Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 10: Overseeing the Executive: Is the Legislature Reclaiming Lost Territory from the Courts?
Tom Zwart* In parliamentary systems the legislature is supposed to hold the executive accountable. And yet there has long been concern that this legislative supervision is ineffective because of the political bond between the government of the day and the majority in Parliament. There are indications that courts have taken on a compensatory role, by acting as substitutes for this failing legislative oversight (Flinders 2001: 54–71). This chapter explores these developments. Section 1 contrasts two models of judicial review – the ‘private rights model’ and the ‘institutional model’ – as well as the constitutional justification for this new judicial role put forward by a senior member of the English judiciary, Lord Woolf. Section 2 highlights recent attempts by Parliament to reassert its role as overseer of executive action. Section 3 concludes with observations regarding the consequences of the enhanced role of the courts and the apparent come-back of the legislature, for their mutual relationship. 1. Courts as overseers of executive action In 1993 the then British Home Secretary, Michael Howard, announced that he would not bring part of the Criminal Justice Act 1988 into force, although the Act required him to do so ‘on such day as the Secretary of State may appoint’. His statement was a clear blow to the separation of powers, which does not allow a minister to single-handedly deny legal effect to legislation duly enacted by Parliament. However, his actions were not challenged by the majority in the House of Commons. A number of trade unions, including...
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