4- Relations Between The Branches Flashcards
Supreme court
Highest court of appeal in the uk
Established in 2009
12 justices comprise the most senior judges in the country and its judgements can carry great legal, constitutional and political significance
Decisisons it reaches have to be followed in future cases
‘Last word- lord phlips- first presdent
Cra 20056
Called fro greater seperation of powers so removed law lords from hol and into seperation sc
And split up roles of lord chancelor
Role of sc
Final court of appeal where there is a judicial review of how th egoov has acted
Work of new sc is more open to public scrutn y than had been the case with appellate comm (law lords in hol))
Can determine whether an issue aught to be under the jurisdiction of british gov or devolved body
Final court of appeal fo rall cvil cases across uk and for al criminal cases in eng wales and ni
Scotland- hgh court of judiciary fulfils role as court of appeal for crimnal cases
Membership of sc
Determined by a 5 member selection commission made pup of the most semior judges in the uk
Nominations passed to justice secretrary for approval
Has one opportunity to reject a nomination
Once agreed pm asks monarch to make the appointment
Ultra vires
Beyond the powers
Action that is taken without the ega authoorty which is required of it
Is the uk judiciary ndependant and neutral
Cra- independant appointment process
Neutralituty protected by legal and political restrainst
Tenure, protected saleries
Reforms to lord chancellor have greatly iincreased seperation of powers
Cra- independant appointment process- independat and neutral- yes
Created new judicial appointment comm with legal professionals
Position advertised and jac interview candidates before rec to lord chief justce and lord chancellor (who can reject first one))
For sc- select comm, nomnations passed onto judtice secretary for approval, reject once
No- cra- iindepenant appontment process- independant and neutral
Lack of dversity- limited neutrality
No etnc minorty just 3 female justces, older- undemocratic
Public confidnece- balanced and fair
Eg. Radmarcher v granatins- all male sc justice ruled in favour of prenup agreemonets but lady hale opposed
Neutralitu portected by extensive legal and political restirctions- independant and neutral- yes
Years of experience, ofte as barrister
Reasons to be more transparent- sc livestream of court, public with full written report as well as more concise summary
Political restrictions- can vote but no active political affilations
Neutrality portected by extesive legal and political restrictions- no
Inevitable personal views of judges will nfluence the final decision
R (miller) v secretary of state for exiting the eu (2017))
Sc cant detrmine wether gov begin the porcess of exiiting ey using preogrative powers
Daily male- 5 sympathtic to eu, 66 personal relations with remainers
Tenure, protected saleries- yes- independant and neutral
Judges life tenure, until 75, retire, cannot be simply fired for decisions that gov disagrees with
Pay cannot be used to influence decisons by ncreasng or decreasng.
Not controled by budget/gov, instead by ndependant review body that sets salery who meet directly from considadory fund (gov bank account bofe)
Anonymity- dont run for office or secure political funding
Subjudce rule- prevents mps. Lords, pg, public fro, discussing impendng court case
Shie;d from overall influence, if break contempt of court- fine criminal proceedings
Tenure, protected saleries- not ndependant and neutral
Constiiitutioinal convention to not comment outside ocurt room or gov legislation- exec not comment judges or their decisons- esp hr issues
Eg. 20165- defence secretary- fallon- judiciary broad interpetation of hr udermining armed forces ability to combat terrorism
Mar 2018- president sc applied legal aid changes undermine rule of law- conventional criminals pay 150t 1200 towards cost of their case- over 100 magistrates resign in protest
Reforms to lord chancellor have greatly increased seperation of powers- yes more independant and neutral
Historically members of all 33 branches- member of cabinet, rep judiciary iin gov, speaker, head of justice
Cra split up
Lord chancellor- postion of justice secretary, oversee judicial appointments, admission of cases, legal aid and prison sentences
Lord chief justice- presides over lower courts- most senior judge
Lord speaker- elected by peers to preside over hol
Cra requies lord chancelllor- senior member of gov to swear oath to ‘respect the rule of law’ and ‘defend the independence of the judiciairy’
