Introduction studying the degree to which the “British Separation

Introduction (395)

 

Separation of
Powers introduces a very important concept to the functioning of a civil
society in modern day with the legislative, executive and judicial branch all
playing a vital role to protect and prevent one branch from obtaining too much
power. The separation of powers also provides a series of checks and balances
where each branch has the power to limit or check the other two, which creates
a balance in the three separate powers. In this essay, I will attempt to answer
my research question by studying the degree to which the “British Separation of
Powers is more adaptable to societal changes compared to the United States?” To
examine whether the British system of Separation of Powers is more adaptable I
have carried out in-depth research on the historical foundations and origins of
the Separation of Powers as well as the Federalist Papers, Acts of Parliament
and the United States Constitution itself. Across political science, the
Separations of Powers has long been a very prominent political theory that is
essential in keeping a balance of power in states. Throughout this essay I will
explore the concept of legitimacy and if one system is more legitimate because
of its ability to be more adaptable to societal changes. With the United
Kingdom holding an ‘Unwritten Constitution’ it makes the case for more
flexibility in contrast to the United States’ strong constitution which can be
argued to lack this flexibility which will all be examined throughout this
investigation.

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My motive for
choosing this specific subject in politics and the separation of powers is that
I find it particularly interesting and engaging. I think that it is very
important to have an understanding of the ways in which my own country is essentially
run and in comparison, to one of its counterparts. The way in which our
countries are run is strongly dominated by these structures and I believe that
it is fundamental that those are understood. It is also very interesting to
investigate whether the British Separation of Powers is more adaptable to
societal changes today as compared with the American system because of the
different structures, constitutions and how they have both evolved over time.

 

Throughout this
essay, I will assess and provide an insight “to what degree is the British
Separation of Powers more adaptable to societal changes as compared with the
American system?”

 

 

 

 

 

 

 

Constitutions
(496)

 

To first
understand the to what degree the British Separation of Powers is more
adaptable to societal changes, there must be an understanding of the United Kingdom’s
‘Unwritten Constitution’ which is fundamental to its flexibility. This
‘Unwritten Constitution’ is based on Acts of Parliament, court judgements and
conventions.1 In
other words, the British constitution is often referred to as ‘uncodified’ down
to the fact that many of the laws are of constitutional nature. The British Constitution
is frequently described in an abstract sense as it encompasses a collection of
diverse laws, practices and conventions which have advanced and developed over
hundreds of years.2
The pinnacle of the British ‘unwritten constitution’ is the Bill of Rights in
1689, which fundamentally established the supremacy of Parliament over the
Crown following the replacement of King James II (r.1685-88) by William III
(r.1689-1702) and Mary (r.1689-94) in the Glorious Revolution of 1688.3
Britain’s ‘uncodified’
constitution has many features which include those in the law Parliament is
sovereign in the sense of being the supreme legislative body.4
Conventions hold a significance to the ‘unwritten constitution’ which primarily
runs the relationship between the ancient institution of states.5
Today unwritten rules of
constitutional practices are fundamental to British politics in the present
day, especially with the workings of government.6
However, none of this officially presented in any kind of written format. The
Prime Minister, Executive branch and head of the government are simply only
conventional. 7
The Magna Carta 1215 essentially meaning ‘Great Charter’ has an ironic presence
in that although there is no British constitution it represents the founding
blocks of democracy and rights at the time for nobles.

 

The understanding
of the United States’ Constitution also provides an essential insight
when answering the research question of this investigation as the Constitution is a written set of
essential principles according to which a state or an organisation is governed.

The United States’ constitution was created in 1787 for a system of Federal
Government, written by James Madison, who was the fourth president of the
United States and known as the Father of the Constitution.8
In the United States Constitution,
the Legislative Branch is mentioned first highlighting its importance and
overall power as it is the lawmaker, secondly the Executive Branch which
executes the laws. Followed by the Judicial Branch who interpret the laws,
which is also the weakest of the three as it possesses the fewest checks over
the other two branches. As for example, empathising the importance of the
Legislative Branch is very clear as Article 1: Section 1 of the American
constitution states ‘All
legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives.’9 This here stresses the importance and
the power that the branch holds and although each branch is designed to be seen
equal and as important as one another in order to maintain a structure; the
structure is subject to a power struggle.

