ETVT the Supreme court has influence over the execuitve and parliament Flashcards
PARAGRAPH 1 - INDEPENDANCE
ESSAY PLANS ABOVE
Ultra vires, judicial review is a review of all actions of ministers and other government officials to ensure that they conform with the law, ministerial decisions and actions can be declared unlawful when they are ultra vires, when ministers have acted beyond their powers. THEY ARE
Ultra Vires is a form of judicial review, where the UKSC can review actions of the government ministers and officials and make sure they conform with law, they can declare these actions unlawful through a declaration of ultra vires
R (Unison) v Lord Chancellor, the court ruled employment tribunal unlawful because they prevented fair access to justice, the government was forced to stop charging workers up to £1,200 for access to an employment tribunal.
In this case the government upheld the rule of law (A key part of the UKs uncodified constitution) and the Tribunals, Courts and Enforcement Act 2007.
Miller v Secretary of state for exiting the EU the UKSC ruled that May could not trigger article 50, to start the formal process of leaving the EU, without a vote in the commons.
UKSC decision in 2019 Miller v Prime minister, Boris Johnsons and the government’s decision to prorogued parliament for five weeks was unlawful, reasserting parliamentary sovereignty.
Ultra vires, judicial review is a review of all actions of ministers and other government officials to ensure that they conform with the law, ministerial decisions and actions can be declared unlawful when they are ultra vires, when ministers have acted beyond their powers. THEY ARENT
If the supreme court declares Ultra Vires on a action of government, because parliament is Sovreign they can just pass a law that allows them to bypass such a decision.
The supreme court cannot overturn parliaments statue law even if it is declared as a unlawful decision, it can only make ‘suggestions’, parliament is Sovreign meaning they can choose whether to accept such suggestions.
HM Treasury v Ahmed 2010, The treasury imposed an asset freezing order on three suspected terrorists. The UKSC ruled that the government had ‘exceeded their power’ and the rule of law and the United Nations Act 1946. Within a week although the Brown government legislated in parliament to allow them to freeze the assets. The Terrorist Asset-Freezing Act 2010.
Human rights act has made it possible for the supreme court to issue ‘declarations of incompatibility’. THEY ARE
The Human Rights Act 1998 and the constitutional reform act 2005 do not give the courts the ability to strike down legislation passed by parliament, however the balance between parliament and the judiciary has been altered because parliament believes that it has a responsibility to respond to decisions by the court that declare statue law incompatible with the HRA.
In the case R v Secretary of state for international development 2018, the court found that the Civil Partnerships Act 2004 was incompatible with the HRA because different sex couples could not enter into civil partnership which breached their rights under article 14 of the HRA.
The government amended the law the following year via the Civil partnership regulations 2019.
AM Zimbabwe v Secretary of state for the Home department, this case referenced statue law, or more specifically article 8 of the ECHR preventing deportation of a foreign citizen who would not be able to access medication which he could in the UK, this would subject him to inhuman degrading treatment or punishment under article 8.
Human rights act has made it possible for the supreme court to issue ‘declarations of incompatibility’. THEY ARENT
Parliamentary sovereignty means that the supreme court cannot strike down statutes and while the court is part of the discussion about rights, Parliament has the final say in determining the law regarding human rights.
The UKSC has no power to enforce a ‘declaration of incompatibility’
In the case A and others v Secretary of state for the home department in 2004, otherwise known as the Belmarsh case it was ruled that the indefinite detention of terror suspects was incompatible with Article 14 of the ECHR.
However, the homes secretary did not release the suspects until parliament passed new legislation granting powers to use control orders and electronic tagging.
Because parliament is legally Sovreign they have the power to repeal, replace or amend the HRA and withdraw from the ECHR, for example the 2019 conservative party manifesto had a pledge to update the HRA in order to give ‘a proper balance between the rights, our vital national security and effective governance’.
On 31st July 2020 the conservative government established a independent panel to look at whether there should be reform in the judicial review process, to see if the right balance was struck between the rights of the citizens to challenge executive decisions and the need for effective governance.
Hirst v UK 2005 the ECHR ruled that the blanket ban on prisoners exercising their right to vote was violating Article 3. David Cameron described the court’s ruling as making him ‘physically ill’. The government has since refused to comply with such decision. In 2010 5 years later the blanket ban was still in place.
