Introduction to Rule of Law

Rule of law can be considered as a fundamental doctrine that must be obeyed by every individual of the state. Rule of law determines that no arbitrary action must be performed by any individual from any group. The basic criteria of the principle of the rule of law are that nobody is above the law. It must be noticed that the United Kingdom does not have a written constitution and it operates according to the principles laid down under the principles of rule of law along with the sovereignty of parliament and rulings of the court. The unwritten constitution is guided by the principles and values of the rule of law. There are fundamental factors like legal certainty, equality, fairness, retrospective legislation, due process, and much more which comes within the ambit of the values and principles of rule of law which must be abiding by the unwritten constitution of the United Kingdom1. Separation of power is one of the important concepts of constitutional law in the United Kingdom. Separation of power constitutes various principles of contemporary liberal democracy and the rule of law2. It must be noticed that the principles of the rule of law require the government authority to allocate separate institutions with different principles and separate individuals. Each institution has the responsibility to check up on their actions to follow the values of rule of law which talks about equality and fairness to all in the state3.

Relationship Between the “Rule of Law” and “Separation of Powers”

Dicey has stressed upon the three features of rule of law which talks about to come down the discretionary powers of the officials in the government sector, speaking ability to provide remedy from the independent courts, along with the importance of equality of every individual before the law4. The attached importance of controlling the unguided and arbitrary powers upon the executive is dealt with under the context of the delegated legislation. For the reasons of convenience and practicality, it is the need by the legislature to delegate legislative powers to the executive such that the executive must not be given a responsibility to determine their fundamental policy of various laws and the ideal of government under the laws which are constrained by the legal norms. To abstain from the arbitrary powers upon different departments of the government, the doctrine of separation of powers serves as a remedy in the form of rule of law against the unrestricted delegation of power5.

The fact cannot be denied that a complete separation of legislature and executive in the system of government cannot be made possible but the values that are solved because of the separation of power limits the extent of power that can be transferred from the legislature to the executive. The basic idea behind the rule of law is to provide equality and fairness to all. With the help of this doctrine, the unfettered power upon the executive will be curtailed down and danger of concentration of power can be minimized6. The rules of law along with various other political and fundamental moral principles are implicit in the constitutional arrangements of the British rules. However, it must be noted that the current parliamentary processes and the intergovernmental scrutiny for various bills in the United Kingdom have not provided an effective way for the enactment of legislation which conflicts with the fundamental values.

Views of Various Scholars upon The Relationship of Rule of Law and The Existence of Separation of Powers in The Constitution of the UK

Various ancient philosophers had to consider the doctrine of separation of powers and had analyzed its relationship with the unwritten constitution of the United Kingdom. Various debates have been conducted by expressing both sides which cover the discipline of law and various political theories. It must be understood that separation of power is not entirely a legal principle but works as a doctrine. With the help of learning about the study made by the Greek philosopher Aristotle, it will be easier to understand the rudimentary doctrine of separation of powers. Three elements made the basic differences between every constitution7. These three differences are common importance, judicial element, and the official. When there are three types of powers named the legislative, executive and federative, the analysis made by Locke suggests that the Supreme Power is the legislative and even though the executive and Federal powers are different from each other, the executive of the domestic law will operate within the state and the federated one will look after the external relations and the security of the state.

According to the analysis made by Locke in his the second treatises of government, he described that the powers are always and almost United in the hands of the same authority and due to this the proper exercise of these powers is not achieved. According to Montesquieu, the laws of every state are influenced by the characters of that state. In his book, on the constitution of England, he stated that when the executive and legislative power are united only upon a single person or with a body of single person then under such circumstances there will be no Liberty and each person in the state will live under the fear of tyrannically9. Liberty will also not be considered if the judicial power is not separated from the legislative and executive because if these powers are combined then it can rule over the life and liberty of the citizen of the state. Every value and principle of the rule of law will be completely lost if all the powers are being provided to a single body or the same person.

The Basic Rationale Which Underlines the Doctrine of Separation of Power Operates

The prevention of abuse of power under the constitutional framework in England is observed by Montesquieu. The fact cannot be denied that Montesquieu is known as the father of modern constitutionalism and therefore he had helped to understand the principles and relation between the constitution of the United Kingdom and the separation of powers10. The doctrine of separation of power provides strict separation between the three different organs of the government in such a way that any of them does not overlap each other which also become an important feature in the constitution of the United Kingdom. In the practical sense, it can reveal that three powers are often exercised by the body of persons who already exercise more than one power and in such a way these organs broadly overlap between the executive and legislature in the constitution of the United Kingdom. For example, the prime minister and his cabinet colleagues both are the persons under both the bodies of executive and legislature which is in contravention to the doctrine of separation of powers. In 1867 the English constitution asserts that there is a close union and a complete fusion between the power of executive and legislative as the same fact can also be seen under the House of Commons Disqualification Act of 197511.

There are various examples to show where the three functions of the government overlap each other. Legislative functions are often performed by parliament and to a lesser extent, the parliament also performed judicial functions as it regulates their internal affairs and responsible for them12. Another example shows that while exercising the function of judiciary courts exercise their power in such a manner that they often lead to contravene and contradict the principles provided under the common law. These are a few examples and incidents which show that the United Kingdom's constitution does not have a strict separation of power. Even Lord Chancellor had reflected light upon the position of the constitution of the United Kingdom in regard to the three branches and organs of the government. In the year 2003, the Government of the United Kingdom had proposed to abolish the office of Lord Chancellor and according to the Government of the United Kingdom had published various cancer patient papers to propose various ways of appointment of judges for the state. When the Human Rights Act was enacted various concerns were expressed regarding the ability to hold an office and to sit as a member of the apple in committee.

