Legitimacy, separation of powers, and the rule of law - Separation of powers among the legislative, executive, and judiciary

Learning Outcomes

After reading this article, you will be able to explain the principle of separation of powers in the UK constitution, describe the roles and relationships of the legislative, executive, and judicial branches, identify key checks and balances, and apply these concepts to realistic SQE1-style scenarios. You will also understand how the rule of law and legitimacy underpin the separation of powers and the importance of judicial independence.

SQE1 Syllabus

For SQE1, you are required to understand the separation of powers and its operation in the UK constitution. Focus your revision on:

• the meaning and purpose of the separation of powers
• the roles and relationships of the legislative, executive, and judiciary
• the practical operation of checks and balances
• the significance of judicial independence and the rule of law
• the role of judicial review in maintaining constitutional balance

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. Which branch of government is responsible for implementing and administering the law in the UK?
   1. Judiciary
   2. Executive
   3. Legislature
2. What is the main purpose of the separation of powers doctrine?
   1. To ensure government efficiency
   2. To prevent the concentration of power and protect liberty
   3. To allow Parliament to control the judiciary
3. Which of the following best describes judicial independence?
   1. Judges are appointed by the Prime Minister and can be dismissed at will
   2. Judges are free from improper influence by the executive and legislature
   3. Judges must follow government policy

4. True or false? In the UK, there is a strict, formal separation of personnel between the executive and the legislature.

Introduction

The separation of powers is a core constitutional principle that divides state power among three branches: the legislature, the executive, and the judiciary. This division aims to prevent the abuse of power and to uphold the rule of law. In the UK, the separation of powers is not absolute, but it is maintained through a combination of legal rules, conventions, and institutional arrangements. Understanding how these branches interact, and the checks and balances that exist between them, is essential for SQE1.

The Principle of Separation of Powers

The separation of powers means that the legislative, executive, and judicial functions of government are allocated to separate bodies. This prevents any one branch from exercising unchecked authority and helps to safeguard individual liberty.

Key Term: separation of powers The constitutional principle that allocates legislative, executive, and judicial powers to distinct branches of government to prevent the concentration of power.

The Three Branches of Government

The Legislature

The legislature is responsible for making and amending laws. In the UK, Parliament consists of the House of Commons, the House of Lords, and the Monarch. Parliament enacts primary legislation and scrutinises government policy.

Key Term: legislature The branch of government that makes and amends laws; in the UK, this is Parliament.

The Executive

The executive implements and administers the law. It is headed by the Prime Minister and Cabinet, and includes government departments, civil servants, the police, and the armed forces. The executive also exercises prerogative powers and is accountable to Parliament.

Key Term: executive The branch of government responsible for implementing and administering the law and government policy.

The Judiciary

The judiciary interprets and applies the law, resolves legal disputes, and ensures that both the legislature and executive act lawfully. Judicial independence is a key feature, protected by statutory provisions and conventions.

Key Term: judiciary The branch of government that interprets and applies the law, and resolves disputes independently of the other branches.

Overlap and Checks and Balances in the UK

The UK constitution does not provide for a strict separation of powers. There is overlap, especially between the executive and the legislature. For example, government ministers are usually Members of Parliament. However, checks and balances exist to prevent the abuse of power.

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

Examples of Overlap

• The Prime Minister and Cabinet are part of both the executive and the legislature.
• The Lord Chancellor was historically a member of all three branches, but reforms have reduced this overlap.
• Delegated legislation allows the executive to make regulations under powers granted by Parliament.

Parliamentary Scrutiny

Parliament holds the executive to account through:

• oral and written questions to ministers
• select committees that investigate government actions
• debates and votes on legislation
• the power to remove the government through a vote of no confidence

Judicial Independence and Review

Judicial independence is protected by:

• security of tenure for judges
• independent appointment processes (Judicial Appointments Commission)
• protection from arbitrary dismissal
• conventions preventing political criticism of judges

The judiciary can review the lawfulness of executive actions through judicial review, ensuring that government bodies act within their legal powers.

Key Term: judicial independence The principle that judges must be free from improper influence by the executive and legislature, allowing impartial decision-making.

The Rule of Law and Legitimacy

The separation of powers supports the rule of law, which requires that all individuals and authorities, including the government, are subject to the law.

Key Term: rule of law The principle that everyone, including the government, is subject to and accountable under the law.

Legitimacy in government arises when power is exercised according to legal rules and accepted constitutional principles. The separation of powers, checks and balances, and judicial independence all contribute to the legitimacy of the UK constitution.

Practical Operation and Challenges

Executive Dominance

The executive often dominates Parliament due to the government’s majority in the House of Commons. This can reduce the effectiveness of parliamentary scrutiny and lead to concerns about an "elective dictatorship."

Judicial Review and Parliamentary Sovereignty

While Parliament is sovereign and can make or unmake any law, the judiciary interprets legislation and can review the legality of executive actions. Courts cannot strike down Acts of Parliament, but they can issue declarations of incompatibility under the Human Rights Act 1998.

Devolution

Devolution has created additional complexity by granting legislative powers to the Scottish Parliament, Senedd Cymru (Welsh Parliament), and Northern Ireland Assembly. This disperses power but also requires clear boundaries and mechanisms for resolving disputes.

The Constitutional Reform Act 2005

The Constitutional Reform Act 2005 strengthened the separation of powers by:

• establishing the Supreme Court, separating the highest appellate court from the House of Lords
• reforming the role of the Lord Chancellor to reduce overlap between branches
• creating the Judicial Appointments Commission to ensure merit-based, independent judicial appointments

Judicial Review as a Check on the Executive

Judicial review allows courts to ensure that public bodies act within their legal powers. The main grounds for judicial review are:

• illegality (acting outside legal powers)
• irrationality (making unreasonable decisions)
• procedural impropriety (failing to follow fair procedures)

Key Term: judicial review The process by which courts supervise the lawfulness of decisions or actions of public bodies.

Worked Example 1.1

A government minister issues regulations under powers granted by Parliament. A business affected by the regulations believes the minister has exceeded their legal authority. What can the business do?

Answer: The business can apply for judicial review, asking the court to determine whether the minister acted within the powers granted by Parliament.

Worked Example 1.2

A judge is asked to decide a case involving a challenge to a government decision. The government argues that the court should not interfere because the matter concerns national security. What is the likely approach?

Answer: Courts are generally reluctant to review executive decisions on national security, considering them non-justiciable. However, they may intervene if the government acts outside its legal powers.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The separation of powers divides state authority among the legislature, executive, and judiciary.
• In the UK, the separation is partial, with overlap between branches, especially executive and legislature.
• Checks and balances, such as parliamentary scrutiny and judicial review, prevent abuse of power.
• Judicial independence is essential for impartial decision-making and upholding the rule of law.
• Judicial review allows courts to supervise the lawfulness of executive actions.
• The Constitutional Reform Act 2005 strengthened the separation of powers and judicial independence.
• Devolution adds complexity to the distribution of powers in the UK constitution.

Key Terms and Concepts

• separation of powers
• legislature
• executive
• judiciary
• checks and balances
• judicial independence
• rule of law
• judicial review