According to Carl Friedrich, the constitution is “the ordering and dividing of the exercise of
political power by that group in an existent community who are able to secure
the consent of the community and who thereby make manifest the power of the
community itself “1.

In Britain we have a
constitution, containing diverse laws, practices, and conventions that have emerged
over a long period of time. Notwithstanding this, unlike other countries, the Rritish
constitution is not written in a single and unique document of fundamental
importance.  Somebody defines it as ‘uncodified’
supporting the idea as that numerous of constitutional nature laws are
literally written down in Acts of Parliament, court judgments, and conventions.
Additionally, this
sources of law historically were
present in various charters and documentation, first and foremost the Magna
Carta (1215).  

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Although it is uncodified, the
separation of powers of the United Kindom is a perfect example for all the countries
with a codified constitution. In this regard, Montesquieu said that “there can be no liberty and everything would
come to an end if the legislative, executive and judicial powers of government
were to be exercised by the same person or authority” 2. In essence, the purpose
of any constitution is to set out the rules and regulations which governments
operate.  With this in mind, this essay
will be focused on the reasons why the  separation of powers in the UK works properly,
although there is no written constitution.

 

 “Any constitution, whether of a
state, a trade union, a college, a club, or other institution seeks to lay down
and define the main offices in which authority is vested and the powers which
may be exercised by the holders of those offices” 3. The
function of the constitution is to determine precisely where these dividing
lines should be situated, how rigidly they should be enforced and what should
happen in case they are crossed. Consequently, each branch can restrain the
others since any major decision would require the cooperation of all branches. ” The purposes of any constitution are
mainly three: firstly, to enable the organisation to run effectively; secondly,
to define the powers of those in charge of the organisation; thirdly, to
protect members of the community against the abuse of those powers” 4. Usually,
these fundamental principles are codified in any state constitution,
nevertheless Britain’s government works efficiently without writing down it on
a piece of paper, and this makes it unique and subject of study.

The British
constitution exists just in the abstract, this means that doesn’t exist any
document setting down all the guidelines for governing the country, but it is
written in several and different sources. This feature has incited a lot of
criticism and questions between constitutional experts. Starting from
medieval times, with the famous Magna Carta of 1215, the most important feature
of this document is establishing the principle that “everyone is subject to the law”5, which
still is the thread of today’s democracy and it’s one of the pillars of the British
development. Dicey defined the constitution as “all rules which directly or indirectly affect the distribution or the
exercise of the sovereign power of the
state”6. In this
way, Dicey converted our constitution in just an assemblage of rules, and for
him, the “rule of law” means primarily the absolute supremacy of the common law
on which the UK’s constitution is based. As a consequence, this important feature
is paramount for the incommon separation of powers. The rule of law is the doctrine
on which British constitution and the separation of powers are balanced.

The UK system is
unique because it not represent any standard of other countries, in fact, it is
a mixture of powers well-established during the years. In Montesquieu’s view, the independent action of the separate
institutions should create a system of checks
and balances between them, “the political liberty of the subject is a
tranquillity of mind arising from the opinion each person has of his safety. In
order to have this liberty, it is requisite the government be so constituted as
one man need not be afraid of another” 7.

The British system
has a narrow division of powers well founded on common law, and according to Walter
Bagehot this is the “efficient secret of
the English constitution” 8
built on the perfect intertwining of the government powers, as they are near to
complete fusion. This UK’s integration of powers is said to provide stability
and efficiency in the operation of government. It has been described as “a system that intentionally promotes
efficiency over abstract concerns about tyranny”9. For example,
the Prime Minister is usually both head of the executive branch and leader of
the majority party in the legislature, which gives the executive branch much
more freedom of action than a president usually enjoys in a presidential system
of government. Consequently, in an intertwined system, is easier to create a fully
functional democratic system as a result when the three powers from the way
they interact together.  There is
unnecessary a written constitution just for the fact that all the powers are
related together through the common law.

 

 

One of the pillars of the UK
constitution is the supremacy of the legislative body, which is set out in the
Bill of Rights 1689 at the Article 9: “freedom
of speech and debate”10.
Therefore, one of the cornerstones of the democracy is having the freedom to say
and discuss any question raised in both houses of the parliament. According to
Lord Neuberger, it is “an absolute
privilege and is of the highest constitutional importance”11.
In the Dicey’s view, “The principle of
parliamentary sovereignty means: that parliament has, under the English constitution,
the right to make or unmake any law whatever; and further, that no person or
body is recognized by the law of England having a right to override or set
aside the legislation of parliament” 12.
 A
valid Act of Parliament cannot be examined or challenged by the judiciary, thus,
would be unconstitutional any
attempt by the courts will overstep this legislative privilege.  According to this fundamental rule, Parliament can legislate any
law on any subject. By contrast of other countries, the UK parliament is not
supervised of any higher body, such an Italian Constitutional Court, which was
established for this specific role in Italy. In Britain is no need to
have this kind of institution because the final act of the parliament is the
result of the interlocking of executive and legislative powers and the
monarchy, therefore they control each other during the whole process through
the cooperation.

