Introduction
The question regarding the separation of powers in the Great Britain remains one of the most discussed and argued of the modern times. The vast majority of scholars are sure that the structure of the British legislative system is based on the division of powers. The nature of the separation of powers is centred on the justice and aims to make all the decisions and actions clear and trustworthy1. The pivotal purpose of the paper is to discuss the nature of the separation of powers in the Great Britain and to find an answer to the question whether the undocumented principles can be considered as the guiding elements for the government.
Separation of Powers
The separation of powers is used to provide the government with the balance. The system was originally used in the ancient Greece2. According to the model, the political structure is divided into certain branches that should not influence or conflict with each other. The pivotal objective of the division of powers is to stress the significance of separation as the unifying the powers in one body can be dangerous and lead to the severe consequences.
The tripartite system, described in The Spirit of the Laws by Montesquieu, made a valuable contribution to the jurisdiction system. The author stressed the advantages of the separation of powers and highlighted that the monarch obtains too much of freedom, and the tyranny cannot be omitted. Montesquieu based his work on the constitutional system of the Great Britain and the Constitution of the Roman Republic3. Taking into consideration the peculiarities of the separation of powers in the United Kingdom, the philosopher states that the system is implemented by the division of the “monarch, Parliament, and the courts of law”4. To omit one branch of becoming supreme, the government should address the balance of powers. The system of checks and balances was originally developed for the branches to cooperate and in some cases to limit the decisions5.
James Madison believed that the accumulation of legislative, executive, and judicial branches of power consequently leads to the coercion and tyranny6. However, it is significant to point out that the complete division of the branches seems to be far from the reality and will lead the system of government to the deadlock. The isolation of all the powers is impossible. The partial division of the powers is considered to be a more realistic approach that is used not only in the United Kingdom but also functions successfully in the United States.
The Rejection of the Separation of Powers in the United Kingdom
Taking into consideration the peculiarities of the legislative system in the United Kingdom of Great Britain it is possible to discover the functioning of the system of separation of powers at all the levels of the governmental structure7. The fundamental question is that the division and allocation of powers are not documented, and this fact impugns the meaningful implementation of the described above system of delineating of powers8.
Outstanding researchers argue the significance of the allocating of powers in the Great Britain. According to Sir Ivor Jennings, it is doubtful that the division of powers was based on the distinctive differences. Geoffrey Marshall, the expert in the British Constitution, stated: “the principle is infected with so much impressions and inconsistency that it may be counted little more than jumbled portmanteau of argument for policies which ought to be supported or rejected on other grounds”9. The rejection of the division of powers is usually explained with the attention on the two essential factors. First and foremost, Montesquieu principles were described in the eighteen century, whereas the constitution was written in the seventeenth10. Although, the time frames prove that the British constitution could not reflect the objectives written by Montesquieu, the constitution could be consequently reformed according to the system of the division of powers. In addition, the second argument is that the constitution of the Great Britain can be considered as the outcome of the evolution process11. Some experts of the British constitution stress that the connection between the division of powers and the constitution is weak and can be argued.
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The Argument for the Separation of Powers in Great Britain
Although some the prominent experts of the constitution of the Great Britain reject the connection between the allocation of powers, constitutional theorists and commentators find arguments that prove that the division of powers is typical for the Great Britain political mechanism. Munro asserts that the concept of the delineating of powers is not a myth. The similar ideas are reflected in the works of Trevor Allan, who notes that the fundamental objective of the separation of powers can be found in the doctrine. In R v Her Majesty Treasury Ex Parte Smedley Sir Donaldson MR stressed that “although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and judicature are separate and independent of one another”12. In accordance with the stated above quotation, Lord Diplock in Duport Steels claims that the separation of powers find the reflection in the governmental structure, namely “it cannot be too strongly emphasized that the British constitution, though largely unwritten, is firmly based on the separation of powers, Parliament makes the laws and judiciary interpret them”13.
