2.4: Relations between the branches Flashcards
1
Q
What is the role of the Supreme Court?
A
SUPREME COURT ROLE
- Highest Court of Appeal in the UK
a) Lower courts (Crown Courts and Magistrates’ Courts resolve cases).
b) Judgements of senior courts set legal precedents which can be referred to in subsequent cases (High Court, Court of Appeal and the Supreme Court). - The UK does not have a single unified legal system
a) The Supreme Court is the only UK-wide court.
- Scotland uses the Court of Session
- England and Wales use the Court of Appeal.
- Northern Ireland use a separate Court of Appeal. - Hears appeals on arguable points of law where matters of the wider public and constitutional importance are involved.
a) Had the responsibility to interpret law passed by the EU.
b) Court also makes rulings in cases where the devolved authorities may not have acted within their powers.
- EXAMPLE. In July 2016, the SC overruled the Scottish Government’s scheme to introduce the ‘named person’ service (appointing state guardians such as Head Teachers to be responsible for the well-being of children) as it was in conflict to Article 8 of the HRA (the right to a private and family life) as public bodies could share personal information without consent.
2
Q
What is Case law/Judge made law?
A
CASE LAW/JUDGE MADE LAW
- For particular cases, there may not be certainty on how an Act of Parliament should be interpreted or relevant Acts to refer to.
- Senior judges resolve cases by creating a legal precedent, which judges will be expected to follow in subsequent cases (unless amended by Acts of Parliament).
- This holds great legal, constitutional and political significance.
3
Q
What was the significance of the Constitutional Reform Act 2005?
A
CONSTITUTIONAL REFORM ACT 2005
- Established the SC, which opened on October 1st 2009;
a) Opened in Middlesex Guildhall in Parliament Square.
b) Aimed to create greater transparency
- Explains rulings on its website with full details on its decisions and logic behind.
- Welcomes visitors.
- Proceedings are televised on the internet.
c) Structure of the Supreme Court.
- 12 senior judges are known as justices of the Supreme Court.
- The head of the SC is known as the President (Lord Reed took over from Lady Hale in 2020 (was Lord Neuberger before).
- Cases are always heard by an off number of justices so that a majority verdict can be made (normally 5 or 9 justices).
d) Although they are Lords and Lady, they are do not sit in the House of Lords until their term of office has come to an end. - Ended the fusion of powers at the highest level of the UK judiciary (independence of the courts).
a) The 12 ‘Law Lords’
- Sat as members of the House of Lords.
- Known as the Appellate Committee of the House of Lords
b) The Lord Chancellor
- Cabinet Minister who supervised the legal system (executive).
- Chairman of sittings of the House of Lords (legislature).
- Head of the judiciary who appointed other judges (judiciary). - Made the SC open to more public scrutiny than the Appellate Committee
- It is is the final court of appeal and has the authority to determine the government’s powers by judicial review.
- Membership of the SC is determined by a five-member Selection Commission made up of the most senior judges in the UK (Judicial Appointments Commission).
a) These nominations are passed to the justice secretary for approval.
- Once agreed the PM will ask the monarch to make the appointment.
b) Candidates have usually served as a senior judge for 2 years, or been a qualified lawyer or at least 15 years.
4
Q
What structure of the Court system in England and Wales?
A
COURT STRUCTURE IN ENGLAND AND WALES
1. The Supreme Court
- The Court of Appeal
a) Criminal Division.
- Hears appeals from the Crown Court.
b) Civil Division.
- Hears appeals from the High Court, tribunals and in some cases from County Courts. - The High Court
a) Consist of 3 main divisions:
- Queen’s bench = contract law, personal injury and negligence case.
- Family = Divorce, children, medical treatment cases.
- Chancery = Business law, probate, trusts.
b) Also supervises courts lower in the hierarchy. - Lower Courts
a) Crown Court
- Hear appeals from magistrates’ courts (less serious criminal cases, such as motoring offences), holds jury trials and carry out sentencing of serious cases.
b) County Court
- Hears civil cases tribunals (hears appeals on immigration, social security…) and compensation for injury.
5
Q
What are the 2 key principles of the Supreme Court?