Reforms to lord chanceller dont increase independance and neutrality
Cra doesnt require lord chancellor to be a laywer, could be more ambitions, younger minister wuth limited legal experience
Is the judiciary now too powerful
Judicial review
Sc power compared to other countries and in past
Constitutional reforms- greater judicial activism
Independance and neutrality
Judicial review- is the judiciary now too powerful
1982- 685 applications for judicial review- 20013 over 15,700 applcations- substantal increase in immigration and asylum cases
Pm cameron criticism increase hjr- some ‘welll founded, many completely pointless’
Critics argue jr hold up elected gov- prevents ministers from enacting election mandated promises
Many ‘leave ‘ voters critic when jr sought of con gob planning when had royal prerogatve powers to trgger clause 50- start exit negotiations- application of jr just attempt to frustrate results of ref
Critics argue ref result didnt change the fact that ministers still ahd to act with legal policies
Judicial review- is judiciary now too powerful-no
Increased jr essential to rule of law
Av dicey wrote that ‘twn pillars’ of british constution are parliamentary sovereignty and rule of law
Rule of law stresses importance of law over artibitrary power- requires decisions and actions to applied to everyone equally0
Public office and gov have been frustrated when judgedes declare that an action or decision to be illegal processes are imporoper or immoral
When judges rule that decisions of gov minister, are ‘ultra vires’ beyond legal powers- upholding will of parliament- eg. Justice secretary acted uv when ammedned legal aid to restrict civil legal aid
Sc power compared to past judicial too powerful- yes
In the past- hra 1998- declalration of ncommpatibilit- uk law conflcits with echr
Due to parliamentary sovereignty- parliament still decisded how to deal with declaratio
Joint comm on hr in 2015 found that since hra in 2000- 29 declarations, 20 final
Sc power compared to other countries- judiciary not too powerful
Sc much weaker than other countries as lack codfied constitution
If codified- highest courts have power to strike down any laws passed by legislature- as conflict with ‘higher laws’ in constitutoin
Parliament is soveriegn and one main sources of our constitution are passages in parliament- sc strike down for being unconstitutional
Constitutional reforms- greater udicail activism- judiciary now too powerful
Critics hra argue judicial activism- decisions influenced more by personal views of judges than existing laws
Exhr vague-liberal judges increasingly broad view of rights are protected- eg. Echr requires its convention and powers gaurentee to ‘everyone within their jurisdiction’- traditionally judiciary wthin state body- smith v mod 2013- echr intrperted as expanded for brtish soldiers
Hra rases judges to answeer q more personal than legal- once ‘non-justicable’ as rased policy best left to parliament, now in sc due to hr implications- more subjective
Eg. Nicklinson- right to day- court decided had to be debated in parliameent
Judiciary not too powerful- constitutional reforms- law making rule and judges support judicial restriant
Judges cannot be proactve- as must wait for cases be bought to them
Judiciary always nterpet statitute law
Crtics for judiciary overstep constitutional barriers- ncklinson v ministry of health- decided debated in parliament
Independance and neutrality- jduciairy too powerful
Inevitable personal views will influence somewhat
R miller v secretary of state for exiting eu- whether should begn process of withdrawing from eu using preogative powers
Daily mail- 5 sympathtic to eu, 66 personal relations wth remainers
Independance and neutrality- judiciary not too powerful
Pay cannot be used to influence
Independant review body sets, meet with consilidatory fund- gov bank account in bofe rather than budget
Subjustce role- previsou mps, lord, pg, media, public from discussing iimpending court cases- shielded from influence- if break, contempt of court
Years of experience- often as barrister
Transparency needed- release full and summarised report of how and why came to conclusion
Sc livestream court
Pledge of ndpendance oath
System of executive in uk
Executve sits within parliament- exec and legislature are fused
As a result of palriamentary sovereignty- exec accountable to hoc as reps will of british people through mps elected
Elective dictatorship
Lord hailsham 19766
