Can the British Separation of Powers Adapt to Societal Change?

To what degree is the British Separation of Powers adaptable to societal changes?

Introduction

The separation of powers introduces an important concept to the functioning of a civil society in modern day with the legislative, executive and judicial branch all playing a vital role to protect and prevent one branch from obtaining too much power. The separation of powers also provides a series of checks and balances where each branch has the power to limit or check the other two, which creates a balance in the three separate powers. In this essay, I will attempt to answer my research question by studying the degree to which “British separation of powers is adaptable to societal changes?” To examine whether the British system of separation of powers is adaptable I have carried out in-depth research on the historical foundations and origins of the separation of powers as well as the Acts of Parliament. Across political science, with a notable mention to the political theory of realism and egoism. The separations of powers has long been a very prominent political theory that is essential in keeping a balance of power in states. Throughout this essay I will explore the concept of legitimacy and if one system is more legitimate because of its ability to be more adaptable to societal changes. With the United Kingdom holding an unwritten constitution it makes the case for more flexibility in contrast to many strong constitutions which can be argued to lack this flexibility which will all be examined throughout this investigation.

This topic holds much importance as the ability to change and adapt to
societal changes in order to preserve the spirit of democracy. This concept of
democracy and the spirit of democracy is essential to preserve the interests
and needs of the minority while following the will of the majority.[1]  The fundamental theory of democracy is
evident in day to day life and functioning of any democratic state including
the United Kingdom. This makes the ability to adapt to societal changes through
democratic means very important as much like human society democracy is
constantly changing with the advancement of each state and transformations of
public opinions.  This area of global
politics is also very interesting to investigate and whether the British
separation of powers is adaptable to societal changes today because of its
unique differences, structures and constitutions it holds and how it has
evolved over time due to these societal demands.

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Constitution

To first understand the degree to which the British separation of powers
is more adaptable to societal changes, there must be an understanding of the
United Kingdom’s unwritten constitution which is fundamental to its
flexibility. This unwritten constitution is based on Acts of Parliament, court
judgements and conventions.[2] In
other words, the British constitution is often referred to as ‘uncodified’ down
to the fact that many of the laws are of constitutional nature. The British constitution
is frequently described in an abstract sense as it encompasses a collection of
diverse laws, practices and conventions which have advanced and developed over
hundreds of years.[3] The
pinnacle of the British unwritten constitution is the Bill of Rights in 1689,
which fundamentally established the supremacy of Parliament over the Crown
following the replacement of King James II (r.1685-88) by William III
(r.1689-1702) and Mary (r.1689-94) in the Glorious Revolution of 1688.[4]
Britain’s uncodified constitution has many features which include those in the
law Parliament is sovereign in the sense of being the supreme legislative body.[5]
Conventions hold a significance to the unwritten constitution which primarily
runs the relationship between the ancient institution of states.[6]
Today unwritten rules of
constitutional practices are fundamental to British politics in the present
day, especially with the workings of government.[7]
However, none of this is officially presented in any kind of written format.
The Prime Minister, executive branch and head of the government are simply only
conventional. [8]
The Magna Carta 1215 essentially meaning ‘Great Charter’ has an ironic presence
in that although there is no British constitution it represents the founding
blocks of democracy and rights at the time for nobles.

With democracy playing a fundamental role in the creation of the United Kingdom’s unwritten constitution it can be assessed that the separation of powers is based upon a stable foundation of democracy which in the United Kingdom’s case is based on the Magna Carta. From this it poses a strength for British democracy as the ability to be interchangeable as a result of an unwritten constitution. From this, it holds a strengthened case for the United Kingdom to be adaptable to societal changes more easily than other states with the ability to be able to stay more grounded and true to the nature of democracy.

The Separation of Powers

This concept of a separation of powers holds a vast history that can be
found as far back to the philosopher Aristotle.[9]
However, the separation of powers is most commonly associated with the French
political philosopher, Baron de Montesquieu who drew up the three main separate
institutions of a state; legislative, executive and judicial branches. This
ideal structure of a constitution evolved from Montesquieu’s curiosity of the
English constitution.[10]
The United States holds a strong constitution while the United Kingdom does not
possess a codified constitution, but an unwritten one formed from Acts of
Parliament, court judgements and conventions.[11]  Both states here hold a varied approach to
the separations of powers. But does that make one more adaptable
to societal changes? The United Kingdom’s separation of powers is
divided up with Parliament known as the House of Commons and House of Lords
representing the legislative branch, His/ Her Majesty’s government led by the
Prime Minister and their Cabinet represent the executive branch and the
judicial branch with the Supreme Court.[12] Through
this essay the idea of the spirit of democracy can come into relevance as
stated by professor Jeffrey Stout that “modern governmental structures are
democratic only to the extent that they are actually responsive to a
public discussion and an electoral process in which members of the society in
question actually participate.”[13] The
United Kingdom’s House of Commons is directly representative of the British
people and therefore each Member of Parliament is accountable to the public.