A
PRINCIPLES OF THE SUPREME COURT
- Judicial Neutrality
- The expectations that the judges will exercise their functions without personal prejudice or political bias. They must fairly interpret the law so that it is applied impartially to all.
a) Conflicts of Intrest.
- Judges must refuse to sit in a case that involves a family member, friend or professional associates, which might give rise to doubt about the justice’s detachment.
b) Public activities.
- Justices may write and give lectures as part of their function of educating the public and may involve themselves in charitable and voluntary activities, but they must avoid political activity. A judge may serve on an official body such as a government commission provided that it does not compromise on their political neutrality. - Judicial Independence
- Judges should not be influenced by other branches of government, particularly the executive. Justices can only fairly administer justice if they are free to act without government pressure.
a) Terms of employment (security of tenure).
- Judges cannot be removed from office unless they break the law.
- The only limit on their service is an official retirement age, which is 70 on the Supreme Court (although those appointed to a judicial post before 1995 can be 75).
- Judges are immune from legal action arising from any comments they make on cases in court.
b) Pay.
- Judges salaries are paid automatically from an independent budget known as the ‘Consolidation Fund’, without the possible manipulation by ministers.
c) Appointment.
- The Judicial Appointment Commission and the Selection Commission for the Supreme Court are transparent in their procedure and free from political intervention
d) Physical separate from Parliament.
- Law Lords were subject to government pressure in the upper chamber.
6
Q
To what extent has the Supreme Court maintained Judicial Neutrality?
A
JUDICIAL NEUTRALITY
- Partial
a) Disproportionate background of justices makes it unrepresentative (privileges of their class may hinder judgement).
- Most have been privately educated (elitist).
- All justices are white (perhaps may prevent effective judgement).
- All except 2 justices attended Oxford or Cambridge (rarefied experiences could make them ill-suited to interpreting the law in a contemporary setting.
b) The elitist background may make them favourable of the establishment.
- John Griffith (1977) argued in The Politics of the Judiciary that socially and politically conservative judges always favour the status quo.
- EXAMPLE. Lord Denning (1899 - 1999) sided with the government on a number of occasions; the Hosenball Case (1977) he asserted that national security has not been used as an excuse on infringements of individual liberty in England.
c) Lack of gender balance on the court.
- Men dominate the composition of judges (10 out of 12).
- EXAMPLE. In Radmacher v Granatino 2010, a case involving a pre-nuptial agreement between marriage partners, the majority upheld the principle that claims should be limited in divorce. Lady Hale was the only justice to dissent from the majority verdict as women would lose out to this precedence. She called out the fact that 13 justices sworn since her appointment were male and white in a 2015 interview. - Impartial
a) The Constitutional Reform Act 2005 was designed to make appointments to the judiciary more transparent.
- Previously the Lord Chancellor had advised the PM through ‘secret surroundings’ of senior judges.
- Could be argued that it led to a self-perpetuating socially elitist judiciary which selected judges.
- The new Judicial Appointments Commission was established by selected judges on their merit and good character, as well as considering the importance of encouraging diversity within the judiciary.
b) Judges in the UK are not permitted to be members of a political party.
- A barrister or solicitor may be a member of a political party and may pursue a political career yet, once appointed, a judge must abandon any political ambitions and associations.
c) Since the Court cases are generally open to the public and judgements are in the public domain, any bias shown by a judge would be quickly publicised in the media.
d) The sole purpose is to uphold the law.
- EXAMPLE. In one of the last rulings of the Appellate Committee of the House of Lords. Lord Hope responded to the possible deportation of radical Islamist cleric Abu Qatada to Jordan by stating that no one is excluded from the European Convention on Human Rights despite however dangerous that person may be.
7
Q
To what extent has the Supreme Court maintained Judicial Independence?
A
JUDICIAL INDEPENDENCE
- Independent.
a) The UK Supreme Court in Middlesex Guildhall was opened in 2009.
- Physically separate from Parliament and an important statement of the courts’ political independence.
b) The Constitutional Reform Act 2005 promoted the independence of the senior judiciary by removing the Law Lords from the Appellate Committee of the House of Lords and establishing the SC as a separate institution from the legislature.
c) The salaries of judges are not determined by Parliament.
- Instead the Government follows the recommendations of the Senior Salaries Review Body and payment is made directly into the Consolidation Fund.
