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set, beyond which the judges may not go. Justice in such societies is not left to the unguided,
even if experienced, sage sitting under the spreading oak tree.
In our society the judges have in some aspects of their work a discretionary power to do
justice so wide that they may be regarded as law-makers. The common law and equity, both
of them in essence systems of private law, are fields where, subject to the increasing intru-
sion of statute law, society has been content to allow the judges to formulate and develop
the law. The judges, even in this, their very own field of creative endeavour, have accepted,
in the interests of certainty, the self-denying ordinance of ˜stare decisis™, the doctrine of
binding precedent: and no doubt this judicially imposed limitation on judicial law-making
has helped to maintain confidence in the certainty and evenhandedness of the law.
But in the field of statute law the judge must be obedient to the will of Parliament as
expressed in its enactments. In this field Parliament makes, and un-makes, the law: the
judge™s duty is to interpret and to apply the law, not to change it to meet the judge™s idea
of what justice requires. Interpretation does, of course, imply in the interpreter a power of
choice where differing constructions are possible. But our law requires the judge to choose
the construction which in his judgment best meets the legislative purpose of the enactment.
If the result be unjust but inevitable, the judge may say so and invite Parliament to recon-
sider its provision. But he must not deny the statute. Unpalatable statute law may not be
disregarded or rejected, merely because it is unpalatable. Only if a just result can be achieved
128 British Government and the Constitution

without violating the legislative purpose of the statute may the judge select the construc-
tion which best suits his idea of what justice requires. . . .
Within these limits, which cannot be said in a free society possessing elective legislative
institutions to be narrow or constrained, judges, as the remarkable judicial career of Lord
Denning himself shows, have a genuine creative role. Great judges are in their different ways
judicial activists. But the constitution™s separation of powers, or more accurately functions,
must be observed if judicial independence is not to be put at risk. For, if people and
Parliament come to think that the judicial power is to be confined by nothing other than
the judge™s sense of what is right (or, as Selden put it, by the length of the Chancellor™s
foot), confidence in the judicial system will be replaced by fear of it becoming uncertain
and arbitrary in its application. Society will then be ready for Parliament to cut the power
of the judges. Their power to do justice will become more restricted by law than it need
be, or is today.

(See the comments on this case by TRS Allan, Law, Liberty, and Justice (1993),
pp 62“4 and by Tomkins, [1999] PL 525, 530“1.) It is right that judges should
have regard, in resolving the uncertainties and ambiguities of statutory lan-
guage, to the broad objective of the statute and also to fundamental rights and
principles which the courts should seek to uphold. What Lord Diplock was
warning against was a substitution by the judge of his own view of the public
interest or of justice or fundamental principle for the clear expression of
Parliament™s will. Reforming legislation has sometimes failed in its purpose
when it has encountered discordant ideas or principles embedded in the judi-
cial tradition. (See, for instance, the discussion of section 17(1) and (2) of the
Trade Union and Labour Relations Act 1974 by Lord Wedderburn, ˜The injunc-
tion and the sovereignty of Parliament™ (1989) 23 The Law Teacher 4.)
It was aptly said by Lord Diplock in Black-Clawson International Ltd
v Papierwerke Waldhof-Ascha¬enburg AG [1975] AC 591, 638, that ˜Parliament,
under our constitution, is sovereign only in respect of what it expresses by the
words used in the legislation it has passed™. As we saw when considering the sov-
ereignty of Parliament, above, the courts have the function of interpreting par-
liamentary legislation, and although that judicial task is expressed as one of
ascertaining the will or intention of Parliament, the process of interpretation is
far from being mechanical and allows for a signi¬cant injection of judicial
policy into the application of statutes. ˜Parliament is accustomed™, says Sir
Stephen Sedley, ˜to accepting from the judges that it meant things which may
never have crossed its collective mind™ (G Richardson and H Genn (eds),
Administrative Law and Government Action (1994), p 36). Lord Bridge observed
in X Ltd v Morgan-Grampian Ltd [1991] 1 AC 1, 48:

In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in
Parliament in making the law and the sovereignty of the Queen™s courts in interpreting and
applying the law.
129 The ideas of the constitution

The courts may not question what takes place in Parliament, as was declared
long ago in Article 9 of the Bill of Rights 1689:

That the freedom of speech and debates or proceedings in Parliament ought not to be
impeached or questioned in any court or place out of Parliament.

Article 9 was said by Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593,
638, to be a provision ˜of the highest constitutional importance™ in ensuring the
freedom of members of Parliament to discuss freely whatever matter they
choose without incurring any civil or criminal penalty.
When in 1993 Lord Rees-Mogg brought legal proceedings to challenge the
proposed rati¬cation by the United Kingdom Government of the Treaty on
European Union (Maastricht Treaty), there being at the time a bill before
Parliament to make provisions consequential on the rati¬cation of the Treaty,
a complaint was raised in the House of Commons that the proceedings would
involve the questioning of debates or proceedings in the House, contrary to
Article 9 of the Bill of Rights. The House took no action on this complaint, but
the Speaker was su¬ciently concerned to deliver a warning (HC Deb vol 229,
col 353, 21 July 1993):

I . . . take with great seriousness any potential questioning of our proceedings in the
courts . . .
There has of course been no amendment of [Article 9 of] the Bill of Rights, and that Act
places a statutory prohibition on the questioning of our proceedings . . .
I am sure that the House is entitled to expect, when the case [R v Secretary of State for
Foreign and Commonwealth Affairs, ex p Rees-Mogg] begins to be heard on Monday, that
the Bill of Rights will be required to be fully respected by all those appearing before the court.