The fundamental constitutional rights are protected by the judiciary such
as the right of participation in democratic process, equality of treatment,
freedom of expression, the right of fair trial, etc. Therefore, the law follows
the logic of the consuetudinary behavior and they are guaranteed by the courts.
These rights written in statues cannot be overridden by Acts of Parliament
unless that intention is expressed in the clearest terms.  

 

All these facts confirm that the
exercise of the powers are closely intertwined with them, speaking about
collaborating including control, and it’s clear that Britain has survived very
well until now. Of course, having a written document will provide clarity for
all, but the advantage for the current system is the flexibility. In fact, the
UK is a unitary state with the parliament sovereignty competent to legislate
and all law, including constitutional, may be enacted, repealed or amended by
the Queen in Parliament. There is no specific procedure to change it, how for
example the USA constitution request, but it’s enough the simple majority. However,
the UK has a long established common law based on practices, doctrines, and codes
of conduct that are embedded in the hearts of citizens. The British society is
founded on common law after years and made the government which is today.
Therefore, above all the obstacles it’s still unique because managed to develop
an excellent  system of government
without the need to strengthen rules into a constitutional document for
constraining the powers. Geoffrey
Marshall explained: “the most obvious and
undisputed convention of the British constitutional system is that Parliament
does not use its unlimited sovereign power of legislation in an oppressive or
tyrannical way”.13
The British people respect the rule of law, and this is proved with the
efficiency of the powers during the years. That is a clearly accepted
constitutional rule resting on the principle of constitutionalism and founded
on the cooperation for perfect results. In fact,
a normative application of the separation of powers cannot be said to be necessary for the rule of law or
for democratic government. This absence of a normative approach does not result
a democratic deficit so severe that it deprives the UK of democratic government,
by contrast, it makes it the strong point of the efficiency of the Britain’s
government.  

Recently, however, the question
of the separation of powers has been given new relevance in the UK by the
question of constitutional reform and by the Human Rights Act 1998.

Professor Vernon Bogdanor has
predicted that “issues which, in the
past, were decided by ministers accountable to Parliament will now come to be
decided by the courts”14.  Consequently, some criticism of this doctrine
raises up in front of the Human Rights Act, which has imposed some changes,
such the prediction of the Supreme Court. Therefore, the judicial was separated
from the House of Parliament for guarantee sufficient impartial power. Parliamentary sovereignty is now directly challenged by the UK’s
membership of the European Union.
The parliament supremacy should be restricted just in order of EU, member of
which Uk is from 1973. As is known, the principle of the EU union is that Eu
laws are supreme and consequently takes priority over the domestic ones.
Therefore, this gives rise to one strong rule for the members of english
parliament, whereby domestic rules should fit together with EU provisions,
otherwise it would be disapplied if it’s found contrary 15.
The Human Rights Act give to
the judges a kind of power to discuss the legislation. Using what’s established
in this Act, the courts can declare to the parliament that one specific law is
not compatible with the European Convention and the rights and freedom
guaranteed under it 16. Notwithstanding
this, the last decision remains with Parliament and not the judiciary. The
judiciary does no more, or less, under the 1998 Act than carry out its
constitutional function of interpreting and applying the law enacted by
Parliament. They only have such power as Parliament gave them in the Human
Rights Act 1998.

These facts show that recently
we are in progress to have more clearly the separation of powers because the EU
is asking the UK to do so. Our
constitution, has evolved in many centuries and define the relationship between
the government and the people, setting a limitation on powers and guarantee
people with safeguards. Specifically, define how we must be governed by the
rule of law, impose limitations on powers and provide a framework for the government
by creating binding and contraints on the exersice of power. Magna Carta, Bill
of Rights and other important documents are the core of our constitution and
the separation of powers is the safeguard mechanism of this system. And it’s
entirely different from the entire continent with the EU constitution system
when nothing is allowed unless the law permits. An ancient constitution
determinates the duties of our politicians is to maintain our limits, limit is
normal in Britain and it’s constraint just by the law, we are free to do
anything unless the law prohibits it. The imposition of the EU constitution
will mean the end of our system and our protections and rights. If it worked why
we suppose to change it.  

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