Executive, Judicial, and Legislative Branches
In most of the countries, the executive and legislative branches are highly connected, and the Great Britain is not the exception. This connection can be clearly seen in the way the branches intertwined, as the Prime Minister is commonly the leader of the executive and legislative branches of power. The Parliament of the Great Britain has an opportunity to make the Government examine the details of the law resulting in rejection of the system of the separate powers. Gordon Brown, the British statesman, once declared that the mixture of an American and Great Britain constitutions will have a positive effect on the governmental functioning14.
The judges in the United Kingdom are not supposed to be elected for the House of Commons, as they should be separated and only interpret the laws and take part in the development of the common law. The collaboration between the branches is usually described as the constitutional assistance. Sometimes the Parliament can give the implicit approval concerning the common law made by judges without examining it15.
The Constitutional Reform Act and the Human Right Act had a significant impact on the connection between the arms of government. Understanding the need for reformation, the government of the Great Britain underwent certain changes, namely developed the Constitutional Reform Act. The Act supposed to solve the question regarding the separation of powers, making it more distinct and clear16. The principal aim of the Constitutional Reform Act was to provide the transparent separation of the powers. According to the Lord Chief Justice “we, as judges, are now patently free standing. The division of powers is quite clear. Now our negotiations with ministers, in particular with Lord Chancellor, are negotiations between the judiciary and the executive and clearly seen to be so”17. The changes in the Human Right Act resulted in the adjustment of the new system of the decision-making process within the government18. Several decisions that used to be made by the Parliament are now the responsibility of the courts. Charles Clarke, the British politician, is sure that the changes made put a bigger accent on the judicial branch, making it supreme. According to the point of view of the politician, the balance of power is not followed. Kate Malleson stressed that:
according to your instructions
The senior judges are now required to police constitutional boundaries and determine sensitive human rights issues in a way which would have been unthinkable forty years ago. This new judicial role is still developing, but the effect of this trend will be to reshape the relationship between the judiciary and the other branches of government19.
The government of the United Kingdom of Great Britain made several attempts to proclaim the separation of power and to make it distinct. First and foremost, executive and legislative arms of government were highly intertwined and influenced each other. To achieve the stated above goal, the government decided to change the role of Lord Chancellor in 2005, introduced the Supreme Court instead of the Appellate Committee of The House of Lords, and increased the level of clarity while judicial selection20. The changes resulted in giving the judicial part more responsibility, freedom, and superiority.
The fact that the United Kingdom does not have codified constitution questions the division of powers. However, the judicial power received the priority. The connection between the legislative and executive is apparent as the members of the executive and legislative branch are mixed. Nevertheless, the stated above arguments for the separation of power in Great Britain cannot be ignored. As the matter of fact, the allocation of powers is not distinct, but the fundamental objectives are fulfilled. The pure model of the separation of powers cannot be found in the real governmental structure as it is more theoretic than practical21. The partial implementation of the system is typical for the most of the well-developed countries who successfully represent the functioning of the system. The United Kingdom of Great Britain aims to highlight the understanding of the significance of the division of powers; actions and decisions made by the government prove this intention. However, the fact that the separation is not codified make the allocation of powers to function not in a meaningful way.
Conclusion
The question regarding the British constitution seems to be controversial and multi-faceted. In contrast to other countries, Great Britain developed the document evolutionary and does not have written evidence for the separation of powers. Because of the absence of the written constitution, the Great Britain faced the problem of having no documentary prove that the system of the separation of powers is implemented into the governmental process. To control the branches, the system of checks and balances was originally developed. A number of constitutional theorists claim that the British government does not make an accent on the significance of balancing powers. The role of the jurisdiction regarding the public law contributed to the system of delineating of powers to become more remarkable, and that is, this approach is commonly used for the democratic world to control the balance. As the matter of fact, Great Britain was never colonized and remained to be the dominant country across the globe since ancient times22. The fusion of the powers can be seen as the advantage while the government should function as the unique organism and the collaboration is an essential element23. The strict allocation of powers provide the safety from the tyrannical actions, as the concentration of power in one body can lead to the severe consequences.