- Ensures that no government could seek to influence the judiciary by providing it with financial incentives to look favourably on its policies.
d) Since the Act of Settlement 1701, establishing the Protestant succession to the Crown, a senior judge can only be removed by a resolution passed by both House of Parliament.
- Means that they have Security of Tenure and cannot be removed from office by the government.
- Judges act accordingly to how they think the law should be interpreted without fearing the consequence of loss of office.
e) Appointment to the SC is decided by a specially summoned 5-person selection committee comprising the Lord President of the SC, a senior judge and representatives of the Judicial Appointments Commissions of England and Wales, Scotland and Northern Ireland.
- May enforce positive discrimination to increase diversity.
- Contrasting to the USA where the President appoints a candidate with the consent of the Senate.
f) When a case is being heard, it is said to be ‘sub judice’.
- Meaning that Parliament cannot express an opinion as this would breach the separation of powers and undermine judicial independence.
- Could result in Contempt of the Court if a member of the executive or legislature expressed an opinion.
- EXAMPLE. David Cameron accused his former director of communication, Andy Coulson, of lying while he was on trial on charges that he had authorised phone-hacking when he was editor of the News of the World. Justice Saunders reprimanded the PM for declaring ‘open session’. - Subservient to the executive.
a) Protection of political figures/the establishment.
- EXAMPLE. Justice Cantley presided over the trial at the Old Bailey in 1979 of the former Liberal leader Jeremy Thorpe for conspiracy to murder Norman Scott with Cantley being prejudice against Scott as he was a gay stable boy who was not apart of the establishment (calling him a parasite) with Thorpe acquitted of his accusations.
b) Appointment of Justices to the SC
- The Constitutional Reform Act 2005 merged the position of Lord Chancellor with that of the Justice Secretary.
- Recommendations from the selection committee for new justices have to be passed by the Justice Secretary (who can request further information and retain the right to reject a nominee, yet only 1 nominee can be rejected).
- The Justice Secretary then sends the candidate to the PM who will ask the monarch to make the appointment.
c) High profile involvement of the SC in cases concerning the government risk it being pulled into major political disputes.
d) Funding concerns
- Parliament determines funding to institutions and the coalitions enforced spending cuts on the court system to eliminate the budget deficit.
- President Lord Phillips argued that the independence of the court was at risk (Justice Secretary in 2011, Kenneth Clarke, disagreed).
8
Q
What impact has the Supreme Court had on Parliamentary Privilege?
A
SUPREME COURT IMPACT ON PARLIAMENTARY PRIVILEGE
1. According to Parliamentary privilege, members of Parliament cannot be prosecuted in civil and criminal courts for the actions they take or the statements they make as part of their parliamentary duties within Westminister.
- EXAMPLE. R v Chaytor and others (2010)
a) 3 MPs (David Chaytor, Jim Devine and Elliot Morley) claimed that they could not be tried in the crown court on the charge of false accounting of their Parliamentary expenses.
- This is as these actions had been taken as part of their parliamentary duties and so were covered by Parliamentary privilege.
b) SC ruled that Parliamentary Privilege did not extend to criminal offences which take place within Westminister.
9
Q
In what ways does the Supreme Court influence the executive and Parliament?
A
SUPREME COURT INFLUENCE ON EXECUTIVE AND PARLIAMENT
- Determine the meaning of law.
a) As the final court of appeal, the decisions of the SC carry greater weight in developing the meaning of the law.
b) Can set a judicial precedent which must be followed by future courts (declaring or overturning common law).
- EXAMPLE. In R v Jogee (2016), the SC overturned the principle of ‘joint enterprise’, which was established in common law whereby those who were part of a group which incited a murder could be convicted of the crime the same way as the one who had actually done the killing. Instead, the SC ruled that there had to be an ‘intent to kill’ shown if the members of a group were all to be held guilty of murder.
- EXAMPLE. Upheld the Countryside and Right to roam Act 2000. Pop singer Madonna limited the act on her estate in Wiltshire in 2004.
c) Determine the extent to which the Human Rights Act impacts on the individual’s relationship with the state.
