5. Relations between Institutions Flashcards
What is the 2005 Constitutional Reform Act?
An act of reform passed which recognised the importance of a separation of powers
What did the 2005 Constitutional Reform Act do?
Creation of the Supreme Court
Reformed the role of the Lord Chancellor
Changed method of appointment for judges
What is the separation of powers?
Legislature
Executive
Judiciary
What is a fusion of powers?
There is overlap between the three branches of government in which members of the executive are also in the legislature
When was the Supreme Court introduced?
2009
Why was the SC introduced?
End the fusion of powers at the highest level of the judiciary
What actually is the SC?
The Supreme Court is the highest level of appeal.
Hears cases of appeal and cases which are a matter of public and constitutional importance
Why was the SC created?
Bring about greater transparency in the court systems
How did the Lord Chancellor’s role change?
The role originally combined three functions which were: Cabinet minister, Chairman of the HOL and the Head of the Judiciary.
Now the LC is a Cabinet Minister and the JAC selects judges.
How are judges to the Supreme Court appointed?
12 members
Previously appointed by the monarch on advice of the PM and LC in secret soundings.
Now, they must have held a high judicial office for at least two years or been a qualifying practitioner for 15. Appointed by the JAC
What is the composition of the Courts?
3261 Judges in the UK 879 female 2813 are white 1534 60+ year olds Male dominant and white from Oxbridge University
Composition of the Supreme Court
2018 April
12 Justices 10 independent secondary school 10 Oxbridge 2 females 69 as average age
Role (s) of the Supreme Court
Dispensing Justice Interpretation Creating Case Law Declaring Common Law Judicial Review Public Inquiries Sentencing Issues External Jurisdiction
What is judicial review?
The process by which judges review the actions of public officials or bodies in order to determine whether they have acted in a manner which is lawful
What is the Rule of Law?
A.V Dicey
No one can be punished without a trial
No one is above the law and all subject to the same justice
General principles of the constitution result from the judges’ decision rather than parliamentary statute
What is Judicial Independence?
Rule of Law demands that judges should operate with a high level of independence:
independent from other branches of government
Why is an independent judicial branch needed?
If they are not, there is a danger that government will exceed its own powers without any legal punishment
Citizens need to feel that cases will be dealt with justly
Should not be influenced by short-term changes in public opinion
How is Judicial Independence maintained?
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Separation of Powers Security of Tenure Salary Freedom from criticism Independent Legal Profession Judicial Criticism of the government Judicial Appointments Right of Appeal Judicial Review
How is Judicial Independence threatened?
PM role in appointments Political Dialogue Justice Ministry Cross over of elites Inevitable overlap Prime Minister and politicians threaten constitutional independence
What is judicial neutrality?
Requires judges to be free from political bias or any other bias due to the Rule of Law stating everyone should be treat the same
How is judicial neutrality maintained?
Judges are relatively anonymous Restricted from being too political Private in their opinions Highly trained Refuse to sit a case involving people they know
What is the Griffith Theory?
John Griffith 1997
Social background of judges would influence the decision they made
Authoritarian nature of government
White and male stereotype
What does ‘ultra vires’ mean?
‘Beyond the powers’
Used in interpreting the 1998 HRA act
Declarations of Incompatibilities
Declare legislation incompatible with the 1998 HRA in judicial review but cannot strike it down due to the doctrine of parliamentary sovereignty
Al Rawi Case and Secret Hearings
2011
US Prison inmates in Cuba who claimed UK Security had contributed to their detention and mistreatment
Argued that the interest of national security means evidence should be given in secret
Supreme Court rejected this idea as it breached principles to a fair trial
Maria Miller V Secretary of State
2017
Government need the authority to trigger the process of leaving the EU (Article 50)
Supreme Court ruled in favour
What is an elective dictatorship?
A government that has a majority and dominates Parliament
How can Parliament influence government legislation?
Rebellions have became more prominent
Opposition
Free vote
Pressure of party discipline
What was the 2007 Lisbon Treaty?
European Council became permanent
Charter of Fundamental Rights which the UK rejected as legally binding
How has the EU affected the UK’s political system and policy making?
EU law takes supremacy over domestic law in the UK
Where has there been an exception to EU law taking priority?
2005 right of prisoners to vote in which the UK did not adopt the ECHR ruling
What is legal sovereignty?
Right to ultimate legal authority in the political system - Parliament
What is political sovereignty?
Ultimate political power
Electorate holds this power and delegates this to Parliament
What is the doctrine of parliamentary sovereignty?
Parliament has the ability to make, amend or repeal any law it wishes.
No Parliament can bind its successor.
No other institution can challenge an Act of Parliament
Devolution can be reversed
No higher authority than Parliament
Limits to Parliamentary Sovereignty
Legal sovereignty affected as EU law takes supremacy
Judiciary interprets laws as far as possible and can declare them incompatible with the 1998 HRA
Fusion of powers been executive and legislature
Devolution is now a part of the constitution and more powers have been continually devolved
Electorate need to be catered for due to fears of re-election
How is Parliamentary Sovereignty not limited?
UK will leave the EU but rather membership enhanced sovereignty as the UK has pooled its sovereignty
Supreme Court cannot strike down laws
HRA can be repealed
PM with a large majority means scrutiny is escaped
UK remains a unitary state regardless of devolution
Popular Sovereignty is not absolute
What is the Social Chapter?
EU measure to protect workers’ rights.
Blair signed UK up to this in 1997
Factortame Case
1988
Claims UK had breached EU law
ECJ ruled UK must set aside Merchant Shipping Act as it conflicted EU law
Law Lords nullified the Merchant Shipping Act in a decision between parliamentary sovereignty and EU legislative supremacy
Argued they were upholding the will of Parliament in upholding membership to EU
