The Judiciary can be a silent spectator or can choose to play a more pro-active role to ensure that of the constitution is upheld in letter and spirit. It is in this context that Lord Steyn's statement that, "..it is the democratic and constitutional duty of judges to stand up where necessary for individuals against the government" (2003), assumes significance.
In the United States, the aspect of separation of powers is clearly stated in the US Constitution. The President (Executive), Congress (Legislature) and the Supreme Court (Judiciary) are separate and distinct entities. The same is not the case in the United Kingdom, where the Prime Minister (Executive) is also a Member of Parliament (Legislature) as are all other members of the Cabinet. Similarly, the Lord Chancellor and the Law Lords are members of the Executive and Legislature respectively, while also forming part of the Judiciary. This duality results in a situation where the Executive is in de-facto control of the Legislature, as also enjoying the sympathy of the Judiciary. On the basis of the duality, various Home Secretaries have taken judicial decisions from time to time on grounds of national security, whether during war time or in otherwise tenuous situations like the ongoing global war on terrorism. The Constitutional Reform Act 2005 seeks to redress some of these grey areas though there are many who have, "defended the current system on the grounds that it discourage judges from making law by judicial rather than legislative means" (Separation of Powers). Inherent in this argument is the underlying fear that the Judiciary will not allow itself to be led by the nose by an Executive, trying to concentrate power in its hands.
One of the concepts on the basis of which the principle of separation of powers functions is that of 'deference', which characterise the relationship of the Judiciary towards the Executive and Legislature. This concept pre-supposes that, " the Judiciary will always give the Executive a little breathing space, and would never usurp the executive by substituting its own decision for that of the decision maker" (Sayeed S 2005). This latitude was allowed on the basis that the Executive was in a better position to take decisions especially on immigration control, public order and where matters of national security were concerned, since the executive had access to information not normally available in the public domain. However, the "incorporation of the European Convention on Human Rights into UK law has given the judiciary some powers to enforce them [by encouraging] Parliament to amend legislation that conflicts with the Act by a 'declaration of incompatibility', and courts can refuse to enforce or 'strike down' legislation" (Constitution of the United Kingdom).
In the post 9/11 era, this latitude has come to be taken for granted. Lord Hoffmann is known to have said, "They are a reminder that in matters of national security, the cost of failure can be high [underlining] the need for the judicial arm of government to respect the decision of ministers" on the grounds that, "if the people are to accept the consequences of such decisions, they