it comes into force without any further step (the Council-approval model); or whether it only comes into force when approved by the Court of Appeal (the Court-approval model). Two possible concerns with the Council-approval model are that such a feature increases the possibility that the Guidelines Council is exercising a legislative function; and increases the possibility that a sentencing guideline would be analysed as an impermissible dictation of the courts by the executive branch. In our view, neither of those concerns needs be a barrier to adopting the Council- approval model. In relation to the first concern, we consider that the characterisation of the sentencing guideline as or otherwise is not significant, in itself, “legislative” in determining constitutional validity: see paragraphs - above. In relation to the second concern, we consider that the risk of a sentencing guideline regarded as an impermissible dictation addressed to the courts can be sufficiently addressed through the content of the guideline. That issue is considered at paragraphs - below. The constitutional concern with the Court-approval process is whether the Court of Appeal can validly perform the approval function. We agree with the Advisory Council that the proposal for Court-approval raises the following potential constitutional difficulties: the approval process might be contrary to the essential characteristics of a court (particularly as the function would be exercised by the Court of Appeal itself, not by judges in a personal capacity); the criteria by which the Court of Appeal would determine whether to approve, reject or modify a sentencing guideline may not give the Court sufficient discretion; and the Court of Appeal could therefore end up rather than “making”, the law. “applying”, See paragraph above. In theory, the approval function be made to resemble the ordinary court processes; however, the usual judicial procedures would seem to be unwieldy and unsuited to the approval process. The second and third concerns set out in paragraphsand above are inter-related the greater the role given to the Court of – Appeal, the more likely that the Court would be seen as performing a legislative
it comes into force without any further step (the Council-approval model); or whether it only comes into force when approved by the Court of Appeal (the Court-approval model). Two possible concerns with the Council-approval model are that such a feature increases the possibility that the Guidelines Council is exercising a legislative function; and increases the possibility that a sentencing guideline would be analysed as an impermissible dictation of the courts by the executive branch. In our view, neither of those concerns needs be a barrier to adopting the Council- approval model. In relation to the first concern, we consider that the characterisation of the sentencing guideline as “legislative” or otherwise is not significant, in itself, in determining constitutional validity: see paragraphs - above. In relation to the second concern, we consider that the risk of a sentencing guideline regarded as an impermissible dictation addressed to the courts can be sufficiently addressed through the content of the guideline. That issue is considered at paragraphs - below. The constitutional concern with the Court-approval process is whether the Court of Appeal can validly perform the approval function. We agree with the Advisory Council that the proposal for Court-approval raises the following potential constitutional difficulties: the approval process might be contrary to the essential characteristics of a court (particularly as the function would be exercised by the Court of Appeal itself, not by judges in a personal capacity); the criteria by which the Court of Appeal would determine whether to approve, reject or modify a sentencing guideline may not give the Court sufficient discretion; and the Court of Appeal could therefore end up “making”, rather than “applying”, the law. See paragraph above. In theory, the approval function be made to resemble the ordinary court processes; however, the usual judicial procedures would seem to be unwieldy and unsuited to the approval process. The second and third concerns set out in paragraphsand above are inter-related – the greater the role given to the Court of Appeal, the more likely that the Court would be seen as performing a legislative