References
Allen G, Do We Need a Constitutional Convention for the UK? (The Stationery Office 2013)
Barnett H, Constitutional and Administrative Law (10th edn, Routledge 2014)
Bogdanor V, The Coalition And the Constitution (Bloomsbury Publishing 2011)
Cameron M, Strong Constitutions Social-Cognitive Origins of the Separation of Powers (Oxford University Press 2013)
Carolan E, The New Separation of Powers: a Theory for the Modern State (Oxford University Press 2009)
Cartledge P, Ancient Greek Political Thought in Practice (Cambridge University Press 2009)
Faragher C, Public Law: Concentrate (Oxford University Press 2015)
Garnett M and Lynch P, Exploring British Politics (3d edn, Routledge 2012)
Gerangelos P, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing 2009)
Gordon R, Repairing British Politics: a Blueprint for Constitutional Change (Hart Publishing 2010)
Haljan D, Separating Powers International Law before National Courts (Springer Science & Business Media 2012)
Kavanagh A, Constitutional Review under the UK Human Rights Act (Cambridge University Press 2009)
Lee J, From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Hart Publishing 2011)
Leyland P, The Constitution of the United Kingdom: A Contextual Analysis (2nd edn, Hart Publishing 2012)
Loughlin M, The British Constitution: a Very Short Introduction (OUP Oxford 2013)
Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge University Press 2011)
Middleton K and Rodger B, Cases and Materials on UK and EC Competition Law (Oxford University Press 2009)
Ryan M and Foster S, Unlocking Constitutional and Administrative Law (3d edn, Routledge 2014)
Sueur A and Sunkin M, Public Law: Text, Cases, and Materials (2nd edn, Oxford University Press 2010)
Syrett K, The Foundations of Public Law: Principles and Problems of Power in the British Constitution (2nd edn, Palgrave Macmillan 2014)
Annotated Bibliography
Allen G, Do We Need a Constitutional Convention for the UK? (The Stationery Office 2013)
Allen’s book offers appropriate arguments concerning the changing of the constitutional fundamentals. The author claims that the great accent of the British politics should be laid upon the Union. The book is written in a logical manner that helps to get involved in the issue better. The work can serve for the students who study law to improve the level of competence regarding the constitution of the United Kingdom.
Barnett H, Constitutional and Administrative Law (10th edn, Routledge 2014)
The book provides the deeper understanding of the historical and social context that influenced the constitutional development in the Great Britain. The author stresses the significance of the crucial principles of the law and evaluates the importance of the constitutional change. The book is helpful not only in teaching but learning as well as the understandable structure of the work helps to search the material and to percept the information better.
Bogdanor V, The Coalition And the Constitution (Bloomsbury Publishing 2011)
Bogdanor tries to answer the discussed question regarding the fact whether the constitution in the United Kingdom can be adjusted to the new political environment and coalition. The author provides detailed analysis the constitutional reforms and the possible effects of changes. The understanding that the Constitution should face changes is the central idea of the book. The book is recommended to the students who want to understand the issue concerning the connection between coalition and constitution.
Cameron M, Strong Constitutions Social-Cognitive Origins of the Separation of Powers (Oxford University Press 2013)
Cameron’s book provides the significant information in the field of the British constitution and the separation of powers. The author takes a close attention on the connection between technical progress and the need for changes in the politics. The understanding of the usage of the separation of powers approach is the pivotal focus of the author. Students can use this work to improve the understanding regarding the separation of powers and the approaches that can be used to implement this model.
Carolan E, The New Separation of Powers: a Theory for the Modern State (Oxford University Press 2009)
Carolan aims to change the ordinary vision of the model of the separation of powers. The author examines the advantages and disadvantages of the power balancing by providing the critical information regarding the system of checks and balances and the self-developed model of the separation of powers. The book can be recommended to lawyers and students to examine the analysis of the stated above issues.
