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Paper 2 · 2024 · 30 marks
Evaluate the view that sovereignty does not lie in Parliament alone.
Sovereignty
Mark scheme: agreement
Agreement Devolution acts as a political limit on the sovereignty of parliament. Devolution clearly limits political sovereignty where devolved bodies have competency; the UK has become a quasi- federal system and devolved bodies created as a result of referendums can realistically only be removed via referendum (AO2) showing that parliament is no longer politically sovereign as it is operating in a quasi-federal system where devolution is partially entrenched (AO3). In the UK the idea of an elective dictatorship means that political sovereignty really lies with the Executive. The UK has an elective dictatorship, which refers to the fact that Parliament’s legislative programme is determined by the government due to majoritarian, first- past-the-post electoral system, their control of the timetable in the Commons and the imposition by the whips of party discipline on the governing party’s majority (AO2) showing that parliament is no longer politically sovereign as power has effectively passed to the Executive branch in the modern UK (AO3). Judicial decisions regarding the Human Rights Act provide a real political limit on the power of parliament. Realistically parliament feels that it has to act on decisions by the courts, changing legislation to meet those decisions (Keidan case, The Prevention of Terrorism Act 2005) (AO2) reflecting that human rights law and Court decisions due to their moral power are a real restriction on parliamentary sovereignty (AO3). Referendums show that popular sovereignty can act a real, political restraint on the sovereignty of parliament. Referenda are a form of popular sovereignty, and parliament cannot realistically refuse to implement the wishes of the public (EU referendum) whilst referendums are now expected for any significant constitutional changes (AO2) reflecting that referendums have emerged since 1997 as a real limit on parliamentary sovereignty (AO3).
Mark scheme: disagreement
Disagreement Parliament is and has always been legally sovereign as there is no limit on its ability to make or unmake any law. Parliament has always been legally sovereign, as it showed in the passing of the EU Withdrawal Act to repeal the European Communities Act 1972 and could at any time repeal the Acts of devolution and acts passed by devolved bodies can be vetoed if they contradict UK constitutional law passed by parliament (AO2), and the recent EU Withdrawal Act has made it clear that sovereignty lies in parliament. (AO3). Parliament is legally sovereign, and the Executive has to rely on parliament to pass laws. Parliament is legally sovereign, and the Executive relies on parliament to pass law as T May found out with her Brexit legislation (A02) showing that ultimately parliament remains sovereign when it comes to the making or unmaking of any law (AO3). Parliament can overturn the HRA, and is not obliged legally to act on any decision. regarding incompatibility by the Supreme Court. The Human Rights Act is an act of parliament that can be repealed at any time, the Courts cannot strike down an act of parliament for breaking the HRA and parliament can decide how to respond to any court decisions that declare an act of parliament incompatible with the HRA (A02) showing that ultimately parliament is sovereign as no Court can strike down an Act of Parliament (A03). Parliament has to pass an Act to create a referendum, setting the question, and does not legally have to abide by the result. Referenda are created by acts of parliament (EU and Scottish Independence) and the results are not legally binding on parliament (A02), reflecting that ultimately parliament controls when referenda are used, what they are used for as well as how to respond to the results showing the sovereignty lies in parliament. (A03).
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