Chapter 8 Relations between branches

Question 1

How can the SC claim to be neutral

Answer 1

1. Physically separated
2. Judges are not permitted to be a part of a political party
3. Judges salaries are determined from the recommendation of the Senior Salaries Review Body by the government
4. Senior judge can only be removed by a resolution from both houses
5. CRA 2005 makes appointments for transparent. Before it was by secret appointments from the Lord Chancellor, now it is the JAC
6. SC cases are open to the public - live streamed
7. When a case is being heard it is sub judice which means that Parliament cannot express an opinion as it would breach judicial independence.

Question 2

Criticisms of the neutrality and independence of the SC

Answer 2

1. Most SC justices are from a privileged background making them unsuited to judge in a contemporary setting
2. Men dominate - in 2022 Lady Rose was the only female member. Currently there are 2
3. Government still retains selection rights - the justice secretary is a cabinet member who is able to reject a nominee from the Selection Committee
4. Courts risk being pulled into major political disputes - enemies of the people daily mail, 2019 Liz Truss failed to defend the justices.

Question 3

In what ways does the SC limit the authority of the executive and Parliament?

Answer 3

1. UK judges may refer to the ECHR which was incorporated into British law.
   However, in 2021 Dominic Raab announced a plan for a British bill of rights.
2. the UK SC important deciding body when the government has acted ultra vires
3. Cannot strike down parliamentary statute but can determine whether actions are in accordance with law.

Question 4

SC case examples

Answer 4

1. Gina Miller 2017 - Government were planning to withdraw through an exercise of royal prerogative. However, as the UK had entered in 1972 through parliamentary legislation, it was parliament’s responsibility.
2. Gina Miller 2019 - Boris Johnson attempted to prorogue parliament for 5 weeks in 2019. All 11 justices ruled that this was acting illegally as it was excessive prolonging.
3. R v Lord Chancellor 2017 - The trade union UNISON declared that the government’s introduction of employment tribunal fees risked denying justice to those on low income. The SC found that it was unlawful
4. AM v Secretary of State for the Home Department 2020 - SC blocked HO attempts to deport and individual back to Zimbabwe as he had HIV and his life would be shortened if he returned. This is an example of the tension between collective and individual rights.
5. Shamima Begum 2021 - In 2015 Begum travelled to Syria to join IS, in 2019 Sajid Javid removed her British citizenship. In 2021 SC ruled in favour of Home Secretary. In 2024 she lost her appeal.
6. R v Jogee 2016 - SC overturned the principle of joint enterprise established in common law. They declared that those in groups had to have intent to kill
7. P v Cheshire Council 2014 - P had down syndrome and cerebral palsy making his personal freedoms restricted by carers. SC ruled that he should be catered to

Question 5

Is the SC influential? yes

Answer 5

1. SC most senior court of appeal
2. Judges interpretation of law is final
3. When SC declares a formal statement of incompatibility it places significant pressure on the government
4. The SC determines the location of sovereignty in the uK and can declare when a body has acted beyond its authority. For example, Scottish government’s call for second ref

Question 6

Is the SC influential? no

Answer 6

1. Since UK parliament is sovereign SC cannot strike down an Act of parliament
2. The SC cannot initiate cases
3. The government can ignore the court
4. SC has to make judgements based on the laws set
5. Ultra Vires can be over ruled by legislation

Question 7

Location of sovereignty in UK political system

Answer 7

1. Parliament has the legal sovereignty to enact ay law without being overruled by another authority.
2. Referenda - since Blair government there has been a precedent whereby important constitutional questions are answered by referendum. Although 73% oof MPs opposed Brexit, in 2017 HoC voted 498-114 to allow the government to open negotiations to exit the EU.
3. Devolution - provides evidence for a change in the location of sovereignty. Westminster could have held onto powers and could legally reclaim powers. Northern Ireland 2002-07, 2017-2020
4. Royal prerogative - means in certain ways that parliament is not sovereign. Powers of patronage allows for recommendation of life peers etc. May did not consult parliament about Syrian strikes
5. Supreme Court - ensures that government does not act beyond its powers (ultra vires).
6. HRA - outlines the protection of civil liberties and it can influence parliament. However can be suspended, like Article 5 after 9/11. It can also be replaced or overridden with another Act of Parliament as no parliament can bind its successor.

Question 8

Is the Westminster Parliament sovereign? yes

Answer 8

1. Parliament legislated to leave the EU. That means even when the UK was part of the EU it still reserved the right to enact legislation to repeal UK membership
2. Since the UK does not possess a codified constitution there is no higher law than parliamentary statute. The SC may not strike down an act of parliament
3. While the ECHR has been enacted through the HRA, it is not legally different from any other act of parliament
4. Parliament could abolish devolved assemblies
5. Parliament is not bound by referenda

Question 9

Is the Westminster Parliament sovereign? no

Answer 9

1. The devolved governments of Wales and Scotland can only be abolished by Parliament following referenda calling for their removal.
2. There is now a convention that major constitutional agreements should be agreed by the public rather than parliament
3. Parliament accepted the results of the EU referendum even though most MPs disagreed
4. Westminster is not sovereign in areas involving the royal prerogative
5. UK SC determines where sovereignty lies in the UK. Such cases like the legitimacy of a second Scottish indy ref