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Paper 2 · 2021 · 30 marks
Using the source, evaluate the view that the Supreme Court has strengthened parliamentary sovereignty.
Judiciary / Sovereignty
Source
This source is adapted from a Guardian article in September 2019. It reports on the unanimous judgement by the Supreme Court that the proroguing of Parliament by Boris Johnson was unlawful.
The case that the Supreme Court has undermined parliamentary sovereignty
Conservative MP Andrew Bridgen called the Supreme Court's judgement '... an absolute disgrace. It's the worst possible outcome for our democracy, with unelected judges completely ignoring the referendum vote we had in 2016 to leave the European Union.' Critics argue that the Court has become too powerful, undermining parliamentary sovereignty in areas like 'Brexit', where judges should not stray. The increased use of judicial review means that in effect Parliament, as well as government, is often challenged. Our system, having no separation of powers, lacks clarity, which has enabled the Supreme Court to undermine Parliament.
The case that the Supreme Court has strengthened sovereignty
Gina Miller said this is 'a win for parliamentary sovereignty, against an over-mighty executive'. It is right that the legality of the Prime Minister's decision was challenged as he was denying Parliament the right to scrutinise his 'Brexit' policy. Judicial reviews are an essential component of the rule of law, often upholding the will of Parliament against an executive that oversteps its powers under legislation. With no separation of powers or a codified constitution, the Court has helped to rebalance the relationship between Parliament and the executive. However, critics argue declarations of incompatibility made by the Court challenge the sovereignty of Parliament and can be controversial.
Mark scheme: agreement
AO1: With no separation of powers or a codified constitution, the Court has helped to rebalance the relationship between Parliament and the executive. AO2: The establishment of the SC has led to a significant re-balancing of the powers between parliament and executive - the Miller/Cherry cases were not about Brexit but about where constitutional powers lie. AO3: We can conclude that this shows that the SC can serve to strengthen and advance parliamentary sovereignty. AO1: Judicial reviews, such as this, often uphold the rights of Parliament. AO2: Judicial reviews are an important way of limiting the powers of governments that act ultra vires, trying to by-pass parliament. AO3: We can form the judgement that the SC therefore has strengthened parliamentary sovereignty. AO1: The SC's defends parliament against an overmighty executive, acting as guardian of democracy. AO2: As the executive has grown in power, it has been seen by some to be aiming to avoid scrutiny and accountability in Parliament for its actions undermining democracy. The Court's decisions have helped to protect Parliament against this. AO3: We can reach the judgment that this significant rebalancing has strengthened parliamentary sovereignty against an over-mighty executive. AO1: The SC upholds the rule of law. AO2: As the SC upholds the rule of law, as legislated by parliament, this in turn strengthens parliamentary sovereignty. AO3: We can conclude that the SC's support for maintaining the rule of law shows that it has strengthened parliamentary sovereignty.
Mark scheme: disagreement
AO1: Judges should not make judgements in political areas, such as Brexit. AO2: This judgement shows that the SC has strayed into areas of 'politics' and this undermines parliamentary sovereignty. Politics should be left to the democratically elected House. AO3: We can form the judgement that the SC has not strengthened parliamentary sovereignty. AO1: Judicial reviews lead to unelected judges challenging the will of the government and thus in effect Parliament. AO2: Judicial reviews can lead, in practice, to challenges to decisions taken by an elected government, whose democratic power is based in Parliament and should be held accountable by a democratically elected Parliament rather than an unelected Court. AO3: We can conclude therefore that the use of judicial review by the SC has not strengthened parliamentary sovereignty. AO1: Declarations of incompatibility challenge parliamentary sovereignty. AO2: Where the Courts decide an Act of Parliament is incompatible with human rights, it can make a declaration of incompatibility. i.e. Anti-Terrorism Crime and Security Act 2001 or Civil Partnerships Act 2004. This is a challenge to parliamentary sovereignty as it implies a higher form of justification of law than parliament. AO3: We can form a judgement that parliamentary sovereignty is not strengthened by the introduction of declarations of incompatibility in Section 4 of the HRA. AO1: The current system lacks clarity. AO2: The effect of this lack of clarity is to undermine parliamentary sovereignty as the SC has taken on additional powers at the expense of parliament. AO3: We can reach a judgement that parliamentary sovereignty has not been strengthened by the lack of clarity of our political system.
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