Cartledge P, Ancient Greek Political Thought in Practice (Cambridge University Press 2009)
The author highlights the contribution of the Ancient Greece to the political development and democracy. Cartledge stresses that the Ancient Greece is the best example of the ancient country that successfully combined experiments and political development. The book should be used by students to understand the significance of the ancient country, and the valuable contribution of it to the modern world of politics.
Faragher C, Public Law: Concentrate (Oxford University Press 2015)
The book provides the essential information regarding the major fundamentals of the constitution of the United Kingdom of Great Britain and critically evaluates how the principle of the separation of powers is adjusted to the modern developmental process of the country. The work is recommended for the students to refresh the knowledge as the numerous tables and charts help to understand and remember the information.
Garnett M and Lynch P, Exploring British Politics (3d edn, Routledge 2012)
Garnett’s book is centered on the political approaches used in the British governmental structures. The work provides the essential information regarding the democracy and the flexibility of the political system of the United Kingdom. The author describes the development of the British politics with the attention towards the peculiarities of the social and historical context. The book can be used in teaching and studying process as it is a great source for the understanding of the new perspectives and principles of the modern political decisions.
Gerangelos P, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing 2009)
Gerangelos highlights the significance of the model of the separation of powers and evaluates the role of the legislative branch in the judicial process. The book provides the analysis of the political system in the United Kingdom and can be recommended to people who aim to understand the major principles of the separation of powers models and its implementation in the governmental structure in the Great Britain.
Gordon R, Repairing British Politics: a Blueprint for Constitutional Change (Hart Publishing 2010)
Gordon critically discusses the constitution of the Great Britain with the attention to the constitutional scandal in 2009. The author aims to show the way the constitution and the political regime function. Gordon draws the reader’s attention to the significance and importance of making changes. The work is recommended for the students to get fresh ideas regarding the need for the constitutional changes.
Haljan D, Separating Powers International Law before National Courts (Springer Science & Business Media 2012)
The author is focused on providing the relevant information and discussion of urgent issues with the consideration of the international law and the principle of the separation of powers. Halijan notes that the model of the separation of powers is implemented into the political structure of the developed countries. The book is a valuable source of information not only for students but for the academics as well.
Kavanagh A, Constitutional Review under the UK Human Rights Act (Cambridge University Press 2009)
The book written by Kavanagh deal with the discussion and analysis of the development of the Human Rights Act and the effect of it on the British jurisdiction. The work provides the information regarding the possible constitutional changes and can be helpful for the students to understand the connection between the HRA and the impact on the British courts.
Lee J, From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Hart Publishing 2011)
The book aims to explain the reasons and the objectives of the Supreme Court development. The author highlights the principles of work of judges and jurists with the attention towards the process of judging. The book is recommended to the experts in the jurisdiction as it provides the detailed analysis of the perspectives and key issues connected with the creation of the Supreme Court.
Leyland P, The Constitution of the United Kingdom: A Contextual Analysis (2nd edn, Hart Publishing 2012)
Leyland’s book is centred on the discussion and analysis of the fundamental principles and objectives of the constitution in the United Kingdom. The author provides the reader with the arguments for the undocumented constitution and highlights the evolutionary process of the constitution of the Great Britain. The chapters are written in a logical manner and with the attention to the details that aim to provide the better understanding of the issues. That is, it can be recommended to students to get relevant information regarding the constitutional changes and reforms.
Loughlin M, The British Constitution: a Very Short Introduction (OUP Oxford 2013)
The book outlines the problem of the British constitution. The author shows the way of development of the constitution in the United Kingdom in accordance with the political and social environment as these factors impact the development of the country. Loughlin makes an accent on the significance of the implementation of the model of the separation of powers into the governmental structure. The work can be recommended for the constitutional researchers and theorists.
Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge University Press 2011)
Masterman highlights the constitutional changes in connection with the Human Rights Act and Constitutional Reform Act. The author stresses that the judicial branch received the priority, and the balance of powers is not typical for the British political structure. The book can be helpful for the students to get the deeper understanding of how the arms of government are intertwined and influence each other.
