Separation Of Powers And The Judicial Branch Cheryl Saunders

separation of powers and the judicial branch cheryl saunders “a society in which the observance of the law is not assured, nor the se

Separation of Powers and the Judicial Branch
Cheryl Saunders
“A society in which the observance of the law is not assured, nor the
separation of powers defined, has no constitution at all.”1
1.
Introduction
Much of the debate in this country over the changes to the office of
Lord Chancellor and the creation of a Supreme Court was cast in terms
of separation of powers; although more cautiously on the part of the
government, at least in those terms.2
The purpose of this paper is to explore the meaning of the doctrine of
separation of powers in its application to the judiciary in countries
in the British or (perhaps more suitably) the Commonwealth
constitutional tradition, with particular reference to questions of a
broadly constitutional kind that many such countries are facing. It is
thus intended to be comparative, rather than directed specifically to
the circumstances of the United Kingdom, although the topic clearly is
prompted by developments, here.
The comparison might have been less productive before these changes
were set in train. The institutional arrangements for the protection
of judicial independence and the rule of law in most Commonwealth
countries are broadly similar to the arrangements that were broadly
assumed to be in place in the United Kingdom, or at least in England
and Wales. Relevantly, in most Commonwealth countries they are
justified by a doctrine of separation of powers; often as a
constitutional requirement. In fact, however, the arrangements in this
country were quite different in significant respects. This does not
mean that they were worse. It helps to explain, however, why the
doctrine of separation of powers has had here what Trevor Allan
rightly describes as “unsympathetic treatment”.3 It also explains why
the changes that are in train align the position of the judiciary in
this country more closely with countries elsewhere, removing some
obstacles to effective comparison and bringing the United Kingdom
under what I will argue is a distinctive separation of powers
umbrella.
2.
Separation of powers in the British constitutional tradition
The concept of separation of powers, as used in western
constitutionalism,4 assumes that there are three categories of public
power, legislative, executive and judicial, that are vested in three
distinct groups of institutions, similarly described.5
There are notorious difficulties with the concept, which once led
Geoffrey Marshall to dismiss it as “infected with so much imprecision
and inconsistency that it may be counted little more than a jumbled
portmanteau of arguments for policies which ought to be supported or
rejected on other grounds”.6 For present purposes the difficulties may
be categorised in the following way.
First, every constitutional system that purports to be based on a
separation of powers in fact provides, deliberately, for a system of
checks and balances under which each institution impinges upon another
and in turn is impinged upon. There is an open question whether this
qualifies a system of separation of powers7 or completes it “by giving
each department the necessary constitutional means…to resist
encroachment by the others”.8 The answer must depend in part on the
actual checks and balances in each case.
Secondly, there is some disagreement about what is separated pursuant
to the doctrine. The two principal options are:
*
A separation of institutions; which might, for example, preclude
overlapping membership
*
A separation of functions, empowering each institution to exercise
the function for which it is designed (and perhaps, by extension,
no other function)
In reality, however, these are not mutually exclusive options. Any
system of separation of powers must involve at least a measure of
both.
And this in turn leads to the third area of uncertainty: the degree of
separation that such a doctrine requires. Complete separation is
impossible. There must be a point, however, at which partial
separation is not worthy of the name. Where, then, should the lines be
drawn? And how should the lines that are drawn be enforced?
It is possible to approach the answers to these questions through a
consideration of the purposes of a separation of powers. Received
wisdom has it that there are two such purposes:
*
One is to prevent the abuse of public power through the
concentration of power. Thus James Madison in Federalist 47: “The
accumulation of all powers, legislative, executive and judiciary,
in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed or elective, may justly be pronounced
the very definition of tyranny”.
*
The other is to enhance the efficiency of government. In its
original form this rationale was used to justify the institution
of a strong presidency in the United States,9 but it might be
turned to more general purposes. It might be argued, for example,
that separation of powers in this respect recognises that each of
the branches is peculiarly well equipped to exercise the
particular functions assigned to it. Alternatively, it might be
argued that the collective effect of a particular configuration of
separated powers is a form of government with attributes best
suited to the needs of a particular state.
