodies" for e(ample" the Independent Tele&ision Commission and the 6onopolies and 6er$ers Commission" and finally to super&isory or in&esti$atory officers" such as the Comptroller and AuditorEeneral and the .arliamentary Commissioner for Administration '.CA+ No! it can be asked !hether these bodies perform le$islati&e 'or rulemakin$" to use the American term+" administrati&e" or *udicial functions ?ut these are impossible ,ues-tions to ans!er Lor in truth many a$encies perform at least t!o" and perhaps all three" functions This is apparent in

the United States" !here it is common for an independent re$ulatory a$ency to en$a$e in rulemakin$" to formulate and apply policies" and to take indi&idual decisions" often after a formal hearin$ Perh%ps in the .nited >in$dom the only authorities !hich consistently dischar$e all three functions are #o %# %uthorities" !hich may m%0e b)?#%ws" (ormu#%te p#%nnin$1 hi$hw%)s %nd housin$ po#i ies" and de ide %pp#i %tions (or p#%nnin$ permission !hich mi$ht be h%r% terised %s *udicial" or at least -u%si?&udi i%# de isions ?ut certainly m%n) %$en ies1 in #udin$ $o!ernment ministers" e(ercise a &ariety of functions" some of !hich %n be h%r% terised %s exe uti!e %nd some %s &udi i%#

$ounter%(: Executive has no influence over the local council, so no concentrated of power: Does this phenomenon me%n th%t sep%r%tion o( powers %n%#)sis shou#d be %b%ndoned as hopelessC It wou#d seem so1 i( the pure theor) is %dopted" !ith its ri$id insistence that each function of $o&ernment is dischar$ed by a separate institution But the %nswer m%) be -uite di((erent if !e see the prin ip#e %s essenti%##) on erned with the %!oid%n e o( on entr%tions o( power Lor then ,uestions may be asked about the re#%tionship o( the %$en ) to the three tr%dition%# br%n hes o( $o!ernment Does P%r#i%ment or the $o!ernment h%!e so#e ri$ht to hire %nd (ire members o( the %uthorit) %nd its st%((E

 3oes the $o&ernment ha&e e(clusi&e po!er to issue directions or $uidance to the a$encyC If the a$ency takes *udicial or ,uasi*udicial decisions" ho! far is it sub*ect to re&ie! by the ordinary courtsC On this %ppro% h" there wou#d be % !io#%tion o( the prin ip#e i( the exe uti!e were entit#ed1 without %ssent o( the #e$is#%ture" to $i!e det%i#ed dire tions to %n %$en )" and appoint its members" !hen that a$ency takes decisions affectin$ indi&idual ri$hts and *udicial re&ie! is '&irtually+ e(cluded That !ould not be because an e(ecuti&e a$ency carried out *udicial functions" but be %use it w%s so stru tured %s to re%te or rein(or e % on entr%tion o( power in the h%nds o( the $o!ernment'

Another point@ S0. $i&e rise the efficiency not protect liberty- by understandin$ each role and function easily to $et thin$s done especially the !ay to protect liberty N B B%rber dis%$rees with Eri B%rendts thesis that the m%in r%tion%#e (or sep%r%tion o( powers is to prote t #ibert) /e ar$ues instead that the purpose o( the do trine is e((i ien )@ Sep%r%tion o( powers is % distin ti!e#) onstitution%# too#' It %ddresses itse#( to the %uthors o( the onstitution4 it en*oins them to match function to form in such a !ay as to realise the $oals set for the state by political theory /a&in$ decided that a particular $oal ou$ht to be stri&en after in a society" the do trine then (o uses our %ttention on the m%nner b) whi h it m%) be % hie!ed'

 At this sta$e in the article the political assumptions that lie behind the broad understandin$ of the separation of po!ers must be thickened up Bhereas in the earlier part of the article all that !as assumed !as the thin assumption that po!ers should be allocated to the institution !hich !as best placed to e(ecute them" further assumptions must no! be made about !hat factors may make an institution $ood at undertakin$ certain tasks A$ain" thou$h" these assumptions 7protect liberty> are !eak ones' They merely indicate issues of si$nificance" they do not necessarily re,uire the prioritisation of one factor o&er the others

 Sep%r%tion o( powers en our%$es us to onsider !%rious inter onne ted stru tur%# (% tors that affect the competency of institutions in the performance of their tasks Lirst" the omposition %nd s0i##s o( %n institution must be ex%mined2 the kno!led$e and e(perience of the actors !ithin it Secondly" the s ope o( the institution/s in(orm%tion? $%therin$ powers m%) be o( interest4 some bodies are better than others at $atherin$ different types of information Thirdly" the m%nner o( the institution/s de ision?m%0in$ pro ess m%) be si$ni(i %nt4 some issues may lend themsel&es !ell to e(pert decision-makin$" others !ill be better allocated to amateur processes !hich ha&e the &irtues of openness and inclusi&ity

 This point leads on to a fourth consideration2 the !u#ner%bi#it) o( the institution to outside pressures o Bhether this is considered an ad&anta$e or a dan$er !ill depend both on the p%rti u#%r issue be(ore the de ision?m%0er %nd on our underst%ndin$ o( the n%ture %nd import%n e o( iti,ens/ p%rti ip%tion in de ision? m%0in$ o As this fourth consideration sho!s" this thin underst%ndin$ o( sep%r%tion o( powers rests on % s#ipper) s#ope The thin understanding refer to protect liberty . !ut only protect liberty without "nowing the actual condition of the institution #i.e. facing the outside pressure$ will leave liberty unprotected sometime

 These structural concerns ob&iously relate to deeper issues o( #e$itim% )" and dr%$ us tow%rds ri her1 thi 0er1 norm%ti!e theories in!o#!in$ ri$hts %nd demo r% ) These issues %re %s re#e!%nt to % (u## !ision o( the sep%r%tion o( powers %s the stru tur%# issues th%t h%!e &ust been r%ised1 %nd e#ide into them' /o!e&er" there is profit in holdin$ back from descendin$ into a full normati&e theory ?y focusin$ on these relati&ely uncontro&ersial factors !e can outline reasons for and a$ainst the attribution of functions that !ill e(ist !ithin all understandin$s of the separation of po!ers" but it must not be for$otten that these reasons are not stron$ enou$h in themsel&es to pro&ide a conclusi&e ans!er to the ,uestion of attribution of function