Stated the ability of a british gov to dominate parliament meant it was essentally an elective dictatiorship
How elective dictatorship is the case
Gov exerts control over parliamentary business- limits opportunity for opp to debate gov legislation
Public bill comm- gov majority and whipped- unlikely for opp to be able to significantly ammend
Gov with large parliamentary majority should be able to rely on supprt of its mps to pass legisative porgramme it wishes
Gov change the law w secondary legislation- hoc less power of scruityny
Pm patronage powers and gov use of whis as ministerial selection- encouraged loyalty
Royal prerogatve- pm dont have to legally consult parliament on use british military forces- eg may 2018
Sailsbury convention- hol not attempt to stop govlegislation in manifesto- obstruct public voice
But arguably extent of elective dictatorship depends on
Minority or majorty gov- loyalty of backbenchers
Confidence of gov- may be undermined if opp strong and united under strong leader
Examples of weak parliament bbut strong exec
1979-87- thatcher determined leadershp, sucess faulklands war (increase majority to 144), dvisions in labour- fracture and formation of sdp
Foot and kinnock struggle to effectively challenge policy in hoc
1997-2001- blair landslide 179- united under third way, conservatives worst election since 18332- 1665 mps- divisions over eu and ineffective leader haugue
Boris-2019- 80 seat majority- labour under corbyn divided and lack of unty on brext
Examples strong parliament- weak exec
1974-79- wilson won with 3 seats majorty, 19766 callaghan took over, election deefeats, s^&c liberals
Vote of confidence lost 3310-311
2005-2010- post 2005 blair decrease influence over controversiies in iraq, majority down to 600 searsm backbencher less loyal, 2005 lost first parliamentary bote- increased detention for terrorist suspects for yp to 90 days
Brown 20007- fced cameron who questioned hiis authorty
2017- may snap election, s&c dup, diff pass brexit legislationq
Increase control on gov by parliament in hoc
Wright coomm 2009- increased powers to backbenchers
2010- backbench business comm established- determine what they want to debate for 35 days of each parliament
Mps raise important topic for debate- regardless if gov for or not
Chairs select comm- elected and paid- not whipped
Public accounts comm- scrutinise effectveness of gov spending
Convention hoc consulted on mlitary opporations
2003- iraq- expectatoin arose
20013- syrai bombing defeated- 30 con and 9ld vote agianst
20018 may- royal prerogative- raf airstrike syria chemical weapons installations
Hol- increased control on gov by parliament
Recent, since removal most hereditary peers, greater professional expertise lost inbuiilt con majority- more balanced
Ncrease willing to use powers- 199-2010- 450 defeasts hol
Eg detendtion of terrorist supsects to 90 dyas
2015 lords more controlling- oppose chancellpr to cut welfare cedits- against parliament act 1911- but lords claimed could as secondary legislation
Aims of the eu
Encourage peace, proseperity and liberal democracy
Through four freedoms, money/social.political union, common foreign and defence policu, protection hr
Four freedoms
Core economic aspiration of european intergration
Free movement of:
Goods- member states not mpose tarrifs on goods from another member state
Services- open up and operate in any member state
Capital
People- no internal barriers- work in any member state and able to claim some sort of social benefit
Money union
Maastricht treaty 1992- euroepan integration to aspire both economic and monetary union
1999- euro ntroduced as trading currency
2002- foundiing eu members replaced to euro
Social unity
Maastrict traty- social chapter- certain rights for all workers in eu
Health and safety, freedom from discrimiination, equal treatment men and women, paid holiday, working hours and condtions, parental leave on birth of child
Protection of hr
2000 charter of fundemental rights of eu became law in all member states who ratified lisbon treaty in 200008
Overlap echr
Only applies to areas compatible wth eu law and cj
Political union
1992 maastricht- change name eec to eu- common citixenshp
Common and foreign defence policy
Lisbon treaty 20070- eu legal identuty- negotiate on equal terms with nation states and eu diplomatic services
Establish full time president of european commision and high commissioner for forigh=n affairs- rep eu in dealing with other world leaders
Eu miigrant crisis
Caused by syrian civil war, conflict libya, climate crisis,
