The use of executive discretion in the UK

The Privy Council's decisions in the related death sentence cases of Reyes v The Queen [2002] 2 AC 235, R v Hughes [2002] 2 AC 259 and Fox v The Queen [2002] 2 AC 284 are now reported fully. This is clearly not the place for case notes on the legal issues raised by those cases, and in actual fact the law raises relatively dry points of the statutory construction of the Constitutions of three Caribbean states. Yet the policy considerations behind these decisions are fascinating and, in my opinion, tell us quite a bit about the post war struggle between the Judiciary and the Executive branches of government in our own jurisdiction.

It is trite learning that the separation of powers is one of the foundations of any modern liberal democracy. Students always manage to trot that out in exams, but the reason they do not necessarily score high marks for doing so is because what they then fail to do is identify which powers are being separated and, crucially, the rationale behind that separation. This is actually something of a shame because the answer to that enquiry is not especially taxing. Put shortly, absolute power corrupts absolutely, and so we endeavour to spread the power about fairly widely thus creating a system of checks and balances.

This creates a necessary tension between the various arms of government, because it is obviously a far more efficient form of government to allow, for example, the Executive to act without having to look over its shoulder all the time in order to see if the Judiciary are about to strike down its actions. Yet efficiency is not always all it is cracked up to be. The Final Solution was a frighteningly efficient (some might say the ultimate) answer to a perceived problem, but that simply shows the overriding importance of an effective system of checks and balances.

The Executive in Nazi Germany needed to be stopped but the German Judiciary were, for whatever reason, not equal to the task. Post war European democracies, and most especially that in the former West Germany, have sought to ensure a repeat performance is avoided. I will make two quick asides at this juncture (and then I promise I'll get to the point). Firstly, it is sometimes suggested that no one knew what was going on in Germany until after the Allies prevailed; that somehow the enormity of what was occurring was masked from the outside world.

With respect, that was not so. An internationally published lecture was given in Oxford in 1937 on the subject of the death of the rule of law in Nazi Germany. Perhaps no one envisaged the gas chambers at that stage, but the lack of an effective Judicial check on the Executive was apparent. The result of that absence of accountability was simply a question of degree. Secondly, the effect of many of Tony Blair's reforms have been to rationalise and streamline government. This is sometimes rather politely described as a presidential system of government.

In fact it is nothing of the sort, because what we now have is an appointed second chamber, rather than the elected Upper House that is a defining characteristic of presidential systems of government. The advantage of the House of Lords before its recent reforms, senile harridans though many hereditary peers undoubtedly were, was that none of them had anything to lose. So, whilst the life peers would very often toe the party line, the hereditary peers could and very often did dance to their own tunes. This was sometimes rather inconvenient for the government, but it was that inconvenience that was absent in Nazi Germany.

No one is suggesting that Mr Blair will abuse the streamlined powers he has granted himself, but none of us yet know who will follow him. Sensational alarmism, perhaps, but I doubt that many in German politics would countenance allowing the Executive such unchecked powers. Which brings us rather nicely to the point (see, I told you I'd get there). However, the point I want to make is not about the abuse of power by the Executive. Rather, it is about encroachment by the Judiciary into what has properly always been the domain of Executive discretion.

In order to understand why this ought to be impermissible it is first necessary to remind ourselves of the Common Law's division of criminal offences into misdemeanours and felonies. The penalty for a misdemeanour could, in modern terms, appear somewhat harsh. But the penalty for a felony was, at Common Law, absolute. It was this mandatory imposition of the death penalty that sometimes led eighteenth century juries to convict 12 year olds of theft, rather than burglary, despite the very clearest evidence, thus avoiding the imposition of the death penalty for offences such as stealing food from a kitchen.