Extent Of Powers Flashcards
What are the similarities between both SCs regarding being final courts of appeal
-both courts are final courts of appeal for those seeking justice
-but there are two areas in which UK SC not acted as final court of appeal
When has the UK SC not acted as a final court of appeal
-when UK part of EU + durng transition period following withdrawal EU law superseded UK law
-in cases relation to EU law the ECJ was final court of appeal not Uk Sc
-synoptic link to EU
How did this the Uk not being final court of appeal change
-after UK left the EU all EU legislation that applied to the Uk was transferred into UK law making the UK parl have final say on UK law
-this made the UK SC the final court of appeal again
Despite thus change what area of UK law still makes the UK SC not the final court of appeal
-UK a signatory to ECHR which is separate to EU
-UK added ECHR to its constitution as the HRA 1998 allowing individuals bring HR cases to UK courts but they still have right to appeal to ECtHR making UK SC not final court of appeal
What are the similarities regarding the extent of powers surrounding judicial review
-judicial review an important check on power of gov + used by both UK + US
-justices consider legality of gov actions + may find then unconstitutional in US or ultra vires in UK
How is judicial review seen in the US
-greater than that of the UK
-US acts of Congress subject to judicial review can be struck down if SC declares them unconstitutional
-e.g. 2022 in Dobbs v Jackson women’s health organisation court struck down Roe v Wade 1973 ruling right to abortion not protected by constitution returning authority back to individual states following Mississippi law banning most abortions after 15wks contradicting RvW
How is judicial review seen in the UK
-in theory a gov with majority could override SC ruling
-parl can pass retrospective legislation to authorise actions which SC rules ultra vires but gov usually comply with court as wish to be seen respecting rule of law
How is UK judicial review limited
-minority gov forced to comply
-parl sovereignty so its laws can’t be struck down + judicial review only applies to gov actions + not acts of parl so more limited plus gov can ignore
What is an example of this
-R Miller v PM 2019 where SC ruled Johnson proroguing parl for 5 weeks an abuse of power
-but gov faced no consequence for actions + PM faced no legal penalties
What are the similarities regarding the extent of powers in the protection of rights
-US SC strike down laws infringing on Bill of rights
-UK SC can only identity a law as being ‘incompatible’ with the HRA 1998 + invite parl to consider redrafting legislation
How is this protection of rights even more limited in the UK
-Parliament can ignore SC ‘declaration of incompatibility’
-HRA not entrenched so parl could pass new law to modify it or scrap it entirely making it easy for parl to pass law infringing on rights or removing rights all together
How is this different to the US
-BoR is entrenched - rights are entrenched meaning they can’t be removed except by a constitutional amendment but these can be reinterpreted by the SC
What is a synoptic link here
-synoptic link to amendment process
-requires a 2/3 majority in both the house + senate + 3/4 of state legislatures must vote to ratify it
-due to this US constitution only amended 27 times
What is the extent of the SCs powers regarding constitutional interpretation
-US SC greater role in interpreting constitution than UK
Why is the US SC more effective in interpreting the constitution then the UK SC
-landmark cases change the meaning of the constitution by acting as ‘interpretive amendments’ that can only be reversed by amendment or subsequent decision by the court
-e.g. Miranda v Arizona 1966 - decision for law enforcement to inform arrested of their 5th + 6th A rights created new procedural protections shaping how law enforcement applies constitutional rights
How is this different to the UK SC in interpreting the constitution
-UK can’t make sweeping interpretive changes to constitute
-but can clarify it’s meaning e.g. in both Miller cases with regard to limitations of the gov’s royal prerogative power - R Miller v Sec of State for exiting EU 2017
