Select Committee on Constitution Sixth Report


The Background to the Constitutional Reform Act 2005

The origins of the Constitutional Reform Act lie in the expanding role played by the higher courts in the UK over the last thirty years. The combined effect of the growth of judicial review, the development of the EU and, most recently, the Human Rights Act and devolution has been to give the courts a more central place in the British constitution. The senior judges are now required to police constitutional boundaries and determine sensitive human rights issues in a way which would have been unthinkable forty years ago. This new judicial role is still developing, but it is clear that the effect of this trend will be to reshape the relationship between the judiciary and the other branches of government. In the light of these changes, the main provisions of the Constitutional Reform Act—reforming the office of Lord Chancellor, establishing a new Supreme Court and restructuring the judicial appointments process—were designed to bring the institutional relationships between the judiciary and the other branches of government into line with the changing substantive role of the courts. In particular, the reforms were intended to secure the independence of the judiciary by 'redrawing the relationship between the judiciary and the other branches of government' and putting it on a 'modern footing'.

Although the timing of the introduction of the Constitutional Reform Bill in 2003 took many by surprise, its content did not. Concerns about the relationship between the judiciary and the other branches of government had been building up over a number of years. Where once there had been a general consensus that the Lord Chancellor's three roles as member of cabinet, head of the judiciary and speaker of the House of Lords enhanced the functioning of the political system and strengthened judicial independence, they increasingly came to be regarded as a potential source of abuse of executive power.[90] In particular, the Lord Chancellor's responsibility for appointing the judges became a source of growing concern as the senior judges' role in scrutinising government decision-making increased. Likewise, the presence of the top appellate court in Parliament had once been widely regarded as an effective means of drawing on the legal expertise of the top judges during the law-making process so enhancing the quality of legislation. By the 1990s, however, many Law Lords themselves had come to regard the lack of separation between the two as problematic as the same senior judges who participated in passing the laws were increasingly asked to decide on the conformity of those acts with basic human rights.

By the late 1990s, far fewer voices were heard in support of the argument that these overlaps between the branches of government were a source of its stability. Increasingly, the interconnection was seen as endangering judicial independence, breaching basic constitutional principles and out of step with the rest of Europe. By the start of the second term of the Labour Government in 2001, the long debate about these issues had slowly generated broad support across the political spectrum for a 'clearer and deeper' separation of the functions and powers of the judiciary from the other branches of government. The decision to embark upon extensive institutional reform was therefore anticipated, but the provisions set out in the Constitutional Reform Act were unusual in a number of respects. First, they ran counter to the trend of recent political developments in that they represented a conscious shift of power away from the executive. Second, they were forward-looking, seeking to construct a new constitutional model which anticipated future needs rather than responding to an immediate perceived problem. In introducing the reforms the Government made clear that there was no suggestion that the overlapping constitutional roles of the Lord Chancellor or the presence of the Law Lords in the House of Lords had, in practice, undermined judicial independence but rather that the present system held inherent structural weaknesses which might give rise to such abuse in the future. The third surprising feature of the reforms is that they explicitly sought to promote constitutional principle above pragmatism.[91] Whilst accepting that the previous arrangements had worked effectively, the changes were designed to restructure the relationship between the judiciary and the other branches of government so that it would conform more closely to the concept of the separation of powers. This elevation of principle above pragmatism is surprising given the traditional value ascribed to 'what works' in the British constitution.[92]

The Office of Lord Chancellor

Undoubtedly the most controversial element of the reforms when introduced was the proposals relating to the office of Lord Chancellor. The Bill initially proposed its complete reformulation into the post of Secretary of State for Constitutional Affairs. After intense debate, this was amended so that the title and the office of Lord Chancellor would remain, albeit in much reduced form, and that the Lord Chief Justice should become the head of the judiciary as President of the Courts of England and Wales. The principal concern expressed over the removal of the title of Lord Chancellor was that it would increase the threat to judicial independence by removing its ability to simultaneously bring together and keep apart the branches of government. Variously described in terms of a link, a bridge, or a form of constitutional 'hinge' a key element of the office was to facilitate understanding of the position of the judges to the executive and vice versa. At the same time, the role was also often characterised as being that of a 'buffer'; holding the executive at arms length from the judges: 'armed with a long barge pole to keep off marauding craft from any quarter'.[93]

