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( 155 .)


professions. Some people hold the view that this practice of delegating legislative powers is
unwise, and might be dispensed with altogether. A similar view is held with regard to the
delegation to Ministers by statutory authority of judicial and quasi-judicial functions. It has
even been suggested that the practice of passing such legislation is wholly bad, and should
be forthwith abandoned. We do not think that this is the considered view of most of those
who have investigated the problem, but many of them would like the practice curtailed as
much as possible.

The Donoughmore Committee was appointed in a political atmosphere which
was generally hostile to the delegation by Parliament of legislative and judicial
functions to ministers and other public authorities. It had been asserted that
the practice of delegation, in its denial of the separation of powers, presented
a threat to parliamentary sovereignty and the rule of law. The Committee,
however, declined to give its imprimatur to a strict separation of powers, seeing
the doctrine as no more than a ˜rule of political wisdom™ which ˜must give way
where sound reasons of public policy so require™ (p 95). Moreover, it rejected
the view that the delegation of law-making and judicial powers had led to a ˜new
despotism™ of o¬cials.
While the necessity for the delegation of legislative powers to the executive is
not nowadays contested, the nature and extent of such delegations may raise
105 The ideas of the constitution

questions about compliance with the separation of powers. For instance, a House
of Lords committee expressed concern about the delegation of powers contained
in the Access to Justice Bill and questioned whether ˜control by the state of the
means of access to justice may erode the separation of powers and put individu-
als at a disadvantage when seeking to defend themselves against claims brought
by the very government which also has the power to prescribe how e¬ectively they
may be represented™. (Select Committee on the Constitution, First Report, HL 11
of 2001“02: Memorandum by the Select Committee on Delegated Powers and
Deregulation, p 8. See Ganz, ˜Delegated legislation: a necessary evil or a consti-
tutional outrage?™, in P Leyland and T Woods (eds), Administrative Law Facing
the Future (1997), ch 3, and see further chapter 7.)
Powers of delegated legislation and executive law-making are particularly
controversial when they extend to an ability of ministers and civil servants to
amend primary legislation. Such powers are known as Henry VIII clauses. It
may be thought that only Parliament ought to be able to amend or repeal its
(primary) legislation “ statutes. Henry VIII clauses extend that power, in certain
circumstances, to the executive. Such clauses are included, for example, in
the European Communities Act 1972 and in the Human Rights Act 1998.
(See Barber and Young, ˜The rise of prospective Henry VIII clauses and
their implications for sovereignty™ [2003] PL 112.) The Deregulation and
Contracting-out Act 1994 conferred on ministers a broad power to amend or
repeal provisions of primary legislation in order to remove or reduce a statu-
tory burden on a trade, business or profession. This was further extended by the
Regulatory Reform Act 2001, which empowered ministers to amend or repeal
legislation which ˜has the e¬ect of imposing burdens a¬ecting persons in the
carrying on of any activity™ (section 1). The justi¬cation for these measures was
that scarce parliamentary time should not prevent government departments
from bringing forward regulatory reform proposals.
In 2006 the Government introduced its Legislative and Regulatory Reform
Bill, which, as the Government drafted it, would have permitted ministers to
make orders amending, repealing or replacing almost any legislation, primary or
secondary, for almost any purpose. The only exceptions would have been that
such orders could not have: imposed or increased taxation; created or increased
criminal penalties; or authorised forcible entry, search or seizure. These powers
were so sweeping that the bill was frequently dubbed the ˜Abolition of Parliament
Bill™. The bill was introduced in order to streamline the procedure available
under the 2001 Act, under which, until 2006, only twenty-seven regulatory
reform orders had been made. The 2006 Bill met with considerable hostility,
with both the Hansard Society and several parliamentary committees calling for
signi¬cant amendments (the bill was scrutinised “ indeed, condemned “ in
reports of the House of Commons Regulatory Reform Committee (HC 878 of
2005“06), the House of Commons Procedure Committee (HC 894 of 2005“06),
the House of Commons Public Administration Committee (HC 1033 of
2005“06) and the House of Lords Constitution Committee (HL 194 of
106 British Government and the Constitution

2005“06)). As a result the Government was forced to make a series of substan-
tial amendments which, on the one hand, reduced the scope of ministerial
powers to make and unmake the law and, on the other, increased the degree of
parliamentary scrutiny of ministerial orders made under the Act. Even after
these amendments, however, the bill was still thought by the House of Lords
Constitution Committee to contain ˜over-broad and vaguely drawn™ ministerial
powers to which ˜further safeguards™ should have been attached (HL 194 of
2005“06, para 5). (See further on ministerial law- and rule-making powers,
chapter 7.)
A delegated power to amend the provisions of statute is narrowly and strictly
construed by the courts, so far as it admits of any doubt as to its scope: see R v
Secretary of State for the Environment, Transport and the Regions, ex p Spath
Holme Ltd [2001] 2 AC 349, 382. (See further, Delegated Powers and Regulatory
Reform Committee, Third Report, HL 21 of 2002“03, on Henry VIII clauses.)
Most of this part of this chapter is concerned with the separation of the judi-
cial roles in the constitution from those of government and Parliament. While the
separation (or, perhaps, the lack of it) between government and Parliament is
brie¬‚y considered towards the end of the section, this topic is considered in more
detail in chapter 9. Here we ask, ¬rst, whether the separation of powers in the
British constitutional order is more a political ideal than a judicially enforceable
rule of law, before considering in detail the judicial role and the matter of judi-
cial independence. The changing role of the Lord Chancellor and the di¬cult
issue of judicial appointments are discussed, before we close our consideration of
the judiciary with an outline of the separation of the courts from Parliament.

