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CAL – SOP AND ROL (lectures 2 & 3)
SOP: Separate Personnel and Functions: executive, legislature, judiciary
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Strict model of SOP – total separation? See Munro

ROL: Theory/aspiration; Constitutional principle (Constitutional Reform Act
2005 s1); Context? JR = rule of law in operation? Powers exercised by
politicians must have a legitimate foundation based on authority conferred by
law – Corner House Research

EXECUTIVE/LEGISLATURE

IS IT A FORMAL OR SUBSTANTIVE CONCEPT?

*Barendt - “there is no effective separation of power between the
legislature and executive in the UK in the system of checks and
balances”
*Lord Hailsham – “elective dictatorship” ?
*Bagehot – “the efficient secret” of the constitution” ?

*Formal ROL: courts, officials, structures BUT their existence may not guarantee
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Causes for concern? (SOP)
*Parallel membership
*95 on ministerial team
*PPSs
*Delegated legislation – SI
*True bicameral system? - Parliament Acts

*Formal requirements PLUS good law? clarity/certainty, proper authority for
actions, stable, consistency, moral neutrality, protection of human rights,
guarantee judicial independence
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Supremacy of regular law

PARLIAMENT CHECKS ON EXECUTIVE?
*Parliamentary majority?
*HC Disqualification Act 1975
*Accountability? Debates, (PM) Question Time, Select Committees,
Ministerial responsibility

Authorization for power? Legal justification
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Kelly v Faulkner;
Malone v MPC;
Ex p Fewings – “action to be taken must be justified by positive law” (Laws LJ)

*“It cannot be too strongly emphasised that the British Constitution,
though largely unwritten, is firmly based on the separation of powers;
Parliament makes the laws, the judiciary interpret them”
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IRC v Ross minster
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*Head of the Judiciary - LCJ
*Rule of law?
* Judicial review - grounds of challenge/ GCHQ/ M v Home Office/
Lord Mustill ‘judges are distinct and largely exclusive domain’ (Fire
Bridges Union)
*Recent trends? Constitutional Reform Act 2005 (Judicial
independence, s 3/reformed office of Lord Chancellor’s role); Judicial
Appointments –improved independence; Supreme Court (2009) –
geographical separation; Further reforms - Attorney-General ?; Judicial
self-confidence
*SOP – statutes/law; PA 1911/49; HC (Disqualification Act 1975);
HRA 98; JR; Conventions; ministerial responsibility; Question time
and debates
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Judicial deference? Liversidge v Anderson (evidence was not needed to
detain Germans fleeing Nazi Germany); Ex p Hosenball (charged with not much
evidence); Ex p Cheblak
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The state has
to react in vulnerable times, but how far is too far?
2
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Does this negate equality above the law? Probably not as, justified and
courts would treat them equally if it came down to it
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Evidence
for equality before the law is neither clear nor uncontentious, but there is enough
evidence to suggest that Dicey approach remains fruitful for inquiry and
exploration
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3
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” Dicey
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Does not work internationally
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*ROL – international conceptions – Universal Declaration of HR 48 – It is
essential, if a man is not compelled to have recourse as a last result to rebellion
against tyranny and oppression, that HR should be protected by ROL
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They declared that the
purpose of all law should be respect for the supreme value of human personality
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Grounds? Illegality (ultra vires),
duty to act fairly (procedural impropriety), unreasonableness - Wheeler v Leicester
City Council
*CURRENT STATUS OF ROL - Behind parliamentary sovereignty? Exp
Simms; Jackson; SOP – Re M
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Recent developments:
ECA 72; Lisbon 2009; HR 98
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Many of them claimed legitimacy for their oppressive actions from the fact of
majority support
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The Rule of Law supplies the foundations of that new model”

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