Into account extra parliamentary remarks made by ministers, in for

example speeches or articles since these tell us only what the execu-

tive is thinking rather than what Parliament takes note of. On the

other hand, under the Human Rights Act 1998, a court may have to

decide whether Parliament’s purpose justifies overriding a human

right. In this kind of case the court can examine in depth evidence of

government intentions, apparently from any source.

A position that reflects the rule of law is that the judge should be in

the position of the user of the law rather than that of the lawmaker

and reflect the moral values and understandings of the community,

albeit filtered through those of legal professionals. Subjective judge-

ment can never be eliminated and indeed is necessary for Hobbesian

reasons in that objective reasoning may pull in different directions.

. Judicial independence requires that judges should be protected

against attacks on their conduct in court. Judges are immune from

personal actions for damages in respect of their official actions done

in good faith (below p. xxx.). Anything said in court by judges,

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Constitutionalism: The Rule of Law and the Separation of Powers

advocates and witnesses is absolutely privileged against an action

in libel and slander. Another vital safeguard is that juries should not

be vetted (R. v. Crown Court at Sheffield ex parte Brownlow (1980))

and cannot be required to give reasons for their verdicts or punished

for giving or failing to give a verdict (Bushell’s Case (1670)). It is an

offence for anyone to publish information as to what was said in a

jury room (Contempt of Court Act 1981 s. 8 (1); see A-G v. Asso-

ciated Newspapers Ltd (1994)).

5.7.6 Treaties and the separation of powers

Treaties raise important separation of power issues between judiciary

and executive. A treaty is an agreement made between the executive

and another state which should not affect the law unless the democratic

lawmaker has either approved the treaty or has at least authorised

the executive to create legally binding obligations, for example in the

case of the EC. The position differs in different countries. In the UK a

treaty in itself can neither create nor take away legal rights because of

the principle that the executive cannot change the law (see Maclaine

Watson v. DTI (1988); The Parliament Belge (1879)). Thus Parliament

must pass specific legislation implementing the treaty. This must not

be confused with ratification of a treaty which merely makes the treaty

binding in international law on the government.

Treaties are also non-justiciable in the sense that a court cannot

review the validity of a treaty as such, although if there are statu-

tory requirements before a treaty takes effect, the courts can of course

ensure that these are obeyed (see R. v. Secretary of State for Foreign

and Commonwealth Affairs ex parte Rees-Mogg (1994)).

However, the courts take treaties into account when interpreting

legislation, in applying the common law, and in exercising discretionary

powers (see Derbyshire County Council v. Times Newspapers Ltd [1993]