 

The Separation of
powers (372)

 

This concept of
a Separation of Powers holds a vast history that can be found as far back to
the philosopher Aristotle.10
However, the separation of powers is most commonly associated with the French
political philosopher, Baron de Montesquieu who drew up the three main separate
institutions of a state; legislative, executive and judicial branches. This
ideal structure of a constitution evolved from Montesquieu’s curiosity of the
English constitution.11
The United States holds a strong constitution while the United Kingdom does not
possess a codified constitution, but an ‘Unwritten’ one formed from Acts of
Parliament, court judgements and conventions.12  Both states here hold a varied approach to
the separations of powers, but does that make one more adaptable to societal changes. In the
United States, the legislative branch is the Congress, which follows through to
the House of Representatives and Senate, the executive is the President and the
judicial is the Supreme Court. Whereas the United Kingdom varies slightly with
parliament through the House of Commons and House of Lords representing the
legislative branch, His/ Her Majesty’s government led by the Prime Minister and
their Cabinet represent the executive branch and the judicial branch with the
Supreme Court.13

 

The
United Kingdom’s separation of powers has evolved over time and set a doctrine
for the world to follow. Similarities follow, like the United States’
Separation of Power structure and the United Kingdom both apply the same
organisation to the Legislative Branch, Executive Branch and Judicial Branch. However,
the Executive Branch of the United Kingdom is viewed as equally as its
counterpart Branches with each Branch working simultaneously to keep each other
in check. The American constitution
was the first mention of any sort of system of Separation of Powers and was
devised for one purpose, to prevent a ruling majority doing exactly as they please.

The American constitution was designed deliberately to be inefficient, however,
the constitution was created in order to represent and defend the principles of
the American people, which leaves room for the inefficient nature of it. Contrary
to the United Kingdom’s Separation of Powers which lacks the rigid structures
in place allowing these evolving policies in order to keep up with modern day
societal changes.

 

 

 

 

 

 

British system of
Separation of Powers and societal changes (840)

 

(145)

After taking into account the historical perspective of
the British ‘Unwritten Constitution’ it is necessary now to evaluate to what
degree is the British Separation of Powers more adaptable to societal
changes compared to the United States. As stated in previous
throughout the investigation the United Kingdom’s uncodified Constitution plays
a very important role especially as the world is changing faster than ever today with instant and infinite feeds of
information available at our fingertips. This poses the question that a
Constitution with much more flexibility would be suitable, legitimate and
represent the general public more rather than something written hundreds of
years ago which can appear to be out of date and touch with modern society.

This shows the many ways in that the United Kingdom’s Constitution appears to
be more fitted and increasingly reflect a changing world today and continue
into the future.

 

(386)

With this uncodified Constitution, it is able to evolve
with time and enables it to be amended to keep up with Societal changes.

Different from a codified constitution, which is renowned for being less
adaptable as it is written and therefore entrenched with no special procedure
for the amendment.14 The ‘Unwritten
Constitution’ is changed to any statute law, contracting the United States as
an example where there needs to be a two-thirds majority in Congress and three
quarters’ of the states needs to approve the decision.15 With the United Kingdom’s
case, the unelected judiciary as the House of Lords has no significant
political constitutional role and that the Houses of Parliament which it the
elected can only decide on the constitutionality of laws and actions.16  Through this key part of this investigation,
I may argue that this gives the UK government the powers needed to take action
when needed in important circumstances and could be debated a more legitimate
as it much more dynamic and able to compile with modern laws and regulations
better. The example can be taken of the Scottish Referendum on the 18th
of September 2014 where the United Kingdom’s governments had to amend the
section 30 of the Scotland Act of 1998 to which temporarily lifted any
restrictions the Scottish Parliament to hold the referendum legally.17  With this case, it provides an insight to the
fact that as a result of Britain having an absence of a strict Constitution it
was able to adapt to the societal change of Scotland desire for
self-determination and for statehood and leave the United Kingdom. Although
Scotland did not actually in the end vote for a majority to leave the United
Kingdom the temporarily lifted restrictions from Scotland Act of 1998 was
returned to its original form. Though this prime example an absence of a Written
Constitution was able to benefit the Scottish people giving them a legitimate
referendum, an essential part of democracy. This on the other hand has been
seen to be a problem for the region of Spain known as Catalonia as previous
referendums held there have been categorised as illegal because of its nature
to go against the Spanish Constitution. Making the case clear and more
prominent that the United Kingdom’s Separation of powers are more adaptable to
societal and political changes.