In the result the course taken in the legal proceedings presented no threat of
infringement of Article 9. (See [1994] QB 552 at 561. The meaning and scope
of Article 9 are not free from di¬culty and may still exercise the courts: see
D Oliver and G Drewry (eds), The Law and Parliament (1998), ch 5 and
Buchanan v Jennings [2004] UKPC 36.)
When matters are raised in the courts which at the same time are being
considered, or are about to be considered, by Parliament, the courts show a
particular concern not to act in a way that will interfere with the parliamentary
proceedings, but they will not necessarily decline to assume jurisdiction in the
matter (see R v Her Majesty™s Treasury, ex p Smedley [1985] QB 657).
While the courts must abstain from improper interference in proceedings in
Parliament, it is also a constitutional principle that Parliament should not
interfere in or prejudice the judicial process. This is expressed in the sub judice
rule, which is part of the law and custom of Parliament. The sub judice rule,
which applies to motions, debates and Questions in each House, disallows
consideration of cases in which proceedings are active in United Kingdom
130 British Government and the Constitution

courts. Observance of the rule is ensured by the Speaker in the House of
Commons and by the Leader of the House of Lords, each of whom has discre-
tion to waive the rule. The sub judice rule is in any event subject to the right of
the two Houses to legislate on any matter (or to discuss delegated legislation)
and is relaxed where a case concerns a ministerial decision or issues of national
importance such as the economy, public order or essential services. (See the
Appendix to the House of Commons Standing Orders and HL Deb, cols
1725“6, 11 May 2000 and House of Commons Procedure Committee, The Sub
Judice Rule of the House of Commons, HC 125 of 2004“05.)
Judges are shielded from criticism in Parliament by a rule that charges against
a judge can be made only on a substantive motion upon which a vote will be
taken. The Speaker of the House of Commons ruled on 4 December 1973 (HC
Deb vol 865, col 1092):

Reflections on [a] judge™s character or motives cannot be made except on a motion. No
charge of a personal nature can be raised except on a motion. Any suggestion that a judge
should be dismissed can be made only on a motion.

A qualifying ruling was given by the Speaker on 19 July 1977 (HC Deb vol 935,
col 1381):

Yet the rule is not so restrictive as some Hon. Members may think. It is not necessary to have
a substantive motion before the House to allow Members to argue that a judge has made a
mistake, that he was wrong, and the reasons for those contentions can be given within
certain limits, provided that moderate language is used.

See further R Brazier, Constitutional Practice (3rd edn 1999), pp 276“81.

(e) Parliament and the executive
As long ago as 1867 Walter Bagehot highlighted ˜the close union, the nearly
complete fusion, of the executive and legislative powers™ (The English
Constitution (1963 edn), p 65). The executive is headed (under the Queen as
formal and ceremonial head of state) by ministers who sit in Parliament and are
normally able, through the support of a majority, to exercise signi¬cant control
of proceedings in the elected House. The Leader of the House in both the
Commons and the Lords is a minister and government Whips arrange the
business of each House. Parliamentary government depends upon party, and it
has been remarked that Parliament ˜has little distinct life or identity of its own,
separate from government and party™ (S Weir and D Beetham, Political Power
and Democratic Control in Britain (1999), p 372). Despite the popularity of this
view, however, it stands in need of substantial revision as a result of the recent
researches of Philip Cowley, who has chronicled in detail how the Labour back-
bench MPs of the 1997 and 2001 Parliaments have been more rebellious than
131 The ideas of the constitution

any since the mid-nineteenth century, rebelling against the government line on
a broad range of issues, from counter-terrorism and foreign policy (particularly
over the Iraq war) to education reform and from university fees to reform of the
NHS. (See P Cowley, The Rebels: How Blair Mislaid his Majority (2005).)
Yet the domination of the House of Commons by party and government con-
tinues to be seen as a formidable obstacle to Parliament™s performance of its
traditional “ and democratically essential “ function of scrutinising and check-
ing the operations of the executive. So far as there is a separation of powers
between Parliament and government it is not one in which equal powers are
counter-balanced. Nonetheless, it would be wrong to see Parliament as a cowed
and supine body, the mere instrument of the government™s will. A spirit of
independence still stirs in the House of Commons and may ignite rebellion or
foster subversive alliances among backbenchers. Members of non-conformist
outlook, of whom there are not a few, preserve a sense of Parliament™s sepa-
rateness and autonomy, and look for reforms in practice and procedure which
would strengthen Parliament™s authority in its relations with the executive.
(These matters are further considered in chapter 9.)
On occasion it may fall to the courts to ensure that the government is
respectful of legal limits in its relations with Parliament. This can be seen in the
following case.

