For a long time, academics and judiciary have debated if the United Constitution grants separation of powers among the three arms of government. Neil Parpworth’s (2018) arguments in his book, ‘Constitutional and Administrative Law,’ showshow that two different camps are arguing about this topic. On one side are legal academic writers who mostly argue that the constitutioConstitutiondoes do not provide for separation of powers. The second camp involves high-ranking judges and top officials in the judicial system. This camp argues that the Constitution establishes separation of powers among the legislative, executive, and judicial arms of government. The perspective of these two camps shapes how the constitutioConstitutionis is understood and operates. Against this background, this paper critically examines the views of the academics and the judiciary concerning the doctrine of separation of powers in the UK constitution. It will analyze the points from both sides and use laws and court cases to back up its arguments. Basically, the paper gives detailed understanding about what academic writers and judiciary think about the existence of the doctrine of separation of power in the UK constitution.
Critical Analysis of the Perspectives of Academic Writers
The debate about the separation of powers in the UK’s Constitution has drawn different opinions, especially among academic writers. Neil Parpworth, in his 2018 seminal work, points out a clear group of academic writers who have shed some write on this topic.[1] According to Neil Parpworth, a common ground among this group of researchers provides that the UK constitution does not have an official separation of powers. While understanding this, the analysis below very carefully looks at what these academic writers think and say about the separation of power in the UK constitution. The analysis checks their arguments and investigates how they affect people’s understanding of the UK government constitution. The analysis uses examples of English laws and critical English court cases to support the conversation among academics.
In essence, academic writers who write about law and rules in the UK constitution provide vital insights into this topic, according to Parpworth’s arguments. They opine that the UK’s Constitution has no separate power division.[2] One common argument in this camp provides that combining powers is normal in the English way of creating laws. They further opine that this practice is based on history and how things are set up in this society. In light of this, the academic writers opine that the UK’s unwritten ConstitutioConstitutioneamwork between the legislature, judiciary, and the executive arms of government. This means that the three arms of government do not operate as separate entities. This element is provided in parliamentary control.[3] This argument provides that not having a strict line between the three arms of government lets the government deal well with fast-moving problems without being held back by differences between the three arms.
Supporting what academic writers provide about the ConstitutioConstitutionUK laws, there is an intentional mixing of lines between different branches of government.[4] A good example can be seen in the confusing wording of statutes, designed to allow different branches of government to work together and get intertwined. The Constitutional Reform Act of 2005 created the Supreme Court.[5]It was meant to make judges independent, but this is not directly provided anywhere in the statute. Instead, the Act maintains a complex connection between the executive and legislative arms of government, showing a mix that breaks the strict separation of powers. The confusion created by laws like this one is used by academic writers to support their perspective on why there is no separation of powers in the UK. Academics further use this statute to suggest that the ConstitutioConstitution’sy comes from its blending of different ideas together, just like this law does.
Looking at essential court decisions between 2018 and 2023 sheds more light on the academics’ view on separation of powers. In the case of Miller v. Prime Minister (2019), the Supreme Court stopped a meeting called by senior government officials and political leaders, which showed that judges and leaders work closely together with a clear separation of powers in the UK.[6]Academic writers argue that this case shows how powers depend on each other. The court dealt with things considered political, showing there are no clear limits and separation of powers between the three arms of government since this decision would have been interpreted as interference with the affairs of another arm of government if such separation of powers existed.[7]The academics who believe in the fusion theory would see this case as an example of a better constitution when people work together instead of being divided firmly.
The argument of the academics on the absence of separation of power in the UK constitution can also by the case of Cherry v. Advocate General for Scotland (2019).[8]Linked with the Miller case, Cherry delved into the prorogation issue specifically in the context of Scottish law. The Supreme Court’s decision emphasized the constitutional principle of parliamentary sovereignty, reinforcing the idea that the judiciary plays a vital role in upholding fundamental constitutional norms. While the ruling asserted the judiciary’s authority to review executive decisions, it also showcased the judiciary’s involvement in matters that extend beyond conventional legal boundaries; political issues. Also, the case of R (on the application of Privacy International) v. Investigatory Powers Tribunal (2019) can be used to support the perspective of the academics.[9] This case involved a challenge to the Investigatory Powers Tribunal’s oversight of intelligence agencies. The Supreme Court upheld the role of the tribunal but emphasized the need for additional safeguards. The decision illustrated the judiciary’s engagement with issues traditionally associated with the executive, revealing a pragmatic approach that prioritizes collaboration over a strict separation of powers. In these cases, the judiciary’s active role in reviewing executive actions and engaging with political matters aligns with the perspective of academic writers, emphasizing a constitution that allows for flexibility and interaction among branches rather than a rigid separation.
