Nicolas Barber
Separation of Powers and British Constitution
2012.
No. 1.
P. 3–17
[issue contents]
Barber Nicholas - Professor, Trinity College, University of Oxford. Address: Broad Street, Oxford, OX1 3BH, United Kindom. E-mail:nick.barber@trinity.ox.ac.uk.
This paper focuses on the essence of the separation of powers and its application in the British constitution. One of the aims of the research was an in-depth analysis of the separation of powers in its essence and imperatives of the principle. The author proceeds from the question what it implies, i.e. separation of institutions, separation of powers or separation of officials. The article contains characteristics of the branches and major institutions. Legislative branch serves as a forum. Though MPs are not professional politicians, parliaments decide on the major directions of state policy. Parliamentary statutes look prospectively and regulate fundamental areas of law. Judicial branch is arranged as a triad (judges and litigants). Judges are professionals – experts in law. Court decisions are only means to settle disputes and look retrospectively. Interpreting and commenting law, filling up lacunae, courts promote to the development of law. Judicial branch in lawmaking is auxiliary. Executive power is arranged on the functional principle. State servants are professional technocrats. They shape norms, regulating application of laws and implement state policy. The author draws the attention to arbitrariness and flexibility of limits set up by the scheme. He argues with the supporters of idea that constitutional regime of the UK has a principle or mechanism of amalgamation of powers but not separation. He thinks that this opinion does not fit either the current situation or the situation in the past. In particular, judicial system of the UK was separated from the other branches long ago and the independence of judges is not an exception. The recent reforms of the 1990s and 2000s have given rise to the idea of the separation of power in the UK. In particular, the upper chamber is not the highest judicial instance, the office of lord-chancellor has been annihilated. Hence, British legal scholars start interpreting doctrinal approach to the separation of powers differently. Nowadays its interpretation is getting closer to the one in most modern states.
This paper focuses on the essence of the separation of powers and its application in the British constitution. One of the aims of the research was an in-depth analysis of the separation of powers in its essence and imperatives of the principle. The author proceeds from the question what it implies, i.e. separation of institutions, separation of powers or separation of officials. The article contains characteristics of the branches and major institutions. Legislative branch serves as a forum. Though MPs are not professional politicians, parliaments decide on the major directions of state policy. Parliamentary statutes look prospectively and regulate fundamental areas of law. Judicial branch is arranged as a triad (judges and litigants). Judges are professionals – experts in law. Court decisions are only means to settle disputes and look retrospectively. Interpreting and commenting law, filling up lacunae, courts promote to the development of law. Judicial branch in lawmaking is auxiliary. Executive power is arranged on the functional principle. State servants are professional technocrats. They shape norms, regulating application of laws and implement state policy. The author draws the attention to arbitrariness and flexibility of limits set up by the scheme. He argues with the supporters of idea that constitutional regime of the UK has a principle or mechanism of amalgamation of powers but not separation. He thinks that this opinion does not fit either the current situation or the situation in the past. In particular, judicial system of the UK was separated from the other branches long ago and the independence of judges is not an exception. The recent reforms of the 1990s and 2000s have given rise to the idea of the separation of power in the UK. In particular, the upper chamber is not the highest judicial instance, the office of lord-chancellor has been annihilated. Hence, British legal scholars start interpreting doctrinal approach to the separation of powers differently. Nowadays its interpretation is getting closer to the one in most modern states.
Citation:
Barber N. (2012) Razdelenie vlastei i Konstitutciia Velikobritanii [Separation of Powers and British Constitution]. Pravo. Zhurnal Vysshei shkoly ekonomiki, no 1, pp. 3-17. (in Russian)
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