Middleton K and Rodger B, Cases and Materials on UK and EC Competition Law (Oxford University Press 2009)
The book aims to provide the reader with the essential information of the competition law in the United Kingdom. It deals with the description of cases and relevant materials that contribute to the understanding of the problem. The work is developed for the student and researchers to get better involved in the complex issue connected with the law.
Ryan M and Foster S, Unlocking Constitutional and Administrative Law (3d edn, Routledge 2014)
The book is centred on providing the reader with the information concerning the constitutional and administrative law. The area of the constitutional and administrative law is complex, and that is, relevant information is beneficial for the students to get better involvement in the issue. The work offers numerous facts, charts, and diagrams for the student to understand and percept the relevant information.
Sueur A and Sunkin M, Public Law: Text, Cases, and Materials (2nd edn, Oxford University Press 2010)
The book reflects the problems and new methods of understanding the administrative and constitutional law. The described cases and materials contribute to the better perception of the information. Authors provide the reader with the essential commentaries that can be useful for the students researching complex administrative and constitutional area of law.
Syrett K, The Foundations of Public Law: Principles and Problems of Power in the British Constitution (2nd edn, Palgrave Macmillan 2014)
The book can be viewed as a guide to the public law in the Great Britain. The author discusses the significant issue of the separation of powers in the United Kingdom and provides the reader with the relevant analysis and essential commentary. Syrett uses different arguments that contribute to the better understanding of the significance of the separation of powers. The author critically analyses the issue and organize the work in logical manner. The book evaluates the changes in the British constitution and is beneficial for students who are engaged in law or politics.
Footnotes
- Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing 2009) 312.
- Paul Cartledge, Ancient Greek Political Thought in Practice (Cambridge University Press 2009) 57.
- Keith Syrett, The Foundations of Public Law: Principles and Problems of Power in the British Constitution (2nd edn, Palgrave Macmillan 2014) 21.
- Graham Allen, Do We Need a Constitutional Convention for the UK? (The Stationery Office 2013) 58.
- Kristy Middleton and Barry Rodger, Cases and Materials on UK and EC Competition Law (Oxford University Press 2009) 61.
- Keith Syrett, The Foundations of Public Law: Principles and Problems of Power in the British Constitution (2nd edn, Palgrave Macmillan 2014) 22.
- David Haljan, Separating Powers International Law before National Courts (Springer Science & Business Media 2012) 37.
- Keith Syrett, The Foundations of Public Law: Principles and Problems of Power in the British Constitution (2nd edn, Palgrave Macmillan 2014) 25.
- Hillarie Barnett, Constitutional and Administrative Law (10th edn, Routledge 2014) 83.
- Maxwell Cameron, Strong Constitutions Social-Cognitive Origins of the Separation of Powers (Oxford Univesity Press 2013) 92.
- Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge University Press 2011) 24.
- Mark Ryan and Steve Foster, Unlocking Constitutional and Administrative Law (3d edn, Routledge 2014) 76.
- Leyland P, The Constitution of the United Kingdom: A Contextual Analysis (2nd edn, Hart Publishing 2012) 35.
- Vernon Bogdanor, The Coalition And the Constitution (Bloomsbury Publishing 2011) 21.
- Leyland P, The Constitution of the United Kingdom: A Contextual Analysis (2nd edn, Hart Publishing 2012) 35.
- Colin Faragher, Public Law: Concentrate (Oxford University Press 2015) 40.
- Mark Ryan and Steve Foster, Unlocking Constitutional and Administrative Law (3d edn, Routledge 2014) 112.
- Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press 2009) 247.
- Andrew Sueur and Maurice Sunkin, Public Law: Text, Cases, and Materials (2nd edn, Oxford University Press 2010) 194.
- James Lee, From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Hart Publishing 2011) 35.
- Eoin Carolan, The New Separation of Powers: a Theory for the Modern State (Oxford University Press 2009) 18.
- Mark Garnett and Philip Lynch, Exploring British Politics (3d edn, Routledge 2012) 122.
- Richard Gordon, Repairing British Politics: a Blueprint for Constitutional Change (Hart Publishing 2010) 117.