An Examination of Separation of Powers within the British Constitution

This report provides a detailed analysis of the separation of powers within the British constitution. It begins by examining the historical context and the evolution of the Westminster model, highlighting the shift from a predominantly political constitution to one increasingly influenced by legal constitutionalism. The report explores the roles of the judiciary, legislature, and executive, discussing the principle of parliamentary supremacy and the growing influence of judicial review, particularly in the context of European integration and human rights. It delves into the impact of the European Union and the European Convention on Human Rights on the British legal system, analyzing how the courts have navigated the conflicts between national and European law. The report also assesses the impact of the Human Rights Act 1998 and examines how the courts have adapted to international standards. Overall, the report concludes by assessing the changing balance of power between the branches of government and the implications of these changes for the British constitutional framework.

Separation of Powers in British Constitution
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Due to the fact that the Westminster constitutional model did not meet the new ideas of
society, the issue of the legitimacy of constitutional institutions (and the constitution as a whole)
has become particularly relevant. It was supposed to make the government more open,
transparent and less centralized, parliament - effectively controlling the government, rights -
"inalienable", as well as expanding the forms of public participation in public life1. At the same
time, the corresponding changes should have been drawn up by law.
By 1997, the British Constitution had revealed many contradictions caused by the growth
of state social activity, attention to human rights and their protection, European integration of
states and the creation of supranational structures. These processes, reflecting the general
patterns of development of most European states in the second half of the 20th century, diverged
significantly from the British constitutional tradition. The latter was determined by the
relationship between the judiciary and parliamentary institutions. In the 19th century. the greatest
theoretician of constitutional law of England A. Dicey characterized the established balance
between the authorities as the principle of the British constitution, providing for the supremacy
of parliament in the constitutional system.
The classic British constitution, based on the ideas of legislative supremacy of
parliament, limited government and an independent judiciary, is predominantly political, not
legal. The dominant position in it is occupied by political institutions - parliament and
government; parliamentary forms of responsibility prevail over legal ones; the constitution is
based on political practice and is based on parliamentary customs, the observance of which
requires political consensus. In the constitutional system created to implement the ideal of
1Leyland, P. (2016). The constitution of the United Kingdom: A contextual analysis. Bloomsbury Publishing.

parliamentary democracy, where the last word belongs to the electorate during the elections, in
between, the board depends on political decisions and political.
In the changed reality of constitutional relations, the dividing lines between parliament
and the judiciary turned out to be less clear. Judicial activism inherent in individual judges in the
second half of the 20th century, the development of administrative law and judicial control in
relation to the actions and acts of executive authorities testified to the self-development of the
judiciary and a departure from the classical constitutional doctrine. This deserves special
attention since there are many examples in British constitutional history that common law
inevitably follows a change in political reality2.
Given the dominance of the government in the House of Commons, the prevalence of
delegated legislation over laws, the development of social statehood, the strengthening of judicial
control, accompanied by the development of public law in the courts, probably had no
alternative. that common law inevitably follows a change in political reality.
As the political instruments of the British constitution began to weaken, and political
institutions lost the trust of citizens, starting in the 70s of 20th century the influence of legal
constitutionalism is growing. This theory, based on legal rather than conventional constitutional
norms and judicial mechanisms for protecting the law, is aimed at strengthening the role of the
courts in the British constitution.
For the traditional British order, the ubiquitous tendency towards the legalization of
public life seems ultramodern. The constitutional reform of the Laborites is an example of a
policy that reflects various aspects of legalization: the creation or amendment of constitutional
2 Oliver, M. J. (2019). Whatever Happened to Monetarism?: Economic Policy Making and Social Learning in the
United Kingdom Since 1979. Routledge.

norms in order to expand competence and enhance the role of the legal system, the development
of judicial procedures for the resolution of disputes, and the increasing role of the courts in the
development of law.
One of the consequences of these processes is the politicization of the judiciary in the
process of judicial control over the actions of elected politicians. From a long time ago, the
English written courts exercised such powers by issuing prerogative orders. This has played a
progressive role in the history of Great Britain, and at present the exercise of control reflects the
rule of law in the modern constitution. In conditions of excessive delegation of authority to
executive bodies and active state intervention in all spheres of life, the power of the courts in the
full sense of the word becomes “justified in a democratic society” to protect individuals and
citizens freedom from the state, acting from the position of public interest. For example, in the
20th century. the courts recognized their right to determine the content of the royal prerogative
(Burham Oil v Lord Advocate3, the scope of individual prerogatives, and the relationship
between the prerogative and the statute (Attorney-General v De Keyser's Royal Hotel4).
Evidently, the constitutional balance is slowly shifting towards the judiciary, and in
response to the strengthening of state power, the courts themselves are becoming more active14.
If until the 60s. of the last century, an action or an act of an executive authority could be
recognized as null and void only if it went beyond the competence, then in the 80s. relevant court
decisions were made already on the basis of several criteria developed by judicial practice in
previous years. An additional reason for expanding the use of judicial control is the doctrine of
proportionality, which has acquired more and more legal certainty in recent years. A
3 Burmah Oil Company v Lord Advocate [1965] AC 75, House of Lords
4 Attorney-General v De Keyser's Royal Hotel [1920] AC 508).

