Zwart, Tom --- "Overseeing the Executive: Is the Legislature Reclaiming Lost Territory from the Courts?" [2010] ELECD 812; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 10

Section Title: Overseeing the Executive: Is the Legislature Reclaiming Lost Territory from the Courts?

Author(s): Zwart, Tom

Number of pages: 13

Extract:

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: 54­71).
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 con-
stitutional 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 observa-
tions 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 ...