Judiciary and relations between Branches Flashcards
What is the Executive made up of?
PM and Cabinet
What is an elective dictatorship?
Powerful executive (ie Thatcher, Blair)
- Elected with a mandate
- Government becomes all powerful, Parliament can do little to stop it
How has more power been given to Parliament to avoid an overpowered Executive?
Changed with constitutional reforms that give power to parliament (ie vote of no confidence), coalitions, small majority and minority governments between 2010-19-> greater balance between Parliament + Executive
What are the 2 main conflicts between Executive + Parliament?
- Parliament is sovereign
- Government usually has an electoral mandate to carry out manifesto commitments
What can be a problem for the government if Parliament exercises its right to sovereignty?
it threatens democratic legitimacy of government
How can Parliament Sovereignty be limited and become Government Sovereignty?
- Usually solved as Government has HoC majority, so Parliament has no need to exercise sovereignty as long as government is operating within its mandate
- Therefore sovereignty of Parliament becomes sovereignty of elected government
What is an example of Parliamentary Sovereignty becoming Government Sovereignty?
○ Ie Johnson won clear mandate for pledge to secure Brexit without delay in 2019, passing Brexit legislation without major difficulty compared to May + Johnson government of 2017-19 that had no clear mandate from British Public
How have the powers of the House of Lords been limited (3) ?
- Parliament Act 1911
- Parliament Act 1949
- Salisbury Convention
What is the Parliament Act 1911?
Parliament Act 1911: prevents HoL having any control over government financial arrangements (spending and tax). Also states if a law is passed 2 consecutive years in HoC, Lords cannot block it ie Marriage (same sex couples) Act 2013
What is the Parliament Act 1949?
delaying power of the Lords should be reduced to only 1 year
What is the Salisbury Convention?
Developed in 1940s, Lords must not block piece of legislation that was contained in winning government’s last election manifesto. Means unelected House of Lords cannot thwart will of elected House of Commons + government
What are limits on the Executive?
- If government lacks electoral mandate for policy, Lords may exercise veto unless government can persuade majority of MPs to support
- Parliament may amend legislation to change its character and protect certain minorities
- Parliament calls government and ministers to account through regular Question Times + work of select committees. Meaning they are constantly aware of errors or injustices that will be exposed
- In very extreme circumstances, Parliament could dismiss government by passing a vote of no confidence on government, forcing a General Election
- Backbench MPs may express concern over proposed legislation through whips’ office. MPs may be able to convince government to change course without facing public division, making role of party unity crucial in determining effectiveness of control
- Restrictions are only conventions, MPs may rebel against elected government + vote against it, Lords may defy Salisbury Convention (seen lots on 2019)
- If there is enough vocal opposition, government may be pressured into withdrawing a contentious proposal rather than risk Parliamentary defeat
How effective is Parliament in holding the Executive to account?
- If executive has small or no majority in the Commons
- If executive party is divided
- If Cabinet is divided
- If the issues being addressed are controversial
- If the executive (mainly PM) has failed to secure clear mandate during the election
- If the executive (mainly PM) has poor popular image
- If Parliament is mostly filled with experiences and well established MPs
If executive (mainly PM) is seen as a liability, rather than asset, by their own MPs
How can the effectiveness of Parliament in holding the Executive to account vary?
- Depends on circumstance as there is no role for effectiveness of parliament to holding executive to account
○ Ie success of the PM can change the balance of power-> 2019-2020, Johnson: Parliament effectively controlled the executive, forcing him to ask EU for extensions for UK leaving EU, despite PM reluctance. Post 2019 GE, Johnson powered through more policies, Parliamentary effectiveness in holding executive accountable decreased- ie Johnson and ministers like Priti Patel cancelling appointments to see the Liaison Committee + select committees
What is an example of Parliament holding the Executive to account?
2017-2019 GE, PMs May and Johnson saw Parliament with all of the above factors. Parliament was able to resist and deft the executive-> largest number of defeats for an executive for almost 100 years, reflecting problems of trying to rule a minority government
When does Parliament gain an influence over the Executive?
Parliament gains an effective influence over executive during a minority (seen under Theresa May)
- Most proposals have to be negotiated individually with members of parliament from all parties to try and secure majority of support
- Government is constantly facing possibility of defeat
- Small number of MPs, in other parties or from their own, gain tremendous influence and can make demands from the executive in order to secure their own votes
Therefore Balance of power shifts to Parliament
How can the Executive control Parliament?
- Leading party with large parliamentary majority
- United party
- Securing clear mandate for manifesto policies
- United cabinet
- Having lots of new MPs who will rely on help and support of whips
- Popularity of leader in helping lots of MPs win seats they might not have done otherwise (‘coattails effect’)
- Lots of uncontroversial issues
Popular media image for PM and rest of executive
What does Executive control mean for Parliament?
Those factors make it hard for Parliament to challenge executive, meaning executive takes much greater control
○ Ie Tony Blair ○ Theresa May + Boris Johnson did not have any of these circumstances in 2017-19 ○ Post 2019 GE: Johnson had larger majority so could dominate Parliament more effectively
What years are examples of Government enjoys very large single-party majority in House of Commons?
1983
1987
1997
2001
2019
2024
What governments are examples of being united around a dominant ideology?
1983-89 (Thatcherism)
1997-2005 (Labour Third Way)
2019 (Pro Brexit)
2020-2021 first part of COVID (got things done, everyone did what Johnson said)
What opposition parties are examples of being weak and fragmented?
1983-92 (Labour split on left-right ideas)
2015-20 (Corbyn’s leadership split the Labour Party)
2024- Under Badenoch (competing for the same voters as other parties ie Reform, lack of opposition)
What are examples of governments being led by a dominant leader?
1979-89 (Thatcher)
1997-2003 (Blair)
2024 (Starmer)
What are examples of governments having no or a small majority?
1992 (Conservative, 21 seat majority)
2010 (2 party coalition)
2015 (Conservative majority of 12 seats)
2017 (minority government)
What are examples of governing parties being split on issues?
1992-97 (John Major Conservative party split on Europe)
2010-15 (Coalition period + Conservative split over Europe)
2017-19 (Divisions over nature of Brexit and 2nd referendum)
2021-22 (Some Tories objected to lockdowns after early COVID panic died down + partygate split the party)
What are examples of government facing a strong, united parliamentary opposition?
1994-97 (Conservative government face united ‘New Labour’)
2008-10 (Brown faced more unified and united Conservative Party)
2021-24 Labour (Starmer vs Truss, Sunak etc BUT Starmer was only good as opposition)
What are examples of the Leader of the governing party has lost popular and parliamentary vote?
