Essay on Separation of Powers in UK Public Law: Analysis and Critique

This essay provides an in-depth analysis of the UK's unwritten constitution and the concept of separation of powers. It begins with an introduction to the UK's constitutional framework, highlighting key principles such as parliamentary supremacy and the rule of law. The main body of the essay examines the historical development of the constitution, including the influence of the Magna Carta and the Bill of Rights. It explores the roles of the Parliament, Executive, and Judiciary, and analyzes the extent to which the principle of separation of powers is applied in the UK. The essay argues that the UK's system is characterized by a fusion of power rather than a strict separation, with overlaps between the legislative, executive, and judicial branches. The essay examines the impact of the Constitutional Reform Act of 2005 and the influence of European Union law, including the Human Rights Act 1998. The essay concludes that, while the UK is moving towards a greater emphasis on the separation of powers, a complete separation does not exist due to historical development and the interconnectedness of government institutions.

Public Law

Table of Contents
INTRODUCTION ..........................................................................................................................3
MAIN BODY ..................................................................................................................................3
CONCLUSION ...............................................................................................................................7
REFERENCES................................................................................................................................8

INTRODUCTION
The Constitution of United Kingdom (UK) is the set of rules which decides the political
governance of UK and the Northern Ireland. The UK has the unwritten and non codified
Constitution. However, the Supreme Court of UK recognises that the constitutional principles
including rule of law, parliamentary supremacy, upholding international law and democracy are
embodied in the laws of UK. Further according to UK Supreme Court, some Acts of the
Parliament has the special constitutional status which provides the principles of Constitution,
which includes Magna Carta of 1215, Bills of Right, 1689 and many other (Reed, 2017). The
concept of separation of power was first coined by Baron de Montesquieu in 18th century who
provided that the three powers should be separate and independent of each other. This essay
report shall cover the analysis of the statement '' the British Constitutional order is based on the
fusion of power. In such circumstances, claiming separation of power is wrong and
meaningless.''
MAIN BODY
The Britain has the Constitution which exist in abstract form which consists of diverse
law, conventions and practices that has been evolved over a long time. The unwritten and non
codified Constitution of UK has govern its status from the special Acts of the Parliament where
parliamentary supremacy, democracy and rule of law have its recognition. The Magna Carta of
1215 provides the king to call common counsel which is now known as Parliament to represent
people, guarantee free trials, hold courts, right to use land to common people and many other.
The concept of Parliamentary supremacy was embodied in Bill of Rights, 1689 and Claim of
Right Act, 1689. The right to vote is provided by Representation of People (Equal Franchise)
Act, 1928 and by being the member of Council of Europe, the human rights were guaranteed to
the people of UK and United Nations guaranteed internal security and peace (Psygkas, 2020).
The United Kingdom became the member of European Community (EU) in 1973.
By virtue of becoming the member of EU, the UK government adopted the principles of
European Convention on Human rights (ECHR) to protect human rights and political freedom in
the Europe. The UK government adopted its principles in its Human Rights Act, 1998 where it
states that the aggrieved party whose rights are violated under the Convention may seek the

remedy in courts and the judgements are binding on the states and they are oblige to follow and
execute them.
The Constitution of UK has four institutions which includes Parliament, Executive,
Judiciary and the local or regional governments (Norton, 2020). The Parliament of UK is the
supreme law making body which consists of two houses, which are House of Common and
House of Lords. These Houses are entrusted with the power to make law after reading, amending
and approving the legislation.
The Judiciary of UK is entrusted with a power of interpreting the laws made by
Parliament and developing new laws. The highest court of UK is the Supreme Court with 12
judge sitting which decides appeals from Court of Appeal. It cannot declare any law made by
Parliament as unconstitutional but can declare the laws made by executive as invalid or can make
any law incompatible with the European Convention on Human Rights.
The Executive of UK is led by the Prime Minister appointed by the Parliament and
cabinet ministers who have the power to run the departments of civil service like Department of
Education, health, etc. The Royal Monarch is a part of executive who have the power to sign the
bill to make it a law.
The concept of separation of power states the division of three branches which have
independent and separate responsibilities and powers. This concept came into existence to
prevent any one branch from being supreme and introduced the concept of checks and balances
so that one branch can limit the power of other. The concept of Separation of power did not exist
in the UK Constitution (Dutta Roy, 2017). The executive and the legislative merged together
with Prime Minister showed that the concept of separation of power is not applicable in UK. It
has an informal and not absolute kind of separation of power as the three branches are not
separate rather they overlap with each other. The judiciary has been considered as independent
body but the legislature and executive do overlap as the Crown is the member of executive as
well as legislature. Article 6 of the European Convention on Human Rights provides for fair trial
and the Constitutional Reforms Act, 2005 states the independence of judiciary. In the case of
Duport Steels Ltd. v. Sirs, the court held that the Constitution of UK is based on separation of
power, the parliament makes laws and the judiciary interprets it. But there is lack of effective
separation of power as the Parliamentary sovereignty allows the Parliament to over rule
fundamental rights which makes the constitution of UK as facade.