Both of the two purposes traditionally assigned to a separation of
powers were originally formulated by reference to the separation of
legislative and executive power; indeed this was also the genesis of
the theory in the writings of Montesquieu and Locke. Both purposes
could be adapted to the separation of the judicial branch. As a
generalisation, however, the doctrine of separation of powers has not
been well developed in relation to the judiciary, at least in a way
that is useful here. The explanation lies in the distinctive
constitutional arrangements of both the two states that have been the
flagships of the separation of powers doctrine.
*
One is the United States, in which the relationship between the
legislature and the executive as part of a balanced three-way
separation of powers dominates the discourse and influences the
doctrine;10 incidentally suggesting caution in borrowing
conceptions of “deference” from that source.
*
The other is France, where the separation of powers places
emphasis on the judiciary; but with a view to precluding it from
impinging upon the other branches of government.11
*
By contrast, the constitutional arrangements in the United Kingdom
are quite different, in key respects. Unlike the United States,
this country has a parliamentary system with at best a weak
institutional separation of the legislative and executive
branches. Unlike France, judicial review of executive action, at
the hands of the general courts, is a core feature of the
constitutional system.
For reasons that are easy to understand, moreover, the doctrine of the
separation of powers has had only muted and partial recognition in the
United Kingdom.12There is of course a strong tradition of judicial
independence, given teeth through a range of guarantees enshrined in
statute and long-standing constitutional convention.13 There is a long
tradition of limited government, involving the division of power in
various ways, through the “mixed” and “balanced” constitutions.14It is
even possible to argue for a significant degree of functional
separation of powers in reality, if not in outward form.15 And the
great William Blackstone himself adapted Montesquieu and Locke to
argue for a “distinct and separate existence of the judicial power in
a peculiar body of men…separated from both the legislative and the
executive power”.16
But the intermixture of institutions is such that it is almost
impossible to describe it as a separation of powers, without becoming
entangled in endless, unproductive debate. This is most obviously the
case with the relationship between the legislature and the executive,
famously claimed by Walter Bagehot as a fusion of powers. For present
purposes, however, the triple hats of the Lord Chancellor and the dual
functions of the House of Lords are a further obstacle to describing
the system as characterised by a separation of powers. In an
additional twist, it is even possible to argue that these mixed
institutions have been key mechanisms for protecting judicial
independence. Clearly, such a case can be made for the multiple
functions of the Lord Chancellor. In a speech in this university just
over 2 years ago Lord Woolf observed that it had not been “appreciated
sufficiently that the Lord Chancellor played a pivotal role in
co-ordinating the three arms of government” nor that he “was able to
act as a lightening conductor at times of high tension between the
executive and the judiciary”.17 In time it may also come to be
appreciated that a similar case could have been made for the Appellate
Committee of the House of Lords.
Countries with a system of government most similar to that of the UK
are, not surprisingly, found in the Commonwealth. Many of them have
parliamentary systems. These include Australia, Canada, India and
South Africa, which I use as occasional examples in the next part. All
four have a judiciary that reviews executive action and, for that
matter, legislation as well. All place great store on judicial
independence. In all of them, however, the judiciary is
institutionally and to a large extent functionally separate from the
other branches of government. And in all of them, with the possible,
but by no means certain exception of Canada, the relationship of the
judiciary to the other branches is conceived in terms of the
separation of powers. Traditional mechanisms for protecting judicial
independence, of which guarantees of tenure are an example, can be
understood as features of the separation of judicial power. The points
of necessary interface with the other branches in relation to, for
example, the appointment and removal of judges and the funding of
courts can be analysed within a framework of checks and balances. This
is, however, a latter-day rationalisation. In historical reality, most
of the arrangements in these countries for the constitution of the
judiciary were modelled as far as possible on comparable arrangements
here.