1989-90 (Thatcher)
1994-97 (Major)
2003-07 (Blair)
2008-10 (Brown)
2017-19 (Thatcher)
Truss
Sunak
What can Executive procedural devices be used for?
can be used to persuade or pressure Parliament to doing as the executive demands
Which Executive procedural devices can be used to persuade or pressure Parliament to doing as Executive demands?
- Patronage
- Party Whips
- National Platform
How can Patronage be used to persuade or pressure Parliament to doing as the executive demands?
PM controls all appointments + dismissals to government, gives power over to MPs in their own party. MPs who regularly cause problems for government are unlikely to be promoted to ministerial office, tending to concentrate on party loyalty
How can Party Whips be used to persuade or pressure Parliament to doing as the executive demands?
Exercise control of organising timetables, allocating offices and other administrative tasks to help MPs. Remind MPs about PM patronage and importance of party loyalty
How can National Platform be used to persuade or pressure Parliament to doing as the executive demands?
PM, head of executive, has a national media profile + can speak directly to public. May use platform to put popular pressure on MPs by gaining support for their position and against Parliament
What is a weakness of Executive Procedural devices?
Need to be able to use these devices effectively to assume control
What are examples of Executive Procedural devices not being used effectively?
○ Theresa May, many ministers resigned on principle + she couldn’t afford to sack those who remained. Party whips did little to influence MPs.
○ Johnson removed whip from 21 Conservative MPs in 2019, made no difference to executive ability to influence Parliament
Theresa May made national televised address + claimed she was trying to deliver the will of the British Public, while Parliament was trying to block it (made it an issue of Parliament vs the people) but nothing in Parliament seemed to change
How has the Balance of power between the Executive and Parliament changed?
Changes due to multiple factors
- Long term: general trend since 1960s towards greater executive power over Parliament
- Due to increasing prominence of TV and social media, tending to focus on figure of PM and senior ministers, rather than the institution of Parliament, giving the executive greater status in the public eyes
- Constitutional changes
What Constitutional changes that have impacted power balance between Executive and Parliament have occurred?
- Removal of Hereditary Peers-> ensures no party has overall control in Lords, means Lords is more willing to defy the executive and assert itself more in checking the executive
- Creation of Backbench Business Committee-> has allowed ordinary MPs to control more parliamentary time away from government control, holding debates + introducing Private Members’ Bills that government may not wish to support
- Election of select committee chairs-> introduction of elections for select committee chairs by secret ballot of the whole house has reduced the ability of whips to influence the chairs. The additional salary they now receive also attracts a higher standard of MP, who see an alternative career route to one in government
- Election of members of select committees-> done by party but the fact MPs now vote for their members on select committees has reduced the influence of whips
- Growing power of Liaison Committee-> set up in 1980 to administer select committee system. Since 2002, by convention, PM appears before committee 2x a year to be subject to scrutiny, giving Parliament greater opportunity to scrutinise the executive
- Fixed Term Parliament Act 2011-> removed prerogative power to call an early election when PM wants to. Repealed in 2022
What effect did the Constitutional reforms have on the power balance between Parliament and the Executive?
Many of these reforms show power passed from executive to Parliament, but in many ways these are only marginal reforms
What are examples of marginal reforms on the power increase to Parliament from the Executive?
- Lords can still veto the executive, select committees still have majority of government MPs sitting on them + have no power to enforce their decisions, PM (like Johnson) can cancel meeting with Liaison Committee (who can only question PM, not instruct them)
- Backbench Business Committee typically only controls 23 days a year of Parliamentary business
- Bills and debates only have a meaningful role if government supports the measure
- Fixed Term Parliament Act has been repealed + on the 2 occasions a PM requested an early election, it had been granted, demonstrating little real change in the balance of power
What do marginal reforms suggest about the power balance between Executive and Parliament?
Suggests constitutional reforms have only changed balance of power at margins, executive still controls most of Parliamentary agenda + systems, while checks Parliament has over executive remain weak in practice
How has the Johnson majority executive sought to undermine some of Parliamentary controls that do exist?
○ Before 2020, Liaison Committee would always elect its own chair, although before 2010, the PM could nominate its preferred candidate.
○ Since March 2020, position is elected by the whole house, executive can use whips, and majority to influence appointment-> Sir Bernard Jenkin, Conservative ally of PM, elected to chair Liaison Committee
2019 manifesto, Conservatives proposed to scrap fixed term parliament act, suggesting the executive is trying to swing the balance of power back towards the executive, away from Parliament (now repealed, more power with the executive)
How HAS the Balance of power between the Executive and Parliament shifted more towards Parliament in recent years?
- Parliament is achieving considerable influence over foreign and military policy, even voting against some military interventions
- Select committees are increasingly influential and have come more under backbench control
- The Liaison Committee is increasingly willing to call the PM to account
- Between 2010-19 there was no large and decisive government majority
The House of Lords has become increasingly proactive and obstructive
How HASN’T the Balance of power between the Executive and Parliament shifted more towards Parliament in recent years?
- 2019, Conservatives won a large and decisive majority
- Government still relies on large ‘payroll vote’ where all ministers, numbering over 100, are bound by collective responsibility
- Government still controls the legislative programme and Public Bill Committees that propose amendments
- Prime Ministerial patronage still created loyalty among the government’s own MPs
Government still has a huge advantage in resources (media profile, advice and research) over Members of Parliament
What happened between 1945-50 in terms of the EU?
Post WW2
- Sense of solidarity, unity offers both peace and prosperity
- Congress of Europe, 1948-> led to creation of Council of Europe 1949
- 1950- Germany + France combined coal and steel machinery
What happened in 1951 in terms of the EU?
Treaty of Paris
- Created Coal and steel community
- European Court of Justice
What happened in 1957 in terms of the EU?
Treaty of Rome
- Created European Economic Community (EEC)
What happened in 1969 in terms of the EU?
Meetings to consult on and coordinate national foreign policy
0 first attempt in European currency
What happened in 1974 in terms of the EU?
European Council established, leaders of members states regularly meet
Who joined the EU in 1973?
UK, Denmark, Republic of Ireland joined 1973, joined the Six
What happened 1979 onwards in terms of the EU?
First European Parliament elections were held
Began to get more members in the 80s like Greece, Spain etc
What happened in 1986 in terms of EU policy?
1986: Single market, promising freedom of movement of goods, capital, services and people
- Can work in any other EU country
- Single currency
What happened in 1992 in terms of the EU?
Maastricht Treaty, created the EU
What happened in 1990’s in terms of EU policy?