The United Kingdom’s
separation of powers has evolved over time and set a doctrine for the world to
follow. Similarities follow, like the United States’ separation of power
structure and the United Kingdom where both apply the same organisation to the
legislative branch, executive branch and judicial branch. However, the
executive branch of the United Kingdom is viewed as equally as its counterpart
branches with each branch working simultaneously to keep each other in check. The American constitution was the
first to mention of any sort of system of separation of powers and was devised
for one purpose, to prevent a ruling majority doing exactly as they please. The
American constitution was designed deliberately to be inefficient, however, the
constitution was created in order to represent and defend the principles of the
American people, which leaves room for an inefficient nature. This is contrary
to the United Kingdom’s separation of powers which lacks the rigid structures
in place allowing these evolving policies to keep up with modern day societal
changes.

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Checks and Balances within the United Kingdom’s Separation of Powers

The executive branch in the United Kingdom is made up of the Queen’s
servants which are government Ministers including the Prime Minister.[14] We
can see that in the United Kingdom the executive and legislative appear to have
a “close union (a) nearly complete fusion of the executive and legislative
powers”[15] which
in Walter Bagehot regarded as the “efficient secret of the English Constitution”.[16]
The checks and balances therefore held by the executive branch in the United
Kingdom appear to be much more intertwined than in the other states. This
provides a closer relationship between both branches which could lead to better
cooperation and the mobility to effectively move with the British societal
changes.

The majority of the legislative proposals are made by the executive branch
as this is down to the original structure of the British political parties and
the overall workings of the British electoral system.[17] The
government must be supported by an elected majority in the House of Commons in
order to be able to pass the legislation they wish during their term in
government. With the legislative and executive branches, both being closely
intertwined in the United Kingdom, it presents the fact that the executive
branch is essentially at the heart of the Parliament and plays a much more
prominent role in the legislative.[18] With
the laws proposed by the British Government and then ratified by Parliament in
both Houses it allows the government to check over Parliament. These are key to
the functioning of the state in order for new laws to be passed through and
keep the country moving effectively and efficiently. The close-knit
relationship between both branches provides a balance and thus leeway for the
case being argued “to what degree is the British system adaptable to modern and
the evolving changes of the state?”

The executive branch prior to The Constitutional Reform Act 2005 allowed
the Lord Chancellor to be a part of the Judicial system and to be speaker of
the House of Lords. [19] This
Act reformed this tradition and showed the government to be continually
changing the constitution practices and separation of powers.[20]
This reform essentially formed judicial independence from the government with
no political biases. These changes fundamentally created more checks and
balances for the branches throughout time. This can be seen as a positive for
the United Kingdom unlike France and the majority of other states across the
world as it gives more freedom to change and evolve over time. However, the
argument could be made that the United Kingdom’s system of separation of powers
is more susceptible to these societal changes.

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British System of Separation of Powers and Societal Changes

After
taking into account the historical perspective of the British unwritten
constitution it is necessary now to evaluate to what degree is the British
separation of powers adaptable to societal changes. As previously stated throughout the
investigation the United Kingdom’s uncodified constitution plays a very
important role especially as the world is changing
faster than ever today with instant and infinite feeds of information available
at our fingertips. This can be seen as a result of the effects of globalisation
and with the need to adapt more quickly than ever today especially with the
world becoming arguable smaller. This poses the question that a constitution
with much more flexibility would be suitable, legitimate and represent the
general public more rather than something written hundreds of years ago which
can appear to be out of date and touch with modern society. As part of this
investigation the many ways in which the United Kingdom’s constitution appears
to be more fitted and increasingly reflect a changing world today will be
developed and evaluated.

