4. Relations between the branches

Question 1

What are the three branches of government?

Answer 1

• Legislative - Makes laws
• Judiciary - Judges interpret the law through rulings made in court cases
• Executive - Takes and implements decisions on policy

Question 2

What is the Supreme Court?

Answer 2

The highest court in the UK political system

Question 3

When and why was the Supreme Court established?

Answer 3

• The Supreme Court was opened on 1st October 2009. It was established by the Constitutional Reform Act of 2005 but did not begin work until the premises chosen for it, Middlesex Guildhall in Parliament Square, has been prepared.
• The Court was designed to end the fusion of powers at the highest level of the UK Judiciary. Previously the most senior judges - the ‘law lords’ - had sat as members of the House of Lords, and were known as the Appellate Committee of the House of Lords
• The reform was to create greater transparency, and to bring the UK into line with most other Western countries, by establishing that the country’s highest court was clearly independence of Parliament.
• The Constitutional Reform Act also changed the role of the lord chancellor, whose historic office had combined three functions: 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))
• The act removed the last two of these responsibilities from the Lord chancellor. The Lords is now chaired by the Lord speaker, who is chosen by their fellow peers. Judges are selected by an independent Judicial Appointments Commission

Question 4

What is the role of the Supreme Court?

Answer 4

• The UK doesn’t have a single unified legal system. There are three different systems: one for England and Wales, one for Scotland and one for Northern Ireland. The Supreme Court is the only UK-wide court and it acts as a final court of appeal for rulings made by the lower courts.
• The Supreme Court is the final court of appeal for criminal cases in England, Wales, and Northern Ireland, and for civil cases across the whole of the UK
• The Supreme Court also hears appeals on arguable points of law where matters of wider public and constitutional importance are involved. The Court also makes rulings on cases where the devolved authorities in Scotland, Wales and Northern Ireland may not have acted within their powers

Question 5

How are members of the Supreme Court appointed?

Answer 5

• The Supreme Court consists of 12 members (cases are heard on an odd number of justices so a majority verdict can be reached)
• The most senior figure is designated as the president.
• Supreme Court justices will usually have served as a senior judge for two years, or been a qualified lawyer for at least 15 years
• When a vacancy occurs, nominations are made by an independent five-member Selection Commission and a member of each of the equivalent bodies for Scotland and Northern Ireland
• The lord chancellor either confirms or rejects the person put forward, although he or she cannot reject names repeatedly
• The appointment is confirmed by the prime minister and then by the monarch

Question 6

What are the two key operating principles the judicial system rests on for the Supreme Court to follow?

Answer 6

Judicial neutrality and judicial independence

Question 7

What is judicial neutrality and how it works in the Supreme Court?

Answer 7

• The principle that judges should not be influenced by their personal political opinions and should remain outside of party politics
• The code of conduct of the Supreme Court lays down a number of ways in which impartiality is to be safeguarded
• The most important points are:
• Conflicts of interest- Judges must refuse to sit in a case that involves a family member, friend or professional associate, which might give rise to doubt about the justices detachment
• **Public activities ** - Judges may write and give lectures as part of their function of educating the public, and they 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 their political neutrality

Question 8

How neutral is the Supreme Court?

Answer 8

• The narrowness of the Supreme Court’s composition in terms of gender, social and educational background is a real concern. This reinforces a long-standing anxiety about the senior judiciary as a whole - that it contains a disproportionate number of white, privately educated males
• The fact that it has only one female member was significant in the case of Rodmacher v Granatino (2010). This was a case involving a pre-nuptial agreement between marriage partners, In which a majority of the Supreme Court justices upheld the principle that claims made in the event of a divorce should be limited
• Lady Hale was the only one of the nine justices to dissent from the majority verdict. She gave as her reason the likelihood that the vast majority of people who would lose out as a result of his precedent would be women. In an interview in 2015, Lady Hale called for an effort to promote greater diversity of background in appointments to the Supreme Court. She pointed out that of 13 justices sworn in since her own appointment, all were men, all were white, all but two were educated at independent schools, and all but two attended Oxford or Cambridge Universities

Question 9

What is Judicial Independence and how it works in the Supreme Court?

Answer 9

• The principle that judges should not be influenced by other branches of government, particularly the executive
• This is vital as they may be called on to administer justice in cases where there is a conflict between the state and an individual citizen. People must know that they will receive impartial justice and judges need to be confident that they can make decision without fear that their career prospects will suffer
• The UK judiciary has a number of in-built guarantees of independence:
• Terms of employment - Judges cant be removed from office unless they break the law. The only limit on their service is an official retirement age, which is 70 for those who have been first appointed to a judicial post since the end of March 1995. This is known as security of tenure. Judges are also immune from legal action arising from any comments they may make on cases in court
• Pay - Judges’ salaries are paid automatically from an independent budget known as the Consolidation fund, without the possibility of manipulation by ministers
• Appointment - The Judicial Appointments Commission and the Selection Commission for the Supreme Court are transparent in their procedure and free from political intervention
• The fact that the Supreme Court is physically separate from parliament is another, more visible sign of its independence. There was never any suggestion that the law lords were subject to government pressure, and indeed there were a number of cases where they demonstrated their independence. However, their transfer to new premises removed any possible doubt of this

Question 10

How independent is the Supreme Court?