Enlargement + single currency-> introduction of Euro (2002) + European Central Bank
Who joined the EU in the 2000s?
2004: Eastern European (Poland etc) joined the EU
2007: Romania + Bulgaria joined
What is the history of the EU constitution?
EU constitution first proposed in 2000, discussion shaped by 9/11 + disagreement over Iraq war
2004: Constitution established
- Controversial over the power of the EU over individual governments
Rejected in 2005 with referendums in France + Netherlands
What happened in 2006 in terms of the EU?
2006: Added the Lisbon Treaty (on the function of the EU)
- long term President of EU council
- Made EU more powerful
- Instead of permenant constitution
What happened in 2008 in terms of the EU?
2008: EU stepped in to help countries that were on the edge of Bankruptcy ie Greece
How did the EU increase democracy and transparency?
Wanted more democracy + transparency
2014: European Parliament elected president of the commission
What policy areas did the UK give up control on?
UK given up policy related to:
- Trade
- Immigration within EU
- Farming
- Product regulation
- Fishing
What are the 3 institutions of the EU?
European Council (ministers from each state), European Parliament, European Commission (powerful civil service), European Court
What are Eurosceptic arguments on the EU institutions?
The ‘democratic deficit’ in EU institutions like the EP, ECommission and Council of Ministers – they were seen as remote and unaccountable
What are counter Europhile arguments on EU institutions?
Partially elected so somewhat accountable
What are Eurosceptic arguments in terms of business?
Too much red tape (regulation) of business
What are counter Europhile arguments on business?
Less on trade, evens out- easier to trade between countries. Business needs regulation
What are Eurosceptic arguments on UK sovereignty?
As the ‘political’ side increased, many felt UK losing sovereignty
What are counter Europhile arguments on UK sovereignty?
Strong influence in EU, has impact on the whole of Europe. Pool our sovreignty into EU, have a larger say in a big organisation. Necessary to keep defence up for Russia + China
What are Eurosceptic arguments on a federal Europe?
Fear of a long term project of a ‘federal’ Europe
What are counter Europhile arguments on a federal Europe?
UK still stepped back, didn’t have pound, no constitution, can withdraw at any time
What are Eurosceptic arguments on UK contribution to the EU?
UK a net contributor
What are counter Europhile arguments on UK contribution to the EU?
Means they have a higher stake in EU relations, more influence on an international scale
What are Eurosceptic arguments on free movement and migration?
Fear free movement would mean ever increasing migration UK would not be able to control
What are Europhile arguments on free movement and migration?
Higher talent pool, larger issue than it actually seems
What voter demographic groups voted Leave?
- Working class
- Nationalist/English
- Older people
What was the step by step as to how the UK left the EU?
- Promise of referendum (David Cameron, 2013), concession to the right wing of Conservative party + scared of UKIP
- Conservative win 2015 election
- Held referendum on membership- thought he would win (remain)-> just won 2014 Scottish Independence Referendum, led to overconfidence + told people they would be poorer if they left
- Lost referendum, resigned
- Triggering Article 50 with vote in Parliament-> in the Lisbon treaty, A50 has to be triggered if a country wants to leave the European Union (First Gina Miller case)
Brexit Withdrawal Agreement Act
What was Nigel Farage’s Brexit Slogan?
‘take back control’
What were the UK effects of leaving the EU?
- The four freedoms (free flow of goods, services, capital and persons) no longer apply to the UK. EU has no external sovereignty over the UK so the UK can negotiate its own trade deals.
- Undermined integrity of the UK. 62% in Scotland and 55.8% in Northern Ireland voted to remain in the EU. The SNP are pushing for another independence referendum in the hopes of re-joining the EU.
- Encouraged Labour to commit to rebalancing of power in the UK to maintain union involving power being devolved from Westminster, and the HOL being replaced by an elected Assembly of Regions and Nations.
What were the Party political impacts of the UK leaving the EU?
- Raised significant constitutional complications and exposed unresolved tensions within UK democracy. Johnson removed the whip from 21 pro-EU Conservatives. Only 4 of them returned to parliament in 2019 and consequently the Conservative Party is fully Eurosceptic leaving pro-EU Tories homeless.
What were the external effects of the UK leaving the EU?
- Conflict with EU members over territorial issues. UK government sent warships to Jersey when French fishing boats threatened to blockade over post-withdrawal disputed fishing rights. UK sovereignty over Gibraltar has become contentious, since the UK and Spain no longer share EU membership.
- Under Johnson NI protocol established to enable free flow of goods across border between NI and EU member state the Republic of Ireland. Checks on goods need be carried out on goods going into Britain from NI. But if checks are carried out at the NI/ROI land border it is likely the IRA will revive to attack the border guards. The checks are therefore carried out in the Irish Sea (in NI ports) but Unionists are not happy about this because it undermines the territorial integrity of the UK.
What are the effects between Executive and Parliament of the UK leaving the EU?
- Brexit has allowed the executive to increase its authority. Johnson enacted legislation allowing the PM to determine the date of a general election in 2019 because parliament didn’t want an early election. Clashes between the SC and the executive such as in the First Gina Miller case when May tried to withdraw the UK from the EU without parliament’s consent and the second Miller case when Johnson wanted to prorogue parliament. The devolved assemblies claim the Westminster gov’t has kept repatriated powers over eg agriculture rather than passing them on.
What were the effects of UK leaving the EU on parliamentary sovereignty?
Full restoration of parliamentary sovereignty.
How have Select Committees gotten stronger since 2010?
- Only backbenchers (no ministers, barometer of the strength of parliament)
- Liaison committee began in 2010- formed by the chairs of the other select committees, question the PM specifically (direct questions + checks, holding them explicitly accountable, high profile, lots of media coverage), meets twice a year
○ Scrutinised heavily BJ in March 2022 - All chairs and members are elected by secret ballot- whips can’t influence who gets onto select committees, meaning the committees are more likely to criticise the government
○ Mel Stride: chair of Treasury select committee, Conservative. Critical of Conservative government economic policy
- Liaison committee began in 2010- formed by the chairs of the other select committees, question the PM specifically (direct questions + checks, holding them explicitly accountable, high profile, lots of media coverage), meets twice a year
How have MPs over the past 40 years become more professional (professionalisation)?
- Become more middle class in their backgrounds-> Labour working class MPs who’d previously been coal miners etc has died down
- More people are becoming politicians as their main job (become political researchers then MPs)
○ Before becoming an MP, people has previous jobs like teachers, farmers, bankers
○ Happens on Labour and Conservative sides (ie David Cameron)
○ Less knowledgeable of other sectors, less empathetic
○ Could’ve led to Public Distrust
Could’ve made politicians more rebellious + more independent minded
- More people are becoming politicians as their main job (become political researchers then MPs)
What is the difference between the UK and US constitutions?