Moreover, academics argue that the change in how people study laws has moved away from older ideas of keeping powers separated. They opine that knowing the ConstitutioConstitutionns understanding how all parts of government are connected.[10] Particularly, modern academics argue that there is a need to shift away from strict separation because today’s situations are always changing. This will make the government more flexible and responsible for its actions. However, there is a need to recognize those who disagree with what most academics say. Some scholars believe the lack of a clear separation of powers can expose judges to attacks by powerful leaders.[11] This challenges the system’s checks and balances. The bigger role of the political leader in appointing experts, especially judicial officials, raises concerns about the judiciary’s independence being compromised.
Critical Analysis of the Perspectives of the Judiciary
The question of if the UK’s Constitution has a separation of powers has been a topic of debate even in the judiciary. In this debate, judges are an essential part. Neil Parpworth’s arguments show that top judges always support separating power between the three arms of government.[12] Senior judges, who speak for the courts, provide strong arguments on why there is separation of powers in the UK constitution. Their opinion relies on the idea that the three arms of government, executive, legislative, and judicial, work in their own areas with minimal interference.[13] This creates ways to make sure one arm does not become too powerful over the other two. The courts see their job as protecting rules in the ConstitutioConstitutionthose who lead and make laws follow what they should do. This argument is essential to the judiciary’s argument that the UK constitution relies on a separation of powers for it to achieve its goals and objectives.
The case of Cart vs. The Upper Tribunal (2018) can support the judiciary’s perspective.[14] This case was about splitting duties in the area of immigration choices. The court made clear the limits of judicial review by focusing on how important it is for judges to check choices made by administrative bodies. The court’s decision showed the need for a free judiciary to control actions by government officials. This reinforced the notion that no single government organ should have too much power without limits. Moreover, R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 3) (2018) case is another good example of a case that can be used to back up the view of judiciary about if there is separation of power in UK constitution.[15] The case was about the leader’s power to make laws for a British territory outside the country. The court stressed how important it is for judges to check decisions made by leaders, especially those that impact people’s legal rights. The court made it clear that they watch over what a leader does and make sure it’s legal. They also strengthen the separate powers of organs of government by stopping an Order from being passed down through council meetings. Similarly, the case of Wheeler v. Office of the Prime Minister (2019) can help back up the perspective of the judiciary.[16] This case was about the Prime Minister using special powers to tell the Queen when Parliament should stop. In this case, the court emphasized that parliament rules and decided against using special powers to make it hard or stop parliament from doing its main duties according to laws. The choice made the court’s job stronger in checking and controlling executive powers. This helped with keeping apart different roles of each of the organ’s involved under law.
Basically, to support the judiciary’s view on this issue, you can look at cases where English laws seem to separate different parts of government. For another example, the Human Rights Act of 1998 says that courts must help protect basic rights.[17] This gives them the ability to control what rules and leaders can do. However, knowing what these rules say is very important to see if they separate powers or just let judges decide things. The European Union (Withdrawal Agreement) Act 2020 can also be used to support the judiciary’s argument that there is separation of powers in UK constitution.[18] The Act helped the UK leave the EU and showed what part laws play in making their connection with it. The law made sure that only Parliament could say yes or no to the withdrawal deal and not any other organ of government. This showed how strong parliament is while including those who work in the highest level of a country’s administration when making international agreements. The Constitutional Reform and Governance Act 2010 can also be used to support the views of the judiciary.[19] This law controls how treaties are made and agreed upon, making it clear that the executive needs approval from elected officials for big international pacts. The law recognizes the executive’s role in making treaties, but it also includes parliament supervision. This shows a system of rules that fits with balanced decision-making and separation of powers between different organs of government. Importantly, each arm’s job in this process is carefully written down in the rules of laws to prevent any possible conflict.
The judiciary’s support for the existence of separation of powers can be bolstered by recognizing the problems that may arise with the absence of separation of powers, especially regarding independence in courts.[20] When political leaders get involved in choosing judges, it brings up doubts about how much freedom courts have. Ideally, when politics are mixed with choosing judges, it is hard for judges to achieve their goals and objectives regarding advancing and protecting justice. While citing examples of cases like that of Miller and Cherry, some judges have given a divergent opinion from that of most judicial officials. They have argued that, though not healthy for the protection of justice and the ability of the judiciary to execute its mandate effectively, the court system may be connected to political leaders more than they like to say. Regardless, some judges, in talking about how powers must be separated between different organs of the UK government, have argued that the constitutioConstitutionxible enough to handle new problems, needs an active court system.[21] When things change like Brexit, the courts argue that there is a need for a flexible understanding that matches how society is changing. Miller and Cherry’s case shows judges responding to modern problems.
