To what extent is separation of powers evident in the British Political system?

The uniqueness of the British political system is its association with the Crown, on whose behalf most powers are exercised. It is notable that unlike others entities the Crown is not subject to legal regulation due to the sense of dignity it evokes. Also, the prerogatives of the crown include the “power to conduct foreign relations, to conclude treaties that are binding in international law, and prerogatives of mercy and pardon (Shell 1994, p.301). This is in addition to the Crown’s extensive residual common law powers and its status as a legal personality. The latter privilege allows it to acquire and dispose of land, etc., the way ordinary individuals can. In contrast to this, the powers of local authorities are very much subject to statutes and regulations. In this sense, the executive powers of the local government is limited and constrained when compared with the powers of the Crown.

“The power to order and reorganize the civil service derives either from the royal prerogative or the normal powers of a body recognized by law to enter into employment relations. It is detailed by Orders in Council, but these leave much leeway to ministers. It is this `flexible friend’ that has been used to establish Executive Agencies in the civil service and various other innovations over the years. All of this without the need for recourse to Parliament or law.” (Oliver 1994, p.641)

The executive powers of the ministers, though loosely regulated, nevertheless provide them with “powers to make contracts for the supply of goods and services to departments and the public” (Shell 1994, p.301). The last fifty years had seen moves to implement more statutory controls over the executive branch. This is because the older methods of control were inappropriate and irrelevant to the modern times. Some examples include, reduction of powers of local authorities in favor of school governors and teachers; enhancement of responsibilities of hospital managers and general practitioners within the framework of the National Health Service. Both these cases suggest a move toward decentralization of executive powers. (Oliver 1994, p.639)

The independence of the judicial power was solidly established in England by the ‘Glorious Revolution’ of 1688-89. Ever since, one of the implicit conditions of this outcome was that the judges should take care not to encroach on the legitimate spheres of discretion of the sovereign political authorities, Crown and Parliament. The legal control of the government is aided by the Supreme Court Act, which is concerned with the application of the courts’ inherent common law powers (Shell 1994, p.303). The last 20 years had seen institutions with adjudicatory functions impinging more and more on spheres of political and administrative discretion in Britain. However, these spheres remain functionally distinct. Of late, judges in Britain appear to embrace roles “which in reality bring them into very close association with the executive power and with issues of often controversial public policy as well as exposing them to the pressures exerted by the public at large”. (Oliver 1994, p.641)

During the course of the last two decades a drive towards the process of delegating responsibility to executive agencies was carried out. It resulted in removal of ministers and their administrative staffs from day-to-day provision of services. Another recent development is the narrowing of ministerial discretions in certain sensitive areas relating to the freedom and rights of the individual, especially education and mental health services. This further serves as evidence to the case of separation of executive powers from the rest.

There is also a narrowing of the powers of the legislators the last few decades. It also brings with it lesser political accountability on the part of the legislators. On the contrary, Britain’s adoption of welfare state policies means that officials have discretionary powers about entitlements to the social rights (Johnson 1998, p.152). This is the result of a gradual process since the Second World War, by which decisions of government and of civil servants have been placed under a greater degree of legal regulation than ever before.

“In recent years, however, these once familiar political attitudes towards the judicial power have been rendered largely obsolete simply as a result of the steady growth in judicial activism, the increasing propensity in society to take issues to a court for resolution, and the willingness of ministers and Parliament to tolerate more checks to their discretion than would have been regarded as acceptable 30 or 40 years ago.” (Johnson 1998, p.150)

The overall rise in judicial arbitrations is more an indication of a shift in public attitudes and expectations of the office bearers in the government. It also means that the society is less willing to trust people holding power and their competence, at all levels of government. Perhaps more significant is the diminished powers of the local government, whose prerogatives are being transferred to appointees, which does not auger well for a democracy. Thus, the separation of powers between the executive, judicial and legislative branches of the British government is fairly distributed and demarcated.

References:

Blais, Andre., Dobrzynska, Agnieszka., and Indridason, I.H. (January 2005) “To adopt or not to adopt proportional representation: the politics of institutional choice.(study covers the period from 1865 to 1939).” British Journal of Political Science.Vol.35.1. p:182(9).

Fekete, Liz. (April 1999) “Why we should say no to proportional representation.(United Kingdom).” Race and Class Vol.40.4.: p 74(1).

Johnson, Nevil. (January 1998). “The judicial dimension in British politics.(Special Issue on Britain in the Nineties: The Politics of Paradox).” West European Politics. Vol.21.n1. p:148(19).

Oliver, Dawn. (October 1994). “Parliament, Ministers and the law. (British Government and Politics Since 1945: Changes in Perspective).” Parliamentary Affairs Vol.47.n4. p:630(17).