Another SOP@ CROWN AS PARLIA*ENT SEPARATION So far" !e ha&e been e(aminin$ the idea of a separation of po!ers bet!een e(ecuti&e" le$islati&e" and *udicial po!ers Pro(essor Tom0ins takes issue !ith this approach in t!o respects and" in its place" puts for!ard a DCrown !ersus P%r#i%ment" thesis 8is m%in ob&e tion is th%t this trip%rtite di&ision does not re(#e t the histori %# de!e#opment o( the En$#ish onstitution

 The exe uti!e?#e$is#%ti!e?&udi i%# mode# emer$ed from the !ritin$s of 6ontes,uieu 'as &)e sa! pre&iously+ and w%s in(#uenti%# in the p#%nnin$ o( the .S ConstitutionF but is not % $ood (it (or En$#%nd' /e also prefers the term separation of po!erA rather than of po!ersA" because #it is not so mu h th%t dis rete (un tions o( powers %re %##o %ted to sep%r%te bodies" but that onstitution%# %uthorit)F powerFis di!ided between the Crown %nd P%r#i%ment"

?ased on history- Ci!i# w%r sho! that the need to separate the po!er bt! Cro!n and .arliament so that Cro!n po!er is .arliament)Constitutional accountable In the follo!in$ e(tract" Tomkins refers to the En$#ish Ci!i# W%r '8=I8-:8+ This !as a series of bitter armed conflicts bet!een supporters of Charles I 'an adherent to the notion of the c di&ine ri$ht of kin$sA+ and the parliamentary forces led by 0li&er Crom!ell Charles I attempted to rule !ithout con&enin$ .arliament" resortin$ to a &ariety of means to raise re&enue 'such as cship moneyA+ to run the country !ithout parliamentary appro&al for $eneral ta(ation In 8=ID" Charles I !as e(ecuted for treason Lor ele&en years" the country !as ruled !ithout a kin$4 monarchy !as restored in 8==H !hen Charles II became kin$

Ad%m Tom0ins2 The Ci!i# W%r" of course" !as (ou$ht not between three powers sep%r%te but e-u%#1 but between two 0n the one side there !as the Crown" and on the other stood P%r#i%ment 5ust as the !ar !as fou$ht bet!een parliamentarians and royalists" so too !ere the pe% e sett#ements o( 322;?3229 %nd 32G6?37;; ne$otiations between the (or es o( P%r#i%ment on the one h%nd %nd o( the Crown on the other' No!" it is one thin$ to sketch an historical ar$ument to the effect that se&enteenth century constitutionalism !as based on a sep%r%tion o( power between the Crown %nd P%r#i%ment4 it is ,uite another to take the ar$ument further and to su$$est th%t ontempor%r) pub#i #%w ontinues to re(#e t this histori %# di!ision

 ?ut such is precisely the issue that !e !ill no! e(plore2 in wh%t sense m%) it be %r$ued th%t ontempor%r) En$#ish pub#i #%w is b%sed on % sep%r%tion o( power between the Crown %nd P%r#i%ment" a separation deri&ed from En$land@s political historyC The ar$ument presented here !ill be that the separation of po!er in today@s En$lish public la! does indeed continue to reflect its se&enteenth century herita$e The sep%r%tion o( power En$#ish? st)#e" it !ill be ar$ued" is and remains % on(ront%tion%#" bi? p%rtis%n1 bi?po#%r sep%r%tion" between the on#) two powers the onstitution h%s e!er re o$ni,ed %s en&o)in$ any de$ree of so&erei$n authority" n%me#) the Crown" %nd P%r#i%ment E!er) onstitution%# % tor (%##s on one side or the other o( this $re%t di!ide" in that all constitutional actors ultimately dra! their po!er from either the Cro!n or from .arliament

- ?ipolar separation to make accountability rather than liberty protection Tom0in@ This is a separation of po!er !hich is desi$ned to (% i#it%te % ount%bi#it) 7 > As !ith *%$n% C%rt% so too with the Bi## o( Ri$hts %nd the A t o( Sett#ement2 the purpose of these instruments is to (ind w%)s o( ho#din$ the power o( the Crown to some (orm o( onstitution%# or p%r#i%ment%r) % ount This stands in some ontr%st to the classical" ei$hteenth century understandin$ of the sepa-ration of po!ers" !hich" as 6adison made clear" !as desi$ned not to facilitate constitutional accountability" but to s%(e$u%rd #ibert)'

? Act of .arliament sho! separate bt! .arliament and Cro!n - E(ecuti&e are 6inisters of the Cro!n i e accountable to .arliament - 5udiciary find difficult to sub*ect the Cro!n In short" the key to understandin$ po!er in En$land is not the separation of power between legislature, executive, and judiciary, but th%t between the Crown %nd P%r#i%ment Tomkins presents the follo!in$ e!iden e to support his thesis

Cirst" he cites p%r#i%ment%r) suprem% )1that is" A ts o( P%r#i%ment represent the #e$%# moment when the two so!erei$n %uthorities of En$land come to$ether and a$ree2 P%r#i%ment on the one h%nd" the Crown on the other' o The Crown here re(ers to ro)%# %ssent'

 Se ond" there is the onstitution%# on!ention th%t ministers1Tomkins stresses that they are ministers of the Cro!n1 are % ount%b#e to P%r#i%ment o *inisters %re Dthe mon%r h"s %d!isers" and their o%th o( %##e$i%n e is to the Crown" and the) m%) exer ise onsider%b#e ro)%# prero$%ti!e power on behalf of the Cro!n o In order for ministers to be accountable to .arliament" #the En$lish &ersion of the separation of po!ers re,uires that ministers simultaneously be parliamentarians@