Answer 10

• In most respects it is independent of government
• However, some concerns were raised in 2011 by its first president, Lord Philips, on the subject of funding. This came in response to the spending cuts imposed on the court system as part of the coalition government’s strategy to eliminate the budget deficit. Lord Philips argued that the independence of the Court was at risk unless it could be allocated pre-set, ring-fenced funding
• He spoke of a ‘tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire’. The justice secretary at the time, Keneth Clarke, dismissed this argument. He insisted that the Supreme Court was independent of political interference and that the government accepted its judgements, even those that went against it, and that the Supreme Court could not uniquely be permitted to set its own budget

Question 11

What is judicial review?

Answer 11

The power of the judiciary to review, and sometimes reverse, actions by other branches of government that breach the law, or that are incompatible with the Human Rights Act

Question 12

What is Ultra vires?

Answer 12

Literally ‘beyond the powers’ in Latin. An action that is taken without legal authority

Question 13

What influence does the Supreme Court have on the executive and parliament?

Answer 13

• It has the power of judicial review and the court can inquire whether ministers have followed correct procedures in the way that they implemented legislation
• It can examine actions of public bodies to investigate whether they have acted ultra vires, a Latin term that means ‘beyond one’s powers’ - in other words, have they gone beyond the authority granted to them in law?

Question 14

What are 4 examples of Supreme Court rulings that have either worked in favour of the government or not?

Answer 14

• The right of sex offenders to appeal against registration for life (21 April 2010) - 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 Supreme Court ruled that this breached their human rights and that they should have the right to appeal against registration 15 years after leaving jail. This infuriated the government and police who argued that dangerous individuals do not change their behaviour. Given public concern over the safety of children, this was a particularly sensitive issue
• The case of Private Jason Smith (30 June 2010) - Private Smith was a UK serviceman who died of heatstroke on campaign in Iraq in 2003. His family bought a case against the Ministry of Defence arguing that the authorities should have safeguarded him. The High Court ruled in their favour but when the case was appealed to the Supreme Court, this judgement was overruled by a majority of six to three. The Supreme Court held that the jurisdiction of the Human Rights Act did not extend to troops in combat situations
• The Al Rawi case and secret hearings (13 July 2011) - The case was brought by former inmates of the US prison at Guantanamo Bay on Cuba, who claimed that the UK security services had contributed to their detention and mistreatment. The security chiefs, supported by the government, argued that in the interests of national security, they must be allowed to give evidence in secret. The Supreme Court rejected this argument on the grounds that it breached one of the principles of a fair trial. Each side must be able to see the evidence put before the judge
• The HS2 rail link (22 January 2014) - Campaigners against the government’s planned London to Birmingham high speed rail linked requested a judicial review to investigate whether the project complied with EU environmental directives. The Supreme Court unanimously dismissed the appeal on the grounds that parliament had not yet reached a final decision on the scheme and so its merits remained open to debate

Question 15

What is Elective dictatorship?

Answer 15

A government that dominates parliament, usually due to a large majority, and therefore has few limits on its power

Question 16

What phrase did Lord Hailsham coin and why did he use it relating to executive?

Answer 16

• ‘Elective dictatorship’ to describe the way in which power had become concentrated in the hands of executive
• He gave a lecture on the BBC in 1976, at a time when a Labour government was in office with a small parliamentary majority, yet was till able to get most of its legislation through the House of Commons
• Hailsham argued that the only real check on executive power is the periodic holding of general elections
• As there’s no codified constitution, the doctrine of parliamentary sovereignty effectively means that the Commons is the main chamber, and whoever controls the Commons is the dominant force in the political system

Question 17

What are examples in the past that show where the executive can do more or less as it wishes, introducing far-reaching, even irreversible changes?

Answer 17

• In 2003 the Blair government first attempted to abolish the post of Lord chancellor, without any prior consultation. On meeting constitutional difficulties with its plans, it then carried out a drastic remodelling of the Office in the 2005 Constitutional Reform Act
• In 2011 the coalition government, created the previous year through an agreement that had not been put before the electorate, passed the Fixed Term Parliaments Act
• David Cameron, by the leaders of the Labour and Liberal Democrat parties, offered to devolve more powers if the Scottish people rejected independence in the 2014 referendum

Question 18

What factors have made ‘executive dominance’ tend to arise?

