Conclusions
The British constitution is not short of the type of striking features that, at least at first glance, make outsiders wonder how on earth the system manages to function. One of those features is the closeness of the relationship between the legislative and executive branches.
Few facets of the UK's constitutional architecture have more profound or far-reaching effects on the system of government and the arrangements for holding it to account. One such effect is that as the scale and impact of government has grown in recent decades, the relative weakness of Parliament within the legislative-administrative machine has become increasingly apparent, and so greater store has been set by the judiciary as a counterweight. As Lord Mustill put it, the courts stepped in to ‘to occupy the dead ground' arising from the perceived inadequacies of Parliament, in order to avoid ‘a vacuum in which the citizen would be left without protection against a misuse of executive powers'.[866] Yet while this account may be historically accurate, it is normatively questionable, in that it appears to presuppose that judicial and political modes of accountability are interchangeable such that one can substitute for the other.It has been argued in this chapter that accountability can, and should, take several forms. This, in turn, demands that accountability be supplied by a range of functionally-complementary institutions applying a diversity of criteria and approaches. Against this background, the judicialization of accountability should be regarded with a degree of suspicion, as should the assumption that judicial accountability can fill the gap where other modes of accountability are found wanting. This suspicion will not, of course, always turn out to be well-founded. The judicialization of the tribunal system is, for reasons examined above, to be welcomed in that it aligns the institutional characteristics of that system with the (legal) form of accountability that it is intended to provide.
It does not, however, follow that tribunals should unthinkingly be cast in the precise image of regular courts; for all that tribunals can now be regarded as a species of court, they remain a distinct species which provides a form of legal accountability that differs sharply from that supplied by the Administrative Court. This much was recognized in Cart, in which the Supreme Court acknowledged the fundamental constitutional shift effected by the creation of an integrated tribunals system by conceding that there should only be minimal supervision of it by regular courts. The Supreme Court thus accepted and underlined the independence—in the sense of the separateness and distinctiveness—of the new tribunals system. In doing so, it acknowledged—at the risk of making Dicey turn in his grave—that the rule of law is not, after all, threatened by what approximates to a system of administrative courts largely free from oversight by their regular counterparts.The phenomenon of judicialization is less pronounced, and more subtle, in the ombudsmen and inquiries contexts—but is nevertheless discernible in the recently demonstrated (albeit limited) willingness of courts to afford a degree of protection to the Parliamentary Ombudsman’s findings (by substantially limiting executive discretion to dismiss them) and the well-established practice of relying upon judges to chair inquiries into issues of public concern. In both spheres, it is arguable that part of the impetus for such judicialization lies in the dysfunctional (in accountability terms) relationship between Parliament and the executive. If Parliament cannot be trusted to make sure that the government takes the Ombudsman seriously, then perhaps the courts should do so? And if Parliament, thanks to executive domination, has failed to adopt a framework within which it can take the lead on public inquiries, perhaps the least-worst alternative is for the executive to meet the public clamour for an inquiry by appointing a palpably independent figure, in the form of a judge, to conduct one? It would be going too far to argue—and it has not been argued in this chapter—that such forms of judicialization must be comprehensively resisted and reversed. But it must be recognized that, if the British constitution is to embody an adequately rich set of arrangements for holding the government to account, it must also exhibit the sort of institutional diversity that is jeopardized by an undue degree of judicialization.