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Justice Act 2003 for the tari¬ or minimum term to be served by mandatory life
prisoners to be ¬xed by the sentencing judge. When the minimum term has
been served, the Parole Board decides on the prisoner™s suitability for release.
Article 6(1) of the Convention and its interpretation by the courts have
given a powerful reinforcement to the domestic principle of the separation of
judicial and executive powers. As Lord Steyn expressed it in Anderson, ˜Article
6(1) requires e¬ective separation between the courts and the executive, and
further requires that what can in shorthand be called judicial functions may
only be discharged by the courts™. (See also R (Hammond) v Secretary of State
for the Home Department [2005] UKHL 69, especially the opinion of Lord
It may be that one e¬ect of the incorporation by the Human Rights Act 1998
of the European Convention on Human Rights into domestic law is to encour-
age British courts to enforce the separation of powers as a legal principle more
than they were prepared to do in earlier times. As we have seen, before
the Human Rights Act the separation of powers was a political ideal that could
be variously used to describe or to criticise aspects of the British constitution,
but it was not generally regarded as being a judicially enforceable rule. The
sentencing context is one area where the courts have begun to talk of the
separation of powers in more juridical terms, but it is not the only one.

Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163
Matthews concerned an unsuccessful challenge to the legality of a statutory bar
that prevented servicemen from suing the Crown in tort for personal injury
su¬ered in the course of military duty (see Crown Proceedings Act 1947, section
10, now repealed by Crown Proceedings (Armed Forces) Act 1987). Matthews
argued that the bar constituted a breach of Article 6(1) (the right to a fair trial
before an independent and impartial tribunal). The House of Lords disagreed.
111 The ideas of the constitution

In the course of his speech, Lord Ho¬mann made the following statements
about the separation of powers.

Lord Hoffmann: . . . In the great case of Golder v United Kingdom (1975) 1 EHRR 524 the
Strasbourg court decided that the right to an independent and impartial tribunal for the deter-
mination of one™s civil rights did not mean only that if you could get yourself before a court,
it had to be independent and impartial. It meant that if you claimed on arguable grounds to
have a civil right, you had a right to have that question determined by a court. A right to the
independence and impartiality of the judicial branch of government would not be worth
much if the executive branch could stop you from getting to the court in the first place. The
executive would in effect be deciding the case against you. That would contravene the rule
of law and the principle of the separation of powers.
These principles require not only that you should be able to get to the court room door. The
rule of law and separation of powers would be equally at risk if the executive government was
entitled, as a matter of arbitrary discretion, to instruct the court to dismiss your action. There
are different ways in which one could draft a law to give the executive such a power. It might
say that the cause of action was not complete without the government™s consent. That would
look like a rule of substantive law. Or it could provide that the government could issue
a certificate saying that the action was not to proceed. That looks like a procedural bar. But
provided one holds onto the underlying principle, which is to maintain the rule of law and the
separation of powers, it should not matter how the law is framed. What matters is whether
the effect is to give the executive a power to make decisions about people™s rights which under
the rule of law should be made by the judicial branch of government.

Lord Ho¬mann™s remarks have since been cited with approval by Lord
Nicholls in a case concerning the enforceability of consumer credit agreements
(Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC
816) and by Lord Hope in a case concerning child maintenance and the Child
Support Agency (R (Kehoe) v Secretary of State for Work and Pensions [2005]
UKHL 48). Despite the variety of factual contexts in which the separation of
powers is mentioned in recent House of Lords case law, however, the work being
done by the principle is the same in all these cases. All are concerned with
demarcating judicial power (none is concerned, for example, with the relation-
ship of legislative to executive power, although, on that issue, see R v Secretary
of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513,
discussed below, p 131). Their Lordships are concerned, on the one hand, that
judicial functions (such as sentencing) are undertaken by judicial bodies (and
not by the Home Secretary) but, on the other, that the requirements of Article
6(1) are not so strictly interpreted that they mean that all determinations of
social security or of economic bene¬ts need necessarily to be taken to the courts.
To the extent that Article 6(1) has encouraged the courts to consider the
separation of powers as a juridical principle, it has done so only in this context
of properly demarcating judicial power. It has not transformed the separation
of powers into a general principle of constitutional law beyond this context.
112 British Government and the Constitution

(See further on the proper demarcation of judicial power, R (Alconbury)
v Secretary of State for the Environment [2003] 2 AC 295 and Begum v Tower
Hamlets LBC [2003] 2 AC 430, considered in chapter 10.)