The limits of the possible were reached with the position of Lord
Chancellor and the institution of the Appellate Committee of the House
of Lords,18 which could not be replicated elsewhere. The
transformation of the first and the pending replacement of the second
by a Supreme Court thus bring Britain closer to Commonwealth
experience in this regard.19 There is considerable interest throughout
the Commonwealth in what has been considered necessary here to provide
protection for judicial independence, once those two institutions are
gone. Changes that attract particular attention include the creation
of a position of President of the courts of England and Wales, with
representational and management responsibilities;20 a Judicial
Appointments Commission; statutory protection of the principle of
judicial independence; and the use of a “concordat” to record aspects
of the arrangement less susceptible to codification, including the
structures for administrative support.21
Many of the problems that have been anticipated in the course of
negotiations over the Constitutional Reform Act also currently are
problems elsewhere. In consequence, there will also be Commonwealth
interest in the effectiveness of the solutions that have been put in
place. And the converse, presumably, also is true. Assuming that this
is so, the next part canvasses some issues that have arisen in broadly
comparable countries in connection with the separation of judicial
power, making due allowance for relevant differences including,
critically in this context, the impact of entrenched constitutions
elsewhere. Those experiences in turn assist to throw light on the
effects and utility of the doctrine of separation of powers in its
application to the judicial branch.
3.
Commonwealth experience with the separation of judicial power
For convenience, I divide the issues to which I propose to draw
attention into two groups: those connected with the institutional
separation of powers (including the impact of checks and balances) and
those connected with a functional separation of powers.
a.
Institutional arrangements
At one level, the implications of an institutional separation of
powers for the constitution of the judiciary are straightforward.
Judges may not be members of other branches; members of other branches
cannot be appointed to courts. Some significant questions nevertheless
arise at the margin. One is whether judges can perform other public
functions that are not judicial in character in their personal
capacities. At the Commonwealth level in Australia, where the
separation of powers is constitutionally protected, this question has
generated a substantial body of case law, distinguishing permissible
from non-permissible functions by reference to a standard of
incompatibility and the purpose of protecting the perception of the
independence of the courts.22 Practice varies in the Australian
states, where the doctrine receives significantly less constitutional
protection. In at least one state, Victoria, such appointments will
not be accepted by the judiciary at all.
The principal area of concern under the broad rubric of institutional
separation on which I wish to focus, however, arises from the points
of institutional interface between the judiciary and the other
branches, representing checks on the judicial branch. These are, of
course, numerous, but I will focus on three in particular: the
appointment of judges; judicial remuneration; and the administration
of courts. All have implications for judicial independence. All
necessarily and properly involve one or other or both of the other
branches, with their somewhat different preoccupations and
accountability mechanisms. To balance these potentially opposing
interests, all rely on inter-branch respect and self-restraint. Hope
once was placed in the office of Attorney-General to this end; but
political realism has now prevailed. In all three areas there is
considerable movement, with no clear resolution in sight.
i.
Appointment of judges
In all four countries, appointment of judges once lay with the
executive branch. Exercised with wisdom, such a mechanism is capable
of producing good results, questions about transparency and
inclusiveness aside. Used as a source of patronage, however or, worse,
as a means by which the overall predilections of a court might be
influenced by the executive branch, it detracts from the quality and
independence of the courts.
Questions about transparency and inclusiveness can no longer so
readily be put aside, however, and the gains from patronage too often
prove tempting. The difficulty has been to find new arrangements that
preserve at least some of the strengths of the old, while overcoming
their weaknesses. There is a range of variables, all controversial in
different degrees: the institution(s) through which appointment is
made; the degree of openness in the processes of application and
selection; and the extent of lay involvement in the appointment
process.
The result for the moment is a smorgasbord of different procedures, on
which the Constitutional Reform Act may now also be placed.23 At one
end is Australia, still clinging to executive appointment to the
judiciary, after some inconclusive inquiries into options for change.24
At the other is India, where since 1993, as MP Jain describes it, in a
masterly understatement: “the effective power to appoint Supreme Court
judges has …passed from the Executive to the Judiciary itself which
has greatly strengthened judicial independence”.25 Canada was until
recently closer to Australia; following changes announced on 20
February this year, however, nominees to the Supreme Court must appear
before a (televised) parliamentary committee hearing, although the
final decision remains with the Prime Minister, in the form of advice
to the Governor-General.26 In South Africa, the reconsideration de
novo of the constitutional settlement following the fall of apartheid
provided an opportunity for experimentation with new mechanisms for
judicial appointment. The result is the Judicial Services Commission,
with a mixed membership of 23, which is consulted in relation to some
key appointments and identifies a short list for others, from which
the President must choose.27 The hearings of the JSC are public; a
feature that can be seen as important in principle in post-apartheid
South Africa, whether or not is has the effect of allowing South
Africans to “get to know” the appointees that Canadian Prime Minister
recently claimed for his new appointment procedure.28
ii.