What is clear is that the retention of the title of Lord Chancellor cannot preserve the very particular nature of the office. Future Lord Chancellors will not enjoy the constitutional status which previously attached to that office by virtue of its position at the crossroads of the three branches of state. Not only is the Lord Chancellor no longer head of the judiciary, she or he need not be a member of the House of Lords nor even a lawyer by background.[94] Lord Chancellors have traditionally been drawn from an elite corps of very senior lawyers respected or at least accepted by both politicians and the judiciary. The future holders of the post, in contrast, are very likely to be professional politicians and may well be non-lawyers with limited affiliation to or understanding of the role of the judiciary. But perhaps more significant in terms of the impact of the changing role on the relationship between judiciary and executive is the changing nature of the office in terms of career hierarchy. In the past, the office of Lord Chancellor was the pinnacle of a distinguished legal and political career. This fact might have encouraged some to hang on to their place on the woolsack longer than they should have done, but it had the advantage that the occupant had nothing to gain or lose in terms of promotion by standing up for the judiciary and suffering unpopularity amongst his ministerial colleagues or even the Prime Minister. In future the position will be very different. The Lord Chancellor may be a mid-career politician inevitably looking for promotion to one of the higher-ranking departments. Some occupants may be first rate, others may be more mediocre. Either way, it is unrealistic to expect that a passing minister, in post until the next Cabinet reshuffle, will be willing or able to defend the judiciary against attacks by more senior Cabinet colleagues in the same way as Lord Chancellors have done in the past.

One way in which the Constitutional Reform Act sought to address this problem was to reduce the danger of threats from the executive by translating the political obligation on the executive to respect judicial independence into a legal one by including in the Act a provision that the Lord Chancellor and other ministers involved in the administration of justice must respect judicial independence.[95] A key question is whether the provisions can of themselves ensure that judges are protected from improper political pressure in their decision-making on a day-to-day basis. In recent years there have been a number of public expressions of conflict between Home Secretaries and senior judges in the areas of criminal justice and human rights. This has led to speculation as to whether judicial independence is under threat and fears that the Constitutional Reform Act will exacerbate this process by removing the protective role of the Lord Chancellor. Whether or not these fears are founded depends partly on the degree of conflict between ministers and judges which is considered acceptable. Some senior judges themselves have pointed out that a degree of tension between the executive and judiciary is not only inevitable but healthy in a democracy.[96] The difficulty is distinguishing the short-term ebb and flow of the relationship between the executive and judiciary from long-term dangers. Lord Irvine has reported that when Lord Chancellor he had to argue in Cabinet in support of judicial independence on 'many, many occasions'.[97] Nor is the need for such support likely to diminish. What is clear is that dismantling the office of Lord Chancellor in its traditional form will mean that new methods must be established for mediating and negotiating the relationship between the two branches.

The Concordat

A key element of this new relationship is set out in what has come to be known as the Concordat.[98] Between 2003 and 2005 the Lord Chancellor, Lord Falconer, and the then Lord Chief Justice, Lord Woolf, met regularly in private to determine how the many roles previously undertaken by the Lord Chancellor would be carried out.[99] Their final agreement was incorporated directly in the Constitutional Reform Act. Before 2005, it was generally unnecessary to articulate whether the Lord Chancellor was acting in his judicial or executive capacity when carrying out a particular function. It was not clear whether, for example, decisions concerning the deployment of judges were a task which the Lord Chancellor performed as the head of the judiciary or a member of the executive. Under the terms of the Concordat it is now explicitly established that this role is for the Lord Chief Justice and therefore falls within the control of the judiciary. Perhaps the most interesting aspect of the Concordat was that it is not simply a carve up of power between the branches of government but is intended to create a form of partnership in which the two branches of government share in the decision-making affecting the governance of the judiciary and the running of the courts through the allocation of decision-making powers 'with appropriate constraints and mutual consultation.'[100] Most decisions concerning the management of the courts and the judiciary are now formally ascribed to either the Lord Chief Justice or the Lord Chancellor, but in almost all cases there is a duty to consult with the other or obtain their agreement. For example, the overall number of judges is to be determined by the Lord Chancellor after consultation with the Lord Chief Justice because: 'real and effective partnership between the Government and the Judiciary is seen as paramount, particularly in this area'.[101] Similarly, the Lord Chief Justice has responsibility for judicial discipline but may only warn or reprimand a judge with the agreement of the Lord Chancellor.[102] What has been created is an institutional relationship which envisages two separate but equal branches working together to manage the courts and judiciary. How, in practice, this will work in the future remains to be seen. The Concordat was drafted by two individuals who shared similar career backgrounds, values and priorities. Given the changing role of the office of Lord Chancellor, it will need to be robust enough to function effectively in the context of a Lord Chief Justice and a Lord Chancellor who stand very clearly in different branches of the Government. For this new 'separate but equal' system to work, substantial changes are therefore needed to the governance structure of the judiciary.