- EXAMPLE. P v Cheshire West and Cheshire Council (2014). A case with ‘P’, a man with down syndrome and cerebral palsy was placed with social services, who limited his personal freedom as part of his care. Their judgement gave consequences for the care of mentally disabled people as they are still protected by the HRA. - Establishing whether a public body has acted ultra vires.
a) Ultra Vires meaning that one has ‘acted beyond one’s authority’.
- If the courts rule that a public body has acted beyond its authority then these actions can be quashed because they have not been legally carried out.
b) During a judicial review of the actions of a public body, the SC can rule against the government.
- EXAMPLE. The SC ruled that when Chris Grayling was Justice Secretary in 2016, he acted ultra vires when he amended the Legal Aid Act to restrict civil legal aid to people who had lived continuously abroad for 12 months (this should have instead have been debated in Parliament and Grayling did not have the authority to introduce it through secondary legislation). - Determining the location of sovereignty in the UK.
a) The location of sovereignty can be disputed due to Parliamentary sovereignty.
- EXAMPLE. Gina Miller cases 2017 and 2019. - Declarations of incompatibility with the Human Rights Act.
a) Due to Parliamentary sovereignty, the judges cannot strike down an Act of Parliament.
- The HRA states that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention right’.
- Parliament should legislate in accordance with the European Convention on Human Rights.
- Judges can issue a formal statement of incompatibility which will put significant pressure on the government to amend the law.
b) EXAMPLE. Belmarsh Case 2004.
- In 2004, The Blair government used the power given to it by the Anti-Terrorism Crime and Security Act 2001 to hold foreign terrorist suspects indefinitely without trial.
- The Law Lords declares that this was discriminatory according to the ECHR since British terrorist suspect were not being treated the same way.
- The government accepted the ruling and Parliament legislated to introduce control orders.
- Shows that although a declaration of incompatibility can have significant moral influence, Parliament’s power to circumvent the judiciary is still great.
10
Q
What are some EXAMPLE landmark Supreme Court rulings?
A
SUPREME COURT RULINGS EXAMPLE
- R. Gina Miller v Secretary of State for Exiting the European Union (2017)
a) EU referendum on the 23rd of June 2016.
- The government claimed that it could begin the process of leaving the EU through the exercise of the Royal Prerogative.
- On the 24th January 2017, the SC upheld, by a majority of 8-3, an earlier decision taken in the High Court which stated that the government did not have the authority to do this.
b) Parliament in 1972 had enacted legislation which had taken the UK into the EU, and so it was Parliament’s responsibility to enact legislation to remove the UK from membership of the EU.
- Since the withdrawal would remove certain legal rights from UK citizens this could not be done without the consent of Parliament.
c) Some Brexiteers saw this as the government wanting to subvert the result of the referendum.
d) Established the constitutional principles of the Supreme Court.
- The SC can determine the occasions on which the government can deploy the royal prerogative.
- The government must consult Parliament if it seeks to abolish rights which Parliament has already bestowed.
- Claims by the government that the vote to leave the EU in the referendum gave the government the right to begin the process was illegal, since the result of the referendum is legally binding. - R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland (2019)
a) Constitutional law cases on the limits of the royal prerogative power to prorogue the Parliament.
- Argued before the SC in September 2019 whether the advice given by the PM, Boris Johnson, to the Queen that Parliament should be prorogued in the prelude to the United Kingdom’s departure from the European Union was lawful.
b) On 24 September 2019, in a unanimous decision by eleven justices, the court found that the matter was justiciable and that Johnson’s advice was unlawful.
- This upheld the Inner House of the Court of Session ruling.
c) As a result, the Order in Council permitting the prorogation was null and of no effect and Parliament had, in fact, not been prorogued. - The right of Sex Offenders to appeal against registration for life (2010)
a) The government’s position was that individuals who had committed serious sexual offences in England and Wales must register with the police for life after being released from prison.
- The SC ruled that this breached their human rights and that they should have the right to appeal against registration 15 years after leaving jail.
- Government and police argued that dangerous individuals were a civil threat, especially to children. - R. Private Jason Smith v The Secretary of State for Defence (2010)
a) Private Smith was a UK serviceman who died of heatstroke on a campaign in Iraq in 2003.
- His family brought a case against the Ministry of Defence that they should have safeguarded him.
- The high court ruled in their favour.
