Rule of Law and Separation of Powers

“Government under the law and the protection of rights and freedom are twin pillars of the rule of law. Without the separation of powers, neither of these principles would be realized. Governments perform three functions namely executive, judicial and legislative functions. The role of separation of powers involves the diffusion rather than concentration of powers within the state. Thus, these branches should be separate, unique and equal.

The underlying principle of the separation of powers is that individuals have the potential to harm others, and this can become a reality when power is concentrated in one person, faction, or institution. However, if the branches were completely separate it would be unworkable since Parliament is Supreme. There should be sufficient interplay between the branches, for example, the executive proposes legislation, Parliament debates and passes the law, and the judiciary upholds the Acts of Parliament. The complete separation of powers identified by Montesquieu in the uncodified English constitution no longer exists.

The executive in the form of the prime minister and the cabinet is drawn from the largest party in parliament, where strong political parties and non-proportional electoral systems encourage artificially large majorities. The judiciary, too, is not independent of the legislature or executive. The senior judicial officer, the Lord Chancellor, is appointed by the prime minister, sits in the cabinet, and presides over the House of Lords, where the most senior judges, the law lords, also sit. In addition to a separation of powers, Montesquieu identified in England a mixed constitution, a balanced constitution, and checks and balances.

William Blackstone, writing at the end of the eighteenth century, analysed and described the mixed constitution more succinctly than Montesquieu. He argued that the English system was different from others. It was not a democracy, aristocracy, or monarchy; it was, rather, a mix of all three. For Blackstone, democracies are virtuous and thus best in determining what the end shall be; aristocracies are wise and thus best at determining the means to reach the end; and monarchies are powerful and thus best at executing the means.

In combining the three in separate institutions (the Commons, Lords, and Crown respectively), the English constitution provides all that is necessary for good government. AV Dicey’s view on the rule of law cannot be ignored because of the lasting influence he has had. Dicey’s views were derived from his understanding of the nature of democracy in UK as ‘unitary and self-correcting in which the will of the people are expressed through Parliament, and in which Parliament controlled the government. In setting out the rule of law, Dicey considered three distinct elements.

No punishment may be inflicted on anyone other than for a breach of the law; irrespective of rank and status, all men are equal under the law; and the rights and freedom of citizen are best protected under the common law. The rule of law represents a challenge to State authority and power, demanding both that power be granted legitimately and that their exercise is according to law. The law is not autonomous but rests on the support of those it governs. Whilst the rule of law places law above everyone, it remains paradoxically subjected to the ultimate judgment of the people.

The rule of law is considered the most fundamental doctrines of the constitution of UK. The constitution is said to be founded on the idea of the rule of law. The UK does have a kind of Separation of Powers, but unlike the United States it is informal. Blackstone’s theory of “mixed government” with checks and balances is more relevant to the UK. It could be said that Judicial Review is the Separation of Powers working at its best – The JUDICIARY ensures that the EXECUTIVE do not exceed the powers that Parliament has given them, thereby upholding the will of the LEGISLATURE.

The separation of powers is not an absolute or predominant feature of the UK constitution. The three branches are not formally separated and continue to have significant overlap. However it is a concept firmly rooted in constitutional thought. It allows the judiciary to remain independent and to refrain from matters more appropriately left to the executive or legislature. Especially relating to prerogative powers and Parliamentary privilege. While the doctrine is not always respected it remains an influential body of thought that ought not to be “lightly dismissed. ”