Towards constitutional separation

Abstract

Descriptive or substantive principles of separation? The effects of the constitutional reforms that have been implemented since the first Blair administration came to power in May 1997 are nothing short of spectacular, given the generally incremental development of the UK constitution. One commentator has gone so far as to suggest that the doctrine of sovereignty – for so long the closest thing to a fundamental principle in the constitution – has effectively been replaced by one of separation of powers. The role of the judicial branch, as has been assessed in this work, is but one dimension of this broader conception of separation: The British constitution is now characterised not by the sovereignty of Parliament and a concentration of power at the centre, but by a separation of powers at the centre, and a quasi-federal territorial separation of powers between Parliament and the European Union, on the one hand, and the devolved bodies, on the other. Britain is in the process of becoming a constitutional state, one marked by checks and balances between the different organs of government, and a state in which the judiciary now has a crucial role to play in the determination of individual rights and in determining the scope of government action. The contemporary separation of powers as described in this extract is one in which human rights adjudication has caused many of the rigid spatial distinctions between supposed areas of judicial, executive and legislative authority to have become increasingly difficult to sustain.