The Governance of the Judiciary

The transfer of such a wide range of roles into the sole or joint responsibility of the Lord Chief Justice requires a major change in the nature of the judicial support system. Whereas the Lord Chancellor has an entire government department at his disposal, until recently the Lord Chief Justice has had only minimal management and administrative back-up. The traditional approach to judicial governance has been one which is informal and light-touch. As the court system has expanded rapidly, the administrative roles undertaken by judges have grown in an ad-hoc fashion. By and large, senior judges have simply absorbed additional management roles on top of their adjudicative functions on an ex-officio basis with very limited administrative support. Nor has there been a formal or permanent structure for collective decision-making within the judiciary. This situation arose not simply as a result of lack of resources or a failure by the judiciary to catch up with the governance needs of a greatly expanded judiciary. Rather the arrangements were partly a consequence of a particular vision of judicial independence; one which prioritises the need for judges to be free, not just of external interference, but of interference from other judges. It was for this reason that Lord Taylor when Lord Chief Justice objected to the introduction of performance appraisal in the judiciary on the grounds that it would: 'clearly endanger the fundamental independence of individual judges, not only from the executive but also from each other' (emphasis added).[103] Thus although the judiciary is a rigidly hierarchical structure in terms of the authority of adjudicative decision-making, it has always pursued an ideal of a flat management structure in which the individual judges retain the greatest possible degree of autonomy over their working lives. Whilst in practice it has been recognised that the Lord Chancellor and the Lord Chief Justice were required to make management decisions for the judiciary as a whole, this has been regarded as a task performed by them as 'first among equals'. For this reason, the judiciary has traditionally been highly sensitive to claims that any senior judge speaks for the judiciary collectively. Indeed, the notion that there is such a thing as 'the view of the judiciary' is widely rejected by many judges who pride themselves on the fact that the only area that judges agree upon is that of judicial pensions.

Yet despite this strong culture of individualism, the move to a more structured governance within the judiciary had begun before the Constitutional Reform Act. By necessity, the rapid expansion in size of the judiciary had led to the expansion in the number and formality of senior administrative positions with named and appointed posts such as the Vice President of the Queens Bench Division, Deputy Lord Chief Justice, and the Head of Civil Justice. Similarly, the Judges' Council, which until relatively recently was a virtually moribund institution, has been revitalised in order to play a central role in the new governance structure. Because membership is drawn from all the different levels of the judiciary, including more recently members of the House of Lords/Supreme Court,[104] the Council has the potential to play a vital role in representing the interests of the judiciary as a whole. Equally important is the newly formulated Judicial Executive Board made up of seven senior judges which appears to be envisaged as a sort of judicial Cabinet. It meets monthly and its core function is to enable the Lord Chief Justice to make policy and executive decisions through it. Administrative back-up will now be provided through a new body, the Judicial Office of England and Wales which has 60 staff including a communications office.

The relatively ad hoc creation of this governance structure from a mixture of new and refurbished institutions raises a number of questions about both judicial accountability and judicial independence. What, for example, are the respective remits in terms of policy-making of the Judges' Council and the Judicial Executive Board? How do their roles relate to each other? Where are the rules governing their powers and membership laid down? Who determines these? What, for example, is the process for selecting the representatives from each judicial level for the judicial council? Are they elected or appointed? If the latter, what are the criteria for selection and who chooses them? Clearly many questions remain about the new judicial governance structure, but what is certain is that the overall result of the changes will be a greater concentration of power in the hands of the senior judiciary. This outcome is probably inevitable and may also be desirable as a means of securing judicial independence, but it is not unproblematic both in terms of judicial independence and accountability. These changes represent very real structural and ideological changes within the judiciary.