UK Constitution rests on the fact that Parliament is sovereign
US constitution is sovereign and safeguards rights/political system, whereas in UK there is no codified constitution and we have to rely on Parliamentary Sovereignty
What are the 3 types of Parliamentary Sovereignty?
Legal sovereignty
Political sovereignty
Popular sovereignty
What is Legal Sovereignty?
Means parliament is supreme law making body in UK
What does Legal Sovereignty mean in action?
- Current parliament cannot legally bind future Parliament (ie As part of Brexit, UK parliament repealed 1972 European Communities Act)
- Judiciary cannot strike down an act of Westminster Parliament
- If judiciary believes new act of parliament contradicts 1998 JRA they can only recommend parliament adds declaration of incompatibility with HRA
- SC can strike out Acts of the Scottish Parliament
What is Political Sovereignty?
voters elect parliament at least every 5 years
What does political sovereignty mean in action?
We live in a representative democracy
What does Popular Sovereignty mean?
refers to an overall increase in use of referendums in recent years
What does Popular Sovereignty mean in action?
Voters make direct decisions on policy, rather than parliament
What is the acronym for the factors that have undermined Parliamentary Sovereignty in the UK in recent years?
SHRED P
What does the ‘S’ stand for in SHRED P?
Supreme Court:
SC increasing independence and activism (recently more people are going to SC, have become more assertive with separation from parliament, Gina Miller)
What does the ‘H’ mean in SHRED P?
Human Rights Act:
HRA 1998 meaning parliament is constrained (SC can make Parliament confess their law goes against the HRA)
What does the ‘R’ mean in SHRED P?
Referendums:
Referendums increased in use since 1998. Now expectation that any major constitutional change requires Parliament to hold a referendum and abide by results (ie Brexit)
What does the ‘E’ stand for in SHRED P?
EU/Executive Dominance
EU was undermining parliamentary sovereignty, however full sovereignty has not been restored by Brexit because executive has kept to many restored powers via delegated instruments, Some critics of ECHR would argue it is another ‘E’ that undermined sovereignty. Biggest E undermining Parliamentary Sovereignty is Executive Dominance (Exec dominate parliament)
What does the ‘D’ stand for in SHRED P?
Devolution
Devolution (2016 Scotland Act says Westminster can only abolish the Scottish Parl if there is a referendum first) BUT Westminster can repeal 2016 Scotland Act, and can use Parliamentary Sovereignty against the Scottish Parliament
What does the ‘P’ stand for in SHRED P?
Prerogative Royal Powers: Prerogative Royal powers of PM which since 2022 repeal of Fixed Term Parl Act, including a return to be able to set election date (PM power has gone up again)
Since Covid, what has the balance of power between the Executive and Parliament been like?
More control from Executive over Parliament decisions after Covid began in 2020 but overall after 2021 with laws relaxing, Parliament has become more efficient and strong check on executive
What is evidence of power shifting towards Parliament after Covid?
June 2022: vote of no confidence weakened BJ, 211/359 Cons MPs voted for Johnson
What does ‘intraparty mode’ mean?
relationship between government and backbenchers
What is examples of Parliamentary power over the Executive since Covid in terms of backbench MPs?
March 2021, 35 backbench Tories voted against government extension of COVID restrictions of a 3rd lockdown
- Holding the government to account
Dec 2021, further rebellions against mandatory NHS workers vaccinations, mandatory COVID passes for large venues etc
129 government defeats between 2021-22, highest in any parliamentary sessions since Wilson 1975-76
What are examples where the government was met with Backbench resistance?
- Proposals for voter ID laws for elections
- Rwanda plan 2024
Personal and corporation tax rises
- Rwanda plan 2024
What did the Wright reforms 2010 do?
Reformed Select Committees
- Provide powerful check on government + executive
- Helpful to question controversial legislative agendas
What did Dominic Cummings say in a Select Committee in 2021 on the way the government handled Covid?
May 2021: Dominic Cummings (Johnson former Chief Adviser) gave evidence on the government’s handling of the pandemic. Stated the government was inadequate for the task, but would’ve been worse without a majority
What is the Liaison Committee?
- Questions PM on government activity, 2-3 times a year
- Made up of all the chairs of the select committees
How did the Liaison Committee question Boris Johnson in 2022?
Johnson questioned on Cost of Living crisis, Ukraine-Russia war, Partygate
- Humiliated him
What are PMQs?
Prime Minister’s Questions
- Every Wednesday
Confrontational, hostile and bitter to PM
How was Starmer good as opposition in PMQs?
- Starmer good at PMQs + holding government accountable (good opposition)
- Starmer highlights lack of Johnson integrity and honesty, and lack of action on living standards
- Johnson liked to use counteraccusations
What did the 2005 Constitutional Reform Act do?
Replaced the Law Lords with the SC , which aimed to ensure a clear separation of powers and an independent appointments process
What was the 2017 Gina Miller Case?
SC ruled government couldn’t trigger Article 50 (mechanism for UK to leave EU) without Parliament approval
What was the 2019 Gina Miller Case?
Court ruled Boris Johnson acted unlawfully by asking queen to prorogue parliament, and that parliament was no longer prorogued (prorogation prevented parliament from scrutinising government’s Brexit plans)
What does Judicial independence allow the Supreme Court to do?
Allows court to challenge government freely- essential facet of rule of law.
How can the SC ability to check the executive be limited?
Government is not always bound to abide by its rulings + recent politicisation of court threatens its judicial neutrality
What did the 2022 All Party Parliamentary Group find in investigation of the SC and Parliament?
- Found ministers acted improperly by criticising the judiciary + conflating decisions with political consequences and decisions
- Insufficient safeguards to prevent law ministers (ie Lord Chancellor) from criticising the judiciary
- Affects judges’ morale-> 2020 survey found 94% UK judges felt a lack of government respect + APPG found judges faced soft pressure from ministerial attacks and threats of reform if they don’t decide in govt favour
What suggests the politicisation of the SC?
Since 2020- SC has made 7 decisions where is changed its position from previous judgements, to one ‘more palatable’ to government
BUT there could be other reasons for this
How can Judicial Review be used by the SC to check government action?
Using power of judicial review, court can consider the lawfulness of government action and declare it Ultra Vires
How can government get around judicial review?