With this
uncodified constitution, it is able to evolve with time and enables it to be
amended to keep up with societal changes. Dissimilar from a codified
constitution, which can be known for being a less adaptable system as it is
written and often therefore not fitted with any special procedure for somewhat
amendment to be made which could be needed with present day changes.[21] The unwritten
constitution is changed to any statute law, contrasting the United States as an
example where there needs to be a two-thirds majority in Congress and three
quarters’ of the states needs to favour the choice.[22] With the United Kingdom’s
case, the unelected judiciary as the House of Lords has no significant political
constitutional role and that the House of Commons which is elected can only
decide on the constitutionality of laws and actions.[23]  Through this key part of this investigation,
I may argue that this gives the British government the powers needed to take
action when needed in important circumstances and can be much more dynamic and
able to compile with modern laws and regulations better. The example can be
taken of the Scottish Referendum on the 18^th of September 2014 where
the United Kingdom’s governments had to amend the section 30 of the Scotland
Act of 1998 which temporarily lifted any restrictions the Scottish Parliament
to hold the referendum legally.[24] With this case, it
provides an insight to the fact that as a result of Britain having an absence
of a strict constitution it was able to adapt to the societal change of
Scotland desire for self-determination and for statehood and leave the United
Kingdom. Although Scotland did not actually in the end vote for a majority to
leave the United Kingdom the temporarily lifted restrictions from Scotland Act
of 1998 was returned to its original form. Through this prime example an
absence of a written constitution was able to benefit the Scottish people
giving them a legitimate referendum, an essential part of democracy. This on
the other hand has been seen to be a problem for the region of Spain known as
Catalonia as previous referendums held there have been categorised as illegal
because of its nature to go against the Spanish Constitution. Making the case clear
and more prominent that the United Kingdom’s separation of powers are adaptable
to societal and political changes.

To evaluate the whole
perspective whether the British separation of powers is adaptable to
societal changes, it is interesting to observe factors that counteract this
argument. Although the nature of the United Kingdom’s unwritten constitution is
fairly flexible it does come with some disadvantages. These include those of no formal
protection of rights, constitutional crises and constitutional rights of a
government or Prime Minister’s powers being abused.[25] With the separation of
powers, it also does not provide a firm position of roles for the three branches
allowing room for abuse of power and overall a far more complex understanding is
needed. The United Kingdom’s uncodified constitution does hold its limitations
in that due to the characteristics of this constitution there is a reliance on
outside influence as for example the European Court of Human Rights. This agreement
becomes evident to this investigation through the Human Rights Act of 1998,
although an Act of Parliament of the United Kingdom was designed to incorporate
European Conventions on Human Rights into UK law.[26] From this example, it can
be argued that this can not only highlight the downside of Britain’s
constitution but the impact on British sovereignty and the lack of ability for
there to be no adaptability to modern societal changes of human rights. An
additional issue would be the abuse and attack of the sovereignty of the
electorate from the governments or Prime Minister’s ability to alter an
unwritten constitution by just passing an Act of Parliament with their majority
in the House of Parliament. This can be seen with controversial decisions made
by the former Prime Minister Tony Blair, bypassing of multiple laws but
frequently amounts of statutory instrument which is essentially subordinate
legislation.[27]
Although many of these laws can be argued to be a response to the demands of a
changing society it sheds a light on the sheer amount of legislation that was
being put through Parliament and that would in theory have allowed less debate
time for Members of Parliament so therefore less scrutiny on these new
implemented legislations.[28] Parliament checking over
and passing legislation is essential for keeping the checks and balances in the
separation of powers. This factor highlights that the executive branch’s power
here can be interpreted to have been abused or taken advantage of which is a
realist approach even though the intention was to keep up with the demands of
societal changes.  A realist opinion can
be argued to look at the situation as it can appear not to exhibit much of a
duty to others and the view of egoism which can be argued to be seen by Tony
Blair as political behaviour driven by self-interests. A more current issue can
be put forth with the current need to pass legislation as a result of the
United Kingdom decision to vote to leave the European Union on the 23^rd
June 2016. With this case in hand the United Kingdom needs an efficient and
effective way of transferring European Union laws into British laws. However,
with the vast amount of laws which have come from the European Union some is
being argued to not be relevant for use in Britain and will need to be amended
or removed. For a quicker way to integrate these changed laws the United
Kingdom’s government has proposed to use what are known as Henry VIII powers.[29] The Henry VIII powers
essentially are “the use of secondary legislation to amend the text of primary
legislation (and) are used all the time in sensible, non-despotic ways.”[30] As a result “Getting
parliament to go through the whole process of approving an updated bill would
take up an unnecessary amount of time, on matters of principle that parliament
has already approved.”[31] Throughout
the investigation it can been seen in this case as well as with the executive branch
that there is room for some bypassing of the legislative branch in order to
pass laws. Like with the case of Tony Blair these Henry VIII powers enable the
government to quickly pass through legislation in order to keep up with the
demands and societal change of the British people who wish to leave the
European Union. As thus without this unwritten constitution it could be argued
that there would greater complications in order to keep up with the public’s
desire and would be a much lengthier process which essentially would cause
greater uncertainty. Moreover, although this can be viewed as an abuse of
powers from the executive branch. The realist view is where it can also be seen
to be essential for keeping up with the attitude changes within Britain and
therefore societal changes.