 Third" Tomkins points to !hat he calls @the tortuous re#%tionship o( the #%w to the Crown and deals at some len$th !ith the case of * ! 8ome O((i e o Tom0ins on #udes2 #Bhat this case sho!s 7 > is that e&en as recently as the 8DDHs the ourts in En$#%nd h%!e (ound it ex eption%##) di((i u#t to sub&e t 4#imit5 the Crown and its so&erei$n authority to the rule of la!' Th%t me%n unti# tod%) ourt (i## h%rd to #imit the Crown power

5udiciary po!er from the Cro!n but not from the constitution in U% 7contro&ersial but sensible> Where" in TomkinsA @Cro!n &ersus .arliamentA thesis1 %re the ourtsE /e says 'ackno!led$in$ that this is a ontro!ersi%# proposition+ that the ourts %re in some sense p%rt o( or dependent upon" the Crown" and are not independent of it Ad%m Tom0ins2 A fe! !ords of clarification on this important point are called for here Lirst" it should be made clear !hat the ar$ument is not sayin$ It is no p%rt o( the present %r$ument to #%im th%t indi!idu%# &ud$es %n be remo!ed (rom o((i e b) mere ro)%# whim" as 5ames I and Charles I thou$ht IHH years a$o

 The Act of Settlement put a stop to that in 89H8 Neither is it bein$ ar$ued here that in disputes in&ol&in$ the Cro!n the courts !ill al!ays or necessarily hold for the Cro!n Such a thesis !ould be bound to fail 7 > Bhat the ar$ument here is su$$estin$" ho!e&er" is that the &udi i%r) deri!es its onstitution%# power u#tim%te#) (rom th%t o( the Crown' .n#i0e the position under Arti #e III o( the .S Constitution1 or under Arti #e 99; 'formerly Article 8=I+ of the EC Treaty" for e(ample" in En$#ish #%w there is no independent sour e o( &udi i%# %uthorit)

 The En$#ish &udi i%r) is not the third br%n h o( the St%te" separate yet e*ual, as is the case in the United !tates+ In En$#%nd the &udi i%r) is1 proper#) on ei!ed1 neither entire#) sep%r%te nor entire#) e-u%#@ it is not (u##) sep%r%ted 4e!en now5 (rom the Crown" and it remains subser&ient to it as a source of authority

- Stron$ symbolic 5udiciary loyal to the Cro!n2 royal symbol behind the *ud$e in court and the oath Bhat does Tomkins mean !hen he says that the *udiciary remains subser&ient to the Cro!nC Chapter 8I e(amines the &arious !ays in !hich the ?ritish constitution seeks to ensure the constitutional principle of the independence of the *udiciary1 includin$ makin$ it hu$ely difficult for a senior *ud$e to be remo&ed from office 'a &ote in the Commons and the Lords is re,uired+" the ne! *udicial appointments commissions !orkin$ at armAs len$th from ministers" and the statutory duties of ministers to respect *udicial independence

 Bhile there maybe practical restraints on ministers of the Cro!n interferin$ !ith the *udiciary" there are" ho!e&er" stron$ (orm%# %nd s)mbo#i ties between the &udi i%# s)stem %nd the Crown 'meanin$" in this conte(t" not ministers" but an %bstr% t ide% o( onstitution%# %uthorit)+ The ro)%# her%#di s)mbo#s h%n$ behind the &ud$es in most ourts !ut not in Supreme %ourt The &udi i%# o%th 'or for nonreli$ious people" affirmation+ of o((i e %#so re(#e ts this intim%te #in0 'see ?o( I G+

+.DICIAL ANALHSIS OC SEPARATION OC POWERS In this and the ne(t subsections" !e mo&e on from the academic contro&ersy o&er the separation of po!ers 'or po!er+ to onsider pr% ti %# institution%# %rr%n$ements in the British onstitution' Consider first the follo!in$ three e(tracts from *ud$ments in !hich senior members of the *udiciary set out their understandin$ of the separation of po!ers principle

6inister should accountable to .arliament" not for the court to consider !hether minister ultra &ires" but recently the mechanism fall short" only then court step in ho!e&er seem that *ud$es administer the country In the first case" the issue !as !hether a minister h%d % ted un#%w(u##) when he de ided not to exer ise % power 4b) m%0in$ de#e$%ted #e$is#%tion5 to brin$ into (or e pro!isions in %n A t o( P%r#i%ment that set out a scheme for compensatin$ &ictims of &iolent crime The $o&ernment planned instead to put in place a ne! non-statutory scheme 'because this !as cheaper+ The Lire ?ri$ades Union and other trade unions !ere in&ol&ed because they !ere concerned that their members !ould lose out The La! Lords !ere split three to t!o" the ma*ority holdin$ that the minister had acted unla!fully by decidin$ that he !ould ne&er brin$ into force a pro&ision that had been passed by .arliament 8:

 Lord *usti## w%s in the minorit)" t%0in$ the !iew th%t it wou#d be onstitution%##) in%ppropri%te (or the ourts to inter!ene in this situ%tion' /is speech concluded !ith some $eneral reflections on the nature of separation of po!ers" to !hich !e shall return in Chapter 8I ex p%rte Cire Bri$%des .nion 78DD:> Lord *usti## It is a feature of the peculiarly ?ritish conception of the separation of po!ers that .arliament" the e(ecuti&e and the courts ha&e each their distinct and lar$ely e(clusi&e domain .arliament has a le$ally unchallen$eable ri$ht to make !hate&er la!s it thinks ri$ht The e(ecuti&e carries on the administration of the country in accordance !ith the po!ers conferred on it by la! The courts interpret the la!s" and see that they are obeyed