- Yet this was overruled by the SC as the jurisdiction of the Human Rights Act Didi did not extend to troops to troops in a combat situation. - Al Rawl v The Security Service (2011)
a) A former detainee of the American prison Guantanamo Bay claimed that the British security services shared responsibility for their imprisonment and ill-treatment.
- The British government argued that the evidence of the heads of security should not be given in public in case it breached national security.
b) The SC ruled in favour of the detainees stating the need for open and natural justice. - The HS2 Rail Link (2014)
a) Campaigners against the planned route requested a judicial review to investigate whether the project complied with EU environmental directives.
- The SC dismissed the appeal as Parliament had not reached a final decision on the scheme and so its merits remained open. - R. (on the application of UNISON) v Lord Chancellor (2017)
a) The trade union, UNISON, brought a case that the government’s introduction of employment tribunal fees was unlawful.
- The SC agreed that the fees risked denying justice to those on lower incomes and so were discriminatory.
11
Q
Is the Supreme Court influential?
A
SUPREME COURT INFLUENTIAL
- Yes
a) The SC is the UK’s most senior court and final court of appeal.
b) The justices of the SC are the most senior judges in the UK and their interpretation of the meaning of the law is final.
c) If the SC declares a formal statement of incompatibility between an Act of Parliament and the ECHR, that will put significant political pressure on the government to amend the law.
d) The SC also determines the location of sovereignty in the UK and can declare whether a public body has acted illegally (ultra vires). - No
a) Since the UK Parliament is legally sovereign, the SC can not strike down an Act of Parliament.
b) SC cannot initiate cases. It only determines cases that are brought to it.
c) The government could ignore a declaration of incompatibility.
d) Although the SC interprets the meaning of the law, it is also bound by what the law states.
e) Although the SC can quash the decision of a public body for acting beyond its authority, Parliament could then legislate to give that body the legal powers which it did not have before.
12
Q
In what ways is the Executive understood to be an elective dictatorship?
A
ELECTIVE DICTATORSHIP
- In 1976, Lord Hailsham stated that the ability of a British government to dominate Parliament meant it was essentially an elective dictatorship as there are very few limits on their power.
- The FPTP electoral system and majority in the house.
a) Tends to deliver single-party government.
b) A government with a large parliamentary majority should be able to rely on the support of its MPs to pass the legislative programme it wishes.
c) Since the Public Bill Committees always have a governmental majority and are whipped, it is unusual for the opposition to be able to significantly amend legislation at committee stage.
d) Minority governments will not achieve this same success, especially if there is a dependency on backbenchers. - The Government exerts a great deal of control over Parliamentary business. This limits opportunities for the opposition to debate government legislation.
a) The government dominate the legislative timetable.
b) The government can change the law using secondary legislation, over which the House of Commins has much less power of scrutiny. - The PM possesses extensive powers of patronage.
a) Government Whips will, therefore, be able to offer ambitious backbenchers opportunities to join the government or withhold any chance of advancement.
- This is a powerful way in which the government can encourage loyalty and discipline.
b) The Royal Prerogative means that the British PM does not legally have to consult Parliament on the use of British military forces.
- EXAMPLE. As Theresa May did in 2018 when she did not seek parliamentary approval for airstrikes on Syrian chemical installations. - Salisbury Convention.
a) According to this convention, the House of Lords should not attempt to stop government legislation that was in the winning party’s manifesto, since this would obstruct what the public had voted for. - Exceptions
a) Backbench rebellions
- EXAMPLE. In 2015, Cameron shelved planned for a vote on relaxing the ban on hunting after the SNP made it clear that they would vote against it.
b) Support from other Parliamentary Parties.
- EXAMPLE. Blair passed the renewal of Trident Nuclear weapon system in 2007 because Conservative support cancelled out a rebellion on his own side.
13
Q
In what ways can Parliament hold the executive to account?
A
EXECUTIVE ACCOUNTABILITY TO PARLIAMENT
1. Influence over government legislation
a)
- Parliament’s scrutiny of government activities
- Parliament’s ability to remove governments and ministers
14
Q
Has the ability of Parliament to control government increased in recent years in both houses?
