Constitutions in transition
Constitutions in transition

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Constitutions in transition

5.5 The separation of powers and the rule of law

You may have noticed that the evolution of constitutional principles in the UK is heavily indebted to the courts. This is the manifestation of what the French political philosopher Montesquieu (1689–1755) believed characterised good governance. He stated that ‘power must be checked by power’ and this idea developed into the notion of the separation of powers. Essentially, each branch of government has some capacity and responsibility to hold the other branches to account. Montesquieu developed the idea of the separation of powers on a tripartite basis; he thought governance should be separated on the basis of a legislative branch, an executive branch and a judicial branch.

Activity 13 The separation of powers

Timing: You should allow yourself 15 minutes to do this activity.
  • a.Match the following definitions to the correct branch.

Using the following two lists, match each numbered item with the correct letter.

  1. Statutory provisions are enacted in this branch of government.

  2. Interpreting the law, settling disputes, deciding if laws have been broken and imposing relevant sanctions.

  3. Responsible for enforcing and implementing the laws, and exercising prerogative powers (if relevant).

  • a.Judicial

  • b.Legislative

  • c.Executive

The correct answers are:
  • 1 = b
  • 2 = a
  • 3 = c
  • b.Now identify each branch (legislative, executive and judicial) in relation to the states considered in this course:
    • South Africa
    • Germany
    • Canada
    • UK

    Not every nation might have been presented to you in this much depth. However, you can go back to the sections and you will see how the different branches all play a part in a subtle way.

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You will often notice that the legislative competency of a government is held by a parliamentary assembly of people. In South Africa, for instance, it is vested in the combination of the National Assembly and the Senate. In the UK it is vested in the House of Lords and the House of Commons. The executive could be understood to ‘run’ the country. In the UK, the executive includes the Prime Minister and his ministers, as well as civil servants and the police, executing and enforcing decisions made, respectively. The judicial branch is served by the court system. Judges may be independently appointed or elected, or nominated by the executive, but the principle behind a judiciary that operates within the framework of a separation of powers is that they make independent decisions.

Throughout the rest of this course, try and think about the idea of a separation of powers and consider whether or not it is a concept that actually operates properly within the UK. For instance, what are the pitfalls in the UK of having an executive (the government) that sits within Parliament? Conversely, are there any benefits of this system?

One ostensible purpose of having a separation of powers is to check the power being exercised by one organ of government. The idea is that if too much power is vested in too few people, it will lead to tyranny. The aim of preventing tyranny is encapsulated in a principle enshrined in many constitutions – the rule of law.

The principles that define the rule of law have been extrapolated by the late Tom Bingham, who was Senior Law Lord (equivalent to President of the Supreme Court today) between 2000 and 2008. Similarly, in South Africa, Chief Justice Mogoeng Mogoeng gave a lecture on the rule of law in 2013.

Activity 14 The rule of law

Timing: You should allow yourself 45 minutes to do this activity.

In the video below, Tom Bingham gives a summation of his principles of the rule of law in a lecture delivered at the RSA (2010).

Find a transcript of Mogoeng Mogoeng’s speech (2013) using a standard search engine in your internet browser. Its title is ‘The Rule of Law in South Africa: Measure Performance and Meeting Standards’.

Watch the video and read the short speech then use the text boxes below to make notes on the two speakers’ approaches to the rule of law.

Download this video clip.Video player: w203_2015j_vwr002-640x360.mp4
Skip transcript