 This re,uires the courts on occasion to step into the territory !hich belon$s to the e(ecuti&e" to &erify not only that the po!ers asserted accord !ith the substanti&e la! created by .arliament but also that the manner in !hich they are e(ercised conforms !ith the standards of fairness !hich .arliament must ha&e intended Concurrently !ith this *udicial function P%r#i%ment h%s its own spe i%# me%ns o( ensurin$ th%t the exe uti!e1 in the exer ise o( de#e$%ted (un tions1 per(orms in % w%) whi h P%r#i%ment (inds %ppropri%te Ide%##)" it is these #%tter methods whi h shou#d be used to he 0 exe uti!e errors and e(cesses4 for it is the t%s0 o( P%r#i%ment %nd the exe uti!e in t%ndem1 not o( the ourts" to $o!ern the ountr)

 In recent years" ho!e&er" the employment in pr% ti e o( these spe i(i %##) P%r#i%ment%r) remedies h%s on o %sion been per ei!ed %s (%##in$ short" and sometimes !ell short" of !hat !as needed to brin$ the performance of the e(ecuti&e into line !ith the la!" and !ith the minimum standards of fairness implicit in e&ery .arliamentary dele$ation of a decision-makin$ function To %!oid % !% uum in !hich the citiJen !ould be left !ithout protection a$ainst a misuse of e(ecuti&e po!ers" the ourts h%!e h%d no option but to o up) the de%d $round in % m%nner" and in areas of public life" !hich could not ha&e been foreseen <H years a$o

 Lor myself" I %m -uite s%tis(ied th%t this unpre edented &udi i%# ro#e h%s been $re%t#) to the pub#i bene(it' Ne!erthe#ess" it h%s its ris0s" of !hich the courts are !ell a!are As the &ud$es themse#!es onst%nt#) rem%r01 it is not the) who %re %ppointed to %dminister the ountr)' Absent a !ritten constitution much sensiti&ity is re,uired of the parliamentarian" administrator and *ud$e if the delicate balance of the un!ritten rules e&ol&ed 'I belie&e successfully+ in recent years is not to be disturbed" and all the recent ad&ances undone

The more political" the less court !ill interfere4 court only resol&e le$al issue 7in present case in&ol&ed terrorism issue> In the second case" the issue !as whether the #e$%# powers ont%ined in the Anti?Terrorism1 Crime %nd Se urit) A t 9;;3 to det%in (orei$n n%tion%#s suspe ted o( terrorism1 inde(inite#) %nd without h%r$e or tri%#Fbre% hed Con!ention ri$hts These po!ers !ere enacted in response to the D)88 attacks in the USA The #no important$ Law Lords held that the powers in the &''( )ct were incompatible with %onvention rights1 leadin$ the $o&ernment to abandon its policy of imprisonment !ithout trial 'and to replace it" under the Terrorism Act GHH:" !ith a system of #control ordersA+ o This decision is not important

o *mportant here is to see how the court attempt to SOP issue The #,uestionA referred to in the first sentence !as !hether there !as a #pub#i emer$en ) thre%tenin$ the #i(e o( the n%tionA %ourt decided that it is political issue. o *t is proper for them to decide whether it is political issue+ 0nly if there !ere such a situation !ould there be a le$al basis under the EC/R for the U% $o&ernment to #dero$ateA from its obli$ations to respect the ri$ht to liberty protected by Art :

A ! Se ret%r) o( St%te (or the 8ome Dep%rtment 7GHHI> Lord Bin$h%m 7GD> 7 > I !ould accept that $reat !ei$ht should be $i&en to the *ud$ment of the /ome Secretary" his collea$ues and .arliament on this ,uestion" because they !ere called on to e(ercise a pre-eminently political *ud$ment It in&ol&ed makin$ a factual prediction of !hat &arious people around the !orld mi$ht or mi$ht not do" and !hen 'if at all+ they mi$ht do it" and !hat the conse,uences mi$ht be if they did Any prediction about the future beha&iour of human bein$s 'as opposed to the phases of the moon or hi$h !ater at London ?rid$e+ is necessarily problematical Reasonable and informed minds may differ" and a *ud$ment is not sho!n to be !ron$ or unreasonable because that !hich is thou$ht likely to happen does not happen It !ould ha&e been irresponsible not to err" if at all" on the side of safety

 As !ill become apparent" * do not accept the full breadth of the Attorney Eeneral@s ar$ument on !hat is $enerally called the de(eren e owed b) the ourts to the po#iti %# %uthorities' It is perhaps preferable to approach this ,uestion as one of demarcation of functions or !hat Liberty in its !ritten case called @relati&e institutional competence@ The more pure#) po#iti %# 'in a broad or narro! sense+ a ,uestion is" the more %ppropri%te it wi## be (or po#iti %# reso#ution and the #ess #i0e#) it is to be %n %ppropri%te m%tter (or &udi i%# de ision' The sm%##er1 there(ore1 wi## be the potenti%# ro#e o( the ourt It is the (un tion o( po#iti %# %nd not &udi i%# bodies to reso#!e po#iti %# -uestions

 Con&ersely" the $re%ter the #e$%# ontent of any issue" the $re%ter the potenti%# ro#e o( the ourt1 because under our constitution and sub*ect to the so&erei$n po!er of .arliament" it is the (un tion o( the ourts %nd not o( po#iti %# bodies to reso#!e #e$%# -uestions The present -uestion seems to me to be !er) mu h %t the po#iti %# end o( the spe trum

.arliament pro&ide the *urisdiction for the court and Court !ill use its po!er in discretionary of &udi i%# re!iew so that there is no duplicate of *udicial process 7in this case is *udicial re&ie! of tribunal> In the last case" the ,uestion before the U% Supreme Court !as whether the #e$%#it) o( de isions o( the Spe i%# Immi$r%tion Appe%#s Commission %nd the .pper Tribun%# ou#d be h%##en$ed in #%ims (or &udi i%# re!iew ?oth of these statutory bodies !ere described in the le$islation settin$ them up as #superior courts of recordA and" on behalf of the bodies" it !as contended that this status e(empted them from *udicial re&ie! challen$es 'in the same !ay as the ,igh %ourt%ourt of )ppeal- and ./ Supreme %ourt are not sub0ect to 0udicial review+