Conclusion
Summarily, this essay sheds some insight into the difference of opinions in a debate on the separation of powers in the UK constitution. It looks at what academic writers and the judiciary provide on this topic. That said, the views of both the academic writers and the judiciary are supported by relevant statutes and court decisions. The perspective of the academics shows that the ConstitutioConstitutiond to work together, not separate strictly, and, therefore, does not have the doctrine of separation of powers. On the other hand, the judiciary defends the idea that there is a clear separation of powers in the UK constitution. It sees itself as a keeper of rules in constitutions. Overall, the UK’s Constitution is a hard to see design where aspects of working together and the separation of powers between the three arms of government are evident.
Bibliography
Books and Journal Articles
Barber, Nicholas William, The principles of constitutionalism, Oxford University Press, 2018, https://books.google.com/books?hl=en&lr=&id=XWFmDwAAQBAJ&oi=fnd&pg=PP1&dq=+Perspectives+of+the+Academics+on+separation+of+powers+in+the+UK+constitution&ots=x7cz1LH4HI&sig=rBgNjpZ0O_pT_qz7gM0OURCVgjM
Kavanagh, Aileen, Recasting the Political Constitution: From Rivals to Relationships, King’s Law Journal 30.1 (2019): 43-73, https://www.tandfonline.com/doi/full/10.1080/09615768.2019.1601876
Kosař, David, Jiří Baroš, and Pavel Dufek, The twin challenges to separation of powers in Central Europe: technocratic governance and populism, European Constitutional Law Review 15.3 (2019): 427-461, https://www.cambridge.org/core/journals/european-constitutional-law-review/article/twin-challenges-to-separation-of-powers-in-central-europe-technocratic-governance-and-populism/C14E458D23DA033B3E9947A1934A9BB2
Parpworth, Neil, Constitutional and administrative law. Oxford University Press, 2018, https://books.google.com/books?hl=en&lr=&id=qhFQDwAAQBAJ&oi=fnd&pg=PP1&dq=Neil+Parpworth+(2018)+%E2%80%98Constitutional+and+Administrative+Law,&ots=98i0AN0S2D&sig=ej18YUH2sZQZJ9GaKhRuiPvLBKU#v=onepage&q=Neil%20Parpworth%20(2018)%20%E2%80%98Constitutional%20and%20Administrative%20Law%2C&f=false
Syrett, Keith, and John Alder, Constitutional and administrative law, Bloomsbury Publishing, 2021, https://books.google.com/books?hl=en&lr=&id=WUZkEAAAQBAJ&oi=fnd&pg=PT17&dq=+Perspectives+of+the+Academics+on+separation+of+powers+in+the+UK+constitution&ots=dB8gY-kKjP&sig=Txft04ekXGhXua1yE8RBUCYMdlA
Case Laws and Statutes
Cart v. The Upper Tribunal [2018] UKSC 8
Cherry v Advocate General for Scotland [2019] UKSC 41
R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.3) [2018] UKSC 3
R (Miller) v the Prime Minister [2019] UKSC 41
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
R (Wheeler) v. Office of the Prime Minister [2019] UKSC 67
Constitutional Reform Act 2005
Constitutional Reform and Governance Act 2010
European Union (Withdrawal Agreement) Act 2020
Human Rights Act 1998
[1] Parpworth, Neil, Constitutional and administrative law. Oxford University Press, 2018, https://books.google.com/books?hl=en&lr=&id=qhFQDwAAQBAJ&oi=fnd&pg=PP1&dq=Neil+Parpworth+(2018)+%E2%80%98Constitutional+and+Administrative+Law,&ots=98i0AN0S2D&sig=ej18YUH2sZQZJ9GaKhRuiPvLBKU#v=onepage&q=Neil%20Parpworth%20(2018)%20%E2%80%98Constitutional%20and%20Administrative%20Law%2C&f=false
[2]Parpworth, Neil, Constitutional and Administrative Law. Oxford University Press, 2018, https://books.google.com/books?hl=en&lr=&id=qhFQDwAAQBAJ&oi=fnd&pg=PP1&dq=Neil+Parpworth+(2018)+%E2%80%98Constitutional+and+Administrative+Law,&ots=98i0AN0S2D&sig=ej18YUH2sZQZJ9GaKhRuiPvLBKU#v=onepage&q=Neil%20Parpworth%20(2018)%20%E2%80%98Constitutional%20and%20Administrative%20Law%2C&f=false