Judicial terms and conditions
It is a commonplace for common law countries to adopt the Act of
Settlement guarantee against reduction of judicial salary while in
office. It is equally a commonplace that protection of this kind is
symbolically significant but practically insufficient. It takes no
account of inflation or the relativities between the salaries of
judges and other public office-holders, much less of the levels of
remuneration available at the bar. It is ambiguous in its protection
of other terms and conditions of judicial office including pension or
superannuation entitlements.
It may be that a more effective guarantee can be fleshed out by
reference to broader constitutional principles, such as Canadian
Charter section 11(d), protecting a right to a hearing by “an
independent and impartial tribunal”. In this event, however, the
fleshing out is done by the judges themselves, creating an unseemly
impression of self-interest that it is likely to be difficult to
dispel. But the alternative is that the adequacy of judicial
remuneration lies almost entirely in the discretion of the government
and parliament of the day. A familiar checks and balances problem thus
arises. Granted, these are important questions for both the
independence and quality of the courts. But the provision of
resources, the control of public spending and the management of the
economy lie, properly, with the other branches requiring, once again,
a mediating principle that recognises the responsibility of the
elected branches, while meeting the appropriate needs of the courts.
One solution, widely adopted, is the establishment of an independent
body, to advise on judicial salaries and other terms and conditions.
Such a solution distances deliberation on judicial salaries from the
political process, but cannot remove it altogether. A body of which I
am a member illustrates the point. The Judicial Remuneration Tribunal
for the Australian state of Victoria for had authority, for a period
that proved startlingly short, to make determinations about judicial
salary increases that would come into effect through a special
appropriation unless disallowed by either House. The first such
recommended increase survived disallowance – just: the second failed
to do so. An event of this kind arguably is more damaging to the
standing of the judiciary than leaving the decision to the normal
political process in the first place.29 In the course of the furore
that followed, the authority of the JRT over salary levels was
removed, in favour of a system that tied the salaries of Victoria
judges over time to those of their federal counterparts,30 themselves
dependent on determinations by the federal remuneration tribunal.
In Canada, these issues have given rise to a significant degree of
litigation, exploring the limits of the Charter. In an initial
skirmish over judges’ pensions, in which the validity of a
contributory requirement was upheld, the Supreme Court of Canada
observed that judges must “bear their fair share of the financial
burden of administering the country.”31 Shortly afterwards, the Court
was asked to advise on the validity of legislation reducing the
salaries of provincial judges. The Court held the legislation invalid,
because it was made “without recourse to an independent, objective and
effective process for determining judicial remuneration”.32
Commissions were duly established. In due course, however, their
recommendations for increases in salaries were not accepted and the
issue returned to the Supreme Court. The Court held that governments
are not bound by the recommendations of such Commissions as long as
they justify their departure from such recommendations with “rational
reasons”, relying on a “reasonable factual foundation,” in a manner
that respects the purposes of the creation of the Commissions in the
first place: “preserving judicial independence and depoliticising the
setting of judicial remuneration”.33 Most of the challenged provincial
decisions met these criteria; but that of the government of Quebec did
not. There is currently some media interest in whether a recent
decision by the Government of Canada not to accept in full the
recommendations of the federal commission ultimately will go to the
Court, requiring it to determine a question concerning the salaries of
all federal judges, including their own.34
iii.
Administering the courts
The constitutional dimensions of court administration have not, until
quite recently, become apparent. For much of the 20th century courts
in common law countries have been funded and administered, more or
less effectively, through Departments of Justice or their equivalents.
By the end of the 20th century, however, extending into the first part
of the 21st, this had become yet another issue between the courts and
the other branches, raising questions about the separation of powers.