The Judicial Appointments Process

Under the previous judicial selection arrangements the power of appointment had, in practice, rested with the Lord Chancellor who made his decision after consultation with the senior judges. For appointments to the Court of Appeal and the House of Lords, the decision formally rested with the Prime Minister on the advice of the Lord Chancellor but the extent to which different Prime Ministers engaged with the process was hard to assess since the process of consultation between the Lord Chancellor and Prime Minister was always regarded as confidential. It was in relation to these upper rank judicial appointments that opinion was most sharply divided over the new provisions. Many members of the judiciary argued that it was essential to remove all executive involvement in selecting the senior judiciary since it was at this level that the pressure to manipulate would be greatest. Others argued that it was precisely in relation to these appointments, where the judges were engaged in high-level decisions with policy-making implications, that there should be some real link to the democratic process and that the Lord Chancellor should be more than just a rubber stamp. Initially the Government supported the latter view in relation to the Supreme Court appointments and the Bill provided that the Supreme Court commission would nominate 2-5 names for the Lord Chancellor to choose from, so ensuring a degree of political input. In the end, however, the Bill was amended so that both the Supreme Court commission and the Judicial Appointments Commission for England and Wales were given the ultimate decision-making power, being required to recommend one name which the Lord Chancellor could only reject in limited circumstances. The effect was to remove the danger of improper political interference from the system but it also removed the opportunity for democratic involvement in the selection of public decision-makers.

One way in which the democratic deficit caused by the removal of the executive from the appointment process might have been countered would have been to include the legislature in the process. Currently, Parliament plays no role in judicial appointments, though it has the ultimate responsibility for removing errant senior judges. This power relates solely to judges of the High Court and above, who can be dismissed by the Queen if both Houses of Parliament vote for their removal, though this is a power which has only been exercised once.[105] The proposal that judges could be called before Parliament as part of the appointments process was considered by Parliament during the passage of the Bill and rejected. One explanation for this rejection lies in a widely held view of the US Senate confirmation hearings as invading the privacy of individual candidates and undermining judicial independence. Critics of this aspect of the US judicial appointments process have argued that the highly partisan nature of the process is such that the hearings can sometimes be little more than a choreographed dance in which very little useful information is revealed. However, the decision of the Canadian Parliament to introduce nomination hearings for their Supreme Court judges in March 2006 as part of a reform designed to reduce party political influence, illustrates the growing awareness outside the UK of the need to explore new ways to enhance democratic accountability in the judicial appointments process whilst at the same time removing political patronage. The debate in Canada which took place before the hearings were introduced almost exactly mirrored that which took place at the time of the passage of the Constitutional Reform Act. The first Canadian parliamentary Supreme Court hearing was widely regarded to have been a success and future hearings will no doubt be watched with interest. It is possible therefore, that this is an option that may be revisited in the UK at some future date.

The other effect of the removal of any substantive input from the elected branches of government into the judicial appointments process was to increase the significance of the membership of the new appointments commissions and in particular the role of the lay members. Their function is a vital one in balancing the interests of the legal and judicial members of the commissions and mitigating the danger of cloning which inevitably arises when appointment is made by those already doing the job. Since the need for greater diversity in the composition of the judiciary was a driving force behind the decision to establish the new system, the lay members' ability to challenge established approaches and develop innovative means of drawing high quality candidates from beyond the traditional judicial backgrounds into the recruitment pool will be a key measure of the success of the commissions. In particular, the decision that the Chair of the Judicial Appointments Commission for England and Wales would be a layperson was an important step in establishing the central role of the lay membership. The appointment of the highly respected former First Civil Service Commissioner, Baroness Usha Prashar, as the first Chair of the commission in 2006 is likely to ensure that the new system will not be overly dominated by judicial and legal interests.

The Supreme Court

Whereas the provisions for the reform of the post of Lord Chancellor and the judicial appointments process involve an explicit redistribution of power between the branches of government, those for establishing the new Supreme Court, in theory, do not. The new court will exercise the same formal powers as the Appellate Committee of the House of Lords and the devolution powers of the Judicial Committee of the Privy Council, and the first Supreme Court judges will be the existing Law Lords. On the face of it, therefore, the creation of the new Supreme Court is the least radical aspect of the constitutional reforms. In practice, however, the removal of the top court from the legislature and its reformation as an autonomous institution is likely to have a significant and long-term effect on its constitutional role. The current changes need to be understood in the light both of the changing role of the UK judiciary discussed above and also the development of a global community of increasingly powerful constitutional and Supreme Courts.

