AN ESSAY ON THE BRITISH CONSTITUTION

It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true... that Parliament, the executive and the courts have different functions.

WALTER BAGEHOT IN The English Constitution^{[5] [6] has explained the issue pithily: ‘there are two great objects which every constitution must attain to be successful... every constitution must first gain authority [the Crown], and then use authority’; it must first win the authority and confidence of man­kind, and then apply that homage in the work of government. First, the authority, then government. Thus, when Britain joined the European Economic Community in 1972 (the precursor to the European Union), the British Government had no difficulty in recog­nising that the Luxembourg Compromise of 1966 formed part of the European jurisprudence it would have to (indeed, was eager to) endorse. The British Constitution was, after all, set out in unwritten rules, conventions and customs. The Luxembourg Compromise was a ‘constitutional convention’, in the sense of being an unwritten rule that supports ‘a political order’ that underwrote, sharing roughly, the same values of government, of which there are three arms - legislature, executive and judicature. The constitution was outstand­ingly proclaimed in the first judgment of the European Court of Justice at Luxembourg, in Van Gend en Loos in February 1963, as expanded in Costa/ENEL in June 1964. These cases conferred on litigants the right to protect themselves from the violations of the EEC.}

Ever since the early 1740s, when Montesquieu devoted a whole chapter in his De Eesprit des Loix - misunderstandingly - to the English constitution, commentators have universally adopted, without sufficient analysis, the phrase ‘the separation of powers’.

In the development of the prerogative writs in the seventeenth century, there emerged in court proceedings a distinct wish of the judiciary cautiously to exercise governmental powers. In the mid­dle of the eighteenth century, Lord Mansfield asserted that manda­mus ‘ought to be used for all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one’. It was in R v Barker in 1762^[8] that he explained that these writs were collectively prerogative writs (later called orders) because of their intimate connections with the rights of the Crown, by which time each prerogative writ had developed its own charac­teristic to establish judicial review of administrative actions. And Lord Mansfield added (at p 1268): ‘Within the last century [the pre­rogative writ] has been liberally interpreted for the benefit of the subject and advancement of justice’.

This constitutional structure was not interrupted in England; it became entrenched in 1986 in a judgment of Lord Scarman in Nottinghamshire County Council v Secretary of State for the Environment:^[9] ‘Judicial review is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon this exercise of their beneficent power’. It found its written counterpart in the constitutions of British colonial territories, which give overriding powers for ‘peace, order and good government’. It was judicially recognised in two twentieth-century cases in the Judicial Committee of the Privy Council.

The institutional separation was best espoused by Lord Diplock in R vHinds,^[10] a majority decision in the Privy Council in an appeal from the Jamaican courts. He held that that country’s constitution prevented its legislature from establishing a special court to try cer­tain firearms offences, called a Gun Court, which could exercise powers during the pleasure of the Governor-General on the advice of a Review Board of whom only the chairman was a member of the judiciary. He said that ‘whatever is implicit in the very structures of a constitution in the Westminster model... is that judicial power is to continue to be visited in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the judicature, even though this is not expressly stated in the Constitution’. This statement, never seriously questioned, had been firmly endorsed by Lord Pearce in Liyanage v The Queen,^[11] cited by Lord Diplock at the end of the passage in Hinds.

The Ceylon Act of 1962 - the colony of Ceylon achieved inde­pendence as Sri Lanka in 1971 - contained substantial modification of the Criminal Procedure Code, by purporting to legislate ex post facto the 60-day detention of persons for offences against the State by indicating classes of offence for which jury trial could ordinarily be ordered; the issue was whether the 1962 legislation was an unconstitutional law for Ceylon.

If such Acts of Parliament are ever to be held unconstitutional, or declared incompatible, the judicial power could be effectively absorbed by the legislature by reversal of the judicial decision, thereby being taken out of the hands of judges. The Rule of Law exceptionally demands no less. The Human Rights Act 1998 con­firms the constitutional infrastructure of modern democracy. Whatever Westminster ordained constitutionally, the innate doc­trine of incompatibility in the 1998 Act established the primacy of the judicature as a governing institution. The judicial function is thus entrenched.

A contemporary twin model of the separation of functional govern­ment and the powers of government in a modern democracy is exem­plified by the legislative powers in the UK in 2000 of access to policy-making. The Freedom of Information Act 2000 - a constitu­tional act of legislation - makes elaborate provisions for enabling cer­tain citizens. The legislative provisions qualify the topics of accessible information that are exempt from disclosure at the instance of minis­terial declaration, which may be challengeable (and have already given rise to judicial review; a case law has emerged).

The modern democracy encompasses not just obligations and powers, but establishes institutions to give effect to them; they are organisations with their own independent authority and the ability to share powers intrinsic in other institutions of government. Lord Bingham put it pithily in Pretty:^[14] a court of law is not a legislative body, but is institutionally judicial. The court cannot create a legis­lative act, but in terms of the distribution of powers among arms of government, it can make law.