The reason for its sudden prominence may lie in the equally sudden
rise of new public sector management practices, with their
requirements for productivity measures, outcome based reporting and
efficiency dividends, with consequential implications for the
administration of the courts. There can be no dispute about
Parliament’s role in appropriating funds for court services and about
the need for accountability for expenditure. Equally, there can be no
dispute about the interests of the executive in the efficiency and
effectiveness of court performance. On the other hand, as the Supreme
Court of Canada has now emphasised on several occasions,
“administrative” independence is a core characteristic of judicial
independence, which may affect either its individual or its
institutional dimension.35 The scope of administrative independence
for this purpose has not been fully explored. The Court has said that
it includes, at least, “the assignment of judges, sittings of the
court, and court lists — as well as the related matters of allocation
of court rooms and direction of the administrative staff engaged in
carrying out these functions”.36
The issue thus is the positioning of the dividing line between the
functions of the courts and the executive branch so as to safeguard
that aspect of judicial independence that concerns court
administration while ensuring that the courts comply with
accountability and other public standards. For the moment, there is a
range of approaches to this issue, with Australia illustrating both
ends of the spectrum. For the most part the Australian states have
retained the traditional model. The federal courts, on the other hand,
administer themselves, within a framework imposed by their constituent
statutes. Thus section 17 of the High Court of Australia Act 1979
empowers the court to “administer its own affairs” including the power
to contract and to manage court precincts. The matters covered by the
Court’s annual report suggests that the management burden is
significant.37 It seems, however, to have held the line in some
respects. Its 2004-5 report identifies for the Court “a single output,
High Court business, contributing towards the overall outcome, which
is ‘interpreting and upholding the Australian Constitution and
performing the functions of the ultimate appellate Court in
Australia”.38 The price of the outcome was $14.3 million.
An illustration of the difficulties that can arise is provided by
recent events in South Africa. Section 165 of the Constitution of
South Africa relevantly provides that:
*
The judicial authority of the Republic is vested in the courts
*
The courts are independent…
*
No person…may interfere with the functioning of the courts
*
Organs of state…must assist and protect the courts to ensure
[their] independence.
In 2005, extending into 2006, the government proposed an amendment to
the Constitution which would have added two new sub-sections,
specifying that the Chief Justice was “head of the judicial authority”
and that the “Cabinet member responsible for the administration of
justice exercises authority over the administration and budget of all
courts”.39 What did this mean; and did it matter? Many people thought
that it did; and their concerns were exacerbated by the terms of a
proposed Superior Courts Bill creating, for example, a position of
Executive Secretary to the Chief Justice as an officer in the
department, with general responsibility to administer the office of
the Chief Justice, admittedly under his direction. The government for
its part argued that it was doing no more than giving effect to what
it described as “the Commonwealth model of the separation of powers
between the Executive and Judiciary”. In the context of court
administration that is something of an exaggerated claim. For the
moment I am told that the proposals are shelved. It seems likely
however that they will in time re-emerge, in this or an altered form.
iv.
Conclusion
At this point some brief concluding remarks about institutional
separation are in order. The subject raises a wide range of issues. I
have focussed only on three, in which there is a significant interface
between the judiciary and the other branches. In each case the
arrangements in question are long-standing. In each, for a variety of
reasons, the traditional forms are undergoing change. The process of
change is irreversible. It has implications for the composition and
operation of the courts and, by extension, for judicial independence.
As may be inevitable at such a time, the changes are taking place in
isolation from each other. There is a still-open question about the
extent to which a doctrine of separation of powers can be developed to
give them direction and coherence.
b.
Questions about power
I now move to explore, albeit more briefly, the issues that arise in
connection with a functional separation of powers, with its emphasis
on the isolation of judicial power itself, rather than of the
institution by which it is exercised.
i.
Scope of judicial power
The doctrine necessarily has two dimensions. First, it identifies and,
under a system of controlled constitutionality prescribes, what courts
should do (and other branches should not do). Viewed in this light,
the doctrine has implications for due process and civil liberties.