At a formal level, the most fundamental change to the powers of the top courts in the UK in recent history was the passage of the European Communities Act. This potentially dramatic revision of the principle of parliamentary sovereignty was highly controversial at the time. But in practice its effect has been limited and its occasional application by the courts has not shaken the constitutional foundations as critics feared. For supporters of a traditional conception of parliamentary sovereignty, the threat lies not in the growing role of the EU but closer to home with the increasing domination of Parliament by the executive and the knock-on effect this has had on the role of the judiciary. During the 1980s and 1990s, the election of Governments with large majorities in the House of Commons gave rise to claims that the only effective opposition lay in the House of Lords and the courts. Fears that the concentration of power within the executive might threaten basic constitutional and political norms led members of the senior judiciary to talk of a 'higher law' which would require them to strike down legislation that sought to undermine basic principles such as the rule of law. In 1994 the then Lord Chief Justice, Lord Woolf made clear that if, for example, Parliament 'did the unthinkable' and removed the courts power of judicial review he would consider it necessary to: 'mak[e] clear that ultimately there are even limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold.'[106] However, having dipped a toe in these dangerous waters, the senior judiciary then drew back from the brink. Lord Steyn articulated a widely-held view in his statement that:

The relationship between the judiciary and the legislature is simple and straightforward. Parliament asserts sovereign legislative power. The courts acknowledge the sovereignty of Parliament. And in countless decisions the courts have declared the unqualified supremacy of Parliament. There are no exceptions...the judiciary unreservedly respects the will of Parliament as expressed in statutes.[107]

But despite such assertions, it was never likely that the genie could be put back in the bottle and in the intervening years the underlying political conditions which gave rise to the debate on the proper limits of judicial power have not changed. Moreover, the passing of the Human Rights Act has significantly increased the likelihood that courts will be called upon to consider whether an Act of Parliament conflicts with a 'higher constitutional law' giving the judges the role of applying principles of constitutionality 'little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document'.[108] In 2004 the question of how far courts might go when faced with such a challenge to fundamental constitutional principles came close to being tested when the Government proposed legislation which would have removed the courts' jurisdiction in certain asylum and immigration appeal cases. Senior judges and academics suggested for the first time that the courts might be entitled to ignore an Act of Parliament if the legislation was passed.[109] As Lord Woolf asked: 'What areas of government decision-making would be next to be removed from the scrutiny of the courts? What is the use of courts if you cannot access them?'[110] In response to such opposition, the Bill was amended. But the underlying question of the limits to parliamentary sovereignty was revisited in 2005 when the Appellate Committee of the House of Lords was asked to rule on whether the Hunting Act 2004 passed under the 1949 Parliament Act was a valid statute. While the Court upheld the legality of the Hunting Act, it concluded that there were indeed limits to the law-making power of Parliament:

In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a compliant House of Commons cannot abolish.[111]

This important judgment should be seen as the latest step in the process of refining the notion of parliamentary sovereignty.[112] What is clear is that the relationship between the courts and Parliament is in a state of transition between parliamentary sovereignty and constitutional supremacy.

To properly understand the nature of this evolution, it is necessary to place the emergence of the Supreme Court and the determination of its powers in the context of the wider trend of increasing power amongst Supreme Courts and Constitutional Courts around the world. What we are seeing is the emergence of a global community of senior judges.[113] They are drawn from countries with different court structures and constitutional arrangements; some have the power to strike down legislation and others do not. But increasingly they see themselves as engaged in a global conversation about the interpretation of basic human rights and the relationship between elected and unelected branches of power. They read each others' judgments and speeches; they meet at conferences and share thoughts on their roles and functions. The UK Supreme Court will undoubtedly be a leading and respected member of this community of top jurists which is likely to have the effect of enhancing the new Supreme Court Justices' views of their role. Exactly how the new Supreme Court will develop is still uncertain. What is clear is that the current trend around the world is for increasing power and authority to be vested in Supreme Courts and the creation of an autonomous Supreme Court in the UK, housed in its own building with an independent budget and staff and a distinct identity is likely to follow that trend.