SIR TOM BINGHAM: Now I've attempted, first of all in a sentence to sum up, in I'm afraid a rather legalistic way what the crux of this is, and I think it is really this - that all individuals and organisations within the state, whether public or private, are bound by and entitled to the benefit of - quite important, there - laws, prospectively promulgated and publicly administered in the courts. Now, that's quite a mouthful, and what this little book really consists of is trying to spell out in a little bit more detail, and indeed in a way that is intended to be extremely accessible to anybody, whether they're a lawyer or not, is what this actually means. I've suggested eight principles. The first of these - you may say well, goodness me, what could be more obvious than that - is that the law should so far as possible be clear, accessible, and intelligible. If we're all bound to obey the law, and if we're entitled to the benefit of it, we do need without undue difficulty, to be able to find what the law is. You may say 'well, surely there's no problem about that,' well, there is a problem. With governments churning out thousands of pages of legislation every year, and those thousands of pages of legislation being supplemented by thousands more pages of ministerial orders made under statute, it is extremely difficult to know what the law is; not least because provisions are amended, and then the amendment is amended, and then the amendment to the amendment is amended. There's a case which I recount in the book, where a man was the subject of a compensation order for £66,000 and it was only at a very late stage, and by chance, that it emerged that the order under which this order had been made had been revoked seven years earlier. And nobody could have found it out. However, pointing a finger of accusation - Parliament isn't good enough, because the judges themselves are given to extreme prolixity and length and complication, and they do not do, in my opinion, what they might do to make the law as simple and straightforward as they might. This is true at the highest level, where you've got five people all giving their own take on something. That's point one. Point two is that by and large we should be governed by law and not discretion. We don't want, by and large, to be subject to the arbitrary whim of some autocrat, whether he be a minister or an official or a judge. And it occurred to me this morning that you couldn't really get a much better example than the execution of John the Baptist by Herod. Why did he do it? Because of something terrible that John the Baptist had done? No. Because he promised his daughter that in return for her wonderful dancing, he would give her anything she wanted. Anything more utterly contradicts the rule of law than that, it would be quite hard to imagine. The third thing I elaborate, a little, is equality before the law. Again, you will say well that's quite obvious. Surely, we're all equal before the law. Well, slaves weren't equal. A number of religious believers were not equal until relatively recently. Women were not equal until recently, and there is a tendency, not just in this country, but elsewhere to treat non-nationals unequally - not simply in immigration context, but for other purposes as well. The fourth point I make is that the exercise of public powers - i.e., powers publicly conferred by statute should be exercised by those on whom they're conferred reasonably, fairly, honestly, and importantly, for the purpose for which they are conferred. I mean, many of you will recall the example when the Terrorism Act - the Terrorism Act - was invoked to exclude a man who told the Home Secretary of the Labour Party Conference that he was talking rubbish. [LAUGHTER] It was the Foreign Secretary, not the Home Secretary. It's a very important principle. We elect members of Parliament. We give them authority to make laws. They make laws. The laws bind us, but we don't give the people who are given powers by those laws a blank check. We give them power to do what the statute says they can or must do. Sixth point - dispute resolution. We live in a society where private vengeance is discounted. If you are owed a lot of money by somebody, you don't hire a lot of heavies to go and threaten the man until he pays you as used to happen in Russia after Glasnost. But, there is a corollary of this. If in the last resort - I'm not advocating resort to litigation - litigation does not, on the whole, lead to happiness. I'm not certainly discounting arbitration, mediation, conciliation - in other words, of resolving cases out of court. They're entirely beneficial. But in the last resort, if we have rights to assert or to defend, we ought to be able to go to a court established by the law of the land in order to get an answer, assuming that it isn't a frivolous or stupid or utterly hopeless contention. That, you may say again, is completely obvious, but we all, I think, know that the expense of litigation is such as to make it very, very difficult, and a formidable undertaking for anybody except the very rich or the legally aided - a diminishing group - to go to court for almost any purpose. This isn't a new problem. In the 1650s, someone said, you know, the law is beyond remedy, it costs £10 to recover £5. Well, it's a problem that some centuries later is still with us, as is the problem of delay. It's not as bad as Italy, for example, but it does take much too long for cases to reach court. I should have mentioned human rights. There are those who say human rights have nothing to do with it. If the law is absolutely clear, the law should be observed, and it doesn't matter how appalling the things are that the law prescribes. Well I passionately disagree with that view, and no doubt Chalmy disagrees with it even more passionately, and it may be we will talk about it, but my own contention is that while human rights are not universal - nobody is going to say that women have equal rights in Saudi Arabia to Western European countries, but within any given society, I think there is a high degree of consensus as to what the most important rights are. My next principle is that the state should provide a fair trial. Again, completely obvious, and you may say well of course, criminal trials should be fair, civil trials should be fair. I also address what I call hybrid, or sort of mixed trials, which are not criminal and are not strictly civil either. But for example, it's a case where a prisoner is seeking release on parole, and there's a hearing before the parole board. Or let us say somebody is the subject of an application for a control order by the Home Secretary. These are situations in which there have been and are on the statue book departures from what has hitherto been regarded as almost the most fundamental ingredient of a fair trial, which is the requirement that a person who's the subject of an adverse order, like being refused parole or being made the subject of a controlled order, should know what the case is against him and have a complete opportunity to argue it in a forum where the judge or decision-maker has received no material which he has not. Now, that's been departed from because of grounds of national security. A provision has been made that there are situations in which the decision-maker can be given material which is not shown to the defendant - if we call him that - not shown to his lawyers, but shown to a special advocate who is shown the material, but cannot communicate with the defendant after he's seen it, and so, he can't take instructions and say well, what do I ask this witness, do you know him, is he a reliable man, what were your dealings with him? So you can't do any of that. The last of my eight principles is that the state should comply with its duties in international law as it should with its duties in national law. Now, international law covers very significant areas of international life - the law of the sea, the law of the air, the law of outer space, the law of Antarctica, et cetera, et cetera, and things closer to home. The ministerial code, which binds all ministers in this country, says that they should comply with international as well as national law. And of course international law governs the use of force, and as Sir Michael Wood, without at that stage betraying any view at all, it was after he had retired - he said about the war in Iraq - it really raises no significant question of principle; it either was authorised or it wasn't by the Security Council of the United Nations. That is the crux of this debate. The government and its immediate advisors suggest it was authorised. A large body of opinion, including my own, says it was not authorised. So in conclusion; at this stage, we live in a world which is riven by differences of race, religion, nationality, wealth, et cetera, et cetera, and there are hosts of problems that no set of legal principles is ever going to overcome, but the principles that I've been talking about, comprised under the general heading of the rule of law, are very widely accepted among the nations of the world. I've suggested, and I suggest again, that it's the nearest we're likely to come to a universal, secular religion. I've also suggested and suggest again that observance of these principles is the best recipe that the world has yet devised, not only for good government at home, but also for peace, order, and cooperation among the nations of the world. Thank you very, very much indeed. [APPLAUSE]