These can best be illustrated by experience in Australia, where the
doctrine of separation of judicial power is highly developed and
formal rights protection is almost entirely absent.40 It is clear in
Australia, for example, at least at the federal level, that only a
court can adjudge a person guilty of an offence and impose punishment
accordingly41 or exercise other “core” judicial functions. The
doctrine also inhibits other branches, at least to a degree from
directing the courts in the manner of the exercise of their powers.42
For a time, it also appeared that the doctrine might limit the
authority of the Parliament to order detention without trial
(obviously exceptional circumstances, such as quarantine, aside)
although it no longer seems likely that this will prove to be so.43
ii.
Limitations on judicial power
In its second dimension, however, a functional separation of powers
serves to identify what courts may not do. In a system that recognises
constitutional rather than parliamentary supremacy, the doctrine thus
precludes conferral on courts of non-judicial power, requiring some
fine lines to be drawn.44 More significantly, perhaps, for present
purposes, the doctrine may be used to suggest limits that the courts
should impose on themselves. In Australia, for example, a separation
of powers argument has been used to explain why courts should hesitate
to supply the deficiencies of statutes,45 review decisions on the
merits,46 overturn previously established decisions,47 invalidate
legislation prospectively,48 or apply unincorporated international
treaties.49 Paul Craig has argued that in these respects “The concept
operates as a source of judicial legitimacy; with the courts defending
their role as the rightful interpreters of legislation, and of the
legality of executive action. It serves also as the foundation for
judicial restraint…”50
This is, of course, nothing new.51 But it may have new significance,
at a time of expansion in both the depth and breadth of judicial
review. Expansion in depth tends to break down the distinction between
judicial and merits review. Expansion in breadth brings the judiciary
face to face with the executive in unfamiliar and sometimes sensitive
areas. Both have the potential to lead to claims that the judiciary is
trespassing into the sphere of the other branches. It is possible to
refute some such claims by reference to the separation of powers. As
David Feldman has recently observed: “One can respect the role of the
executive as makers of policy while upholding the obligation of the
courts to ensure that the policy is not unlawful…”52 At some point,
however, separation of powers places limits on judicial review. The
courts are unlikely to be the only branch to have a view about where
these limits are properly drawn.
4.
Evaluation
A doctrine of separation of powers now provides the principal
framework within which the relationship of the courts to the other
branches of government is resolved in this and many other Commonwealth
countries. The courts were not originally the principal focus of the
doctrine; clearly enough, however, it can be adapted to the purpose.
In its present form, however, the doctrine is somewhat too general to
provide much assistance in resolving a range of existing and emerging
difficulties at the interface between courts and the other branches. A
degree of tension is inevitable, representing checks and balances in
action. It may also be that what is perceived as a difficulty by one
branch may be viewed in a different light by others.53 Elaboration
nevertheless would be useful, in the interests of both persuasion and
prediction. At the very least the separation of powers in relation to
the judiciary needs to be explained in terms of purposes specifically
applicable to the judiciary: protecting judicial independence,
grounding legitimacy and securing the rule of law. Those values in
turn might be better understood and accepted by placing judicial
review in the context of a broader constitutional vision; as an
integral part of a tradition in which the virtues of limited
government have managed to survive an ever-closer union between the
legislative and executive branches.
 Goodhart Professor of Legal Science 2005-2006, University of
Cambridge; Professor of Law, University of Melbourne
1 Declaration of the Rights of Man and of the Citizen, Article 16,
http://www.hrcr.org/docs/frenchdec.html
2 See for example, Judges’ Council, Response to the Consultation
Papers on Constitutional Reform
http://www.dca.gov.uk/judicial/pdfs/jcresp.pdf : “One of the reasons
given by the government for the abolition of the Office of Lord
Chancellor and the creation of a Supreme Court is to increase the
separation of powers”, at [33]. See also Andrew Le Sueur, “Judicial
Power in the Changing Constitution”, in Jeffrey Jowell and Dawn Oliver
(eds) The Changing Constitution 5th ed, 2004, 323, 336
3 Trevor Allan, Law, Liberty and Justice, Clarendon Press, Oxford,
1993, 50; see also Eric Barendt “Separation of Powers and
Constitutional Government” [1995] Public Law 599, to much the same
effect.