Secretary of State for the Home Department, ex p Fire Brigades
Union [1995] 2 AC 513 (HL)
Parliament had made provision in the Criminal Justice Act 1988 for a scheme
for the compensation of victims of crime. The Act provided further that
the statutory scheme should come into force on a day to be appointed by the
Secretary of State in a commencement order. The Secretary of State then
decided that he would not make a commencement order to implement the
scheme and instead used prerogative power to introduce a di¬erent, less gener-
ous scheme. The House of Lords held by a majority that in so doing the minis-
ter had frustrated the will of Parliament and had acted unlawfully. While it was
for the minister to decide when it might be appropriate to bring the statutory
scheme into force, this was a matter that he was required to keep under contin-
uing review: instead he had ˜written o¬™ the statutory scheme, had ˜struck out
down a di¬erent route and thereby disabled himself from properly discharging
his statutory duty in the way Parliament intended™ (Lord Nicholls). ˜It is for
Parliament, not the executive™, said Lord Browne-Wilkinson, ˜to repeal legisla-
tion™. We may see the judgment of the majority as upholding the separation of
powers in preventing an attempt by the executive to legislate (under preroga-
tive) in de¬ance of the intention of Parliament.
On the other hand it was a dissenting Law Lord in this case, Lord Mustill, who
expressly invoked the separation of powers in warning that the courts must not
overstep the boundaries that were set between them, the executive and
132 British Government and the Constitution

Parliament: ˜it is the task of Parliament and the executive in tandem, not of the
courts, to govern the country™. Similarly Lord Keith, also dissenting, considered
the majority ruling to be ˜an unwarrantable intrusion by the court into the
political ¬eld and a usurpation of the function of Parliament™. (For comment,
see Barendt [1995] PL 357 and A Tomkins, Public Law (2003), ch 1.)
See generally on the separation of powers T Allan, Law, Liberty, and Justice
(1993), ch 3; Barendt, ˜Separation of powers and constitutional government™
[1995] PL 599; Bellamy, ˜The political form of the constitution: the separation
of powers, rights and representative democracy™ (1996) 44 Political Studies 436;
C Munro, Studies in Constitutional Law (2nd edn 1999), ch 9; Barber, ˜Prelude
to the separation of powers™ [2001] CLJ 59.

5 Accountability
Accountability is a liability or obligation attaching to those invested with public
powers or duties. Its primary ingredient is an obligation to explain and justify
decisions made or action taken. EL Normanton says of it (˜Public accountabil-
ity and audit: a reconnaissance™ in B Smith and D Hague (eds), The Dilemma of
Accountability in Modern Government (1971), p 312):

Accountability is a device as old as civilised government itself; it is indispensable to regimes
of every kind. It provides the post-mortem of action, the test of obedience and judgement,
the moment of truth; it can validate the power of command, or it can create favourable con-
ditions for individual responsibility and initiative.

Accountability is retrospective: it is an obligation to answer after the event for
acts or decisions. But an awareness that an account will have to be given may
have a bracing e¬ect on the quality of decision-making.
We can ¬nd in accountability a link with democracy, in that those elected by
the people to govern are given power not for their own ends but for the public
good; and a link with the rule of law, which demands that those to whom power
is granted should not exceed the limits of their authority. Accountability for the
use of power is supportive of both democracy and the rule of law and we may
claim it as a leading principle of our constitution even if it is only imperfectly
realised in practice.
The ultimate accountability of government in a democracy is to the elec-
torate, but more precisely targeted systems of accountability are needed
between elections or for application to those (such as civil servants) over whom
the electorate has no power of sanction. None who wield the powers or
discharge the functions of the state should be exempt from the requirements of
accountability. We therefore expect that ministers, their battalions of o¬cials,
the chief executives of central government agencies, local government council-
lors and o¬cers, health authorities, the police, immigration o¬cers and other
public bodies and o¬cers will be subject to mechanisms of accountability.
133 The ideas of the constitution

Accountability in a democratic state under the rule of law in principle implies
a duty to account to an independent agency outside the organisation whose
actions are in question. The outside agency may be the legislature, or a court,
or a tribunal, or some other independent body or o¬cer. In actuality we ¬nd
that for some activities the only form of direct accountability provided is inter-
nal (or ˜managerial™) by which account has to be rendered to superior o¬cers
in the organisation, or its head: the personal accountability of civil servants in
the United Kingdom is, in general, of this kind. Managerial accountability has
a part to play in a structure of accountable government, but we will normally
expect that the organisation itself or its head should be accountable in the fuller,
˜public™ sense, to an outside body.
Accountability may be legal, directed to ensuring that action taken is in accor-
dance with law, or it may relate to any (or several) of other desirable features of


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( 155 .)