Whether we can ever truly adhere to a ‘pure’ separation of powers is a topic that has been heavily debated since the origin of the concept itself. The United Kingdom follows one of the most unique and infrequent political and legal systems in the world, meaning there is no surprise that critical discussions have arisen with regards to the present and the future situation regarding the roles that parliamentary sovereignty and the uncodified constitution have on the separation of powers. Western societies often concern themselves with the concept of ensuring that the exercise of governmental control is not so strong as to be able to cause self destruction, or be able to rule via arbitrary control. At a time when the idea of the ‘separation of powers’ is heavily rejected by a great number of people, it continues to be the most useful device for the analysis of the United Kingdom’s system, offering a degree of structure.
The principle of parliamentary sovereignty simply exists as a result of the lack of codified constitution in the UK. No act, case or code can be referred to as sovereign, so in that absence, Parliament is classed as supreme. Historically, the monarch of the country was believed to have a divine right, shown in Bates’ Case (1606), but a trend towards parliamentary sovereignty began only 5 years later in the Case of Proclamation, where it was ruled that Parliament must be involved in the King’s law making procedures. This inconsistency was settled in 1688 upon the signing of the Bill of Rights, in which the King and Queen were invited to take the throne on the condition that they agreed to a set of rights. Article 9 of the Bill of Rights required ‘that the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’. Upon signing this, the monarch accepted, for the first time, Parliament’s sovereignty. This concept was not just about the reduction of the monarch’s power, but also about controlling the power of the courts.
Typically, a constitution is written or formed upon the break of the ordinary rule. It is made with the intention of quickly providing a set of rules for all citizens to follow to establish an environment that is civilised. Theorists such as Hilarie Barnett have attempted to define ‘constitution’ as something that ‘forms the backcloth of government and its powers … [it] is a set of rules, written or unwritten, which identifies the principal institutions of the state, their powers and relationships with other state institutions and the relationship between government and citizen’ Professor KC Wheare and Colin Munro have also attempted to define a constitution, but this task is so great that it is still undecided. It can be concluded, however, that a constitution is the highest source of power within a system, made of a collection of rules that regulate, identify and govern the way in which the institutions of a state operate and relate to one another. The UK constitution is not just legal, but political too, with the day-to-day political events of the government being as much a part of the constitution as the legal principles, statutory provisions and common law rules.
When mentioning the idea of the separation of powers, there are often two distinguishable limbs that are noted, them being ‘pure’ and ‘partial’. The concept of separation is often specifically credited to Montesquieu in L’Esprit de Lois, although the idea itself is not his. Montesquieu’s idea of ‘pure separation’ rests on the belief that there must be a complete demarcation between the three constitutional functions – the legislature, executive and judiciary – in which each institute exercises their function separately from the others. The allowance of an overlap in work would allow too much power, according to Montesquieu, to one body within the system, lending itself to arbitrary rule and subsequently a breakdown in functioning society. A partial separation, on the other hand, recognises the benefits of allowing an overlap in function between the institutions, which can evidently be seen as the applied method used in the United Kingdom. Those that uphold the importance of the separation of powers as a foundation for the rule of law are often seen as incredibly more fond of this partial system of separation. The partial model is often referred to as the system of ‘checks and balances’. This label is given due to the manner in which these permitted overlaps and functions of the institution is necessary to provide a degree of checking one another and balancing the functions between them.
Very few constitutional theorists would deny the fact that's the United Kingdom heavily adheres to a partial separation of powers. Overlaps in roles and functions are involved in all aspects, which, when compared to the ‘pure’ system, provides for a much more workable system. By allowing no overlaps within a process, a segmented system is allowed to take form, with little to no communication only worsening this layout. The lack of a codified constitution means that there is no written rule in place to prevent this overlap from happening, and no layout to show that anything other than a sovereign parliament should occur. Unless the United Kingdom experiences a break in its rule leading to the creation of a written constitution, it is unlikely that there is any chance that the UK will adhere to a pure separation of powers as there is no reason to change a system that works. When discussing how the uncodified nature allows for ultimate flexibility in the law, Elizabeth Wicks (2006) notes that the ‘ability to change carries with it a danger that nothing is sacred’, which could represent how a ‘pure’ separation of powers would not be possible with the current nature of the system, as at any time, with very little difficulty, the law could change in the same way, however, there is also the option to easily adapt the law to ensure that a ‘pure’ separation of powers is guaranteed.
Griffith and Street (Pittman 1952) propose possibly the most extreme opinion supporting the concept of the United Kingdom never truly adhering to a pure separation of powers, by suggesting that ‘the doctrine is so remote from the facts that it is better disregarded all together’. Translated, this can be seen to mean that the separation between powers is so insignificant that the separation is hardly even there at all. This is believed as the institutions often share roles, for example the government being drawn directly from Parliament, Parliament being able to overrule court decisions, and the Lord Chancellor previously having a heavy role in all branches, meaning that the difference between them is almost impossible to distinguish. Although this opinion can be justified by assessing how the principle of parliamentary sovereignty and the uncodified constitution do not correlate to form a pure separation of powers, the idea that there is not, or should not be any reference to the separation at all is less justifiable and therefore does not gather as much support as the pure and partial suggestions do.
A system of ‘pure’ separation between the legislature, executive and judiciary means the likelihood of arbitrary rule is limited to a minimum, with each branch operating independently from the others, therefore upholding the rule of law and parliamentary sovereignty. Despite this, the system of separation that the UK currently follows – ‘partial’ separation – is the most workable for the country and is yet to cause any issues. Irregardless of the uncodified constitutional system and the principle of parliamentary sovereignty, the handlings of a pure separation would not be suitable for the United Kingdom in the same way that it is for the United States. The ‘checks and balances system’ ensures that power isn’t used in an unjustifiable manner, and restrictions on the overlaps makes sure that boundaries are not crossed. If the UK Constitution were to be codified, Parliamentary Sovereignty would no longer exist as the constitution would take the position as the most powerful document, over any other governmental or legislative institution. Due to the current situation – parliament as sovereign and the Constitution as uncodified – it is highly unlikely that the UK could adhere to a ‘pure’ separation, as the system is already formed with Parliament as sovereign, and no rule in the Constitution to say otherwise. This does not mean, however, that the option of adhering to a ‘pure’ separation of powers is impossible on the basis of parliamentary sovereignty and the uncodified constitution, as if parliament were to rule that there were to be no more overlaps, the rest of the system would have no choice but to accept that and be independent. The main consideration is that for any democratic government to function in a workable way, there must be, to some extent, a separation of powers, with the functions of them distributed.