4 For a general introduction see John Morrow, History of Western
Political Thought Palgrave, 2nd ed 2005, chapter 9
5 The definition here is deliberately cast in general terms, for
reasons that will become obvious. Some, relatively standard
definitions are more prescriptive, however. Barendt cites as the
“classic formulation…three distinct functions of government…which
should be discharged by three separate agencies…and that no individual
should be a member of more than one of them.”
6 Geoffrey Marshall, Constitutional Theory Clarendon Press, Oxford,
1971, 124
7 It might qualify a separation of powers institutionally (one
institution affects the operations of another) or functionally (in
doing so, the institution exercises a part of the power of the other):
see, on this distinction, Marshall, op.cit., 102. Marshall also notes
that the notion of checks and balances comes from the theories of
mixed government.
8 James Madison, Federalist Paper 51 in Alexander Hamilton, James
Madison and John Jay, The Federalist, Everyman Library, London, 265,
266
9 Geoffrey R Stone, Louis M. Seidman, Cass R. Sunstein, Mark V.
Tushnet, Constitutional Law 2nd ed 1991, 363
10 See for example, Stone et al, op.cit, where even the examination of
the significance of the doctrine for the rule of law is undertaken by
reference to the relationship between the legislature and the
executive.
11 Marshall, op.cit. 99. Marshall also quotes Hans Kelsen: “the
judicial review of legislation is an obvious encroachment upon the
principle of separation of powers”, at 99, from Hans Kelsen, General
Theory of Law and State trans. A. Wedberg (1961), 269
12 Paul Craig has said that it is “regarded as a central construct in
our constitutional structure”; in a context, however, that is confined
to the scope of judicial power vis-à-vis the other branches: Paul
Craig, “Fundamental Principles of Administrative Law”, in David
Feldman (ed) Public Law OUP 2004, 689, 706
13 For detailed description and analysis see A.W. Bradley, “The
Constitutional Position of the Judiciary” in David Feldman (ed) Public
Law OUP 2004, 333, 339-363
14 Marshall, op.cit., 101.
15 Barendt, 615. Trevor Allan has argued also for a de facto
institutional separation of powers that relies on the “firm
conventions governing…[the] various roles” of public officers: Trevor
Allan, op.cit 52
16 William Blackstone, The English Constitution 7th ed, 1984, 10,
quoted in Allan, op.cit., 50
17 Lord Woolf, “The Rule of Law and a Change in the Constitution”, the
Squire Centenary Lecture, 3 March 2004,
http://www.dca.gov.uk/judicial/speeches/lcj030304.htm
18 For the role played by the Lord Chancellor in relation to judicial
appointments see Sir Thomas Legg, “Judges for the New Century” [2001]
Public Law 62. See in particular the following: “it is important to
understand the real nature of the present system. Otherwise, it might
stand in the catalogue as simply appointment by the executive.
Appointment is indeed on the advice and personal decision of a
government minister. But he is a very unusual kind of minister….”: at
65.
19 For a detailed exposition of the process by which the changes were
made see Lord Windlesham, “The Constitutional Reform Act 2005” Parts 1
and 2, [2005] Public Law 806; [2006] Public Law 35
20 Constitutional Reform Act 2005 section 7
21 The Concordat, January 2004,
http://www.dca.gov.uk/consult/lcoffice/judiciary.htm
22 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs
(1996) 189 CLR 1
23 For other common law processes, see Ministry of Justice,
“Appointing Judges: A Judicial Appointments Commission for New
Zealand?” April 2004,
http://www.justice.govt.nz/pubs/reports/2004/judicial-appointment/index.html
x
24 Attorney-General Philip Ruddock “Selection and Appointment of
Judges”, 2 May 2005,
http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Speeches_2005_Speeches_2_May_2005_-_Speech_-_Selection_and_Appointment_of_Judges
. The Attorney noted, inter alia, his opposition to the notion of a
Judicial Appointments Commission along United Kingdom lines: “…it
represents an abrogation of the Executive’s responsibility…you just
move the debate from who is being appointed to the bench to who is
being appointed to the appointments commmission”.