But if government has a working majority in Parliament, it can pass retrospective legislation to make the unlawful action lawful
What is an example of government bypassing judicial review?
Ie Reilly vs Secretary of State for Work and Pensions (2013)-> SC ruled government acted Ultra Vires when introducing its ‘welfare to work’ policy. To avoid potential £130 million compensation bill, government passed retrospective legislation in 2013
What does Separation of powers mean?
Judiciary is separate from government + Parliament, allowing it to make independent judgements
What does Judicial Independence mean?
judiciary (judges) is independent of the government and free to make its own decisions
What does Rule of Law mean?
law is applies and enforced equally on everyone, including the government
What does Judicial Neutrality mean?
judges consider cases fairly and are not influenced by personal or political opinions
What does Judicial Review mean?
judges review a government decision, to decide if it is lawful
What does Ultra Vires mean?
Latin phrase meaning ‘beyond one’s powers’- a minister or government department has exceeded its legal authority
What does Parliamentary Sovereignty mean?
Parliament is the ultimate source of authority in UK
What were Landmark Judicial Review cases?
Unison v Lord Chancellor (2017)
Appellant v Secretary of State for Work and Pensions (2019)
What happened in the Unison v Lord Chancellor (2017) case?
Court ruled employment tribunal fees unlawful because they prevented fair access to justice. Government was forced to stop charging workers up to £1200 for access for an employment tribunal. Policy caused a 70% drop in number of tribunal claims, particularly by lower income workers
What happened in the Appellant v Secretary of State for Work and Pensions (2019) case?
the court ruled that applying a housing benefit reduction (‘bedroom tax’) to the partners of severely disabled people with a ‘spare’ room breached their right to a home under the HRA (1998), as space was needed for medical equipment
How many Judicial review cases occurred and were successful between 2000-2013?
Judicial review cases increased from 4,200 to 15,600 between 2000 and 2013, but only a small percentage were successful
4.6%, 2016-2020
Why do some Conservatives claim that judicial review cases have a negative impact on the government?
They are costly, time consuming and slow down decision making by ministers and departments
- Also put pressure on government to defend controversial policies ie deportation of asylum seekers to Rwanda 2022
What are some measures that aimed to limit the impact of judicial review?
- 2015 Coalition government made it more difficult for pressure groups to bring judicial review cases
- 2022: Judicial Review Act increased range of options available to judges, allowing them to grant more limited remedies when a public body was acting unlawfully, limiting the use to a certain type of judicial review
What was the rate of judicial review cases under Johnson?
2020-21: successful reviews fell by more than 50% to 2.2% of cases, total number of cases fell by 18% (decrease in JR cases)
Suggests judicial review has become less effective check on executive than previously
What are Declarations of Incompatibility?
SC can challenge statute law (Acts of Parliament) by declaring them incompatible w HRA 1998
What does the effect of the Executive generally having a majority in parliament have on SC rulings?
Provides potential check on its legislative programme, may lead to amendments to legislation in response to SC rulings.
What is the impact of Parliamentary Sovereignty on SC rulings against government legislation?
- Declaration of incompatibility is not legally binding-> HRA is statute law therefore no more important than other Acts of Parliament
- Parliament is free to determine what action is taken, which is significant limitation on court’s ability to check government
How can Declarations of Incompatibility be influential?
- ‘Welfare to work’ case: retrospective legislation was challenged in Court of Appeal, ruling it breached human right to fair trial.
- Government could’ve chosen to allow the incompatibility to remain, but decided to respect court rulings
- 2019: government asked parliament to modify 2013 legislation so it no longer breached human rights
How was the Johnson government criticised for politicising the SC?
- Post 2nd Miller Case, Johnson accused judges of pronouncing on ‘political questions’ and hinted at introduction of US style political appointments to provide more accountability
Attorney General Suella Braverman- previously criticised judges of encroachment’ claiming they strained principles of parliamentary sovereignty
What did the 2022 cross party enquiry by MPs find out about the way Johnson’s government interacted with the judiciary?
argued Johnson was very combative in approach to judiciary
Tendency for government to seek to change, threaten to change the law or powers of the courts
What check does the SC have on devolved governments?
SC can check UK + devolved governments in relation to devolution (IE can mount human rights challenges in devolved nations)
What is an example of the SC checking a devolved government?
2018- majority of SC judges found NI abortion restrictions incompatible with HR (but for technical reasons the court didn’t make a declaration of incompatibility). Devolved government was suspended at the time, so judgement increased pressure on UK government to decriminalise abortion in NI (October 2019)
How can SC rulings limit the powers of devolved governments?
2018 judgement on UK withdrawal from EU (Scotland Bill)-> SC ruled bill could not become law, as aspects went beyond the devolved competence of Scottish Parl
Nov 2022-> Court key ruling on dispute over Scottish independence, clash centring on UK gov insistence that Union matters are reserved to the UK government, defying Scottish FM Nicola Sturgeon, who claimed SNP majority in Scottish Parl gave government mandate to call 2nd Indy ref. Eventual ruling that referendum couldn’t take place without Westminster agreement
What is the effectiveness of SC actions and powers to check the government?
SC rulings often cause important changes to gov policy but judicial review is increasingly less likely to success + government with strong parliamentary majority can limit impact of ruling against it
How can judicial neutrality of SC be compromised?
Judiciary can be seen to be influenced by ‘soft pressure’ from politicians, compromising judicial neutrality and prevent effective government check from court if true
What does EEC stand for?
European Economic Community
What were the 3 main aims of the EEC?
- Common agricultural policy
- Common steel + iron law
- Customs union, no tariffs
Why was Britain initially reluctant to join the EEC?
wanted to keep colonial power through links with other Commonwealth countries
When did Britain join the EEC?
1973, Edward Heath, Conservative PM
What areas of policy did the UK give up power in under the EU?
- Trade
- Agriculture
- Immigration
What is legislation/conventions that uphold human rights?
ECHR (European Convention on Human Rights 1953)
HRA (Human Rights Act 1998)
How were human rights established in the Middle ages?
Judges established civil rights (ie free speech) through common law
How were human rights established in the 20th Century?
Argued people could do what they want (ie free speech) unless expressly forbidden by law (ie 1967 Race Relations Act, free speech without inciting racial hatred)
How are Human rights protected in the US?
Codified constitution, sets out human rights, constitution written 1789, rights were amendments in 1791 Bill of Rights, giving the right to free speech
US SC- job to intepret constitution, judges the right to free speech
What is a US example of human rights conflicts?
