Extract 1
Point: A central argument in Extract 1 is that the UK’s uncodified constitution is no longer fit for purpose because it fails to adequately safeguard individual liberties, specifically stating that under the current system, “rights are not protected.”
Explanation: This is because the UK operates under the principle of Parliamentary Sovereignty, meaning there is no “higher law” or entrenched bill of rights that can stop a government with a large majority from changing the rules. Unlike a codified constitution, which is entrenched and hard to change, our system is flexible and relies on the executive’s self-restraint. If a government decides a right is inconvenient, they can simply use their majority to legislate it away, leading to what some call an “elective dictatorship.”
Example: A practical example of this is the Conservative Party’s recurring proposals to repeal or replace the Human Rights Act (1998) with a British Bill of Rights. This demonstrates how easily fundamental protections can be altered or removed by the government of the day without the need for a supermajority or a referendum.
Evaluation: Therefore, Douglas-Scott evaluates the current constitution as inadequate, suggesting that without codification, the UK lacks the necessary legal “anchor” to prevent the executive from overriding the rights of its citizens during times of crisis.
Extract 2
Point: Conversely, Extract 2 argues that moving to a codified system would be a mistake because it would “dramatically increase the role of the courts, passing power from the elected to the unelected.”
Explanation: Tomkins is concerned about the Separation of Powers; in a codified system, the judiciary becomes the ultimate arbiter of the constitution. This would shift the UK from Parliamentary Sovereignty to Constitutional Sovereignty, where judges have the power to strike down laws passed by the people’s elected representatives. This effectively politicises the judiciary, as judges end up making decisions on social or political issues that should be left to Parliament.
Example: A real-life example of the dangers of judicial supremacy can be seen in the United States, such as the case against Bobby Seale or the ongoing debates over the Second Amendment. In the US, unelected judges have the final say on gun control or civil liberties, often blocking the will of the elected Congress and causing significant political gridlock.
Evaluation: This highlights a fundamental difference between the two extracts: while Extract 1 views the courts as a vital protector of rights against a dominant government, Extract 2 views them as a threat to democracy that would weaken the authority of Parliament. Ultimately, Extract 2 judges the uncodified system as superior because it ensures that power remains with accountable politicians rather than an unelected legal elite, maintaining the “dynamic and fair” nature of British politics.