Relations Between the Branches (Edexcel A Level Politics): Exam Questions

Article 1

The Supreme Court has ruled on whether a Prime Minister could suspend Parliament and on whether a government could begin withdrawal from the European Union without an Act. These are not technical disputes about contract law. They are decisions of the first political importance.

Yet the people who take them are chosen by a commission largely composed of senior lawyers, meeting in private, applying criteria the public has never debated. Ask a well-informed voter to name a single justice and they will struggle. If a body exercises power of this kind, those appointed to it should at minimum answer questions in public before they take office, so that the country knows something of how they think. Scrutiny is not the same as control.

Article 2

We know exactly where this leads, because it has been tried. In the United States, confirmation hearings have become an openly partisan contest in which nominees are chosen for how they are expected to vote and then spend days avoiding saying so. Judges there are routinely described by the party of the president who appointed them. That is the outcome on offer.

The comparison is misleading in any case. American justices interpret an entrenched constitution and can strike down legislation; ours cannot overturn an Act of Parliament, which remains supreme. The Constitutional Reform Act 2005 deliberately removed political control over judicial appointments, and it did so because the previous arrangements, in which a Cabinet minister effectively chose the senior judiciary, had become indefensible. Reintroducing politicians into the process would undo a reform made for good reasons barely twenty years ago.

Article 1

Consider what the Court has actually been asked to decide. Whether a government could begin withdrawal from the European Union without an Act of Parliament. Whether a Prime Minister could suspend Parliament for five weeks. Whether the Scottish Parliament could legislate for an independence referendum, which the Court answered in 2022. Whether the Sewel convention is enforceable.

These are questions about how power is distributed between the institutions of the state, which is the definition of constitutional adjudication. The Court also hears devolution references as a matter of routine and issues declarations that legislation is incompatible with protected rights. It has developed a vocabulary of constitutional principle to reason with. A body that spends its time settling disputes between the branches of government is a constitutional court, whatever the sign on the door says.

Article 2

A constitutional court has one defining power: it can annul a law. Ours cannot. When our Supreme Court finds a statute incompatible with protected rights, it says so and the statute remains in force, valid and enforceable, until Parliament decides otherwise. That is not adjudication; it is advice.

Nor is the day job constitutional. The Court is the final court of appeal for ordinary civil and criminal cases, and the great bulk of its work is contract, negligence, tax and crime. The devolution references it hears arise under statutes Parliament wrote and could rewrite tomorrow. Indeed its entire jurisdiction comes from an Act of 2005, which Parliament could repeal. A court that exists at the pleasure of the legislature and cannot invalidate what the legislature does is not standing above the constitution. It is operating inside it.

Article 1

Walter Bagehot identified the efficient secret of the British constitution in 1867 as the nearly complete fusion of executive and legislative power, and nothing since has disproved him. Ministers are not merely permitted to sit in Parliament; they are required to. The government is formed from the legislature and survives only while it commands it.

The consequences run through everything. The executive controls the great majority of Commons time and therefore what is debated at all. Well over a hundred MPs hold government posts and are bound to vote with it before any argument begins. The whips manage the rest. Parliament does not so much check the executive as house it, staff it and keep it in office.

Article 2

Bagehot was writing about two branches, and forgetting the third has become impossible. The Constitutional Reform Act 2005 removed the law lords from the House of Lords, created a Supreme Court sitting in its own building, and stripped the Lord Chancellor of judicial functions that a Cabinet minister had held for centuries. Judicial independence in this country is now more clearly established than it has ever been.

Even between executive and legislature the picture has shifted. Select committee chairs have been elected by MPs rather than appointed by whips since 2010. The Lords contains no government majority and defeats the government regularly. Governments lose Commons votes, sometimes on their central policies. A fused system in which the executive is routinely beaten by the body it supposedly controls is not the seamless machine Bagehot described.

Article 1

A select committee can invite a witness. If the witness declines, that is the end of it. Parliament's ancient power to summon has not been enforced in modern times and everyone involved knows it, which is why individuals with the most to explain are precisely the ones who find themselves unavailable.

Recommendations fare no better. A committee may spend a year taking evidence, publish a unanimous cross-party report, and receive a departmental response that politely declines to act. Nothing follows. Scrutiny that the powerful may opt out of is not scrutiny; it is an opportunity for the conscientious to explain themselves while the rest stay away. Give committees the power to compel attendance and to require a government to implement or formally reject a recommendation before the House, and accountability acquires a consequence.