(a) A political ideal or a legal principle?
A doctrine of the separation of powers can be put into service for di¬erent
purposes. It may be used in support of a principle that functions should be allo-
cated to the most appropriate body in the state, whether an elected assembly,
a court, a tribunal, a body of elected or appointed o¬cials, or something other.
This is a matter of allotting functions and powers in such a way that they can be
operated with the greatest possible e¬ectiveness. On the other hand, the sepa-
ration of powers is also invoked in support of arrangements for preventing the
abuse of power, whereby public powers are so distributed among di¬erent insti-
tutions that each has a necessary freedom of action and also some capacity for
checking other power-holding bodies “ a system of checks and balances. As Vile
(Constitutionalism and the Separation of Powers (1967), p 10) aptly says:

We are not prepared to accept that government can become, on the grounds of ˜efficiency™,
or for any other reason, a single undifferentiated monolithic structure, nor can we assume
that government can be allowed to become simply an accidental agglomeration of purely
pragmatic relationships.
107 The ideas of the constitution

And he goes on to say (p 15): ˜The di¬usion of authority among di¬erent
centres of decision-making is the antithesis of totalitarianism or absolutism.™
The doctrine of the separation of powers in each of these uses (which
are complementary) has traditionally been supposed to require a threefold
classi¬cation of functions and corresponding institutions: legislative, execu-
tive and judicial. But in the diverse and complex activity of a modern state
like the United Kingdom the processes of law-making, administration and
adjudication are neither clearly demarcated nor assigned exclusively to
separate institutions. Values once associated with a doctrine of the formal
separation of legislative, executive and judicial powers may now depend on
the pluralist arrangements of the modern state, in which the powerful
departments of central government operate in a world of countervailing
powers exercised by Parliament, courts, the devolved administrations, local
government and other public bodies, political parties, and the empire of
pressure groups. We cannot, however, be con¬dent that this pluralist diversity
will necessarily give balance to the constitution and prevent undue and
dangerous concentrations of power. The questions must be constantly
asked, whether powers are appropriately allocated, and what checking mech-
anisms should be set up, both between and within di¬erent branches of the
state apparatus.
The question of the proper location of power arises in a great variety of
contexts. Is it right, for instance, that a member of the executive should have
any role in determining how long a convicted o¬ender should remain in
custody? Until recently, if a young o¬ender was convicted of murder and
sentenced to be detained during Her Majesty™s pleasure, the practice was for the
Home Secretary to ¬x a period of detention (the ˜penal element™ or ˜tari¬™),
su¬cient to meet the requirements of retribution and deterrence, which must
be served before the release of the o¬ender could be considered by the Parole
Board. In R v Secretary of State for the Home Department, ex p Venables [1998]
AC 407, 526, Lord Steyn said: ˜In ¬xing a tari¬ the Home Secretary is carrying
out, contrary to the constitutional principle of separation of powers, a classic
judicial function.™ The House of Lords did not conclude that the infringement
of the separation of powers made the ministerial ¬xing of a tari¬ unlawful
(although it was held on other grounds that the Home Secretary had acted
unlawfully). But in subsequent proceedings in this case in the European Court
of Human Rights it was ruled by that court (V and T v United Kingdom (1999)
30 EHRR 121) that the ¬xing of the tari¬ amounted to a sentencing exercise,
that the Home Secretary as a member of the executive was not an ˜independent
and impartial tribunal™, and accordingly that there had been a breach of Article
6(1) of the European Convention on Human Rights (right to a fair trial). As
a result of this decision it was provided by the Criminal Justice and Courts
Services Act 2000, section 60, that in respect of young o¬enders convicted of
murder and detained at Her Majesty™s pleasure, the tari¬ should be set by the
trial judge in open court.
108 British Government and the Constitution