States such as France, Germany and the USA
possess written constitutions that have a much more prominent structure to them
compared to the United Kingdom’s unwritten constitution. These written constitutions
have been argued to be strong and inflexible when it comes to the modern-day
advancement and changes. This is as a result of the length of time it takes for
these laws to be amended and changed. An example of this can be seen in the United States of
America with the well-known and divisive Second Amendment, “the right to bear
arms”.[32]
This has often been argued to be not completely relevant in today’s society as we
no longer need to protect ourselves physically in that way anymore. It
represents an out of date precedent. Although there are many still in the
United States who believe in this amendment strongly there is a large movement
who perceive it as being out of date and not keeping up with modern and
societal changes towards gun control. There have been numerous attempts from
Presidents to alter this amendment although they have not progressed anywhere
as it very difficult to change due to the nature of the strict constitution and
public opinion. The case made here in the investigation shows that the United
Kingdom’s unwritten constitution is able to provide the flexibility to adapt
easily to societal changes which other states such as the United States.
Without evolution, it can be argued that written constitutions will never
change at adequate speed or to the required extent because of their embedded nature.
The ability to also adapt to these societal changes will be put at risk as well
if it continued to be viewed as untouchable.

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Conclusion

Overall, to conclude “to what degree is the British separation of powers adaptable
to societal changes?” From the investigation carried out, it has become evident
that the British system of separations of powers is adaptable to these societal
changes as a result of the nature of the British unwritten constitution. Conversely
in countries where there is a written constitution fundamental legislation is
not being passed and changes to the constitution are not being made giving the
impression of them being out of date and not effective for modern day issues. Through
this investigation there can be multiple interpretations. This can often depend
on what ones sees as necessary to be changed due to these societal changes and
what those societal changes actually are and how democracy has played an
important role in influencing them. From the United Kingdom perspective there
are different needs and wants as well as cultural issues which all play a vital
role in how each separation of power responds to these matters. To aid this
investigation the value of first-hand sources such as Acts of Parliament have
been of value as it has been interesting to view the actual legislation behind these
structures in which we all should abide by. From seeing this it also allows for
one’s own interpretation of this legislation without influence from a third
party, through the press or from the experience of others for example. Additional
sources used throughout this investigation although useful, hold limitations in
that articles written about this subject can be giving a prejudiced or bias
take on the circumstance as well as from conflicting political points of view.
It can also be seen from this essay that questions of sovereignty and
legitimacy behind the system arise as the United Kingdoms’ system of separation
of powers may be more flexible to modern day changes the downside is that they
can have an effect on British sovereignty. This is the case as the uncodified constitution
allows for grey areas and therefore abuse from those in the executive or even
the legislative branches. Whereas in states with codified constitutions this
appears to be much harder to bypass or misinterpret because of its nature and
thus are less vulnerable abuses of sovereignty. This investigation brought to
light the term of legitimacy and raised the question from factors discussed “does
it make one of the two systems more legitimate than the other?” To the question
of “to what degree is the British separation of powers is adaptable to societal
changes?”. This can only be evaluated by the degree to which the United Kingdom
is able to cope with these modern-day advancements. It’s ability to pass legislation
earlier and quicker makes it more effective and efficient in keeping up with
societal changes and not become out of date and non-representative of its
current population.

Bibliography

Bagehot, Walter.
The English Constitution, Published:
1867 (UK)

Benwell Richard,
Gay Oonagh, The Separation of Powers, Published: 15 August 2011 (UK)

Biles Gerry,
Fraser Jane, Longshaw Alexis, Tayleur Trevor, Understanding Law Manual 2 Units
9-15, Units 10 and 11 Introduction to Constitutional Principles, Published:
2009

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Blackburn, Robert. Britain’s
Unwritten constitution, British Library, Published: 13 March 2015, Web link: https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution  (Last Accessed: 19.10.17)

Constitutional Reform Act 2005,
Chapter 5, Act of the Parliament of the United Kingdom, Published: 2005 (UK)

Di Mauro, G.
Global Politics Lecture, 2018, France

Human Rights Act
1998, 1998 c42 (UK)

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LawGovPol, The Separation of Powers, Web link: http://lawgovpol.com/separation-of-powers/ (Last Accessed: 07.11.17)

Scotland Act, Section 30, 1998 c46
(UK)

Second Amendment, Web Link: https://www.law.cornell.edu/wex/second_amendment (Last Accessed: 19.10.17)