Fears of ‘alien culture’ ncrease extremist party in eu- eg. Nigel farage- encourage support brexit
Has eu achieved its objectives- yes- economic
2018 eu gdp $19.7bn, second bigest economy in the world
22% value global economy
Euro worlds second reserve currency after us dollar
Has eu achieved its objectives- no - economic
Austerity pprogramme demanded by european commision and european central bank in response to euro crisis
Undermine support for eu in sothern europe= greece, taly, spain , portugal
Has eu achieved its objectives- four freedoms- yes
Implemented measures to make eu biggest singl emarket in world
Providing eu citixens with right to live, work or study in any member state
Has eu achieved its objectives- no- four freedoms
Removal of barriers to free flow of workers has encouraged increase populaist parties across euorpe committed to proect their workforce from ‘foreign’ competition
Migrant criss exposed big tensions between liberal countries of germany, ffrance gov and more defensive of hungary and itlay
Has the eu achieved its objectives- political unity- yes
2018 eu expanded to have 28 memberswith turkey, macedonia, albania, serbia and montenegra have applied to join
Expansion of eu has encouraged democracy in former comm states in eastern europe
European charter of fundemental freedoms entrenched core civil liberties n europe
Provided lead on issues such as combatting climate change- reposnible for most environmentally friiendly legislation in world
Has eu achieved its objectives- political unity- no
Expanded eu diluted ts purpose- more diff t oachive a united european reposne- eg. Response to crimea, ukraie and syrian civil war
Commitment members states such as hunagru and poland to democratic principles of eu is disputable- undermine eu sense of common purpose
Lttle progress made on establishing a european sense of dentty- national identity even been strengthened as a result of free movement workers and imigration issues
Impact of leaving eu on uk parliamentary soverignty -
Miiller case 20017- responsibiliity of parliament to inituate brexit proecess by triger article 6550 lison treaty rather than exec, because brexit entailed repeal of 1972 european comm act which enabled a no rights in uk law
Eu withdrawal bill 2018- translate eu laws in uk law so parliament can scrutinise to decide which can be retained ammended or repealed
Clarified treaties - india first one- fast track citizenship
Parliamentary soverignty still under threat post brexit
Soverignty lies with public-r ef, 2019 ge won on ‘get brexit done’ will of peopele- political speverigngy
Gov reserves rigt to review legislation without ful parliamentary scruity
2022 retained eu law bill- any eu law not specifically retained would expire at end of 2023- without ful scrutiny, welsh ass oppose
Political sovergnty
Abslute authority
Since legislative authority derives from public (mandates)), the public may be said to exercise political soveriegny
Legal soverigenty
Legal right to exercise soveriegnty
Reps right of parliament to enact legislation which has dssolved authortuty and cannot be overtuned by another other body
20166 eu ref- gov soverign will of people conflict wth parlianent
Extent to which soverignty has merged/moved between branches- referendums
Transfer authoruty from peoples rep in parliament to direct democracy
Eg brexit 73%mps opposed, 2017 hoc vote 498-114 to allow gov to start negotiations to exit eu
Resilts of ref not legally binding as q is advisery- but constitutionally problematic if ask and ignore
Blair set precendent where mps called to determien the opinion of public on important constitutional q- scottish indepndance and brexit
Strong exec- how sovergnty moved between branches
With large parliamentary majority- few constraints
Esp srtong with support of media- eg balir
Devolution- how soverignty moved betwen branches
Changes in location of soverignty arguably evolving into quasi-federal state where soverignty increasiingly shared by constituent members of yj
Westminster can legally reclaim these powers
Eg. Ni 2002-2007 direct rule restablished
Scot and wales only disolve devolved body with ref- scot act 200166 and wales act 20017
Royal prerogative- sovegnty moved betwen branches
Exterted by pm- certain areas palriament not seoverign
Choosing liife peers and anglican bishops
Decisde whos in cabinet
Mliitary actiion- but snce balir paliramnet expect to be consulted on military action- buut in 2018 may did not
Eu - soverignty moved between branches
When part of eec-eu- uk accept eu law over domestic law