comprehensive assessment by the court of the act, including on the basis of the criteria of
proportionality and expediency of state intervention, testifies that the courts also resolve political
issues. The increase in the number of appeals to the courts in connection with the appeal of
actions and acts of the executive authorities and the development of legal regulation in the field
of human rights indicate a change in the constitutional role of the courts and increased judicial
interference in politics.
In this regard, the question arose whether it is possible to suspend recent processes or
restore the previous constitutional balance with the help of parliamentary control. During the
reform, the Laborites proposed to solve it in the general context of democratization and
compliance with European requirements regarding the quality of the judiciary, without violating
the integrity of the constitution.
Since the 1970s. of the last century, a supranational principle related to European
integration within the European Union and participation in the Convention for the Protection of
Human Rights and Fundamental Freedoms within the Council of Europe has become a powerful
factor in the development of the British constitution. The European factor in both cases casts
doubt on the British principle of the supremacy of parliament in the legislative sphere.
The principle of the rule of law of the European Union (hereinafter - the EU), recognized
by Great Britain in 1972 after the adoption of the Act on the European Communities, creates a
conflict in the domestic legal order5. The doctrine of the rule of law of the EU means that in case
of discrepancy between the norms of European and national law, the national court must apply
the rule of European law and make a decision based on it. At the same time, from the point of
view of the English legal system, the Queen in parliament has the right to adopt and repeal any
5 The European Communities Act 1972 (c 68)

legal acts, but not a single person, not a single body, except the parliament, has the right to
deprive or cancel an act of parliament.
For 40 years, the courts in the UK have been reconciling these two conflicting principles.
Speaking in their traditional constitutional role, they interpret, as far as possible, the rules of
British law in accordance with the provisions of EU law. The role of national courts in the
process of adapting European law to domestic law through judicial interpretation is recognized
by both parties. In a series of decisions of the Court, the EU19 developed the doctrine of “direct
effect”, which links the effect of the EU directive with the clarity and consistency of its content
from the point of view of the national court. If there is a conflict between the terms of the EU
directive and the rules of domestic law, the national court should, as far as possible, interpret the
relevant rule in the light of the EU directive, whether the court has been created to apply this
directive or not and whether the national law has been adapted to the effect of the directive in
advance or subsequently.
The European Communities Act of 1972, which entered into force on January 1, 1973,
gives the courts of the United Kingdom the right to adjudicate and resolve disputes based on
Community law and obliges them to interpret and apply parliamentary law in accordance with
their direct application and application6. EU law, regardless of the time of their adoption (Art. 2
(4), 3 (1)).
The doctrine of legislative supremacy of the parliament provides that the courts have the
right to interpret the act, but not the right to reject or cancel it. It also does not prohibit judicial
interpretation in accordance with international obligations, including obligations to the European
6 European Communities Act of 1972

Union. Remaining within the framework defined by the constitution, the British courts have
developed a common approach regarding the adaptation of English law to international
standards. The 1983 Garland v. British Railways7 judgment formulated a rule of interpretation
when considering disputes related to the application of EU law, according to which a judge
should proceed from the belief that Parliament intended to enact a law that complies with
international obligation.
The jurisprudence related to the Convention for the Protection of Human Rights and
Fundamental Freedoms developed in the same direction, but much more slowly. In 1991, on the
Brind’s case, the House of Lords rejected the complaint, stating that the provisions of the
Convention relied on by the party were not directly applicable by the English courts8. However,
in his opinion on this case, Lord Bridge focused on the fact that it is clear that when interpreting
a rule of the statute (which is unclear in terms of compliance or contradiction of its Convention),
judges should proceed from the conviction that the parliament intended to adopt a law that was
consistent with the Convention and not contrary to it as evidenced in R. v Secretary of State for
the Home Department9. This formula was included in the text of the 1998 Human Rights Act
seven years after it was formulated.
7 [1983] 2AC751, at 771.
8 Brind v Secretary of State for the Home Dept [1991] 1 All ER 720
9 [1993] UKHL 8, [1994] 1 AC 531

References
R. v Secretary of State for the Home Department, ex parte Brind [1993] UKHL 8, [1994] 1 AC
531
Garland v British Rail Engeneering [1983] 2AC751, at 771.
Brind v Secretary of State for the Home Dept [1991] 1 All ER 720
The European Communities Act 1972 (c 68)