Legitimacy, separation of powers, and the rule of law - Concepts of legitimacy in public law

Learning Outcomes

After reading this article, you will be able to explain the concept of legitimacy in UK public law, describe the doctrine of separation of powers and its application in the UK, and outline the principle of the rule of law. You will also be able to identify how these principles interact, recognise their practical significance, and apply them to realistic SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the following syllabus points as they relate to legitimacy, separation of powers, and the rule of law. In your revision, focus on:

• the concept of legitimacy in public law and its relevance to the exercise of state power
• the doctrine of separation of powers and its operation in the UK constitution
• the principle of the rule of law and its practical implications
• the relationships and checks between the legislative, executive, and judicial branches
• the role of judicial review in upholding legality and accountability

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is meant by 'legitimacy' in the context of UK public law?
2. Which constitutional principle requires that government actions must have a legal basis and be subject to judicial scrutiny?
3. How does the separation of powers operate in the UK, and what are the main branches of government?
4. Why is judicial independence important for the rule of law?

Introduction

Legitimacy, separation of powers, and the rule of law are fundamental constitutional principles in UK public law. These concepts ensure that the exercise of state power is justified, limited, and accountable. Understanding how these principles operate and interact is essential for analysing the UK’s constitutional framework and for answering SQE1 questions on public law.

Legitimacy in Public Law

Legitimacy refers to the rightful authority by which state power is exercised. In UK public law, legitimacy is not only about legal procedures but also about public acceptance and justification of governmental action.

Key Term: legitimacy Legitimacy is the recognised and justified authority of government or public bodies to exercise power, based on legal rules, democratic consent, or accepted social norms.

Legitimacy in the UK is closely linked to parliamentary sovereignty and democratic representation. The government derives its authority from Parliament, which is elected by the people. Laws and decisions are more likely to be accepted and followed when they are made through proper legal and democratic processes.

Actions that exceed legal powers (ultra vires) or disregard established procedures can undermine legitimacy. For example, if a public authority acts outside its statutory powers, its actions may be challenged and declared invalid.

Separation of Powers

The separation of powers is a doctrine that divides state functions among three branches: the legislature, the executive, and the judiciary. This division is designed to prevent the concentration of power and to provide checks and balances.

Key Term: separation of powers The separation of powers is the constitutional principle that allocates legislative, executive, and judicial functions to separate bodies to prevent abuse of power.

In the UK, the separation of powers is not absolute. There is overlap, especially between the executive (government ministers) and the legislature (Parliament), as most ministers are also Members of Parliament. However, reforms such as the Constitutional Reform Act 2005 have strengthened judicial independence by creating the Supreme Court and changing the role of the Lord Chancellor.

Checks and Balances

Checks and balances are mechanisms that allow each branch to limit the powers of the others. In the UK, these include:

• Parliamentary scrutiny of government actions (e.g., Prime Minister’s Questions, select committees)
• Judicial review of executive decisions by the courts
• Constitutional conventions that guide political conduct

Worked Example 1.1

Scenario: The government wishes to introduce a new law that would restrict certain forms of protest. Parliament debates and passes the law, but the courts later find that the government has used powers not granted by the statute to enforce the restrictions.

Answer: The courts may declare the government’s actions unlawful for exceeding its legal authority. This upholds the separation of powers by allowing the judiciary to check the executive and reinforces the legitimacy of the legal process.

The Rule of Law

The rule of law is the principle that all individuals and public bodies, including the government, are subject to and accountable under the law.

Key Term: rule of law The rule of law is the principle that everyone, including the state, is subject to the law, which must be applied equally, fairly, and predictably.

The rule of law requires that:

• Government actions must have a legal basis.
• Laws must be clear, accessible, and applied equally.
• Legal rights and obligations are determined by law, not by arbitrary decisions.
• The judiciary must be independent and impartial.

The rule of law is essential for protecting individual rights and ensuring that power is exercised lawfully.

Key Term: judicial review Judicial review is the process by which courts review the lawfulness of decisions or actions taken by public bodies.

Worked Example 1.2

Scenario: A local council introduces a new policy affecting housing benefits. The policy is challenged in court on the grounds that it was introduced without proper legal authority and discriminates against certain groups.

Answer: The court may use judicial review to assess whether the council acted within its legal powers and followed the correct procedures. If not, the policy may be quashed, demonstrating the rule of law in practice.

The Interrelationship of Principles

Legitimacy, separation of powers, and the rule of law are interconnected:

• Legitimacy is strengthened when government acts within the law and follows proper procedures.
• The separation of powers provides checks and balances, supporting both legitimacy and the rule of law.
• The rule of law ensures that all branches of government are accountable and that individual rights are protected.

Worked Example 1.3

Scenario: The executive seeks to use prerogative powers to make a major constitutional change without parliamentary approval. The courts are asked to decide whether this is lawful.

Answer: The courts may hold that such a change requires an Act of Parliament, not just executive action. This reinforces the rule of law, maintains the separation of powers, and ensures legitimacy by requiring democratic approval.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Legitimacy means the justified and accepted exercise of state power, based on law and democratic consent.
• The separation of powers divides legislative, executive, and judicial functions to prevent abuse and provide checks and balances.
• The rule of law requires that all individuals and public bodies are subject to the law, which must be applied equally and fairly.
• Judicial review is a key mechanism for courts to ensure that public bodies act lawfully and within their powers.
• These principles interact to ensure government accountability, protect individual rights, and maintain constitutional order in the UK.

Key Terms and Concepts

• legitimacy
• separation of powers
• rule of law
• judicial review