R 4C%rt5 ! .pper Tribun%#I R 4o( . %nd BC5 ! Spe i%# Immi$r%tion Appe%#s Commission 7GH88> U%SC G; Lord Phi#ips 7;D> The administration of *ustice and upholdin$ of the rule of la! in&ol&es a partnership bet!een .arliament and the *ud$es P%r#i%ment h%s to pro!ide the resour es needed (or the %dministr%tion o( &usti e The si,e %nd the &urisdi tion o( the &udi i%r) is determined b) st%tute .arliament has not sou$ht to oust or fetter the common la! po!ers of *udicial re&ie! of the *ud$es of the /i$h Court and I hope that .arliament !ill ne&er do so

 It shou#d be (or the &ud$es to de ide whether the st%tutor) pro!isions for the administration of *ustice %de-u%te#) prote t the ru#e o( #%w %nd1 b) &udi i%# re!iew" to supplement these should it be necessary But1 in exer isin$ the power o( &udi i%# re!iew" the &ud$es must p%) due re$%rd to the fact that" e&en !here the due administration of *ustice is at stake" resour es %re #imited Where st%tute pro!ides % stru ture under whi h % superior ourt or tribun%# re!iews decisions of an inferior court or tribunal" common la! *udicial re&ie! should be restricted so as to ensure" in the interest of makin$ the best use of *udicial resources" th%t this does not resu#t in % dup#i %tion o( &udi i%# pro ess that cannot be *ustified by the demands of the rule of la!

 The U% Supreme Court he#d th%t SIAC %nd the .pper Tribun%# were %men%b#e to &udi i%# re!iew' The ourts wou#d1 howe!er1 exer ise their dis retion to $r%nt permission (or % &udi i%# re!iew h%##en$e to the tribunals to $o ahead only if there !as an important point of principle in ,uestion or some other compellin$ reason to re&ie! the case

Comment%r)@ Case 82 o +ud$es sti## respe t Exe uti!e shou#d % ount%b#e to P%r#i%ment o But tr) to step %re(u##) when (e#t th%t P%r#i%ment % ount%bi#it) me h%nism is not proper Case G o Court respe t th%t po#iti %# issue shou#d #e(t to exe uti!e o But $o (urther to de ide whether it is po#iti %# Case <2 o Court respe t P%r#i%ment shou#d set the &urisdi tion (or the ourt to %pp#) &udi i%# re!iew o But $o (urther s%id th%t ourt themse#!es to de ide whether &udi i%# re!iew to be %pp#ied

INTERACTIONS BETWEEN PARLIA*ENT1 T8E EBEC.TIAE1 AND +.DGES There are m%n) onstitution%# ru#es1some of !hich are contained in le$islation" others of !hich are set out in the (orm o( onstitution%# on!entions or practices1 $o!ernin$ the inter% tions between those !ho e(ercise le$islati&e" e(ecuti&e" and *udicial po!er

C%n members o( P%r#i%ment be &ud$esE Statutory rules state that *Ps %nd peers %re not e#i$ib#e to ser!e %s (u##?time members o( the &udi i%r)" and !i e !ers%' There is" ho!e&er" no prohibition on *Ps or peers ho#din$ p%rt? time &udi i%# %ppointments 'for e(ample" as a recorder or a deputy /i$h Court *ud$e in En$land and Bales+" and se&eral le$ally ,ualified 6.s and peers ha&e done so In En$#%nd %nd W%#es1 %nd Northern Ire#%nd" a &ery #%r$e proportion o( #ess serious rimin%# cases are he%rd b) ben hes o( non?#e$%##) -u%#i(ied !o#unteers 0nown %s #%) m%$istr%tes"" or #5ustices of the .eaceA '5.s+ In Northern Ire#%nd" members of the /ouse of Commons" /ouse of Lords" European .arliament" or one of the de&ol&ed parliamentary assemblies m%) not be %ppointed or sit %s % #%) m%$istr%te'

 There are no simi#%r restri tions in En$#%nd %nd W%#es1 %nd se!er%# *Ps sit %s m%$istr%tes C%n &ud$es p%rti ip%te in the #e$is#%ti!e pro essE - Until GHHD" !ill breach A = if *ud$es took part in le$islati&e Until GHHD" senior &ud$es who h%d been on(erred with % peer%$e1 the t!el&e Lords of Appeal in 0rdinary and some other senior *ud$es1!ere entit#ed to sit %nd !ote durin$ the 8ouse o( Lords" #e$is#%ti!e wor0" althou$h fe! did so Eyebro!s !ere raised !hen t!o La! Lords 'Lords S ott of Loscote and 8o((m%nn + &oted a$ainst proposals contained in the /untin$ ?ill1a piece of le$islation on !hich the La! Lords !ere later to rule ?ecause the) h%d expressed pro? huntin$ !iews throu$h !otin$ durin$ the passa$e of the ?ill throu$h .arliament" Lords S ott %nd

8o((m%nn were un%b#e to be members o( the nine?&ud$e p%ne# o( L%w Lords in +% 0son ! Attorne) Gener%# T%0in$ p%rt in the %ppe%# wou#d h%!e bre% hed Art' 2 EC8R 'on fair trials+" !hich prohibits % person who h%s p%rti ip%ted in the #e$is#%ti!e pro ess (rom subse-uent#) %d&udi %tin$ on issues under that le$islation * Gonne# ! .> The Europe%n Court o( 8um%n Ri$hts takes the &ie! chat an accumulation of functions1in the le$islati&e and then *udicial roles1 $i!es rise to doubts re$%rdin$ the imp%rti%#it) o( the &ud$e '&ie!ed from an ob*ecti&e point of &ie!+ Up to 0ctober GHHD" L%w Lords %#so too0 p%rt in the po#iti %# s rutin) wor0 o( the 8ouse o( Lords" such as chairin$ the European Union 'EU+ Select Committee Subcommittee E" !hich ex%mines propos%#s in the %re% o( E. #%w %nd institutions

