Independence could be compromised by a narrow ‘executive-centred’

model of the separation of powers whereby judicial independence is

limited to the trial with other aspects of the court process including

staffing, administration and distribution of business for the executive

(see Purchas, 1993; Browne-Wilkinson, 1988). In a ‘judicial-centred’

model such as that in the USA, the judges themselves are given a

budget within which they control the administration of the courts.

The Attorney-General also has conflicting roles, being a member of

the government and its chief legal advisor, but also having powers to

bring legal proceedings against public authorities on behalf of the pub-

lic interest and to consent to many kinds of prosecution including

114 General Principles of Constitutional and Administrative Law

political offences under official secrets and public order legislation. The

Attorney can also intervene by means of a nolle prosequi to prevent

criminal proceedings. The Attorney’s powers to take legal action are

apparently not subject to judicial review (see Gouriet v. UPOW (1978);

R. v. Comptroller of Patents (1899)). The Scott Report (1996) revealed

an official culture in which the advice of the Attorney-General was

treated as if it had legal force, a practice condemned by the court in

R v. Brown (1993).

Successive Lord Chancellors and Attorneys have relied on the char-

acteristically English argument that eminent public figures can by

definition be trusted so that a formal separation of powers is not

required. It has also been argued that the office of Lord Chancellor,

straddling all three branches of government, actually safeguards the

separation of powers by providing a voice in the executive and legis-

lature which can defend judicial independence (e.g. Irvine, speech to

the Third Worldwide Common law Judiciary Conference, University

of Edinburgh, 5 July 1999).

Allan has suggested that while an independent judiciary is essential,

provided that the legislative function and its special procedures are

clearly distinguished, it does not violate the rule of law for the same

persons to exercise both legislative and executive functions (2001,

p. 31). This can be supported on the basis that the executive exists to

do the legislature’s bidding. In the case of the judges by contrast the

rule of law requires them not to be subject to any potential conflict of

interest. Nevertheless, as we have seen, contemporary party politics

has shifted the balance of power away from Parliament to the execu-

tive so that Parliament no longer enjoys public confidence as repre-

senting the electorate. Nor does Parliament reflect Allan’s idea of a

‘deliberative process, sufficiently detached from everyday pressures and

immediate political ambitions to ensure, as far as possible, that perti-

nent requirements of justice are identified and affirmed’ (Allan, 2001,

p. 47). It may be that Parliament’s role as a scrutiny body and public

confidence in its integrity would be strengthened by excluding members

of the executive.

5.7.5 Checks and balances

The third aspect of the separation of powers is that of ‘checks and

balances’. This lies at the heart of the republican version of constitu-

tionalism and the rule of law. It involves each branch having some

control over the others but also requires each branch to be protected

against undue interference by the others thus entailing the need for

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Constitutionalism: The Rule of Law and the Separation of Powers

pragmatic compromise. There are examples of checks and balances

throughout the book but some highlights can briefly be mentioned here.

. The House of Lords can veto any bill to extend the life of Parlia-

ment, thus preserving the democratic right to an election.

. The Queen in an emergency could invoke her royal prerogative

powers to dismiss the prime minister or government, dissolve Parlia-

ment or refuse to dissolve parliament.

. Parliament can dismiss the government.

. The higher judiciary has security of tenure against the executive but

Parliament exercises a check over the judiciary in that as a last resort