The separation of powers in the contemporary constitution : judicial competence and independence in the United Kingdom /
Saved in:
| Author / Creator: | Masterman, Roger. |
|---|---|
| Imprint: | Cambridge ; New York : Cambridge University Press, 2011. |
| Description: | xix, 276 p. ; 24 cm. |
| Language: | English |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/8290031 |
Table of Contents:
- Acknowledgements
- Table of cases
- Introduction
- The contemporary separation of powers
- Part I. Separation of powers, the Human Rights Act and the European Convention on Human Rights
- 1. A doctrine of uncertain scope and application
- The meaning(s) and aim(s) of separation of powers
- Separation of powers in the United Kingdom constitution
- The supremacy of Parliament
- 'Theory, as usual, followed upon fact...'
- A relationship of equal branches?
- A descriptive, or normative, device?
- The centrality of judicial independence
- The contemporary separation of powers
- 2. The Human Rights Act 1998 and the separation of powers
- Introduction
- Rights as questions of law and/or politics
- The parliamentary bill of rights model
- The Human Rights Act in the United Kingdom constitution
- Integrating rights concerns into the legislative process
- Interpretations and declarations of incompatibility
- Separation of powers at the macro-level: an inter-institutional dialogue on rights?
- Strong form review by stealth?
- Operating in the shadow of Strasbourg
- The separation of powers implications of the dialogic model
- 3. The Strasbourg influence
- Introduction
- The standard of review and requirement of proportionate interference
- The inadequacy of Wednesbury review
- Proportionate interference
- The Strasbourg jurisprudence on separated governmental functions
- Executive involvement in 'judicial' decisions - sentencing
- Judicial review of 'administrative' decisions
- The Strasbourg jurisprudence on separated institutions
- An independent and impartial tribunal
- The circumstantial approach to impartiality
- The strict separation approach to impartiality
- Conclusion
- Part II. Judicial engagement with the 'political' branches
- 4. Justiciability
- The extended range of review
- The justiciability of the Convention rights
- Public resources
- National security
- 'High policy' and prerogative powers
- Deployment of the armed forces
- Foreign relations and the power to enter into treaties
- The withering of non-justiciability doctrines
- Towards legislative review?
- Conclusion
- 5. Deference and proportionality
- Introduction
- Deference
- Deference or a margin of appreciation?
- Constraining judicial power under a statutory bill of rights
- Deference under the Human Rights Act
- '...servility, or perhaps gracious concession'?
- A fig leaf for non-justiciability?
- An autonomous or an integrated concept?
- Proportionality and the intensity of review
- The structure of proportionality review
- The integration of proportionality and deference
- Proportionality, legitimacy and merits review
- Conclusion
- Part III. The creative powers of courts
- 6. Statutory interpretation and declarations of incompatibility
- Introduction
- The judge as law-maker
- Interpretative latitude under the Human Rights Act
- Interpretative law-making on the Human Rights Act model
- A power of invalidation through interpretation?
- Implied terms and additional words
- Deference to the legislature and the limitations of judicial interpretation
- Democratic dialogue in practice: parliamentary and executive responses to incompatibility
- Conclusion
- 7. Developing the common law and the meaning of 'the Convention rights'
- Introduction
- The incremental nature of common law development
- The Human Rights Act and law-making at common law
- The transformative potential of models of horizontality
- The modification of breach of confidence
- Towards directly effective rights to privacy and expression at common law?
- The meaning and application of 'the Convention rights'
- 'The Convention rights' in domestic law
- The scope for creative judicial interpretation of 'the Convention rights'
- Conclusion
- Part IV. The separation of the judicial branch
- 8. The independence of the judiciary
- Introduction
- The institutional independence of the judiciary
- The distinction between institutional and individual independence
- The pressure for increased institutional autonomy
- The office of Lord Chancellor
- The Lords of Appeal in Ordinary
- Structural independence secured? The Constitutional Reform Act 2005
- Independence of the executive
- Independence of the legislature
- Independence, legitimacy and the separation of functions
- The emergence of a separation of powers jurisprudence?
- Asserting the division between legislator and judge: procedural fairness at common law
- Endorsing the Convention's circumstantial approach
- Towards a 'strict' separation of functions at common law?
- The reach of separation by fair process
- Towards a constitutionally separate judicial branch?
- 9. Towards constitutional separation
- Descriptive or substantive principles of separation?
- Select bibliography
- Index