The English Judges, Politics and the Balance of Power
| Author | Diana Woodhouse |
| Date | 01 November 2003 |
| DOI | http://doi.org/10.1046/j.1468-2230.2003.06606008.x |
| Published date | 01 November 2003 |
REVIEW ARTICLE
The English Judges, Politics and the Balance of Power
Diana Woodhouse
Robert Stevens,The English Judges: Their Role in the Changing Constitution,
Oxford: Hart Publishing, 2002, xiv þ169 pp, hb d22.50.
As its title indicates, Robert Stevens’ The English Judges: Their Role in the
Changing Constitution is concerned with the role of the English judiciary. The
debate about what this role is, or should be, is not, of course, new, but in the light
of the constitutional reforms of 1998 and 2003, it assumes particular importance.
Stevens’ short book covers much ground, both in terms of substance and history;
the first chapter, ‘Setting the Tone,’ looks at the lead up to the Act of Settlement of
1701 and the last, ‘The Future,’ considers possible developments post 2002. There
are occasions when the reader may wish for more background information or a
fuller explanation or discussion. However, one of the virtues of the book is its pace
and flow. Moreover, it is not, primarily, concerned with detail but with over-
arching concepts and constitutional doctrines. It seeks to find an explanation for
the changing role of the judges in the twentieth century and, in so doing, considers
the separation of powers, judicial independence, the balance of powers, judicial
attitudes and the relationship between law and politics.
The following discussion considers the arguments Stevens employs. In his
Preface, he notes of those to whom he is expressing thanks, that ‘all would dis-
agree with some of my views; some with most’ (p ix).
1
I find myself agreeing with
most and wanting to take some of his arguments further.
Separation of powers
A theme in Stevens’ book is the failure of the separation of powers, in the English
context, to provide a constitutional basis for the position of the judges and the
changing nature of the judicial role in the twentieth century. As expounded by
Locke
2
and Montesquieu,
3
the doctrine has three elements. The first divides
government into executive, legislative, and judicial agencies; the second designates
the chief functions of government in accordance with this division; the third
separates government personnel, such that the functions carried out by the
agencies are ‘in distinct hands.’
4
This institutional, functional and personnel
separation theoretically protects against an abuse of powers. Of course, even in the
United States of America, where the doctrine is one of the principles upon which
the Constitution is founded, this has never been realised and, as a consequence,
Professor of Law, Oxford Brookes University.
1 All page references in the text are to the book under review.
2Spirit of the Laws (1748).
3Second Treatise of Civil Government (1690).
4M.J.C.Vile,Constitutionalismand Separation of Powers (Oxford: OxfordUniversity Press, 1967) 1.
rThe Modern Law Review Limited 2003. (MLR 66:6, November). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
920
it has been necessary to allow each institution some powers of interference outside
its own competence to ensure the required checks and balances.
As far as England is concerned, even with the abolition of the office of Lord
Chancellor and the establishment of a Supreme Court, announced by the Govern-
ment in June 2003, any measure of the institutional arrangements would fall far short
of the checks and balances employed in the United States, never mind the pure
version of the separation of powers. The fusion of the executive and the legislature,
noted by Bagehot,
5
and the execution of broadly judicial and legislative functions by
government departments and other government agencies give effect to parliamentary
government. This allows government in its twenty-first century form to be conducted
efficiently, but these developments clearly diverge from the institutional and
functional aspects of the separation of powers. More importantly, however, an
efficient division of powers does not necessarily guarantee their effective limitation
and control; this is the essence of the doctrine and essential if it is to prevent an abuse
of power. Given the expanding role of the state during the twentieth century, this is
even more vital now than it was at the time of Montesquieu.
6
It is not only the executive-legislative axis that presents problems for the
separation of powers. The doctrine of parliamentary sovereignty, which makes
judges subservient to the will of Parliament, strengthens the position of the
political branches of government at the expense of the judicial, as does the
convention of ministerial responsibility, the existence of which makes the judges
reluctant to intervene in matters for which ministers are politically accountable to
Parliament. Any notion that there is some kind of equilibrium between the three
separate branches of government or that there is a system of checks and balances
which limits and controls the exercise of political power therefore disappears, and
Stevens’ argument that ‘claims of separation of powers have to be treated
sceptically’ (p 97) becomes persuasive.
Stevens is not alone in his scepticism. Constitutional writers, such as Jennings,
7
Marshall
8
and Robson,
9
have long been dismissive of the doctrine. However, not
all see the separation of powers as merely political rhetoric and thus of little
constitutional relevance.
10
Sir Stephen Sedley argues that once it is accepted that
‘separation does not mean mutual exclusion’ but rather ‘interlocking spheres of
constitutional competence,’
11
aspects of the doctrine help to explain our
constitutional arrangements and to provide guiding principles. Thus the division
of institutions is recognised in the sense ‘that the Queen in Parliament is, and
therefore ought to be, a different legal entity from the Queen as the source of
justice, and that neither is the same entity as the executive departments headed
by the Queen’s ministers.’
12
Drewry similarly notes that the categorisation of
functions, whilst ‘somewhat imperfect,’ is ‘a useful shorthand way of describing
a lot of things that go on in government, providing we remember that the
boundaries between them are indistinct and that they are fundamentally
5 W. Bagehot, The English Constitution (London: Fontana, 1963).
6 T. Ohlinger, ‘The Doctrine of the Separation of Powers’ (2001) 13 European Review of Public Law
1317–1330 at 1325.
7 I. Jennings, The Law and the Constitution (5
th
edn., London: University of London Press, 1959)
Chap. 1.
8 G. Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971) Chap. 5.
9 W. A. Robson, Justice and Administrative Law (3
rd
edn., London: Stevens, 1951).
10 See, for instance, E. Barendt, An Introduction to Constitutional Law (Oxford: OUP, 1998).
11 Sir Stephen Sedley, ‘The Sound of Silence: Constitutional Law without a Constitution’ (1994) 110
Law Quarterly Review 270, 271.
12 Ibid.
The English JudgesNovember 2003]
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