 A## o( these ro#es %me to %n end !ith the tr%ns(er of the /ouse of LordsA D&udi i%# business" to the .> Supreme Court and the conse,uential st%tutor) dis-u%#i(i %tion o( the &ud$es o( the Supreme Court (rom p%rti ip%tin$ in the wor0 o( P%r#i%ment

- 5ud$es should ad&ice in le$islati&e process as it is $oin$ to lead appeal in this area unless in&ol&ed in policy issue Althou$h ser&in$ *ud$es cannot no! participate directly in the le$islati&e process for makin$ Acts of .arliament" the) nonethe#ess m%) h%!e %n interest in ommentin$ on #e$is#%ti!e propos%#s" as a senior *ud$e e(plains to 6.s in the follo!in$ e(tract /ouse of Commons 5ustice Committee" 0ral E&idence" G 5uly GHH; FIG Alun 6ichael 7a Labour 6.>2 0b&iously there is an interplay bet!een the role of the *udiciary and the role of .arliament in le$islation /o! do you think that relationship or the connection bet!een those roles can and should be de&eloped" especially if !e are lookin$ at a more structured sentencin$ frame!ork in the futureC

 Lord Phi##ips 0f Borth 6atra&ers 7the then Lord Chief 5ustice of En$land and Bales>2 The relationship bet!een *ud$es and .arliament in relation to le$islation is a tricky area It first arises when #e$is#%tion is bein$ proposed !here my &ie! is that &ud$es h%!e % !%#id %d!isor) ro#e in re#%tion to the imp#i %tions on runnin$ the &usti e s)stem of the le$islation that is proposed and !e fre,uently comment" @If you introduce that" it is $oin$ to impose % subst%nti%# dem%nd on &udi i%# resour es because it is $oin$ to #e%d to %ppe%#s in this %re% or th%t %re%/" that is a perfectly #e$itim%te %re% in whi h &ud$es shou#d be %d!isin$' We shou#d not be in!o#!ed in %d!isin$ in re#%tion to po#i ) whi h is % m%tter u#tim%te#) (or Go!ernment %nd P%r#i%ment

 If you then ask !hat interrelationship should there be bet!een *ud$es and .arliament in relation to the act of sentencin$ and the implications sentencin$ has" I think the ans!er must be it is for .arliament to le$islate and for *ud$es to do their best to apply the le$islation in accordance !ith its pro&isions and that is !hat is happenin$

- 5ud$es !ould like to comment on le$islati&e reform Lrom time to time" &ud$es do" ho!e&er" m%0e su$$estions (or #e$is#%ti!e re(orm Lor e(ample" inter&ie!ed on ??C Radio I1 Lord +usti e Sed#e) su$$ested that the whole population of the .nited /ingdom and all visitors should have their 12) recorded on a national database3prompting a government spo"esman to say that this would create huge logistical and bureaucratic issues and ci&il liberty concerns

- 5ud$es able in&ol&ed in dele$ated le$islation but not initiate the formal le$islati&e process 5ud$es also ha&e a (orm%# ro#e in the m%0in$ o( de#e$%ted #e$is#%tion about ourt pro edures Lor e(ample" the Constitution%# Re(orm A t 9;;J1 s' KJ1 pro&ides that @The President of the Supreme Court m%) m%0e ru#es 4to be 0nown %s LSupreme Court Ru#esM+ $o!ernin$ the pr% ti e %nd pro edure to be (o##owed in the Court" Bhile these rules are drafted by the .resident 'no doubt in close collaboration !ith ci&il ser&ants in the 6inistry of*ustice+" but it is not possib#e (or the President '!ho is not a member of .arliament+ to initi%te the (orm%# #e$is#%ti!e pro ess" so under s I= this is % ro#e %rried out b) the Lord Ch%n e##or 'a minister %nd member o( P%r#i%ment5'

C%n &ud$es s rutini,e p%r#i%ment%r) m%ttersE - 5ud$es unable to scrutiniJe the .arliamentary pri&ile$e as it is used to underpin democracy A principle of $reat importance in many constitutions is parliamentary pri&ile$e" as the follo!in$ e(tract outlines 8ouse o( Lords Constitution Committee1 P%r#i%ment%r) St%nd%rds Bi##2 Implications for .arliament and the Courts" 8;th Report" Session GHH;-HD" /L 8<: 8I As many others ha&e noted" the term @parliamentary pri&ile$e@ risks bein$ misunderstood in modern times insofar as it may su$$est that .arliament and its members seek ad&anta$es that other institutions and people do not en*oy The reality is that p%r#i%ment%r) pri!i#e$e is % set o( prin ip#es th%t underpin demo r% )

 It is /the ri$hts %nd immunities whi h the two 8ouses o( P%r#i%ment %nd their members %nd o((i ers possess to en%b#e them to %rr) out their p%r#i%ment%r) (un tions e((e ti!e#)/ Article IN of the ?ill of Ri$hts states That the Lreedome of Speech and 3ebates or .roceedin$s in .arlyament ou$ht not to be impe% hed or -uestioned in %n) Court or P#% e out o( P%r#i%ment/' This embodies a fundamental feature of the ?ritish Constitution 'common to many other le$islatures around the !orld+ that there needs to be a clear borderline bet!een the functions and po!ers of .arliament and those of the courts 8: Cor sound onstitution%# re%sons" the ourts h%!e histori %##) respe ted the ri$ht o( P%r#i%ment to $o!ern itse#( and ha&e refused to be dra!n into any disputes that may arise about thin$s said or done in .arliament

 This ensures the (reedom o( members %nd witnesses $i!in$ e!iden e to p%r#i%ment%r) ommittees to spe%0 open#) without on ern that !hat they say or do durin$ Oproceedin$s in .arliamentO may subse,uently be used in court proceedin$s

