THE CONSTITUTION OF LAW Part 8 pptx

172 taking the administrative state seriously

to the impact of public power on human rights before a decision is taken

to exert or delegate authority.

There is also the Select Committee on the Constitution, established

by the House of Lords in 2001, and whose mandate is to examine the

constitutional implications of ‘all public Bills coming before the House;

and to keep under review the operation of the constitution’. While Robert

Hazell has noted that this committee has not yet ‘earned a place as a pillar

of the constitution’, he still emphasizes that it does offer the ‘potential to

do so’.139

As Feldman said in his reflection on his work at the Joint Committee:

‘If human rights are to be properly taken into account at all stages of

the legislative process, Parliament and the executive must work together

and respect each other’s responsibilities and functions. Each must act as

guarantor of the other’s commitment to fundamental values.’140 He went

on to say that ‘friction’ between the different institutions is not only to be

expected but to be welcomed, since institutions which ‘tolerate, and even

celebrate, that friction demonstrate a commitment to human rights . . .

[H]uman rights offer not harmony, but a practical framework in which a

society, if it is sufficiently durable and flexible, can maintain an equilib￾rium between conflicting interests’.141

In establishing this practical framework, it is, I believe, impossible

to draw any advance distinction between small ‘p’ politics or large ‘P’

politics which could demarcate the area of prerogative or the exceptional

situation where the controls of the rule of law are inappropriate. Indeed,

here I agree with Carl Schmitt though I want to reject the implication

he wished to draw that law cannot control an exceptional situation. This

implication would follow only if it were also impossible to have political

accountability to the rule of law in some situations; for example, if it were

impossible to conceive of an institution such as SIAC. It might take, that is,

institutional imagination, a readiness on the part of legislature, executive

and judiciary to experiment unbound by a rigid doctrine of the separation

of powers, to give full expression to the rule of law. But whether or not one

should do this is not determined by the brute nature of the political, by

the alleged fact that in some category of highly intense political decisions

the rule of law has no grip. Rather, the situation involves a political choice.

Moreover, as I will now suggest, while this choice in a democracy is one

139 Ibid., 499. He also draws attention to the Delegated Powers and Regulatory Reform

Committee, established in 1992; 495–7. 140 Feldman, ‘The Impact of Human Rights on the UK Legislative Process’ 115. 141 Ibid.

in the black hole 173

for the people through their representative body to make, it is not a choice

open to judges, at least it is not open to judges who understand their duty

to uphold the rule of law. Such judges will understand that their duty is to

uphold the values of the rule of law, the constitution of law itself. So I will

now return to the more abstract themes canvassed in the first chapter in

order to answer the questions and challenges posed there, thus bringing

the themes of the whole into one coherent picture of the rule of law.