Answer 18

• The first-past-the-post electoral system, which tends to deliver single-party government, sometimes enjoys the benefit of a large parliamentary majority based on a small share of the popular vote
• The whip system and the prime minister’s use of patronage, which reinforce party loyalty and discipline
• Government domination of the legislative timetable
• The use of the Salisbury convention and the Parliament Acts to limit opposition to a government’s programme from the House of Lords

Question 19

How does parliaments influence over government legislation help hold the executive to account?

Answer 19

• Parliamentary rebellions have become more common in recent years. However, defeats for government measures are rare. E.g. Blair did not lose a vote in the Commons until after the 2005 election, when his majority dropped by 100 seats, and even then it took a combination of Labour rebels and the opposition parties to defeat his plans to exerted the detention of terrorist suspects to 90 days. More commonly, a government that fears defeat will withdraw a contentious measure. In July 2015 Cameron shelved plans for a vote on relaxing the ban on hunting after the SNP made it clear that they would vote against
• Sometimes opposition can compel a prime minister to allow a free vote. Cameron did so in May 2013 on the issue of same-sex marriage, knowing how strongly opposed many Conservative MPs were to the move. He won the vote thanks to the support of the Labour Party, in spite of an attempt by almost half of his own MPs to block the measure
• There are exceptions to the general rule. Normally the pressure of party discipline and loyalty will ensure that a government secures the passage of even the most controversial parts of its programme. In December 2010 the coalition won a vote to increase student tuition fees, even though this meant that the Liberal Democrats had to abandon an election promise, and the government majority fell from 83 to 21. On certain issues a government can rely on support from opposition MPs. Blair won a vote on the renewal of the Trident nuclear weapon system in March 2007 because Conservative support cancelled out a rebellion on his own side
• The Lords has become increasingly willing to oppose government measures since the removal of most hereditary peers and the ending of single-party control in the upper house. It has used its power of amendment to secure compromises from the government, as with the ‘sunset clause’ in the 2005 Prevention of Terrorism Act, but as the unelected chamber it will normally defer to the Commons after making its point. The Parliament Act was used three times by the Blair government to push legislation through

Question 20

How does Parliament’s scrutiny of other government activities help hold the executive to account?

Answer 20

• Select committees - Changes has enhanced their status. Their roles has expanded to include pre-appointment hearings and scrutiny of legislation
• Liaison Committee - prime minister appears twice a year
• At the PMQs select committee proceedings allow for more in-depth scrutiny of policy than the theatrical duels
• Debates on major events. Can lead to government defeats, Syria 2013
• Opposition days - 20 days in each parliamentary session
• Backbench Business Committee - schedules debates on topics not chosen by the government

Question 21

How does Parliament’s ability to remove government and ministers help hold the executive to account?

Answer 21

• Votes of confidence, such as in 1979 when the Labour government were defeated and a general election has to be called
• Ministers can also be forced to resign through parliamentary pressure. E.g. sustained bad publicity around alleged misconduct, sleaze or whatever
• David Cameron felt that he had to resign following the defeat of the Remain side in the EU Referendum

Question 22

What are the arguments for government control over parliament has been reduced?

Answer 22

• The last decade has seen an increased number of rebellions the Commons. Although governments rarely lose legislation in votes in the Commons, they dow withdraw bills on which they fear defeat, or make an issue a free vote
• Government has accepted restrictions on the exercise of certain prerogatives, such as the right to authorise military action. Even if this is not legally binding an important precedent has been set. The Fixed Term Parliaments Act has removed the PM’s power to choose the date of a general election unless two-thirds of MPs support such a move
• The creation of the Backbench Business Committee in 2010 gives backbench MPs more control over the choice of topics for debate, airing issues that might otherwise have been neglected
• Select committees have grown in status due to the decision to allow MPs to elect their chairs, and their powers have increased
• The increasing assertiveness of the House of Lords has led to several government defeats. No single party controls the Lords, making management of the House more difficult. Cross-benchers have become increasingly important

Question 23

What are the arguments for government still retains a large degree of control over parliament?

Answer 23

• The power of the whips, and the inducements of prime-ministerial patronage, remain important tools of government including parliamentary private secretaries, the government can call on an extensive ‘payroll vote’ of about 100 MPs. With a secure majority, it is difficult to defeat a government in the Commons
• Government retains a number of powers including the right to change laws using secondary legislation, which has been used increasingly in recent years
• Government controls the greater part of the legislative schedule. The limited amount of time allocated to Private Member’s Bills, and to debates selected by the opposition parties, supports this point
• Ministers can still obstruct select committees from summoning officials to their hearings, and they do not have to act on their reports
• The lords usually defers to the will of the elected House after a period of ‘parliamentary ping-pong’. The Salisbury convention protects a government’s manifesto commitments. The Parliament Act are available to help governments overcome persistent opposition from the Lords

Question 24

What is legal sovereignty?