The Future

A central question which arises in assessing the implications of the Constitutional Reform Act concerns the nature and degree of conflict between the judiciary and the other branches of government which we can expect to see in the years ahead. The idea of a partnership as expressed in the concordat may well provide a basis for the future relationship, but it would be unrealistic to expect it to be a partnership without tensions. The consequence of a more active judiciary with greater autonomy will inevitably be a more dynamic relationship between the branches of government in which the judiciary have a more structured and active role in defending themselves from criticism and ensuring that the proper resources and support for the courts are in place.

The provisions of the Constitutional Reform Act have an important role to play in establishing clearer boundaries between the branches of government and taking the negotiations, tensions and conflicts between them from the private corridors of power into the public arena. The governance structure of the judiciary, the role of the Supreme Court and the judicial appointments process are areas of vital constitutional importance which need ongoing scrutiny and debate. The effect of the reconstruction of the judiciary as institutionally separate from but functionally interconnected with the other branches of government will be to move the judiciary closer to being a distinct third branch of government.

90   See K. Malleson 'Modernising the Constitution: Completing the Unfinished Business' Legal Studies Spring 2004.  Back

91   LordChancellor'sDepartmentSelectCommittee,MinutesofEvidence,30June2003Back

92   Lord Irvine commented when Lord Chancellor: 'we are a nation of pragmatists, not theorists, and we go, quite frankly, for what works'. Evidence to the Lord Chancellor's Department Select Committee, 2 April 2003, Q 28. Back

93   Lord Hailsham, 'The Problems of a Lord Chancellor', The 1972 Presidential Address, The Holdsworth Club, Faculty of Law, Birmingham University pp 3-5 quoted in Lord Steyn 'The Weakest and Least Dangerous Branch of Government' Public Law, Spring [1997] p 89. Back

94   The statutory qualifications for the post-holder require only experience as a minister, member of either House of Parliament, certain types of lawyer, legal academic or such 'other experience that the Prime Minister considers relevant'. S 2(2) Constitutional Reform Act 2005. Back

95   s 3(1) Back

96   Lord Steyn Op cit p 93. Back

97   LordChancellor'sDepartmentSelectCommittee,MinutesofEvidence,2April2003,Q29Back

98   Parts 2 and 4 of the Constitutional Reform Act include the arrangements set out in the Concordat. The full text of the Concordat can be found in the government paper "Constitutional Reform: The Lord Chancellor's judiciary-related functions: Proposals" which was reproduced at Appendix 6 of the report of the Select Committee on the Constitutional Reform Bill at:  

99   This long private conversation was described by Lord Woolf in the following in his valedatory speech in 2005 as one of 'almost continuous dialogue' over two years. Royal Courts of Justice 29 July Back

100   Lord Falconer commented that the Concordat: '… lays down the right kind of partnership between the executive and the judiciary, with clear roles for each within the framework of the separation of powers of both.' HL Deb 12 February 2004 col 1216. Lord Woolf similarly noted that: 'A spirit of partnership between the judiciary, the legislature and the executive is essential if the judiciary are to meet the changing needs of society'. Squire Centenary Lecture, Cambridge University, 3 March 2004. See also speech of the Senior Presiding Judge, Lord Justice Thomas, entitled 'The judicial and executive branches of government: a new partnership' given in 2005. Available at Back

101   Ibid p 11. Back

102   S 108(2) Back

103   From a speech at the London School of Economics, 27 July 1993. Back

104   SeeLordWoolf'scommentsontheresuscitationoftheJudges'Councilfrombeinga'semi-moribundinstitution.'CurrentChallengesinJudging5thWorldwideCommonLawJudiciaryConference,Sydney,Australia,10April2003.  Back

105   In the case of an Irish judge found to have embezzled court fees in 1830. Back

106   1994 F.A.Mann lecture (published in [1995] PL 57, pp 68-69). Back

107   Lord Steyn, Op cit p 85. Back

108   R v Secretary of State for the Home Department ex parte Simms [1999] WLR 328. Back

109   See, for example, Jeffrey Jowell, The Guardian, March 3 2004; see also Lord Steyn, The Daily Telegraph, March 5 2004. Back

110   See n. 12 above. Back

111   Lord Steyn, para 102 Jackson and Others v Her Majesty's Attorney General, [2005] UKHL 56. Back

112   LordJusticeSedley,forexample,talksaboutthebipolarsovereigntyofcourtsandParliament.'HumanRights:A21stCenturyAgenda'PublicLaw[1995]p389Back

113   AMSlaughterAGlobalCommunityofCourts,44HarvardInternationalLawJournal191(2003). Back

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