(b) The courts in the constitution: judicial review and judicial law-making
As Anderson and Matthews suggest, the idea of the separation of powers has
particular relevance to the role and authority of the courts in the constitution.
There are claims and con¬‚icts that are most appropriately resolved by a process
of adjudication, in which decisions are reached after hearing argument and by
reference to legal rules and principles. Some of these questions are best adjudi-
cated by courts sta¬ed by judges who are expert in the law and independent of
Parliament and the executive. In deciding whether a particular matter is suitable
for judicial determination, account must be taken of the nature of the process
of adjudication and of the expertise and resources available to the courts. Some
questions are ˜non-justiciable™ because they cannot be satisfactorily decided by
the process of legal argument and rule application, or because they raise issues
of policy or the public interest of which it is impossible for the courts to inform
themselves adequately within the limits of existing judicial procedures and
rules of evidence. These questions should be referred to other agencies that are
better equipped to decide them. (See D Galligan, Discretionary Powers (1990),
pp 240“51; C Harlow and R Rawlings, Law and Administration (2nd edn 1997),
pp 598“604.)
The courts will themselves decline to inquire into matters which they identify
as non-justiciable: for example, one of the grounds of decision in Chandler
v DPP [1964] AC 763 (above, pp 11“12) was that the question whether it was in
the interests of the state for the armed forces to be provided with nuclear
weapons was a political question which was not appropriate for judicial deter-
mination. Again, in Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374 (below, pp 697“9), the House of Lords indicated that the exer-
cise by ministers of certain kinds of prerogative power is not controllable by the
courts because (said Lord Roskill) ˜their nature and subject matter are such as
not to be amenable to the judicial process™. The courts, Lord Roskill continued,
˜are not the place wherein to determine whether a treaty should be concluded
or the armed forces disposed in a particular manner or Parliament dissolved on
one date rather than another™. It is important, however, that courts should not
acquiesce in the abuse of executive power by taking refuge in the notion of non-
justiciability. In Abbasi v Secretary of State for Foreign and Commonwealth A¬airs
[2002] EWCA Civ 1598 the Court of Appeal rea¬rmed that the courts could
not enter the ˜forbidden area™ of the government™s decisions in the conduct of
foreign policy. Even so, the court envisaged that judicial review would be
possible if the government, in failing to take action to protect British citizens
from violations by a foreign government of their fundamental rights, could be
shown to have acted irrationally or contrary to legitimate expectations created
113 The ideas of the constitution

by its own assurances or policy statements. (See further Campaign for Nuclear
Disarmament v Prime Minister [2002] EWHC 2759, noted Perreau-Saussine
[2003] CLJ 538, and TRS Allan, Law, Liberty, and Justice (1993), ch 9.) The law
of judicial review is considered more fully in chapter 10.
It is nowadays generally accepted that judges ˜do and must make law in the
gaps left by Parliament™ (per Steyn LJ in R v Brown [1994] 1 WLR 1599, 1604)
and that the development of the common law is part of the constitutional role
of the courts. As Lord Wilberforce said in British Railways Board v Herrington
[1972] AC 877, 921, ˜the common law is a developing entity as the judges
develop it, and so long as we follow the well tried method of moving forward in
accordance with principle as fresh facts emerge and changes in society occur, we
are surely doing what Parliament intends we should do™. Certain kinds of
subject matter are considered to be especially suited to judicial creativity, and
a claim of this sort was made by Lord Scarman in Furniss v Dawson [1984] AC
474, 514, for the judicial development of the principle that ˜every man is enti-
tled if he can to order his a¬airs so as to diminish the burden of tax™:

The limits within which this principle is to operate remain to be probed and determined judi-
cially. Difficult though the task may be for judges, it is one which is beyond the power of the
blunt instrument of legislation. Whatever a statute may provide, it has to be interpreted and
applied by the courts: and ultimately it will prove to be in this area of judge-made law that
our elusive journey™s end will be found.

Are there limits beyond which the courts should not go in creating new rules?
Lord Reid sounded a note of caution in Pettitt v Pettitt [1970] AC 777, 794“5:

Whatever views may have prevailed in the last century, I think that it is now widely recog-
nised that it is proper for the courts in appropriate cases to develop or adapt existing rules
of the common law to meet new conditions. I say in appropriate cases because I think we
ought to recognise a difference between cases where we are dealing with ˜lawyer™s law™ and
cases where we are dealing with matters which directly affect the lives and interests of large
sections of the community and which raise issues which are the subject of public controversy
and on which laymen are as well able to decide as are lawyers. On such matters it is not for
the courts to proceed on their view of public policy for that would be to encroach on the
province of Parliament.

In Woolwich Equitable Building Society v IRC [1993] AC 70 a majority of the
House of Lords formulated a new rule that the citizen who makes a payment of
money to a public authority in response to an unlawful (ultra vires) demand of
tax is entitled to restitution of the sum paid. Lord Go¬, one of the majority, took
note of an objection to the recognition of such a right of recovery:

This is that for your Lordships™ House to recognise such a principle would overstep the
boundary which we traditionally set for ourselves, separating the legitimate development of
114 British Government and the Constitution

the law by the judges from legislation. It was strongly urged by Mr Glick, in his powerful
argument for the revenue, that we would indeed be trespassing beyond that boundary if we
were to accept the argument of Woolwich. I feel bound however to say that, although I am
well aware of the existence of the boundary, I am never quite sure where to find it. Its
position seems to vary from case to case. Indeed, if it were to be as firmly and clearly drawn
as some of our mentors would wish, I cannot help feeling that a number of leading cases in
your Lordships™ House would never have been decided the way they were. For example, the
minority view would have prevailed in Donoghue v Stevenson [1932] AC 562; our modern
law of judicial review would have never developed from its old, ineffectual, origins; and
Mareva injunctions would never have seen the light of day. Much seems to depend upon the
circumstances of the particular case.