Phelps vs Snyder: Snyder’s son= soldier who has died. At funeral, Phelps + Westboro Baptist Church put signs against the military corruption due to the inclusion of gay people etc, so felt it was good soldiers were dying. Supreme Court said they had the right to picketing funerals.
What did the signing of the ECHR by the UK mean for human rights ?
UK citizens could take any UK govt or other body undermining their human rights to European Court of Human Rights in Strasbourg. Sometimes the UK govt ignored its rulings ie didn’t allow prisoners to vote + was able to do this as it wasn’t in UK statute law, and that is the most important.
How can the ECHR legally be ignored at times by the UK government?
Parliament is sovereign + parliament had not incorporated the convention into UK law, therefore at times of national security ie Percieved IRA threat 1970s, UK govt able to introduce internment in NI (arrest without charge)
Thatcher said UK didn’t need to incorporate because common law tradition is superior
What did the 1998 HRA mean for UK human rights?
Incorporated the convention on HR into UK law. Now UK citizens could take UK govt or other body to court in UK (and still end up in Strasbourg if wanted)
What is the SC jurisdiction on the HRA?
Cannot strike down Westminster Parl laws that violated the ECHR, but can strike down things parliament do, not legislation, also acts of devolved bodies, other governmental bodies (ie NHS, Post Office)
UKSC can issue declaration of incompatibility with HRA, Westminster would have to explain in Bills preamble why it’s necessary to introduce such a law (carries moral force)
Why is the UKSC power over Human Rights weak?
Parliament can ignore their rulings if they want to
What are the Functions of the UKSC?
- Highest court of appeal in the UK
- Interprets the uncodified constitution
- Judicial review
What is the role of UKSC as the highest court of appeal in the UK?
Usually hears cases concerning individuals not related to politics
What is the role of the UKSC in interpreting the uncodified constitution?
▪ UKSC does not have a codified constitution to interpret like the USSC
▪ Hears cases relating to parliamentary sovereignty, which is principle which UK’s constitution rests on
▪ Examples: Gina Miller/Johanna Cherry 2019
What is the role of UKSC in Judicial Review?
▪ They judge whether government or other public body have acted ‘beyond powers’ (ultra vires) granted by parliamentary legislation
▪ Examples: Gina Miller 2017, Scottish Independence referendum 2022, Scottish Gender Reform Act 2023
What is an example of Judicial review in Scottish Independence?
- Scottish Parliament cannot hold second indy ref without Westminster approval, SC ruling Nov 2022
- Unanimous judgement that Westminster was interpreting 1998 Scottish Parliament Act correctly, saying Westminster keeps control of the constitution
What was the impact of the UKSC ruling on 2nd Scottish Indy Ref?
- Nicola Sturgeon, SNP First Minister, resigns as she feels he cannot carry on
Lack of prospect for SNP drive for political change
What are examples of UKSC power over Parliament?
- UKSC is independent from parliament, cannot be swayed, only interprets the law
- Judicial Review: 2013 Reilly v Secretary of State for Work and Pensions they ruled Minister had been ultra vires in introducing welfare to work scheme, but gov’t then passed an act of parl making the power retrospective, to avoid compensation. By 2013 judicial review cases had reached a peak of 15,600
- Cannot strike out Act of Westminster parl
What are examples of Parliamentary power over UKSC?
- Parliament is Sovereign
- Coalition limited pressure MPs’ ability to bring judicial review cases then 2022 Judicial Review Act reduced the type of cases that could be brought and how SC dealt with them; the number of successful judicial review cases halved to 2.25. This suggests SC Judicial review powers will be less extensive and have less impact. Also, the SC is often helpful to exec eg re denying second Indy referendum.
- UKSC arguably has less power over parliament because it cannot strike down Acts
- Can remove justices, although this has never happened
What are examples of the UKSC power over the Executive?
- Separate entity
- More power over executive because ministers are often practicing actions authorities by Acts, but the SC is able to strike them down as ‘ultra vires’ acting beyond their powers
Recently ‘interpreted’ whether UK exec constitutional: ruled PM has exceeded his royal prerogative powers by proroguing Parliament
- More power over executive because ministers are often practicing actions authorities by Acts, but the SC is able to strike them down as ‘ultra vires’ acting beyond their powers
What are examples of Executive power of the UKSC?
- Could tell Parl to repeal CRA
- Could repeal HRA which by strengthening rights gives SC more power when interpreting rights based cases
- UKSC arguably has less power over parliament because it cannot strike down Acts. However this also indirectly benefits Executive as they dominate Parliament.
What are examples of when the European Court of Human Rights failed to get the government to act?
UK should give prisoners right to vote eg vote in Parl 2011 an overwhelming ‘no’
What are examples of when the UK SC has forced the government to act?
Steinfeld and Keiden v Secretary of State for International development 2018
Civil Partnership Act 2004
- Only 2 people of the same sex can have a civil partnership
What are examples of when the UK SC has failed to get the government to act?
Did stop PM Brown freezing terrorists’ assets BUT…
In the 2004 Belmarsh case did force Blair to release foreign prisoners imprisoned without charge using a 2001 Act BUT parl tightened up gov’ts powers eg to effectively house arrest suspects in new 2005 Prevention Terrorism Act
How has rights protection increased in the 21st Century?
- Since Constitution Reform Act, UKSC is more independent of UK govt and Parl and therefore more likely to stand up for rights
- SC stood up to the previous govt by saying its Rwanda policy contrary to HR
- As long as HRA stands, because it incorporates the European Convention of HR, which can only by amended unanimous European Council rights remain ‘entrenched’
How has rights protection not increased in the 21st Century?
- UKSC not fully independent as some judges go into the Lords after they retire
- Govt still control judicial policy eg govt restricted criteria for judicial review and cases heard fell by 44% 2015-19
- Government can repeal the power of the SC over the government through legislation
- SC is vulnerable to public opinion? Ie UKSC ruling in govt favour that Home Sec is not ultra Vires in prevent Shamima Begum returning to UK to claim citizenship 2021 and 2024
- Govt then passed an Act (2024) declaring Rwanda safe
- No category for constitutional law, so any successive parliament can repeal the Human Rights Act, ie Truss wanted to repeal the Human Rights Act, threatened it by writing a draft bill of the British Human Rights, heightened over the last 5 years of Conservative governments till 2024-> weaker in Human rights, cannot go to ECHR + Strasbourg
After 9/11, Blair passed anti terror legislation which undermined HR
What is the difference between Parliamentary recess and prorogation?
