The Separation of Powers – Dream or Reality? – By Ewa Plesnar

It was a beautiful, autumn afternoon on the 25th of October when our “tax tax tax dot tax” group (as we call it) discussed my current working paper, entitled “The Separation of Powers (SOP) – Dream or Reality?” As always, the meeting involved a paper presentation followed by a discussion.

My current topic of interest seeks to resolve the question regarding the applicability of the separation of powers (SOP) in the European governmental systems; both in theory and practice, with the UK as a central point of analysis. I also explore other theories which claim the SOP and the rule of law (ROL) are outdated concepts and becoming misapplied in the modern world. This opens a way for some academics to look for other, in their opinion, beneficial ways for society to structure states.

The presentation started with a short introduction to the history of Parliament in the UK. The aim of that was to understand a long tradition of the SOP and the ROL in the UK. That point was followed by the explanation of the rule of law, which is very strongly connected with the SOP. Both create a very important political background in the UK. In basic terms, the role of the ROL is to restrain the sovereign from the arbitrary power; nowadays ROL is considered as reflected in a form of the separation of powers within the state. We examined the historical evolution of ROL from an English perspective with a particular focus on the Magna Carta 1215, the Bill of Rights 1689 and the Parliament Act 1911.

In terms of definition we spoke about the theory presented by Dicey, who is considered in the UK as being a “father” of the ROL. His concept of the rule of law contains the absolute supremacy of a regular law as opposed to the influence of arbitrary power as well as the equality before the law. Prof Loughlin understands that the UK has a long tradition of the ROL that is not necessarily applicable in the other parts of Europe where the legal system is based on the civil law (as opposed to common law).

I then presented the theory proposed by M. Oakeshott, one of the most interesting (in my view) political philosophers. For Oakeshott, the concept of ROL must envisage humans joined in a relationship specifiable in terms of certain exclusive conditions, namely laws. He proposes two kinds of concepts of society that, he says, are always in conflict with one another, namely: universitas (or transactional association, where members are focused on achieving a particular aim) and societas (or moral association, where the society members are joined not to seek a common substantive satisfaction but to explore the conditions and relationships between them). In each of those associations law plays a different part.

In order to see how SOP works in practice, we explored the legislative process in the UK beginning with the bill (i.e. the draft of the legislation) which is received and discussed by the Parliament. It is then discussed by the Parliamentary Committees and then voted by both Houses (where the final decision is made by the Commons, as they were elected). We identified the following problems: the bill is almost always proposed by the government and it is not analysed thoroughly by the Parliament (reason being a lack of time or lack of expertise). That leaves us with the question as to the factual applicability of SOP in the UK legislative system and the real possibility of that application in practice.

Finally, we moved to speak about the modernisation of the state. According to some theorists, the modern state becomes an administrative state where in the name of security, prosperity and liberty modern governments have greatly expanded their executive powers. Although, the theory applies mainly to the continental Europe, the practical influence of that in the UK is also visible. The question is whether, in the rise of administrative powers, we can continue speaking of SOP’s applicability.