[3] Syrett, Keith, and John Alder, Constitutional and administrative law, Bloomsbury Publishing, 2021, https://books.google.com/books?hl=en&lr=&id=WUZkEAAAQBAJ&oi=fnd&pg=PT17&dq=+Perspectives+of+the+Academics+on+separation+of+powers+in+the+UK+constitution&ots=dB8gY-kKjP&sig=Txft04ekXGhXua1yE8RBUCYMdlA
[4] Syrett, Keith, and John Alder, Constitutional and administrative law, Bloomsbury Publishing, 2021, https://books.google.com/books?hl=en&lr=&id=WUZkEAAAQBAJ&oi=fnd&pg=PT17&dq=+Perspectives+of+the+Academics+on+separation+of+powers+in+the+UK+constitution&ots=dB8gY-kKjP&sig=Txft04ekXGhXua1yE8RBUCYMdlA
[5] Constitutional Reform Act 2005
[6]R (Miller) v. Prime Minister [2019] UKSC 41
[7] Barber, Nicholas William, The principles of constitutionalism, Oxford University Press, 2018, https://books.google.com/books?hl=en&lr=&id=XWFmDwAAQBAJ&oi=fnd&pg=PP1&dq=+Perspectives+of+the+Academics+on+separation+of+powers+in+the+UK+constitution&ots=x7cz1LH4HI&sig=rBgNjpZ0O_pT_qz7gM0OURCVgjM
[8]Cherry v Advocate General for Scotland [2019] UKSC 41
[9]R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
[10] Syrett, Keith, and John Alder, Constitutional and administrative law, Bloomsbury Publishing, 2021, https://books.google.com/books?hl=en&lr=&id=WUZkEAAAQBAJ&oi=fnd&pg=PT17&dq=+Perspectives+of+the+Academics+on+separation+of+powers+in+the+UK+constitution&ots=dB8gY-kKjP&sig=Txft04ekXGhXua1yE8RBUCYMdlA
[11] Kavanagh, Aileen, Recasting the Political Constitution: From Rivals to Relationships, King’s Law Journal 30.1 (2019): 43–73, https://www.tandfonline.com/doi/full/10.1080/09615768.2019.1601876
[12]Parpworth, Neil, Constitutional and Administrative Law. Oxford University Press, 2018, https://books.google.com/books?hl=en&lr=&id=qhFQDwAAQBAJ&oi=fnd&pg=PP1&dq=Neil+Parpworth+(2018)+%E2%80%98Constitutional+and+Administrative+Law,&ots=98i0AN0S2D&sig=ej18YUH2sZQZJ9GaKhRuiPvLBKU#v=onepage&q=Neil%20Parpworth%20(2018)%20%E2%80%98Constitutional%20and%20Administrative%20Law%2C&f=false
[13] Kavanagh, Aileen, Recasting the Political Constitution: From Rivals to Relationships, King’s Law Journal 30.1 (2019): 43-73, https://www.tandfonline.com/doi/full/10.1080/09615768.2019.1601876
[14]Cart v. The Upper Tribunal [2018] UKSC 8
[15]R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 3) (2018)
[16]R (Wheeler) v. Office of the Prime Minister [2019] UKSC 67
[17] Human Rights Act 1998
[18] European Union (Withdrawal Agreement) Act 2020
[19] Constitutional Reform and Governance Act 2010
[20] Kosař, David, Jiří Baroš, and Pavel Dufek, The twin challenges to separation of powers in Central Europe: technocratic governance and populism, European Constitutional Law Review 15.3 (2019): 427-461, https://www.cambridge.org/core/journals/european-constitutional-law-review/article/twin-challenges-to-separation-of-powers-in-central-europe-technocratic-governance-and-populism/C14E458D23DA033B3E9947A1934A9BB2
[21] Kosař, David, Jiří Baroš, and Pavel Dufek, The twin challenges to separation of powers in Central Europe: technocratic governance and populism, European Constitutional Law Review 15.3 (2019): 427-461, https://www.cambridge.org/core/journals/european-constitutional-law-review/article/twin-challenges-to-separation-of-powers-in-central-europe-technocratic-governance-and-populism/C14E458D23DA033B3E9947A1934A9BB2
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