End transcript
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  • a.Tom Bingham
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  • b.Mogoeng Mogoeng
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Both speakers focused mainly on the role of the judiciary but some of the points made give you an idea of how the rule of law would protect against arbitrary government. You will notice that an independent judiciary is considered foundational to the rule of law, especially in Mogoeng’s speech (2013).

There are, of course, differences between the two jurists’ conceptions of the rule of law. This exercise serves to point out that the rule of law is interpreted differently, and different characteristics are attributed to it.

Bingham (2010) summarises the rule of law on the basis of eight principles: the law must be clear and accessible; decisions must not be made on the basis of discretion; the law should apply equally to all; fundamental human rights should be recognised and protected; access to justice must be affordable and without unreasonable delay; ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred; that adjudicative procedures provided by the state should be fair – in other words, justice must be seen to be done; the state must comply with its obligations in international law.

Mogoeng’s headline summary of the rule of law is that the judiciary must promote peace, good governance, and sustainable economic development. This is achieved by: compliance with the values contained within the constitution; judicial independence, on the basis that they alone can judge corruption and the actions of other branches of government; observance of human rights.

Mogoeng also gets into the practicalities of ensuring an independent judiciary and offers several suggestions for ensuring judicial independence, including reasonable remuneration, in-house assessments of challenges to the judiciary and peer review of judicial practice.


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