Legitimacy, separation of powers, and the rule of law - Principles of the rule of law

Learning Outcomes

After reading this article, you will be able to explain the meaning and importance of legitimacy, separation of powers, and the rule of law in the UK constitution. You will understand how these principles interact, how they underpin legal authority, and how they are applied in practice, including through judicial review and checks on government power. You will be able to apply these concepts to realistic SQE1 scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the constitutional principles of legitimacy, separation of powers, and the rule of law. Focus your revision on:

• the meaning and sources of legitimacy in the UK constitutional system
• the doctrine of separation of powers and its application in the UK
• the rule of law and its core requirements
• the relationship between these principles and judicial review
• how these principles support legal accountability and prevent arbitrary power

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 the UK constitution?
2. Name the three branches of government and briefly describe their primary functions.
3. Which principle requires that all individuals and authorities, including the government, are subject to the law?
4. How does judicial review demonstrate the interaction between the rule of law and the separation of powers?
5. True or false? The UK constitution enforces a strict separation of personnel between the executive and the legislature.

Introduction

Legitimacy, separation of powers, and the rule of law are central principles in the UK constitutional framework. These principles ensure that government power is exercised lawfully, that authority is distributed to prevent abuse, and that all individuals and bodies are accountable to the law. Understanding these concepts is essential for SQE1 and for applying legal reasoning to constitutional scenarios.

Legitimacy in the UK Constitution

Legitimacy refers to the lawful and accepted use of power by government institutions. In the UK, legitimacy is derived from compliance with legal rules, democratic processes, and constitutional conventions. It is essential for public trust and the stability of the constitutional order.

Key Term: legitimacy Legitimacy is the recognised and lawful right of institutions to exercise power, based on legal authority, democratic consent, and adherence to constitutional procedures.

Sources of legitimacy include:

• Legal authority: Powers defined by statutes, common law, and constitutional conventions.
• Democratic mandate: Election of representatives to the House of Commons through free and fair elections.
• Constitutional conformity: Compliance with established constitutional rules and conventions.
• Public confidence: Accountability, transparency, and responsiveness to the public.

Legitimacy can be challenged when government actions exceed legal powers or bypass constitutional requirements. For example, in R (Miller) v Secretary of State for Exiting the European Union, the Supreme Court held that the government could not trigger Article 50 TEU without parliamentary approval, reinforcing the need for lawful authority.

Worked Example 1.1

A government minister issues a regulation without statutory authority. Is this action legitimate?

Answer: No. Legitimacy requires that government actions have a legal basis. Without statutory authority, the minister's action lacks legitimacy and is unlawful.

The Separation of Powers

The separation of powers is the division of state authority among the legislative, executive, and judicial branches. This doctrine prevents the concentration of power and provides a system of checks and balances.

Key Term: separation of powers The separation of powers is the allocation of government functions among the legislature, executive, and judiciary to prevent excessive concentration of authority.

• Legislature: Makes laws (Parliament: House of Commons, House of Lords, Monarch).
• Executive: Implements and administers laws (Prime Minister, Cabinet, civil service).
• Judiciary: Interprets laws and resolves disputes (courts and judges).

In the UK, there is overlap between branches. For example, ministers are usually MPs, and the executive is drawn from the legislature. However, mechanisms such as parliamentary scrutiny and judicial review help maintain balance.

Key Term: checks and balances Checks and balances are mechanisms that allow each branch of government to limit the powers of the others, ensuring accountability and preventing abuse.

Worked Example 1.2

Can Parliament remove a judge from office for disagreeing with a government policy?

Answer: No. Judicial independence is protected by law. Judges can only be removed for misconduct or incapacity, not for their decisions, preserving the separation of powers.

The Rule of Law

The rule of law is a fundamental constitutional principle requiring that all individuals and authorities, including the government, are subject to and accountable under the law.

Key Term: rule of law The rule of law means that everyone, including the government, is subject to the law, which must be applied consistently, fairly, and without arbitrariness.

Key requirements of the rule of law:

• Legal supremacy: All actions must have a legal basis.
• Equality before the law: Laws apply equally to all, regardless of status.
• Certainty and accessibility: Laws must be clear, public, and stable.
• Independent judiciary: Judges must be impartial and free from external influence.
• Access to justice: Individuals must be able to seek remedies for breaches of their rights.

The rule of law is recognised in both case law and statute. For example, section 1 of the Constitutional Reform Act 2005 acknowledges its constitutional importance.

Key Term: judicial review Judicial review is the process by which courts review the lawfulness of actions or decisions by public bodies, ensuring compliance with legal standards.

Worked Example 1.3

A local authority refuses to grant a licence without giving reasons or following proper procedure. What principle is at risk?

Answer: The rule of law is at risk. The authority must act lawfully and fairly, following due process. Judicial review may be available to challenge the decision.

Interactions and Practical Application

These principles are interconnected. Judicial review is a practical example of their interaction:

• Legitimacy: Courts ensure that government actions are lawful and within granted powers.
• Separation of powers: The judiciary acts independently to review executive actions.
• Rule of law: Courts enforce legal standards, preventing arbitrary or unlawful government conduct.

Parliamentary sovereignty remains a key feature, but its legitimacy depends on democratic election and compliance with constitutional conventions. The executive is accountable to Parliament, and the judiciary provides a check on both.

Exam Warning

In the SQE1, be careful not to assume that the UK constitution enforces a strict separation of powers. The UK system is characterised by partial separation and overlapping functions, but checks and balances are maintained through conventions, statutes, and judicial review.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Legitimacy is the lawful and accepted exercise of power, based on legal authority, democratic mandate, and constitutional conformity.
• The separation of powers divides government functions among the legislature, executive, and judiciary, with checks and balances to prevent abuse.
• The rule of law requires that all individuals and authorities, including the government, are subject to the law, which must be applied fairly and consistently.
• Judicial review is a key mechanism that upholds legitimacy, the separation of powers, and the rule of law by allowing courts to review the lawfulness of government actions.
• In the UK, these principles interact to maintain legal accountability, prevent arbitrary power, and support public confidence in the constitutional system.

Key Terms and Concepts

• legitimacy
• separation of powers
• checks and balances
• rule of law
• judicial review