A di¬erent regime, resting upon section 29 of the Crime (Sentences) Act
1997, continued to apply to an adult prisoner serving a mandatory life sen-
tence for murder. In this case the Home Secretary remained responsible for
setting the penal tari¬ and for the eventual decision on release. Here it was
contended that the Home Secretary was not ¬xing the sentence but deciding
whether a person sentenced by a court to life imprisonment should be
prematurely released. Somewhat surprisingly, this argument found favour
with the European Court of Human Rights in Wynne v United Kingdom (1994)
19 EHRR 333.
The Home Secretary™s power to decide on the release of mandatory life
sentence prisoners was again considered by the European Court of Human
Rights in Sta¬ord v United Kingdom (2002) 35 EHRR 32. The Home Secretary
had rejected a recommendation of the Parole Board that Sta¬ord, who was
serving a life sentence for murder, should be released on licence, on the ground
that he might, if released, commit non-violent imprisonable o¬ences. (He had
served a sentence for cheque fraud.) A challenge to this decision in the English
courts having failed (see R v Secretary of State for the Home Department,
ex p Sta¬ord [1999] 2 AC 38) Sta¬ord took his complaint to the European Court
of Human Rights. The Court reassessed its decision in the Wynne case (above)
and concluded that Sta¬ord™s continued detention by decision of the executive,
on the ground relied upon, was not in accord with the spirit of the European
Convention ˜with its emphasis on the rule of law and protection from arbi-
trariness™ and was not compatible with Article 5(1) of the European Convention
(right to liberty and security of person). Moreover, the fact that Sta¬ord™s
continued detention was dependent on the discretion of the Home Secretary
constituted a violation of Article 5(4) (right of a detained person to have the
lawfulness of his detention decided by a court). In the course of its judgment
the Court noted that ˜the continuing role of the Secretary of State in ¬xing the
tari¬ and in deciding on a prisoner™s release following its expiry, has become
increasingly di¬cult to reconcile with the notion of separation of powers
between the executive and the judiciary™.
The Government took a di¬erent view regarding the ¬xing of the tari¬ and
the Home Secretary continued to carry out this function, albeit after taking
advice in each instance from the trial judge and the Lord Chief Justice. The pro-
cedure was challenged in the following case.

R (Anderson) v Secretary of State for the Home Department [2002]
UKHL 46, [2003] 1 AC 837
The appellant, Anderson, had been sentenced by a court to mandatory life
imprisonment for murder. The trial judge and the Lord Chief Justice recom-
mended a tari¬ of ¬fteen years to be served by him, to satisfy the requirements
of retribution and deterrence. The Home Secretary rejected this advice
109 The ideas of the constitution

and ¬xed the tari¬ at twenty years. Shortly before the lapse of the judicially rec-
ommended minimum term, Anderson brought proceedings to challenge the
Home Secretary™s decision to set the twenty-year tari¬. This decision, it was
contended for Anderson, was contrary to Article 6(1) of the European
Convention on Human Rights, given e¬ect in the United Kingdom by the
Human Rights Act 1998. So far as material in this case, Article 6(1) provides:

In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law.

It was argued for Anderson that setting the tari¬ was a sentencing exercise and
as such was part of the determination of a criminal charge in terms of Article
6(1): it must accordingly be carried out by an independent and impartial
tribunal and not by a member of the executive. For the Home Secretary, on the
other hand, the argument was renewed that had been accepted by the European
Court of Human Rights in Wynne (above) but rejected upon reconsideration in
Sta¬ord (above), that ¬xing the tari¬ was not the imposition of a sentence but
the administration of a sentence of life imprisonment already passed by the trial
court. On this central point the Lords (sitting as a panel of seven) unhesitatingly
accepted the reasoning of Sta¬ord v United Kingdom: setting the tari¬ was
a sentencing exercise.

Lord Bingham of Cornhill: . . . What happens in practice is that, having taken advice from
the trial judge, the Lord Chief Justice and departmental officials, the Home Secretary assesses
the term of imprisonment which the convicted murderer should serve as punishment for his
crime or crimes. That decision defines the period to be served before release on licence is
considered. This is a classical sentencing function. It is what, in the case of other crimes,
judges and magistrates do every day.

The Lords approved the following passage from the judgment in Sta¬ord:

The Court considers that it may now be regarded as established in domestic law that there
is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile
murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory
life sentence does not impose imprisonment for life as a punishment. The tariff, which
reflects the individual circumstances of the offence and the offender, represents the element
of punishment.

It followed from the Lords™ conclusion on this central point that the existing
procedure did not comply with Article 6(1), for it was plain, and was not in
dispute, that the imposition of a sentence was part of the criminal trial, and that
the Home Secretary was not independent of the executive.
110 British Government and the Constitution

In arriving at this result the Lords emphasised that it was in accordance with
the fundamental principle of the separation of powers between the executive
and the judiciary, a principle essential to both the rule of law and democracy:

Lord Steyn: . . . In a series of decisions . . . the House of Lords has described the Home
Secretary™s role in determining the tariff period to be served by a convicted murderer as
punishment akin to a sentencing exercise. In our system of law the sentencing of persons
convicted of crimes is classically regarded as a judicial rather than executive task. Our
constitution has, however, never embraced a rigid doctrine of separation of powers. The
relationship between the legislature and the executive is close. On the other hand, the
separation of powers between the judiciary and the legislative and executive branches of
government is a strong principle of our system of government . . . It is reinforced by consti-
tutional principles of judicial independence, access to justice, and the rule of law.

In response to the judgment in this case, provision was made in the Criminal


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( 155 .)