Answer 24

The right to ultimate legal authority in a political system; in the UK, this belongs to parliament

Question 25

What is political sovereignty?

Answer 25

• The ultimate political power; in the UK’s democracy, the electorate holds this power, which it delegates to parliament
• Stands above legal sovereignty

Question 26

What is the argument for authority moving from parliament to the executive?

Answer 26

Although parliament is theoretically sovereign, in practice real authority has long since moved to the executive

• A government with a secure parliamentary majority cab use the whipping system and its control of the legislative timetable to assert its dominance
• It can use the Parliament Act to override opposition from the House of Lords. It has important royal prerogative powers at its disposal
• Although it is now an accepted convention that the government should consult parliament in advance on the deployment of troops, this is not legally binding

Question 27

What is the idea that the creation of the Supreme Court could be seen as a challenge to parliamentary sovereignty?

Answer 27

• It ended the function the House of Lords as the UK’s final court of appeal
• However, the Court itself was established by act of parliament and it could in theory be abolished by a future act
• The Supreme Court’s own website describes its role as one of interpreting the law and developing it where necessary
• It cannot strike down a law, and it is up to parliament to decide whether to amend legislation

Question 28

How has ‘Devolution’ caused commentators to question whether parliament is still sovereign?

Answer 28

• This process involves a transfer of powers and functions to new bodies, giving them the authority to make law on certain specified subjects within their own part of the UK
• This doesn’t amount to a federal settlement, which would mean a formal, legal sharing of sovereignty between different levels of government. In theory, the UK parliament could abolish the devolved assemblies.
• In reality, as long as these bodies command public support, this is highly unlikely. Political reality overrides constitutional theory in the real world

Question 29

How has ‘Referendums’ caused commentators to question whether parliament is still sovereign?

Answer 29

• The increased use of referendums since 1997 is sometimes citied as a threat to parliamentary sovereignty. At a theoretical level this is not the case since a referendum is advisory and not legally binding.
• However, political reality makes it extremely unlikely that parliament would dare to ignore the outcome of a popular vote. This lesson was underlined after the June 2016 EU referendum, when some constitutional lawyers argued that parliament was legally entitled to reverse the result of the vote.
• In practice, MPs are most unlikely to risk the public backlash that would follow an attempt to defy the clearly expressed will of the people. This highlights the difference between legal and political sovereignty

Question 30

How has ‘The Human Rights Act’ caused commentators to question whether parliament is still sovereign?

Answer 30

• The passing of the Act has increased the power of judges by giving the, the right to declare existing legislation incompatible with the act. They cannot, however, compel parliament to change the law
• Technically parliament should implement rulings of the European Court of Human Rights but it has, e.g., rejected calls to allow prisoners the right to voting rights
• The Conservative Party has proposed to pass a British Bill of Rights, which is likely to make the Supreme Court the final arbiter of human rights, and parliament would be within its rights to pass such legislation

Question 31

What are the arguments supporting the idea that parliamentary sovereignty is still a reality?

Answer 31

• It remains the ultimate legal authority in the UK, with power to pass laws on any subject, and it is not subordinate to any other body in law
• Parliament retains the right to abolish devolved bodies in the component parts of the UK, to which it has transferred powers and functions - but not sovereignty. The UK is not a federal state, even if it has acquired some characteristics of one
• Judges may recommend laws for amendment that do not conform to the Human Rights Act, but it is up to parliament to decide whether to change them
• Parliament retained sovereignty when the UK entered EU, because it voluntarily gave up some sovereignty when it passed the 1972 European Communities Act. This is why the principle that EU law took precedence over UK law became established. Parliament is allowed to repeal the 1972 act to end the UK’s membership of the EU

Question 32

What are some COUNTER arguments to idea that parliamentary sovereignty is still a reality?

Answer 32

• Parliament derives it’s legal sovereignty from the political sovereignty that belongs to the people
• The steadily growing power of the executive means that parliament is to a large extent controlled by the government, which uses parliament to pass its legislation
• Legal sovereignty is a theoretical concept. The practical realities of politics mean that there are constraints on what it can do, for example, it would be inconceivable for parliament to abolish the Scottish parliament against the wishes of the Scottish people. Similarly, even though referendums are advisory rather than binding, politically it would be virtually impossible for parliament to ignore the result
• In the modern world, globalisation makes sovereignty a less meaningful concept. It is more realistic to think of sharing sovereignty with other international actors, in order to maximise influence