- Prorogation- Lords + Commons cannot meet to debate government policy or pass legislation, members cannot ask written or oral questions of Ministers or meet and take evidence in committees. Bills which have not completed all their stages will have to restart after the Queen’s speech
Recess- House doesn’t sit, but Parliamentary business can otherwise continue
Why was it so unclear as to why Johnson felt he had to prorogue Parliament?
- Normal period to discuss Queen’s speech= 4-6 days. Johnson left 5 weeks
Lack of reasonable justification for the prorogation, therefore no frustrated and prevented the ability of Parliament of carrying out its constitutional functions without reasonable justification
Why did Gina Miller feel the Prorogation of Parliament was illegal?
- Parliament wouldn’t sit and couldn’t perform its functions for over a month, outside of normal recess dates and during the all-important run-up to the (then scheduled) Brexit day on 31 October
- Breached principle of Parliamentary Sovereignty, unconstitutional.
- Most other examples of prorogation are 1 week, not 5 (of unusual length)
- prorogation was intended to deprive Parliament of an ability to legislate, specifically in relation to a no-deal Brexit
- unlawful as had the effect to ‘frustrate and prevent’ the ability of parliament to carry out its constitutional functions without reasonable justification
Why did Boris Johnson feel the Prorogation of Parliament wasn’t illegal?
- Constitutionally inappropriate for the courts to intervene in the PM’s decision to prorogue parliament because there is a clear separation of powers
- ## Prorogation of parliament is a purely, or at least highly, political matter - and therefore ordinarily unlikely to be justiciable
What are the Key Operating Principles of the Supreme Court?
Independence of the Judiciary
Maintaining Judiciary Independence
Neutrality of Judges
Maintaining Judiciary Neutrality
What does Independence of the Judiciary mean?
- Lack of bias from the government
- Danger of non independent judges that government will exceed their powers without legal justification, lack of effective check may result in tyranny
- Ensures citizens that all legal cases will be dealt with on the basis of justice + rule of law (may suit government so discriminate against individuals or groups in society for their own benefit), ensuring they feel their rights are effectively protected
- Important that judges are not influenced by short term changes in public opinion, reflected by politicians. Look at long term impacts
Judges are selected on neutral basis to prevent collusion between judiciary and government
What does Maintaining Judiciary Independence mean?
- Security of Tenure: judges cannot be removed from office on the grounds of the kinds of decisions that they make. Can only be removed if they can be shown to be corrupt as rule of personal conduct incompatible with being a judge
- Rule of Sub Judice: contempt of court for any servant of government to attempt to interfere with result of court case of comment on case in public or Parliament, preventing political pressure on Judges. Any action would be strongly criticised by Parliament and could result in legal action against the government member
- Independent Appointments: since 2005, appointments to SC are largely independent of government
Judicial Pay: salary of judges is decided by independent body, Senior Salaries Review Body (makes recommendations to the PM on pay of judges, publicised + nearly always followed by PM), to ensure government doesn’t use judiciary pay to gain influence. Judicial salaries can’t be cut + strict and public rules on what expenses may be claimed, ensuring no political manipulation which could reduce their independence
What does criticism from political parties from both sides entail about political bias?
Lots of criticism from politicians on the sides of both parties that judiciary is politically biased suggests that there is little or no political bias amongst judges
How does the SC maintain Judicial Neutrality?
Rulings must be made on the basis of law
Peer Review
Restrictions on Group Membership
Training and Experience
What does it mean for rulings to have to be made on the basis of law?
All judges make decisions based on the law, explain how they reached those decisions. Done when writing their formal opinion and announce, demonstrating how they have reached their decision based on law rather than any personal opinion or sense of justice
What does Peer Review mean?
Judicial opinions can be appealed to a group of 5 judges, meaning no single personal prejudice is likely to influence the final decision as any decision must be fully explained to other members of Court meeting on the case
What does Restrictions on Group Memberships mean?
Judges and Justices are restricted on which groups they can join. No serving Justice can join a political party or group that can cause a conflict of interest. Can still vote and have personal views but cannot have a formal link to a political organisation. If a Justice had a conflict of interest, may impact neutrality, would have to declare it and recuse themselves (excuse from hearing a case) to ensure neutrality was adhered to.
What does Training and Experience mean?
All senior judges must have a lengthy career as lawyer and be highly trained, must be accustomed to principle that cases must be judges on the strict basis of law and not according to personal opinions. Junior judges who gain reputations for lack of impartiality are unlikely for promotions. Justices of SC are most highly regarded and best qualified legal minds in UK, giving them highest level of experience at maintaining professional neutrality
How is judicial opinion decided below the SC level?
any judicial opinion can be appealed and reviewed by a higher court to ensure it complied with judicial neutrality (ie case aspects concerns ECHR, decision can be referred to European Court of Human Rights for review). No higher court in the UK than supreme court, so goes to peer review
How are Judges independent and Neutral?
- Checks and procedures are designed to ensure they are
- Hard to remove prejudice ever, even if changing to a more representational set of judges
How are Judges not independent and Neutral?
Hard to ensure personal neutrality with internalised views and prejudices
- May suffer unconscious bias against people who do not share similar backgrounds, majority are older, white males, private schooled, Oxbridge educated (narrow section of society represented)
- Largest threat is risk of politicians and media attempting to politicise the judiciary
○ After SC decision that Johnson’s prorogation of parliament in 2019 was unconstitutional and unlawful and subsequent electoral victory for Conservatives, Johnson set up the Constitution, Democracy and Rights Commission to look at reforming the SC and whole judicial system
○ Proposals like each Justice should be confirmed by Parliament, like Senate conformations of SCJ in USA, making the court a more political body
What are the arguments for SC independence and Neutrality?
- Constitutional Reform Act 2005 removed most threats to independence
- Justices cannot be removed by ministers as a result of their decisions, having security of tenure
- Justice cannot be threatened with loss of income if politicians are unhappy with their decisions
- Ministers have little or no influence over which Justices are appointed. Appointments are largely independent of politics
- No recent evidence of bias either in favour or against governments, Both Labour and Conservative governments have equally been controlled by SC decisions
What are the arguments against SC Independence and Neutrality?
- Although small, ministers can exert some influence over final appointment of Justices in the SC
- Neutrality of Justices is sometimes challenged on basis they come from very narrow social background
- Some Conservative politicians claim SC contains too many lawyers of a liberal disposition who tend to favour rights over state, security, law and order
Though currently disqualified from sitting in Lords, Lords Reed and Kerr both hold life peerages and will be able to sit in Lords once they step down from SC and may have some existing connections to fellow life peers
How is the Supreme Court Independent?
