These notes cover the rule of law and the separation of powers as taught on the Public Law module of postgraduate law conversion courses (the GDL/PGDL). They can also cover topics on introductory public, administrative, and constitutional law papers taught on UK undergraduate Law degrees (LLBs).
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Public Law - The Rule of Law and the Separation of Powers
Both principles are about limiting (and preventing abuses of) power:
- Separation of powers - the doctrine of the separation of powers identifies three
branches of government: 1) the legislature which makes law, i.e. Parliament, 2)
the executive which administers the law, i.e. government, and 3) the judiciary
which resolves disputes about the law, i.e. the courts (Montesquieu). The
branches should be kept separate in terms of their functions and personnel,
Montesquieu felt keeping each branch separate, and of equal power to ensure an
effective system of ‘checks and ba;ances’ btw the branches. This would prevent
an unhealthy concentration of power which could lead to an arbitrary or
oppressive government.
- Rule of law - a framework within which those with legal powers (the executive,
legislature and judiciary) must operate - a set of fundamental rights which must
not be jeopardised.
The Rule of Law: guides how the powers afforded by those (constitutional bodies)
wielding the law should be used, especially important in the UK given there is no written
constitution
- Traditional definition (AV Dicey, 1885):
- 1) Legal certainty
- Individuals should be subject to clear laws, with no arbitrary
exercise of power via the law (e.g. from government)
- No punishment without breach of law
- No retrospective laws
- Fair proceedings to determine civil/criminal liability
- 2) Equality before the law
- All citizens should be subject to the same laws, and punished in
proportion to the offence committed
- 3) Judiciary makes legal decisions
- The courts should decide on how the law is applied, in keeping with
constitutional principles
- I.e. the constitution should be of judge-made law, based on case
judgements rather than an HRA document
- Modern definition (Lord Bingham, 2006):
- 1) Law must be accessible, clear, and predictable
- Similar to legal certainty principle of AV Dicey
- 2) Law must be applied without discretion
, - I.e. elements of first 2 Dicey principles - no special treatment of
certain groups of people
- 3) The same laws should apply to all
- Should still be applied differently according to the facts of each
case, but in a way that is consistent and proportional to the offence
committed, and the context in which it was carried out
- Similar to equality before the law idea from Dicey
- 4) Fundamental human rights must be protected
- Not included by Dicey
- The first add-on to the tradition rule of law concept
- Difficult to establish how far these ‘fundamental’ human rights
extend
- 5) Provision for accessible dispute channels
- Fair proceedings - part of Dicey’s 1st principle
- 6) Ministers and public officers (e.g. the executive) must exercise the
powers given to them in good faith
- I.e. for the public good
- JR
- Separation of powers
- 7) Fair adjudicative procedures
- Disclosure of evidence to both parties, court representation for all
parties, innocence in criminal trials should be presumed until
proven guilty
- 8) States must comply with their obligations under international law
- A further add on to Dicey - rights & obligations (along with
Bingham’s 4th point)
- Relies on an independent/separate judiciary to prevent unchecked/arbitrary
governance
- The law must be ‘above’ everyone, including the government + legislative bodies
- Whereas the constitution is on a pedestal in the US, P is in the UK (P
supremacy), and the rule of law aims to subject P to legal restraints
Separation of Powers
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