The majority were convinced by the arguments of justice in favour of judicial
recognition of the principle of recovery of tax paid pursuant to an unlawful
demand. If limits to the application of the principle were required for reasons
of policy or good administration, it would be for Parliament to introduce them.
Lord Keith, dissenting, was of the opinion that to accept the argument of the
building society would ˜amount to a very far-reaching exercise of judicial
legislation™. He added:

It seems to me that formulation of the precise grounds upon which overpayments of tax
ought to be recoverable and of any exceptions to the right of recovery, may involve nice
considerations of policy which are properly the province of Parliament and are not suitable
for consideration by the courts.

In Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, the House of
Lords, taking (in Lord Go¬™s words) ˜a more robust view of judicial develop-
ment of the law™, abrogated ˜in the public interest™ the long-standing rule that
money paid under a mistake of law was not recoverable. The courts have not
refrained from making innovative decisions in areas of social controversy, as in
Airedale NHS Trust v Bland [1993] AC 789 (withholding of treatment from
a patient in a persistent vegetative state held lawful) and R v R (Rape: Marital
Exemption) [1992] 1 AC 599.
Can the limits of judicial creativity be expressed in terms of a distinction
between principle and policy? While the legislature makes decisions on grounds
of policy, according to its view of what is required for the good of the country,
judicial decisions, it has been suggested, should be grounded not in policy but
in principle, according with ˜a coherent conception of justice and fairness™
(R Dworkin, Law™s Empire (1986), ch 7). In McLoughlin v O™Brian [1983] 1 AC
410, Lord Scarman endorsed such a limitation of the judicial function, but Lord
Edmund-Davies in the same case emphatically rejected it, and in practice policy
considerations are frequently adduced by judges in deciding cases. No doubt
the courts must proceed with special caution as the safe waymarks of legal
115 The ideas of the constitution

principle are left behind for the contested ground of social policy, but if judges
are to continue to develop and modernise branches of law in which Parliament
chooses not to intervene, it does not seem realistic to demand that they should
eschew all consideration of policy.
It might be thought that judicial law-making should stop short of the cre-
ation of new criminal o¬ences, resulting in the punishment of acts that were not
unlawful at the time of their commission. Yet in Shaw v DPP [1962] AC 220 the
House of Lords made a ruling which amounted to the creation of a wide new
o¬ence of conspiracy to corrupt public morals, a decision at odds with many
understandings of the separation of powers and also with the ˜principle of legal-
ity™ (nullum crimen sine lege) which is an aspect of the rule of law. (See further
Smith, ˜Judicial law-making in the criminal law™ (1984) 100 LQR 46 and
compare R v R [1992] 1 AC 599 in which the House of Lords discarded the
˜marital exception™ in rape, approving the observation of Lord Lane CJ in the
Court of Appeal that ˜This is not the creation of a new o¬ence, it is the removal
of a common law ¬ction which has become anachronistic and o¬ensive™.)
The principle of the separation of powers presupposes that the authority con-
ferred on judges to decide disputes and develop legal principles is given on the
condition that no political preference will in¬‚uence their judgments. Sir John
Donaldson MR a¬rmed the principle of judicial neutrality in British Airways
Board v Laker Airways Ltd [1984] QB 142, 193, in saying:

It is a matter of considerable constitutional importance that the courts should be wholly
independent of the executive, and they are. Thus, whilst the judges, as private citizens, will
be aware of the ˜policy™ of the government of the day, in the sense of its political purpose,
aspirations and programme, these are not matters which are in any way relevant to the
courts™ decisions and are wholly ignored.

Our judiciary can be acquitted of conscious political bias. On the other hand,
it has been said that judges, by virtue of their background, training and associ-
ations, are generally deeply conservative and have attitudes which lead them to
look with favour upon property owners, employers and the established social
order. (See J Gri¬th, The Politics of the Judiciary (5th edn 1997), and compare
Dworkin, ˜Political judges and the rule of law™ (1978) 64 Proceedings of the
British Academy 259.)

(c) Judicial independence and the position of the Lord Chancellor
The British version of the separation of powers was for long able to accommo-
date the ancient o¬ce of Lord Chancellor even though it would have presented
an a¬ront to purer forms of the doctrine. The Lord Chancellor was a senior
judge and the head of the judiciary in England and Wales while also being
a member of the government, with a seat in the Cabinet, and presiding in the
upper house of the legislature. It was remarked by a law lord, Lord Steyn, in an
116 British Government and the Constitution

address to the Administrative Law Bar Association in 1996, that the ambivalent
role of the Lord Chancellor was ˜no longer sustainable on either constitutional


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( 155 .)