- Bhat happened in .arliament still cannot be used in Court as e&idence Article D of the ?ill of Ri$hts 8=;D continues to be respected and enforced by the courts" often follo!in$ inter&entions from the parliamentary authorities Sub*ect to one ma*or e(ception" ourts shou#d not %##ow p%rties to #iti$%tion to put in %s e!iden e st%tements th%t were m%de in P%r#i%ment" !hether by 6.s and peers on the floor of each /ouse" and reported in 8%ns%rd or e!iden e $i!en to or reports m%de b) p%r#i%ment%r) ommittees The &usti(i %tion for this prohibition is that it ou#d h%!e % hi##in$ e((e t on (ree spee h %nd deb%te in P%r#i%ment1 whi h1 in % demo r% )1 ou$ht to be s% ros%n t'

Ex eption@ .epper & /art- Act is ambi$uity and ministerAs statement is clear then /ansard can be used The m%&or ex eption to the bar on referrin$ to parliamentary proceedin$s in court is contained in the contro&ersial rulin$ of the /ouse of Lords in Pepper 4Inspe tor o( T%xes5 ! 8%rt" a case about the interpretation of a ta( statute This permits % &ud$e to re ei!e e!iden e in the (orm o( extr% ts (rom 8%ns%rd in !hich a minister responsible for introducin$ a ?ill to .arliament e(plains !hat a pro&ision is intended to achie&e1but re$ard can be had to such ministerial statements on#) i(@ the st%tutor) pro!ision th%t the ourt is tr)in$ to interpret is %mbi$uous4 and the ministers st%tement is itse#( #e%r

 The 8ouse o( Lords re%soned in Pepper ! 8%rt that usin$ /ansard in this !ay !ould not breach Art D of the ?ill of Ri$hts because the ourt w%s not -uestionin$ wh%t w%s s%id in P%r#i%ment1 but on the contrary w%s see0in$ to $i!e e((e t to the intention o( P%r#i%ment

Ar$ument2 6inister 7E(ecuti&e> is not .arliament member The re%sonin$ of .epper & /art has been sub&e t to riti ism on a number of $rounds" not least that it on(uses the intention o( % minister 4th%t is1 % member o( the exe uti!e5 with the intention o( P%r#i%ment'

C?A@ 5ud$es on the !ill of .arliament e(pressed in the Act but not the ,uality of the #reasonA or sub*ecti&e mind of 6inister In subse,uent cases" the ourts h%!e sou$ht to #imit the ir umst%n es in whi h 8%ns%rd m%) be re(erred to in le$al proceedin$s Lor e(ample" !hen a *ud$e is rulin$ on !hether le$islation is #proportionateA for the purposes of assessin$ !hether a pro&ision is compatible !ith the /uman Ri$hts Act 8DD;" re(eren e shou#d not be m%de to exp#%n%tions $i!en to P%r#i%ment b) ministers %s to the !%rious po#i ) options that the $o&ernment had e(plored before introducin$ the ?ill

 Wi#son ! Se ret%r) o( St%te (or Tr%de %nd #ndustr) 7GHH<> U%/LI" 7=9> 7 > the content of parliamentary debates has no direct rele&ance to the issues the court is called upon to decide in compatibility cases and" hence" these debates are not a proper matter for in&esti$ation or consideration by the courts In particular" it is % %rdin%# onstitution%# prin ip#e th%t the wi## o( P%r#i%ment is expressed in the #%n$u%$e used b) it in its en% tments' The proportion%iit) o( #e$is#%tion is to be &ud$ed on th%t b%sis The courts are to ha&e due re$ard to the le$islation as an e(pression of the !ill of .arliament

 The proportion%#it) of a statutory measure is not to be &ud$ed b) the -u%#it) o( the re%sons ad&anced in support of it in the course of parliamentary debate" or b) the sub&e ti!e st%te o( mind o( indi!idu%# ministers or other members Di((erent members m%) we## h%!e di((erent re%sons1 not expressed in deb%tes1 (or %ppro!in$ p%rti u#%r st%tutor) pro!isions They may ha&e different perceptions of the desirability or likely effect of the le$islation 6inisterial statements" especially if made e( tempore in response to ,uestions" may sometimes lack clarity or be misdirected Lack of co$ent *ustification in the course of parliamentary debate is not a matter !hich @counts a$ainst@ the le$islation on issues of proportionality

 The court is called upon to e&aluate the proportionality of the le$islation" not the ade,uacy of the minister@s e(ploration of the policy options or of his e(planations to .arliament The latter !ould contra&ene article D of the ?ill of Ri$hts The court !ould then be presumin$ to e&aluate the sufficiency of the le$islati&e process leadin$ up to the enactment of the statute

C%n members o( P%r#i%ment dis uss &ud$es %nd &ud$mentsE - Sub*udice rule- .arliament !ill not allo!ed debate on issue on pendin$ to the court" depend on discretionary of Speaker 5ust as the courts are careful not to intrude into parliamentary proceedin$s" so too does P%r#i%ment tr) to steer %w%) (rom undue inter(eren e with ourts %nd &ud$es The sub &udi e ru#e re,uires that *Ps shou#d not see0 to brin$ up in deb%tes" ,uestions" and motions cases that %re pendin$ or bein$ he%rd b) % ourt' The 8ouse o( Commons St%ndin$ Order K9A pro&ides that #The Spe%0er1 or the h%irm%n1 m%) dire t %n) *ember who bre% hes the terms o( the sub &udi e reso#ution o( the 8ouse to resume his se%t"

 The r%tion%#e for this rule is that discussion of a case m%) h%!e % pre&udi i%# e((e t %nd m%) pre!ent the p%rties to the i!i# or rimin%# %se (rom h%!in$ % (%ir tri%#' There is" ho!e&er" a dis retion (or the Spe%0er %nd Lord Spe%0er to %##ow dis ussion i( it is in the n%tion%# interest'