Article 2

Compulsion needs enforcement, and enforcement needs a sanction applied by somebody. That means courts adjudicating on parliamentary proceedings, which Parliament has spent three centuries keeping them out of, or committees imposing penalties themselves without any of the procedural protections a tribunal provides.

It would also destroy what makes committees work. Their authority rests on cross-party unanimity and the publicity a damning report attracts, and a witness compelled to attend under threat delivers silence rather than candour. Requiring a government to implement recommendations goes further still: it would convert an advisory body of backbenchers into a rival executive that answers to nobody and was elected to nothing. Ministers are accountable to the House as a whole, which can defeat them and remove them. That is where the power to compel belongs.

Article 1

Rights in this country rest on an ordinary statute that a government with a majority of one could repeal on a Tuesday afternoon. When a court finds legislation incompatible with those rights, it may say so and nothing happens: the law stays in force, and the people it affects keep living under it, until ministers find time to care.

Defenders of this arrangement invoke parliamentary sovereignty. But a Parliament controlled by the executive that sits within it is not a sovereign check on anything; it is the instrument through which a government acts. Every comparable democracy allows its highest court to set aside legislation that violates protected rights, and none has become a government of judges. Entrenchment exists to protect minorities from majorities in a hurry, which is precisely when protection is needed.

Article 2

To strike down a law you need a higher law to strike it down against. Other countries have entrenched constitutions their courts apply. We do not. A UK judge asked to invalidate a statute would have to identify the fundamental principle it violated, and would in practice be inventing the standard while applying it.

The proposal also solves the wrong problem. If the objection is that the executive dominates Parliament, the answer is to reform Parliament or the electoral system that hands governments unearned majorities, not to move final authority from a body voters can remove to one they cannot. And the existing arrangement works better than admitted: governments have amended the law in response to declarations of incompatibility in the great majority of cases. A power exercised through persuasion, which has largely succeeded, is preferable to one exercised through compulsion by judges nobody elected.

Article 1

The Act instructs judges to read legislation compatibly with Convention rights so far as it is possible to do so. That single phrase has allowed courts to give statutes meanings their authors plainly never had in mind, which is legislating by interpretation. A separate provision makes it unlawful for any public authority to act incompatibly with those rights, drawing the courts into policing decisions on immigration, policing, welfare and detention that were previously matters for ministers answerable to Parliament.

The result is that questions once settled by argument in the Commons are now settled by litigation, and a declaration that a law is incompatible with rights creates political pressure that governments find very difficult to resist. Power has moved, whatever the formal position says.

Article 2

The formal position is the position. When a court declares a statute incompatible, that statute remains law. It is valid, it is enforced, and it changes only if Parliament decides to change it. Parliament has on occasion simply declined, resisting adverse rulings on prisoner voting for well over a decade without any legal consequence whatever.

The interpretive duty is also bounded: courts have repeatedly refused to read statutes against their obvious meaning, precisely because doing so would usurp Parliament. And the rights judges apply are not their own invention. Parliament chose to incorporate them, debated the Act and passed it, and could repeal it tomorrow by simple majority. Judges enforcing rights that Parliament instructed them to enforce are carrying out Parliament's will, not overriding it.

Article 1

While the UK was in the European Union, trade agreements were negotiated in Brussels and required the consent of the European Parliament before they could take effect. British MEPs voted on them. Since withdrawal, the UK negotiates its own agreements and the House of Commons has nothing comparable.

What it has is a procedure from 2010 under which a treaty is laid before Parliament for twenty-one sitting days. There is no guaranteed debate, no guaranteed vote, and no power to amend a single line. An agreement reshaping the terms of trade for an entire industry can therefore pass with less parliamentary attention than a minor bill about licensing. The competence came back from Brussels; it did not come back to Parliament, and until the procedure changes, it will not.

Article 2

Negotiating requires the ability to make confidential trade-offs and to move quickly. A counterpart who knows that any concession must survive a parliamentary vote will simply wait for Parliament to weaken the British position for them, and the country will get a worse agreement.

The scrutiny gap is also overstated. Most agreements of consequence require implementing legislation, which Parliament debates, amends and can refuse. Select committees examine trade policy continuously and take evidence throughout negotiations. The 2010 procedure allows the Commons to resolve against ratification, and it may do so more than once. Look also at systems with full legislative ratification, where major agreements sit unratified for years because a legislature cannot assemble a majority. Ministers negotiate and answer for the result; that is what an executive is for.