Comp2-T8-Relations between institutions Flashcards
What cases does the Supreme Court hear?
Interpretations of the law
What are the 3 stages of lawmaking?
The government develops and drafts legislation
Parliament scrutinises and passes legislation, making it legitimate
The senior judiciary reviews laws, interpret their meanings and determines how they should be applied in real-world situations. It can also determine whether the government itself is acting lawfully and whether its actions conform to higher authorities
How are judges involved in lawmaking?
Not all laws are clear, nor is it clear how they are to be applied in particular cases.
A great deal of law is not made by Parliament – this is Common Law or Equity, which is an unwritten law.
The judges must declare the meaning of such a law if they believe it exists.
A good deal of law is ‘judge-made’.
Interpretation of the law
The precise meaning of a statute is not always clear, however well the drafters of legislation have done their job, and however much parliamentary legislative committees may have tried to make the law easy to understand.
Circumstances where those in court come into conflict over what the law is supposed to mean.
For the judges to interpret the meaning of the law.
In cases involving the powers of government or its agencies, or the rights of citizens, such interpretations may be of great public significance
Interpretation can be seen as the final stage in the legislative process
Judicial precedents become important.
Once a senior judge has interpreted the law in a certain way, other judges must follow the same interpretation.
A judicial precedent can only be changed or overturned by a higher-level court
What is Case Law?
Established by judicial precedent
What is Common Law?
Rules of behaviour that have been developed solely by tradition.
Typically relates to inheritance, commercial practices and the rights of citizens.
Most are well enough established for judges to be able to apply it relatively easily.
However, there may be problems in settling disputes for which there is no relevant statute law and no clear common law.
When this happens, a judge must take evidence and decide what the common law is another example of ‘judge-made law.
The rule of judicial precedent applies.
What is a judicial review?
The courts review decisions by the state or any public body concerning its citizens. Where a review finds a citizen has not been fair, that their rights have been abused, or that a public body exceeded its legal powers, the court may overturn the decision.
What are the 2 democratic objectives of judicial reviews?
To ensure that government does not overstep its powers.
To assert the rights of citizens.
Public enquiries
Although it is not always the case, judges are often called upon to conduct public inquiries into matters of widespread public concern.
The reason for using judges are
As experienced judges, they are used to handling such issues.
Independent of government so an inquiry led by a judge can be seen to be politically neutral.
Nature of the Supreme Court
Made up of the country’s 12 most senior judges.
Known as the highest appeal court in the country.
During the UK’s membership in the EU, cases could be appealed to the European Court of Justice-no longer apply now the UK is out of the EU.
Cases concerning Human Rights can be taken to the European Court of Human Rights in Strasbourg, France – though there is no guarantee that the UK Government or Parliament will obey its judgements.
The Supreme Court does not hear any cases in ‘the first instance’
Only hears cases that have already been heard in a lower court
Only hear cases it believes are important.
5 cases the Supreme Court can hear
An important judicial review concerning the gov or another important body such as a school or a newspaper or the NHS- may need to establish what legal powers such bodies have.
Would have implications for other citizens and bodies – and may create an important precedent to be followed elsewhere.
An important interpretation of the law. Maybe lower courts have been unable to make a judgement about the meaning of the law. The Supreme Court will examine what Parliament’s intentions were when it originally passed the law.
The case has attracted a great deal of public interest.
A key issue of human rights might be at stake.
Supreme Court judgements
Not all Supreme Court judges hear the cases- normally a selection of 5 (though as many as 11 may sit on a key case).
In such cases, the judgement will need a majority of the judges to agree
Once the case has been decided, the law is firmly established.
Only the European Court of Human Rights might seek to reverse the judgement if human rights are at stake
The judgements are published, including the reasons for them
Parliamentary sovereignty
The UK Parliament is omnicompetent- it is able to do whatever it wants, to pass any law and to expect to have that law implemented and enforced
No matter how horrible or undesirable the judges may feel a law is, they must enforce it
They may pass an opinion on the law and they may recommend a change, but that is as far as it goes
Judges have to take into account the wishes of Parliament when interpreting the law
When determining the real meaning of statute law, judges will look back at the original proceedings in order to establish what Parliament intended
It is not for the judges to decide what is desirable, but only what Parliament thought was desirable
If judges make a ruling of which government and/or Parliament does not approve, Parliament always has the option of amending a statute or passing a new one in order to correct what the judges have done
Parliament and the ECHR
The most important source of conflict between judges and parliament
Became part of UK law in 1998 through the Human Rights Act 1998.
This presents potential problems – what if a parliamentary statute conflicts with part of the ECHR? The ECHR is part of UK law but Parliament is sovereign, what are the judges to do?
The answer is that the law made by Parliament shall be allowed to stand.
All the judges can do is make a declaration of incompatibility, stating that the law conflicts with the ECHR. It is then up to Parliament whether it sticks to its original intention or listens to the judges and changes the law to make it compatible with the ECHR.
Such declarations of incompatibility are rare
Between 2010 and 2015 there were only 3 such declarations
In each case, the government asked Parliament to amend the existing law to remove the conflict with the ECHR.
Despite the small number, the principle is an important one – what it means is that those who draft legislation and those who scrutinise it in Parliament must take account of the ECHR.
The mere threat of a declaration by judges is enough to influence lawmaking.
It is also vital protection of human rights in the UK.
5 reasons for the change in the relationship between the judiciary and the executive
Human Rights Act 1998, gave judges a codified statement of human rights that could be used to protect citizens against state power.
The Constitutional Reform Act 2005, improved the independence of the judiciary
The rise of liberal ideology in the UK from the 1960s, including the growth of what is sometimes known as the ‘rights culture.
The appointment of a series of liberal-minded senior judges since the 1990s.
The growth of judicial review since the 1960s (Ridge v Baldwin 1964 and M v Home Office 1993)