Criticise in measured term and reticence ser&ed a country better 6ore broadly" p%r#i%ment%ri%ns %re expe ted to be %re(u# in %n) riti isms th%t the) m%0e o( &ud$es or &ud$ments" as the follo!in$ e(tract e(plains +oint Committee on P%r#i%ment%r) Pri!i#e$eM Cirst Report Session 8DD;-DD" /L I<-8)/C G8I-8 .arliament and the *udiciary GG= 6uch of this report is necessarily concerned !ith the relationship bet!een .arliament and the courts The effecti&e !orkin$ of the constitution depends on the courts bein$ e&er sen-siti&e to the need to refrain from trespassin$ upon the pro&ince of .arliament or e&en appearin$ to do so" and on .arliament bein$ similarly sensiti&e to the need to refrain from trespassin$ upon the pro&ince of the courts This is $enerally reco$nised by both institutions This relationship !ould not be helped if *ud$es !ere to make unnecessary or e(a$$erated critical comments on the actions of politicians" or if politicians use

parliamentary pri&ile$e to attack particular *udicial decisions or the character of indi&idual *ud$es GG9 So far as .arliament is concerned" both /ouses consider opprobrious reflections on members of the *udiciary to be out of order unless made on motion In the Commons <= motions critical of *ud$es or seekin$ their remo&al ha&e been tabled since 8D=8 None has been debated GG; 0ccasionally statements or actions by members of .arliament may merit *udicial criti-cism Like!ise" *udicial decision or comment may merit criticism by members of .arliament It is import%nt (or both institutions th%t su h riti ism is m%de in me%sured terms In all cases members should pause to consider before tablin$ motions !hich often recei&e !ide publicity Be a$ree !ith the Lord Chief 5ustice of En$land that % tr%dition o( mutu%# reti en e ser!es the ountr) best

- .arliament can en,uiry the method of court interpret the le$islation This is not to s%) th%t p%r#i%ment%ri%ns %nnot in-uire into how ourts interpret %nd %pp#) #e$is#%tion In an interestin$ de&elopment" the +oint Committee on 8um%n Ri$hts reported t!ice on !hat it sa! as the wron$ %ppro% h %dopted b) the ourts in de idin$ th%t pri!%te %re homes were not o!ered b) the 8um%n Ri$hts A t 366G These reports !ere influential in en our%$in$ P%r#i%ment to re!erse the e((e t o( % 8ouse o( Lords" de ision th%t h%d m%int%ined % n%rrow %ppro% h to the me%nin$ o( N(un tion o( % pub#i n%ture' P%r#i%ment%r) in!esti$%tions into how ourts %re h%nd#in$ #e$is#%tion m%) be ome more (re-uent in the (uture %s pro edures (or post?#e$is#%ti!e s rutin) %re put in p#% e'

Wh%t is the re#%tionship between ministers %nd &ud$esE- Executive uphold the independence of the judiciary Be discuss in Chapter 8I the st%tutor) duties o( ministers to upho#d the independen e o( the &udi i%r) and the role of the Lord Ch%n e##or 4% minister5 in de(endin$ th%t independen e As !e !ill see" ministers h%!e1 on o %sion1 been outspo0en#) riti %# o( indi!idu%# &ud$es" the *udiciary as a !hole" and particular *ud$ments

Wh%t is the ro#e o( the exe uti!e in P%r#i%mentE 6inisters as .arliament as !ell but ha&e to accountable to .arliament In a system of p%r#i%ment%r) $o!ernment" there is no sep%r%tion between Dthe #e$is#%ture" %nd Dthe exe uti!e"4 on the contrary" ministers %re re-uired to be members o( P%r#i%ment' As !e discuss else!here" !hile this arran$ement can be *ustified as en%b#in$ P%r#i%ment to ho#d ministers to % ount on a re$ular basis" the dan$er is that those p%r#i%ment%ri%ns who %re ministers domin%te the wor0 o( P%r#i%ment This is espe i%##) so in re#%tion to the #e$is#%ti!e pro ess

Ar$ument@ 3ele$ated le$islation by ministers and ci&il ser&ant As !e see in Chapters D and 8H" the exe uti!e 4ministers %nd i!i# ser!%nts5 h%!e domin%nt ro#es in the m%0in$ o( both prim%r) %nd de#e$%ted #e$is#%tion

.arliament react by scrutiniJe but back benchers cannot acti&ely in le$islati&e process Bhereas some le$islatures take the lead in de&elopin$ policy and draftin$ le$islation" the role of the .> P%r#i%ment is lar$ely re% ti!e2 its role is to s rutini,e %nd then %ppro!e 4or re&e t5 propos%#s (rom the $o!ernment There are (ew opportunities for members of the le$islature1 whether *Ps or peers1!ho are not members o( the $o!ernment to initi%te #e$is#%tion and see it throu$h to enactment2 (ew pri!%te member"s Bi##s re% h the st%tute boo0'

Le$al restraint to 6inisters and 6. There are" ho!e&er" some #imited #e$%# onstr%ints on the e(ecuti&e A %p is p#% ed on the tot%# number o( *Ps who %n ser!e %s ministers' Ci!i# ser!%nts1 members o( the %rmed (or es1 po#i e o((i ers1 %nd % #on$ #ist o( ho#ders of public offices are dis-u%#i(ied (rom bein$ *Ps b) the 8ouse o( Commons Dis-u%#i(i %tion A t 367J1 s' 3' Ex ept (or ministers '!ho recei&e a salary on top of their 6.sA salary+" there is also a $ener%# prohibition on %n *P /ho#din$ %n o((i e or p#% e o( pro(it under the Crown 's 8'I++ This pro&ides a procedural de&ice for an 6.As resi$nation2 he or she is %ppointed1 tempor%ri#)1 to %n o((i e o( the Crown and is thereby dis-u%#i(ied (rom sittin$ in the Commons'

CONCL.DING CO**ENTS This chapter has ex%mined the sep%r%tion o( powers between exe uti!e1 #e$is#%ti!e1 %nd &udi i%# (un tions' Chapter : no! turns to look at another function of the constitution1 distributin$ po!er bet!een different le&els of $o&ernment