(375)

To evaluate the whole
perspective whether the British Separation of Powers is more adaptable
to societal changes compared to the United States, it may insightful to observe
factors that counteract this agreement. Although the nature of the United
Kingdom’s ‘Unwritten Constitution’ is fairly flexible it does come with some
disadvantages which include those of no formal protection of rights,
constitutional crises and constitutional rights of a governments or Prime
Minister’s powers being abused.18 With the separation of
powers, it also does not provide a firm position of roles for the three
Branches allowing room for abuse of power and overall a far more complex
understanding is needed. The United Kingdom’s Uncodified Constitution does hold
its limitations in that due to the characteristics of this Constitution there
is a reliance on outside influence as for example the European Court of Human
Rights. This agreement becomes evident to this investigation through the Human
Rights Act of 1998, although an Act of Parliament of the United Kingdom was
designed to incorporate European Conventions on Human Rights into UK law.19 Through this example is
can be argued that this can not only highlight the downside of Britain’s
constitution but the impact on British sovereignty and the lack of ability for
there to be no adaptability to modern societal changes of human rights. An
additional issue would be the abuse and attack of sovereignty of the electorate
from the governments or Prime Minister’s ability to alter an ‘Unwritten
Constitution’ by just passing an Act of Parliament with their majority in the
House of Parliament. This can be seen with the controversial decision made by
then Prime Minister Tony Blair and the passing of multiple laws but largely
amounts of statutory instrument.20 Although many of these
laws can be argued to be a response to the demands of a changing society it
sheds a light on the sheer amount of legislation that was being put through and
that allowed less debate time in Parliament so therefore less scrutiny.21 This is essential for
keeping the checks and balances in the Separation of Powers showing that power
on the Executive Branch here can be interpreted to have been abused even though
the intention was to keep up with the demands of societal changes.

 

 American system
of Separation of Powers and societal changes (840) 1,078

 

(234)

 

Throughout this essay it has been discussed to
what degree is the United Kingdom’s Separation of Powers more adaptable to
societal changes as compared to the United States however the United States
system is still effective although it can be argued to not be susceptible to
the changing and modernisation of the world. As the United States established
the system of Separation of Powers it was
derived from the dislike of a central government not taking into account people
fundamental rights. The national government thus was separated and each branch
able to check up on one another. This change made it more difficult for the
government to act in ways that could harm the population.  One of the Founders Fathers and former
presidents, James Madison wrote in the Federalist Papers No.51 giving a clear
reasoning behind the Separation of Powers. Madison wrote “such devices should
be necessary to control the abuses of the government.”22
Here the Founding Father has taken a solution from the French philosopher Montesquieu
his ideals of “separation of powers.”23
Madison decision here has changed American politics forever and protected each
branch from gain too much power and prevented the American citizens their
rights. This rigid and detailed part put into the Constitution is a defining
part of what causes the question as to why the United Kingdom with its
‘Unwritten Constitution’ processes a greater ability to adapted to modern
society.

1Blackburn, Robert.

Britain’s Unwritten constitution, Published: 13 March 2015, Web link: https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution, last accessed
19.10.17

2 ibid

3 ibid

4 ibid

5 ibid

6 ibid

7 ibid

8 Unknown Author,
History.com, Article on James Maddison, Published: 2009, Publisher A+E
Networks, http://www.history.com/topics/us-presidents/james-madison

9 National Archives,
Web Link: https://www.archives.gov/founding-docs/constitution-transcript, last accessed
19.10.17

10 LawGovPol, The
Separation of Powers, Web link: http://lawgovpol.com/separation-of-powers/,  last accessed 18.10.17

11 ibid

12 Blackburn Robert,
Britain’s Unwritten constitution, 13 March 2015, Web link: https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution, last accessed
19.10.17

13 Unknown Author,
2015, Web link: https://www.mytutor.co.uk/answers/1773/A-Level/Politics/What-are-the-branches-of-government-in-the-UK-and-what-are-their-key-functions, last accessed
18.10.17

14 Teacher, Law. (November 2013), The
Advantage Of The Uk Constitution Constitutional Law Essay,
https://www.lawteacher.net/free-law-essays/constitutional-law/the-advantage-of-the-uk-constitution-constitutional-law-essay.php?cref=1

15 ibid 

16 ibid

17 Scotland Act,
Section 30, 1998 c46 (UK)

18 Teacher, Law. November 2013, The Advantage Of The Uk
Constitution Constitutional Law Essay,
https://www.lawteacher.net/free-law-essays/constitutional-law/the-advantage-of-the-uk-constitution-constitutional-law-essay.php?cref=1

19 Human Rights Act 1998, 1998 c42 (UK)

20 Press Association, Blair decade sees jump in number of new
laws, study finds, The Guardian, Article Published: 4th June 2007 (UK),
https://www.theguardian.com/politics/2007/jun/04/houseofcommons.uk

21 ibid

22 Madison James,
Federalist No.51, 8th February 1788

23 Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748).

Translated and edited by Anne Cohler, Basia Miller, Harold Stone. (New York:
Cambridge University Press, 1989)

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