Hence, this is a clear case of overlapping of powers as the speculations have also been made under the case of A and others v Secretary of State for the Home Department13, where lord chancellor had challenge article 6 of the EHCR, where the challenge was made against the right of fair hearing by an impartial Tribunal which is usually absent in the state of United Kingdom. It must be understood that the third organ of the government which is the judicial power is the weakest from all the organs of the United Kingdom constitution as this is usually overridden by the parliament as it is the supreme body. In the case of Burma oil versus lord advocate, the court contended that it in lights of the modern age that the executive decision making has been increased it is important to keep a check up on the exercise of the description of the executive. To uphold the rule of law by the judiciary, judicial power must become independent from the other two organs of the government in the United Kingdom. Due to this under section 3 of the 2005 Act, Lord Chancellor or any other person may not seek to influence any judicial decisions and cannot have special access to the judiciary. Therefore it can be considered that irrespective of various reforms conducted by the office of Lord Chancellor, the unwritten constitution of the United Kingdom tried to incorporate the role of judicial independence in its constitution.

The entire analysis as to whether the constitution of United Kingdom has the doctrine of separation of power is still a matter of top debate however it is interesting to note the view of the judiciary in the opposition campaign where it had to express their opinion regarding the incorporation and presence of the doctrine of separation of power in the UK constitution. In the case of Duport Steel limited v sirs14, the court had contended that when the situation comes where other cases involve the application of legislation for providing effect to the policies are the subject of parliamentary controversy the same cannot be emphasized that the British constitution being and largely unwritten one is formally based upon the separation of powers where the parliament formulates the laws and the judiciary will help to interpret them. Also Lord Bingham in the case of Mollison, head contended that whatever overlapping in the exercise of legislative and executive power is there but there is a clear separation of power between the legislative and executive and the judicial power on the other hand. The cardinal feature and values attached to the rule of law are embedded in the unwritten constitution of the United Kingdom.

Conclusion on Rule of Law

Therefore it can be concluded that the United Kingdom constitution does not strictly conform to the formal notion of separation of power but works under fusion of the separation of power doctrine. Therefore it is easy to understand that the doctrine of separation of power provides strict and rigid separation between different branches and organs of the government in such a way that they are being isolated from each other with high walls between them to provide necessary interdependence with an adequate amount of interconnection between the branches at the appropriate time without contravening the principles and values of rule of law under the common law. Even though the doctrine of separation of power provides strict separation of functions but the structure does not provide a pure view of rigid separation in any constitution in the practical sense. It can easily be observed in various constitutional practices that the distribution of powers is often fusion with the intermixture of functions which is opposite of the stubborn appeal of the doctrine of separation of power for centuries.

Bibliography for Rule of Law

Cases

A and others v Secretary of State for the Home Department [2004] UKHL 56

Church of Scientology v Woodward (1982) 154 CLR 25, 70.

Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157B-158C

Entick v Carrington (1765) 19 St Tr 1030.

McGonnell -v- The United Kingdom; ECHR 8 Feb 2000

Plaintiff S157/2002 v Commonwealth (2003) 77ALJR 454, 473.

Journals/Articles/ Books

Allan, T., ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999), 115 Law Quarterly Review, 221

Barendt (1997) ‘Separation of Powers and Constitutional Government’, Public Law, 599.

Cheryl Saunders and Katherine Le Roy use the metaphor of ‘thin’ and ‘thick’ versions of the rule of law in ‘Perspectives on the Rule of Law’ in C Saunders and K Le Roy (eds), The Rule of Law (2003) 5-6.

Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195, 201.

Nazir, Mudassir and Ahmad, Tauseef and Khan Afghani, Mohammad Aman, Separation of Power: A Comparative Analysis (June 9, 2018). Commonwealth Law Review Journal, Volume 3, September 2017. Available at SSRN: https://ssrn.com/abstract=3193479

Ralf Dahrendorf, ‘A Confusion of Powers: Politics and the Rule of Law’ (1977) 40 Modern Law Review 1, 9.

Sugerman (1983) ‘The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science’, Modern Law Review, 102.

Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748). Translated and edited by Anne Cohler, Basia Miller, Harold Stone. (New York: Cambridge University Press, 1989)

References

Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157B-158C

A and others v Secretary of State for the Home Department [2004] UKHL 56

Plaintiff S157/2002 v Commonwealth (2003) 77ALJR 454, 473.

Church of Scientology v Woodward (1982) 154 CLR 25, 70.

Entick v Carrington (1765) 19 St Tr 1030.

McGonnell -v- The United Kingdom; ECHR 8 Feb 2000

Sugerman (1983) ‘The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science’, Modern Law Review, 102.

Allan, T., ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999), 115 Law Quarterly Review, 221

Barendt (1997) ‘Separation of Powers and Constitutional Government’, Public Law, 599.

Nazir, Mudassir and Ahmad, Tauseef and Khan Afghani, Mohammad Aman, Separation of Power: A Comparative Analysis (June 9, 2018). Commonwealth Law Review Journal, Volume 3, September 2017. Available at SSRN: https://ssrn.com/abstract=3193479

Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195, 201.

Ralf Dahrendorf, ‘A Confusion of Powers: Politics and the Rule of Law’ (1977) 40 Modern Law Review 1, 9.

Cheryl Saunders and Katherine Le Roy use the metaphor of ‘thin’ and ‘thick’ versions of the rule of law in ‘Perspectives on the Rule of Law’ in C Saunders and K Le Roy (eds), The Rule of Law (2003) 5-6.

Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748). Translated and edited by Anne Cohler, Basia Miller, Harold Stone. (New York: Cambridge University Press, 1989)

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