A
PARLIAMENTARY CONTROL IN RECENT YEARS
- House of Commons
a) Rebuilding the House report 2009
- Chaired by former Labour MP Tony Wright.
- Powers of backbenchers increased with the 2010 Backbench Business Committee allowing backbenchers to determine the issues they wish to debate for 35 days each Parliament.
- A key-way in which MPs can raise important topics for debate, whether the government is in favour or against.
b) Committees.
- Chairs of select committees have been elected by a secret ballot of all MPs, and the membership of select committee by a secret ballot within each parliamentary ballot.
- Previously the Whips had selected the chairs and membership, which meant that loyal rather than independent-minded MPs were usually selected.
- Increased the prestige of select committees, especially as a number of prominent MPs have taken over the leadership of them.
- The PM appears to the Liason Committee twice a year.
- Minister can block the appearance of officials as witnesses to committees.
- The government have to respond to select committee reports but do not have to act on recommendations.
c) The Public Accounts Committee.
- Scrutinises the effectiveness with which the government spends public funds.
- Not a question over whether government policy is correct, but whether funds are appropriately delivered,
- EXAMPLE. Meg Hillier (Chair) scrutinised the government in 2018 that the Home Office was not sustainably funding the police.
d) The government allowing parliamentary votes before the commitment of British Forces to a military operation.
- Tony Blair allowed a vote on the justification for war in Iraq in 2003.
- David Cameron lost a vote for military strikes on Syria in 2013 following the Syrian Governments alleged use of chemical weapons by 285-272 (30 Conservatives and 9 Liberal Democrats rebelled against the motion).
- Yet it is not always a legal requirement (2018 Theresa May used Royal Prerogative when the RAF joined American/French airstrikes on Syrian government chemical weapons installations.
e) Fixed Terms Parliaments Act 2011.
- Prevents the PM from requesting a dissolution of Parliament and a general election at their convenience.
- Yet the PM can still call a snap election with 2/3rd majority, as Theresa May did in 2017.
- As the opposition is unlikely to oppose such a government motion, the PM in reality still has this power. - House of Lords
a) ‘Sunset Clause’ in the 2005 Prevention of Terrorism Act.
- Secured compromises from the government.
- Meant that the act would automatically expire in March 2006, unless it was renewed by further legislation.
b) Since the removal of the majority of hereditary peers, the chamber can claim greater personal expertise and so has become more self-confident in opposing government legislation.
- Also lost its inbuilt Conservative majority and become more balanced in its composition.
- EXAMPLE. Labour still suffered over 450 defeats in the Lords from 1997-2010.
c) Parliaments Act 1911
- The Lords cannot block financial related bills.
- EXAMPLE. The Lords blocked attempts by the Chancellor of the Exchequer to cut tax credits in 2015 as they could vote against the measure as it had been introduced by secondary legislation.
d) The Lords acting as an opposition chamber rather than a revising chamber.
- Constitutional expert Vernon Bogdanor coined the term.
- Chuka Umunna praised the Lords for resisting the EU (withdrawal) Bill.
15
Q
What are some EXAMPLES of weak Parliamentary influence over the executive?
A
WEAK PARLIAMENTARY INFLUENCE OVER THE EXECUTIVE
- 1979-1987
a) Margaret Thatcher’s determined leadership contrasted divisions within Labour, which led to the party fracturing with the SDP in 1981.
- Meant that there was a split opposition.
- Michael Foot (1980-1983) nor Neil Kinnock (1983-1992) was able to effectively challenge her policies.
- Support for the Falklands War in 1983 increased Thatcher’s majority in 1983 to 144. - 1997-2001
a) Tony Blair’s landslide majority of 179.
- United under Blair’s third-way political philosophy.
b) The Conservatives had their worst election defeat since 1832 under the Duke of Wellington with only 165 MPs.
- Ability to oppose Blair was undermined by divisions over the EU.
- Ineffective leadership of William Hague (1997-2001). - 2010-2015
a) David Camerons failure to win a parliamentary majority in 2010 led to him forming a coalition with Nick Clegg.
- 306 Conservatives with 57 Lib Dem MPs gave the government support for 363 MPs compared to Labours 258 MPs.
- The government survived significant backbench rebellions such as the 21 Liberal Democrat MPs who voted with Labour not to increase tuition fees.
