It can dismiss superior court judges (Chapter 4).

. The courts provide a check over the executive by means of judicial

review, where they try to draw a line between the legality of govern-

ment action which they are entitled to police and the merits of

government action which is a matter for Parliament. As Nolan LJ

put it in M v. Home Office [1992] QB 270, 314, ‘The proper consti-

tutional relationship between the executive and the court is that the

courts will respect all acts of the executive within its lawful province,

and that the executive will respect all decisions of the court as to

what its lawful province is.’ However, this line is sometimes difficult

to draw. As Lord Mustill pointed out in R. v. Secretary of State ex

parte Fire Brigades Union (1995) (above, p. 109), there is a tendency

for judicial intervention to expand to fill the ‘dead ground’ where

other safeguards fall short.

. The courts have the exclusive power to interpret statutes hence

the claim that there is a balance of power in the sense of ‘twin

sovereignty’ between courts and Parliament (X Ltd v. Morgan Gram-

pian Publishers Ltd [1991] 1 AC1 at 48). Thus in Hamilton v.

Al Fayed [1999] 3 All ER 317 at 320, Lord Woolf MR referred to

‘the wider constitutional principle of mutuality of respect between

two constitutional sovereignties’.

. The courts seek an objective independent approach to the inter-

pretation of legislation. In Duport Steels Ltd v. Sirs [1980] 1 All ER

529 at 551, Lord Scarman said that ‘the constitution’s separation of

powers, or more accurately functions, must be observed if judicial

independence is not to be put at risk’. He meant that that the judges

must observe the law by sticking to the language of legislation even

at the expense of their own views of justice, otherwise, as his Lord-

ship went on to say, ‘confidence in the judicial system will be replaced

by fear of it becoming uncertain and arbitrary in its application.

116 General Principles of Constitutional and Administrative Law

Society will then be ready for Parliament to cut the power of

the judges’.

It is sometimes said in this connection that a statute should

be interpreted according to the intention of the lawmaker. Leaving

aside the practical problem of how several hundred members of

Parliament can form a single intention and how a court can discover

it, this threatens the rule of law and the separation of powers since it

would enable the lawmaker by explaining what it meant, even after

a law has been enacted, to give a law any meaning it liked. Against

this background, the case of Pepper v. Hart (1993) can be criticised.

The House of Lords held (with a dissent from the Lord Chancellor

on the ground of cost), that where the language of an Act is

ambiguous the court can look at reports in Hansard, and perhaps in

other official documents, of statements made by the sponsors of the

Act in Parliament (usually government ministers) in order to see

what they intended. This threatens the independence of the judges

and puts the executive in a privileged position. A statute is the

collective enterprise of Parliament over which the executive should

not have special control. However, later cases have emphasised

that a cautious approach should be taken to this kind of material

which should be taken into account only if the legislation is ob-

scure, ambiguous or would lead to absurd results and then only if

the effect of the material is clear (R v. Secretary of State ex parte

Spath Homes (2001)). Moreover the court should not perhaps take