Eg. Factortame case 1991- proven over fishing
Hra- how soveriegnty moved betwen branches
Encorperate echr into british law
Falls short of being a codified constitution - parts can be suspended - eg aarticle 665 suspended after 9/11 allowing gov to hold foregn terrorist supsects indefnitely without trail
Act of parliament can stilll become law f in defiance of terms of hra- contradction highlighted by delcaration of ncompatibility
Eg prisoner voting 2011 defeated 234-22
217 compormise for tiny no prisoners
Globalisation- soveriegnty moved between branches
Eg. Members pf international criminal court and international court of justice- undermining uk soevriegnty
Yj experience lobby tradining laws of WTO
Commitment to article 65 nato- attack on one, attack on all
Uk gov cant control captal flows and flights- control over econ practically diff
Etv westminster parliamentary soverignty has been undermined
Loa ues
Devolution most
Exec depends
Sc less so
Devolution- westminster soveriignty undermined- yes
Ni an scot- tax varying powers
Scot high court of judiciary- appeal criminal cases
Increase appetite indepnedance
2014 scottish indepneance- snp
Strugeon reattempt in 20023- but failed with sc case
Increase nationalism- palid cymru iincrease support, snp 566/59 sears n 20015 westminster
Westminster dissolve wales and scot only if ref- scot act 20166, wales act 2014
Devolution- westminster parliamentary soverignty undermined- no
Regional devolution rejected
Ne 2004 ref, 78% no, 400%^ turnout
Westminster power to remove direct rule in nortehrn ireland 2002-2007
Exec and parliament- westminster soverignty undermined- YES
Large majority- 1997-2001- blair
Landslide 179 majorty, unted party under blair0– 3rd way
Can splt under euu and weak hague
1979-87 thatcher determined leadership, increae majority 144 post faulklands, divsion in labor, lost to sdp, foot and kinnock not as effective to oppose in hoc
‘Elective dictatorhsip’
Public bill comm- whipp and ministerial appointments
Royal preorgative- 20018 may- raf airstrikes on syrian chemical weapon installation without parliamentary apporval
Exec and parliament- not undermining parliamentary soverignty
Depends on factors- minority gov, loyalty backbenchers
2017 may, dup s&C, strugggle with brext negotaitions, snap election
Recleaim decrease power of gov by parliament- wright comm 2009, 2010 bbc- 35 days to debate what want without nteferneace
Select com and clhair elected and paid f
Convention hoc military opperations- after iraq 2003
Sc- yes- parliamentary soverignty undermne
Hra 1998- declalration incompatibilty- limiit legit of gov
Since 200 uk 29
Prisoner otng not allow
Judges review hold elective gov on previsuoly mandated election promises- leave bvoters- miller v secretary of state for extiting eu, article 500 sued progatino of power- frustrate ref turnout
Should be envoked by parliament
Sc- not parliamentary sovergnty undermined
No codifeied consttution so cant stike down laws for being unconstritutional
Parliament can ignore delcarations of incompatibility- prisoner voting
Argument hol not powrful- therefore exec does threaten parliamentary soveirignty
Money bills just pass in hoc
Hol can hold up a bil for one year, afterwards can pass wihout aporval of hol
Eg. Sexual offences (amendment) act 2000- lower age of consent to 16 in uk, in line with heterosexual relationships
Hunting act 2004
Sc case against usse of parliament act
Jackson v attorney general- parliament act used unlawfully in hunting act 2004
Found not the case
Importance judicial review
Dyson- the consututional protection afforded by judicial review. It is the courts that are the guardians of the rule of law
December 2012, the Secretary
of state for Justice said: Judicial Review is a critical check on the power of the state providing an effective mechanism for challenging decisions of public bodies to ensure that they are lawful’
Impact leaving eu on pariamentary soveirgnty- devolution yes
Eng and wales vote leave
Ni protocol= 2024 dup returned stormont with new deal safegauridng union- decreased checks and paperwork in goods gb to ni- change winsor framework- debated before officially beome law
Impact of leaving eu on uk palriamentary soiveinty- no devolution
Ni and scot- accelerated scot indepndence calls sturgeon declared her ‘intention to hold a second indepndance referendum in autumn of 2023’- gov opposed ans sc ruled against
Greater diff winsor framework
Arguably 2024 changes to winsor framework show how devolved body held hostage gov- dup refuse sit
