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Paper 2 · Sample · 30 marks
Using the source, evaluate the view that constitutional reforms in the UK since 1997 have been weak, incomplete and require further change.
Constitution
Source
These sources are adapted from newspaper articles following the High Court decision that the executive does not have the power to trigger Article 50 without the agreement of Parliament.
The case that judges should not exercise control over government
The press, MPs and public have every right to criticise the judges. This judicial decision is wrong. This country is governed by the rule of law which is not the same as the rule of judges; the judiciary interprets the law passed by Parliament, which is sovereign. No one is challenging the independence of judges, but they made the wrong judgement in this particular case, since the government was within its rights to use the Royal Prerogative. In recent years, the advance of 'judicial activism' has made rulings against ministers commonplace. The decision to leave was made by voters in a referendum following an Act of Parliament. It is therefore for the Government to fulfil their wishes. This is upholding parliamentary sovereignty and it is not appropriate for judges to interfere.
The case that judges should check government
The criticisms of judges in this case are wrong and dangerous and an attempt to influence their judicial independence through public pressure. After the referendum the Brexiteers talked about using the Royal Prerogative, an ancient right that kings and queens once used to by-pass Parliament. Even Michael Gove, a leading Brexiteer, agreed that it was a good thing for Gina Miller to contest in the High Court the constitutional pillar of parliamentary sovereignty. She claimed only Parliament could take away rights that Parliament had itself granted in the 1972 Act that took Britain into what is now the EU. The Supreme Court agreed. Politicians and the media should support judges when they uphold the rule of law which is an essential part of our unwritten constitution. This judgement also demonstrates the principle of judicial independence, which is another important restraint on arbitrary government.
Mark scheme: agreement
AO1: House of Lords reform reduced the number of hereditary peers but no peers are publicly elected: it could be extended to remove all hereditary peers and create a wholly or mostly elected second chamber. AO2: the lack of election to the House of Lords limits the amount of democracy in the UK in comparison to other modern political systems, while the lack of universal electoral reform contributes to the same democratic deficit. AO3: this therefore promotes the need for further stronger reform as this is an updated institution that does not represent 21st-century society adequately. AO1: the Human Rights Act is currently un-entrenched and cannot be used to strike down statute laws: it could be strengthened to further limit the power of Parliament and the UK government. AO2: the Human Rights Act does little to limit parliamentary sovereignty, and therefore by extension, government control. This connects to the liberal doctrine of the separation of powers, under which a strong division of control would be preferable. AO3: thus a strong division of control promotes the view that further reform is needed in order to curb parliament as it is better to have a mechanism to control power. AO1: there is no UK Bill of Rights: which sets out the rights to be protected and enforced, only the Human Rights Act does this (which is not entrenched). AO2: the lack of entrenchment makes the executive too powerful in that it can remove all protection for human rights through an ordinary Act of Parliament. AO3: this demonstrates that little has changed in terms of parliamentary sovereignty and the degree of government control, so that further reform is needed. AO1: the source leads to the view that devolution is currently uneven throughout the UK and does not include England, it could be strengthened in the currently devolved areas and/or extended to England to create a more federal UK. AO2: devolution has created imbalance and unfairness for some citizens by granting more control of local affairs to others, which cannot reasonably be justified. AO3: this therefore supports the view for further reform as the current system is unfair and the country needs reform in order to be properly and equitably represented.
Mark scheme: disagreement
AO1: House of Lords reform retained the traditional role of the House of Lords while removing the hereditary element. AO2: constitutional reform has gone as far as people want it to and has struck a balance between tradition and modernisation -- demonstrated, for example, by the public rejection of the Alternative Vote. This connects to the concept of direct democracy for constitutional reform. AO3: thus to push for stronger or more reform would go against public opinion, meaning that the balance achieved already would be lost and this would cause problems for the country. AO1: the source shows that the Human Rights Act clarifies the rights of citizens and allows for declarations of incompatibility. AO2: the Human Rights Act strikes a balance between parliamentary sovereignty and individual rights, which could both be seen as key aspects of the British Constitution. AO3: this consequently supports the view that further reform may not necessarily be needed and that strong reforms are not required, as this balance needs to be maintained. AO1: an entrenched Bill of Rights is not necessary as the UK has managed without one for a long period of time -- the Human Rights Act provides sufficient protection. AO2: a Bill of Rights goes against the traditional evolutionary nature of the British Constitution. AO3: this is why Britain has proved more stable than other countries with a written Bill of Rights. AO1: devolution has distributed substantial powers to those areas where there was demand. AO2: the sources lead to the fact that devolution, including the different electoral systems, has been appropriate to the needs of different parts of the UK, which is preferable to a 'one size fits all' system. AO3: therefore calling for such an approach is not suitable while the current reforms are appropriate and have worked.
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