All the branches perform their functions independently but there comes some
circumstances where one subject is divided among all branches which makes the chances of
overlapping. For instance, the introduction of tax is a legislative function, collecting it is a
executive function and settling dispute relating to tax is judicial function. Separation of power
means that other branches must not exercise the power of other and one must also not control the
work of other. But here tax is imposed by one, collected by other and settled by the third branch.
The term fusion of power was first coined by Walter Bagehot who was the British
Constitutional Expert. It usually occurs when the legislative and executive branch of the
government intermingle with each other. The UK political system has evolved from centuries
where strong fusion of power exist (Duessel, 2017). For instance, the Monarch is being
constrained by the Parliament and it has a system where members of legislative are the member
of executive also. But until 2005, Lord Chancellor was a fusion of all branches where it is the
government minister in Lord Chancellor's department, head of judiciary and the speaker of
House of Lords. But after 2005, the Constitutional Reform Act came into existence which
established the Supreme Court of UK and defused the position by making the law that the Lord
Chancellor can now neither be the Lord Speaker nor the head of Judiciary, that is Lord Chief
justice.
The concept of Separation of power have been given a new relevance in the UK by
questioning the Constitutional Reform Act and implementation of European Union laws like
Human Rights Act, 1998. The relationship of legislature and executive shall be explained as
closely entwined as Prime Minister and other ministers are member of House of Commons and
therefore, executive is at the the heart of the Parliament. The Parliament may delegate its power
to make laws on small technical details, subject to the approval of Parliament. So this shows that
executive and legislature are far from the concept of separation of power as there exist the fusion
of power.
The government may have the majority in the House of Commons so there arises a
question as to whether government can dominate the Parliament. So in order to prevent executive
from controlling the legislature, the Parliament has enacted a law House of Commons
(Disqualification) Act, 1975 which imposed the limit on number of salaried ministers who can
sit in the House of Common (Craig, 2019) .

The separation of power has the second element which is judiciary and legislature. The
judges have been prohibited from standing in election of Parliament under House of Commons
(Disqualification) Act, 1975 as they have the power to interpret the Parliament made laws and
develop new laws. In general, judiciary is the subordinate of legislature as it cannot question the
validity of Parliament made laws. But the European Communities Act, 1972 entrusted the court
with the power of not applying any law of Parliament which is inconsistent with the EU laws.
This clearly shows the departure from principle of the Parliamentary Supremacy. Section 4 of the
Human rights Act, 1998 also states the power of court to declare any law which is incompatible
with the ECHR as void and the government is obliged to rectify the inconsistency (Wheatle,
2019). So here also the fusion of power exist where there is no separation of power and both
legislature and judiciary interfere in their work. For instance, the Human Rights Act imposes a
duty on the courts to interpret this law so that its compatibility is seen with that of the European
Convention on Human Rights (ECHR). Article 8 of the convention provided right to respect the
privacy and family life which was not embodied in the statutory law of privacy so the judiciary
through the common law developed this law. This was highly criticised by the critics that the
judiciary has gone beyond its power to make a new law on privacy as common law but others
suggested that Human Rights Act created the right to privacy so it is a law made by Parliament.
The conflict between judiciary and legislation has been going from a long time. Article 9
of the Bills of Rights of 1688 states the parliamentary privilege with freedom of speech and
debate. But it is subject to overlap of powers between legislature and judiciary where the
legislature states that judiciary has used injunctions on the parliamentary privilege of MPs and
judiciary is of the view that Parliamentarians use this privilege to defy laws and this may
undermine role of the judges (CHESNOKOVA, 2017). So here also the separation of power is
informal and both legislature and judiciary interfere in their functions either directly or
indirectly.
The last element is judiciary and executive where the judiciary has to scrutinise the
legislation made by the executive by virtue of delegated power. The executive has to make sure
that its laws are consistent with power which is granted by the Parliament. The judiciary has a
power of judicial review where it may question the lawfulness of the actions of the executive or
public bodies. So the judiciary has to remain independent of Parliamentary influence and the
government.

CONCLUSION
It is concluded from the above essay that the Constitution of UK has governed its
principles from diverse laws and practices which has evolved slowing over the time. The UK has
the unwritten constitution as its principles are embodied in the Acts of the Parliament and
conventions. The country has the informal separation of power where all the branches, that is,
executive, legislature and judiciary overlap each other and interfere in their functions. Likewise,
the legislature and judiciary both have power to make law but legislature is the supreme
authority in law making. The executive and legislature are also entwined as the later can delegate
its power to make law to the former and the judiciary may question the validity of the executive
made law. All these shows that there is fusion of power which exist in UK and not the formal
separation of power. But the nation is slowing developing the concept of separation of power
into its system. For instance, the Constitutional Reforms Act of 2005 provides that the judiciary
is an independent body and eliminated the fusion of power.

REFERENCES
Books and Journals
CHESNOKOVA, M., 2017. THE CONSTITUTION OF GREAT BRITAIN. In Мы говорим на
юридическом английском, немецком, французском, испанском= We speak Legal
English, German, French, Spanish (pp. 45-46).
Craig, P., 2019. BREXIT AND THE UK CONSTITUTION. The Changing Constitution. p.95.
Duessel, F., 2017. Human Rights in the British Constitution: A Prisoner of History. U. Ill. L.
Rev., p.791.
Dutta Roy, P., 2017. Strengthening Democracy-A Study with Reference to Separation of
Powers. Available at SSRN 2996099.
Norton, P., 2020. Britain’s uncodified constitution. In Governing Britain. Manchester University
Press.
Psygkas, A., 2020. The United Kingdom’s Statutory Constitution. Oxford Journal of Legal
Studies. 40(3). pp.449-481.
Reed, R., 2017. Re-thinking the UK Constitution. Giornale di Storia Costituzionale. 34. p.73.
Wheatle, S.S., 2019. Unintended Consequences: The Common Law Constitution and Judicial
Comparativism. Michael Gordon and Adam Tucker, Assessing the State and Legacy of
New Labour: Twenty Years On, Forthcoming.