Ni protocols keep ni within eu common market
Impact of levaing eu on uk parlianntary soveingty- sc- y
Ruled aginast exec miller case- prerogation of parliament as unjustified attempt to curtail debate and scruity brexit
Uphold devolution wth indyref 2 case 2022- referenced from lord advocate of devolution
Since brexit no longer bound by ecj
Impact of leaving eu on uk parliamentary soveinty- sc- no
Ecj used with ni protocols check upholld eu
Impact of leving eu on uk palriamentary soveingty- pm-y
Weakness power of pm- cameron step down 2016 ref, may 3 times failed toget brexit deal- snap election 2017 gave her minority gov
Johnson won control of parliamentary agenda in a bid to stop a no deal brexit- recovered 80 seats tmajority in 209- secured passage of withdrawal agreemennt bill
2 new dpt made- internat trade and exiting eu (mau), minister of state for brexit options
Impact of leaving eu on uk palriamentary soveingty- pm- no
Comm european scruity unlike other select comm not having elected chair with opp mps less holding gov to account in recent years, dominated by pro brexit mps
Factortame
Established principle that when european and british law clased- european law must take precedence
Eu single market member states of eu cannot restrict access to each other fishing grounds, common fisheries policy in eu also set quotas of fish can be caught to preserve fishing stocks - threatened british fishinh industry
1988 merchant shipping act limited ability of foriegn vessels to fish in british waters in definace common fisheries policy and four freedoms of eu- spanish fishing company fatcortame appealed hol (highest court- came up with this judgement
Name of rwanda sc case
Aaa v sec of state for home dpt (2023)
Lack of gov respect
On judges 94% judges felt this in 2020 survey
All party parliamentary group ion democracy and the constitution
Found that judges faces soft pressure by a combination of ministerial attacks and threats of reform
Judicial review act
2-22
Allow the range of options available to judges increased
Grant more limited remedies when public body acting unlawfuly
Limiting use of certain type of judicial review
Judicial review sucessful
Down 2020-21 5t0- 2.2%
Devolved gov and sc
2018 majority sc fofund ni abortion restrictions incompatible with human rights- technical reasons no declaration of incompatiblity
At time devolved gov supsended, so judgement increased presusre on uk gov to decriminalise abortion in ni occured oct 2019
Landmark judicial review cases
Unison v lord chancellor 2017- ruled employment tribunal fees unlwfl as prevented fair access to justice- policy ahd caused a 70% drop in no of tribunal cliams, esp lower income workers
Appellant v sec state for work and pesnions 2019- bedroom tax to partners of serverly disabled people with a spare room breached right to a home under hra as space needed medical equipment
Exmaple ultra vires found
Miller v sec state existing eu
Reilly v sec of state for work and pensions 2013- by introducing a welfare to work policy- to avoid potentioal 130 mill compensation bill- gov passed retrospective legislation 2013
Changes to immigration policy before rwadna
December 2020, the Home Office published a number of changes to the Immigration Rules, that took effect once the Brexit transition period ended on 31st
December 2020. Paragraphs 345A to 345D of the revised Immigration Rules state that an asylum claim
Then, they must be able to prove to authorities there that they meet the criteria to be covered by refugee can be ruled ‘inadmissible’, and the merits of the claim do not need to be considered, if the individual
protections. Not every asylum seeker will be recognized as a refugee.
had the opportunity to apply for asylum in an alternative safe country, before they reached the UK.
Rwanda safe country bill
Memorandum of understanding
Rwanda safe third country under uk immigration rules
Direct rule recently
2022 dup refused to sit after ni protocol
Why is the winsor agreement a threat to soveriegnty
Good friday agreement- popular soveriegnty
Popular soveriegnty of leaving eu
Eu
Where does royal prerogative come from
Consists of powers recognised by judge made common law as belonging to the monarchy
Thus can be changed
Sc protect parliamentary soveirenty
Unlimited power to prerougue parliament incompatible with lady hale two fundamental principles- parliamentary sovereignty and parliamentary accountability
With johnson preorgation necessary to prepare an ‘ambitious new legislative agenda’ far from reaosnable justification
Miller v pm 2019
