Analysis of the Case Law

Analysis of the Case Law "There is no prescribed constitutional relationship between the courts

and the executive, but the judges assert their inherent power, derived

from the rule of law, to review executive actions"

The question starts off by giving us an element of the separation of

powers when it says that there is no prescribed constitutional

relationship between the courts and the executives.

The concept of separation of powers propounded by Montesquieu, the

French political philosopher, has three main criteria:

(i) There are three main classes of governmental functions: the

legislature, the executive and the judicial.

(ii) There are (or should be) three main organs of government in a

state: the Legislature, the Executive and the Judiciary.

(iii) To concentrate more than one class of function in any one person

or organ of government is a threat to individual liberty. For example,

the Executives should not be allowed to make laws or adjudicate on

alleged breaches of the law; it should be confined to the executive

functions of making and applying policy and general administration.

The third proposition, which is said to be the most extreme and

doctrinaire, is what the question in hand seems to overrule using the

rule of law, whereby judges are said to use it to assert their

inherent power to review executive actions.

Dicey[1] saw the rule of law as a central feature of the British

constitution. He had his own idiosyncratic ideas of what the rule of

law implied and his ideas were very influential for two generations.

The concept is o...

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[1] A.V Dicey, "Introduction to the Study of the Law of the

Constitution" (10th Edition , 1959)

[2] H.A Street, "Ultra Vires", 1 - 3

[3] Attorney General v Great Eastern Railway (1880) 5 App. Cas. 473,

478

[4] Howard v Boddington (1877) 2 P.D 203, 211

[5] (1964) A.C 40

[6] Agricultural, Horticultural and Forestry Industry Trading Board v

Kent(1970) 2 Q.B 19

[7] R v Post-master General exp Carmichael(1938) 1 K.B 651

[8] R v Boycott exp Keasley (1934) 2 K.B 651

[9] Hill v Ladyshore Coal Co. (1936) All E R 299

[10] (1998) 114, LQR

[11] R v Secretary of State exp Doody (1994) 1 A.C 531

[12] R v Secretary of State for Social Security exp Joint Council for

the Welfare of Immigrants (1997) 1 W.L R 275