Exploring the Constitution
Does the UK constitution have separation of powers and rule of law?
There is no written document that contains the principle of the rule of law but the influential legal theorist, Dicey, writing in 1885, saw the rule of law as one of the fundamental principles of the British Constitution.
There is a tradition stretching from Magna Carta and through the English Civil War that the monarch must obey the law and the courts have, through the common law, developed principles of justice and traditional freedoms, while the Human Rights Act now includes basic rights.
The courts have developed a sound process of judicial review of decisions by public organisations to ensure that they act within the law.
However, Parliament has the power to change the law without any control by the courts and there have been continuous changes to the criminal law in recent years.
Detention without trial has been applied in the case of suspected terrorists and the courts have accepted this.
It could be argued that recent changes which have limited state aid to pay legal expenses have limited access to the courts and the Government is now proposing to make the criteria for judicial review more restrictive.
Britain does not have a separation of powers between the Executive and Parliament.
Although Parliament has exerted more independence in recent years, for example, through the Select Committee system which allows it to question Government policies, Ministers sit in Parliament and the Government dominates what is discussed, with Government whips putting pressure on their backbench MPs to vote with the Government.
The Judiciary has, in practice, been independent of Government even though it has been a Government Minister, the Lord Chancellor, who has appointed judges and been responsible for the justice system.
The Constitutional Reform Act, 2005 produced a clearer separation of the Executive and the Judiciary with a Supreme Court, separate from the House of Lords, and an independent Lord Chief Justice responsible for the Judiciary.
However, the doctrine of parliamentary sovereignty means that judges cannot question legislation or decisions from Parliament.