25 MP Jain, Indian Constitutional Law 5th ed 2003, Wedhwa and Company
Nagpur, 332. See in particular SC Advocates on Record Association v
Union of India AIR 1994 SC 268
26 CBC News, The Supreme Court
http://www.cbc.ca/news/background/supremecourt/ . The first Supreme
Court Justice to be appointed following the process is Mr Justice
Marshall Rothstein, on 1 March 2006. Justice Rothstein appeared before
an “Ad Hoc Committee”, with a non-parliamentary chair, pending
finalisation of the procedures. Announcing the appointment, the Prime
Minister observed that it “marks an historic change in how we appoint
judges in this country. It brought unprecedented openness and
accountability to the process. The hearings allowed Canadians to get
to know Justice Rothstein through their members of Parliament in a way
that was not previously possible.”
http://pm.gc.ca/eng/media.asp?category=1&id=1041
27 Constitution of South Africa, section 178 and implementing
legislation
28 Ibid
29 In her statement in response to the government’s decision, the
Chief Justice of Victoria described it as “a direct interference with
the independence of the courts”:
http://www.supremecourt.vic.gov.au/CA256902000FE154/Lookup/MediaReleases/$file/Media-StatetCJJudSalApr04.pdf.
30 Supreme Court, Victoria, Annual Report 2004
http://www.supremecourt.vic.gov.au/CA256902000FE154/Lookup/AnnualReport/$file/AR0204Review.pdf
31 R v Beauregard [1986] 2 SCR 56
32 Reference re Remuneration of Judges of the Provincial Court (P.E.I.),
[1997] 3 S.C.R. 3; for consequential litigation concerning the
validity of decisions made by courts in these circumstances, see
Reference re Remuneration of Judges of the Provincial Court (P.E.I.),
[1998] 1 S.C.R. 3
33 Provincial Court Judges' Assn. of New Brunswick v. New Brunswick
(Minister of Justice); Ontario Judges' Assn. v. Ontario (Management
Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec
(Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44,
[2005] 2 S.C.R. 286
34 Canadian Bar Association E-News June 2006,
http://www.cba.org/CBA/newsletters/news4-06/news.aspx
35 Reference re Remuneration of Judges of the Provincial Court
(P.E.I.), [1997] 3 S.C.R. 3, Lamer CJ, [118]-[119]. See also Valente
v. The Queen, [1985] 2 S.C.R. 673.
36 Valente v. The Queen, [1985] 2 S.C.R. 673. In the PEI case Lamer
referred to this list as “narrow”: [117]
37See for example the requirement for “ Monthly reporting to the
Department of Finance and Administration, in accordance with the
Budget Estimates and Framework Review”, High Court of Australia,
Annual Report 2005, 31
38 Ibid, 31-32
39 Constitution Fourteenth Amendment Bill 2005
40 Justice Deane once described the separation of judicial power as
the ‘most important’ of the guarantees of rights and immunities,
express or implied, under the Australian Constitution: Street v
Queensland Bar Association (1989) 168 CLR 461, 521
41 Polyukhovich v Commonwealth (1991) 172 CLR 501, per Mason CJ
42 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, in which
the majority of the Court invalidated a section that they interpreted
as a direction from the Parliament not to release specified persons
from custody, even if they were unlawfully held
43 The possibility was based on a reading of Lim. It finally faded
with the decision in Al-Kateb v Godwin [2004] HCA 37. See generally
Simon Evans “Australia” (2006) 4 International Journal of
Constitutional Law 517
44 In Australia, for example, federal courts cannot be given arbitral
power, which has been held to be non-judicial
45Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468
46Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR
24
47Queensland v Commonwealth (1977) 139 CLR 585
48Ha v New South Wales (1997) 189 CLR 465.
49Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR
273, 287
50 Craig, op.cit., 707
51 Duport Steels Ltd v Sirs [1989] 1 All ER 529, 541; R v Secretary of
State for the Home Department; ex p Fire Brigades Union [1995] 2 AC
513, 567; Bradley, op.cit., 340-341
52 David Feldman, “Human Rights, Terrorism and Risk: The Roles of
Politicians and Judges” [2006] Public Law at 376
53 David Feldman, ‘None, one or several? Perspectives on the UK’s
constitution(s)’ [2005] CLJ 329
- 16 -