Stout, Jeffrey. The Spirit of Democracy, Columbia
Legal Theory Workshop, Published: November 2004 (US)

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Thompson,
Barney. Pickard, Jim. Concerns Remain over how ‘Henry VIII powers’ will affect
Brexit, Financial Times, Article Published: 12^th September 2017 (UK),
https://www.ft.com/content/3e667c06-93d4-11e7-a9e6-11d2f0ebb7f0
(Last Accessed: 05.01.18)

Unknown, Author. The Guardian, Blair decade sees jump in number of new laws, study finds, The
Guardian, Article Published: 4^th June 2007 (UK), https://www.theguardian.com/politics/2007/jun/04/houseofcommons.uk (Last Accessed: 05.01.18)

Unknown, Author. LawTeacher,
The Advantage of The UK Constitution Constitutional Law Essay Published:
November 2013, https://www.lawteacher.net/free-law-essays/constitutional-law/the-advantage-of-the-uk-constitution-constitutional-law-essay.php?cref=1 (Last Accessed: 12.12.17)

Unknown, Author.
Mytutor, Published: 2015, Web link: https://www.mytutor.co.uk/answers/1773/A-Level/Politics/What-are-the-branches-of-government-in-the-UK-and-what-are-their-key-functions  (Last Accessed: 12.12.17)

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[1] Di Mauro, G. Global Politics Lecture, 2018, France

[2]Blackburn, Robert.
Britain’s Unwritten constitution, British Library, Published: 13 March 2015,
Web link: https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution

[3] ibid

[4] ibid

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[5] ibid

[6] ibid

[7] ibid

[8] ibid

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[9] LawGovPol, The
Separation of Powers, Web link: http://lawgovpol.com/separation-of-powers/

[10] ibid

[11] Blackburn Robert,
Britain’s Unwritten constitution, British Library, 13 March 2015, Web link: https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution

[12] Unknown, Author.
Mytutor, Published 2015, Web link: https://www.mytutor.co.uk/answers/1773/A-Level/Politics/What-are-the-branches-of-government-in-the-UK-and-what-are-their-key-functions

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[13] Stout, Jeffrey. The Spirit of Democracy, Columbia
Legal Theory Workshop, Published: November 2004 (US)

[14] Biles, Gerry. Fraser, Jane. Longshaw, Alexis.  Tayleur, Trevor. Understanding Law Manual 2
Units 9-15, Units 10 and 11 Introduction to Constitutional Principles, Published:
2009, Page 73

[15] Bagehot, Walter. The
English Constitution, Published: 1867 (UK), Pages 67–68

[16] ibid, Pages 67–68

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[17] Biles Gerry, Fraser Jane, Longshaw Alexis, Tayleur
Trevor, Understanding Law Manual 2 Units 9-15, Units 10 and 11 Introduction to
Constitutional Principles, Published: 2009, Page 74

[18] Benwell Richard, Gay Oonagh, The Separation of Powers,
Published: 15 August 2011 (UK), Page 3

[19] Constitutional
Reform Act 2005, Chapter 5, Act of the Parliament of the United Kingdom, Published:
2005 (UK)

[20] ibid

[21] Unknown, Author. LawTeacher, The Advantage of The UK Constitution
Constitutional Law, Essay Published: November 2013, https://www.lawteacher.net/free-law-essays/constitutional-law/the-advantage-of-the-uk-constitution-constitutional-law-essay.php?cref=1

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[22] ibid 

[23] ibid

[24] Scotland Act,
Section 30, 1998 c46 (UK)

[25] Author, Unknown. LawTeacher, The Advantage of
The UK Constitution Constitutional Law, Essay Published: November 2013 https://www.lawteacher.net/free-law-essays/constitutional-law/the-advantage-of-the-uk-constitution-constitutional-law-essay.php?cref=1

[26] Human Rights Act 1998, 1998 c42 (UK)

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[27] Unknown, Author. The
Guardian, Blair decade sees jump in number of
new laws, study finds, The Guardian, Article Published: 4^th
June 2007 (UK),
https://www.theguardian.com/politics/2007/jun/04/houseofcommons.uk

[28] ibid

[29] Thompson, Barney.
Pickard, Jim. Concerns Remain over how ‘Henry VIII powers’ will affect Brexit,
Financial Times, Article Published: 12^th September 2017 (UK), https://www.ft.com/content/3e667c06-93d4-11e7-a9e6-11d2f0ebb7f0

[30] ibid

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[31] ibid

[32] Second Amendment,
Web Link: https://www.law.cornell.edu/wex/second_amendment

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