- Government follows salary reccomendations from Senior Salaries Review Body
- Judge cannot be removed from office by government, only resolution passed by both Houses of Parliament
- CRA 2005: established Judicial Appointments Commission
How is the Supreme Court Neutral?
- Judges cannot be members of political parties
- Court cases are open to the public, prejudice and bias would be quick to reach the media if seen
What was the Law system before 2009?
Law lord system
- No retirement age for judges/justices
- Guarantee their independance as they cannot be sacked or forced to retire
- Protests over them being too old
What is the current retirement age for judges?
75
What does setting a Precedent mean?
- Supreme court can create new Precedent (whatever they do, lower courts also have to do)
What does the Supreme Court do in terms of interpreting and making law?
Make new case law and interpret Parliamentary law
- 1000s of laws, hard to understand what the laws lay out and how to interpret them
- Sometimes lack of guidance from previous cases
What political leaning are Supreme Court Justices accused of having?
Tend to value rights of the individual- more liberal? (small l)
- Including all individuals, even prisoners (absolute position)
What is the Role of the UKSC?
the highest court in the land. It hears important cases, that are in the Public Interest that lower courts such as the High Court, Court of Appeal, Court Tribunals , Law Lords and Exeter Crown cannot decide.
What does the Supreme Court do when making decisions?
interpret laws (statutes), such as the 1998 Human Rights Act, and the conventions and treaties that are also a source of the UK’s constitution.
When was the UK Supreme Court established?
2009
What was the Law Lords system?
Law Lords- top 12 judged were also made peers, sat in a side room of the House of Lords hearing cases
Senior Judges were appointed by PM + Lord Chancellor (both party politicians.) Lord Chancellor was speaker of Lords + member of Cabinet in charge of justice policy
What was wrong with the Law Lords system?
- Not separate from politics, biased law, appointed by PM not elected
- Judges can rule in favour of the government
- Can’t hold them accountable
- Justice system needs to be independant
- In charge of appointing judges, and in charge of justice policy, speaker of justice policy -> Involved in a lot of roles, all 3 branches: too much fusion of the Branches
How was the new Law system created?
2005-> Blair passed Constitutional Reform Act 2005
What were the main reforms of the 2005 Constitutional Reform Act?
- Lord chancellor was reduced to government minister in charge of judicial policy, no longer speaker of Lords or appointer of Judges
- A more independant Judicial Appointments Commission was set up to appoint judges
- Supreme Court became more independent in its own building, Guildhall, with its own President
How did the position of the legal system change after the 2005 Constitutional Reform Act?
More powerful with more legitimacy due to independence
Who is the Current Lord Chancellor/Secretary of state for Justice?
Shabana Mahmood
Who is the Current Lord Speaker?
Lord McFall
Who is the Current Judiciary?
Lord Chief Justice (Lord Burnett of Maldon)
Who is the Current Supreme Court President?
Lord Reed
Who is the current head of the Judicial Appointment Commission
Lord Burnett
Who makes up an Independent Selection Committee for appointing a Justice to the SC?
including SC president, UK senior judge, representatives from each judicial appointment body of England and Wales, Scotland and NI (at least one of those must be a non lawyer)
What is the process of appointing Justices to the UKSC?
- Lord Chancellor convenes an Independent selection commission,
- Advertises vacancies widely
- Consults number of senior politicians and judges across the UK
- Report sent to Lord Chancellor for her consideration
- Another round of consultation with senior judges and politicians, final decision made by Lord Chancellor
- Name sent to PM for approval, then King for formal approval
What are the functions/powers of the UKSC?
- Highest court of appeal in UK. Role usually hears cases for example concerning individuals which are not related to politics
- Interprets the uncodified constitution. UKSC doesn’t have codified constitution to interpret like the USSC. Does hear cases relating to parliamentary sovereignty, which principle of the UK’s constitution rests on
- Justices decide whether government or other public body have acted ‘beyond the powers’ granted by the parliamentary legislation (ultra vires). This is known as judicial review
What is an example of the UKSC interpreting the UK constitution?
ie CASE Gina Miller/Joanna Cherry 2019, interpreting uncodified constitutions and statues
What are examples of the UKSC interpreting wether the government has acted ultra vires?
ie CASE Gina Miller 2017, Scottish Independence referendum case 2022, Scottish Gender Reform Act 2023
What is the Protection of Rights of children case?
- 2021, Scottish Parliament passed children allowed to go to court if they felt their rights had been breached.
- Westminster went back on it- even though it got royal assent, as Scottish parliament is ‘not allowed to change the Constitution’
- Case of devolution + protection of rights
What is the Scottish Devolution Case?
2022- blocked Scotland attempt for 2nd Indy Ref
- Calls for 2nd ref have increased in recent years
- SC ruled its beyond Scottish Parliament powers, per devolution agreement from 1998
What is the Rule of Law?
UK constitution is based on law + everyone is bound by law equally
What is an example of the SC ruling on Human Rights in the government’s favour?
Shamima Begum 2021, they ruled that Home Sec had been acting within their powers given by Acts of parliament when they withdrew Begum’s citizenship
What is an example of the SC ruling on human rights against the government’s favour
Rwanda policy 2023 that the government was breaching both HRA and international commitments like ECHR and UN Convention on Refugees.
- Sunak passed the Rwanda Bill to prevent the situation where he tries to deport asylum seekers and the SC agrees to hear their cases. He believes the backing of an Act of Parliament saying Rwanda is safe will make it less likely the SC will do this
Why did the UK leave the EU?
- Opposition to free movement which undermined sovereignty over immigration policy
- Loss of sovereignty more widely eg agriculture and fishing; public not convinced that we were ‘pooling’ rather than ‘losing’ sovereignty
- Belief that EU becoming ever more federal in ambitions
- Net contributor to budget
How did the UK leave the EU?
2013 Cameron promise of referendum if re-elected; 2016 referendum 48% Remain 52% Leave
May triggered EU procedure for a country leaving (Article 50) March 2017 (had tried to do it by royal prerogative but SC in Gina Miller 1 Jan 2017 forced her to consult parliament).
May could not get future relationship (EU Withdrawal Agreement Bill) through parliament (she resigned after it was defeated for the third time); but Johnson eventually did (Dec 2019).
We ‘left’ Jan 2020 but with one year transition where we continued to follow EU law).
What is the Acronym for impacts of leaving the EU?
SPEED
What does the S in SPEED stand for?
parliamentary Sovereignty restoration
What does the P in SPEED stand for?
Political (eurosceptic vs centric tensions)
What do the E’s in SPEED stand for?
uk External relationships (EU freedoms)
Executive power (increased authority)
What does the D in SPEED stand for?
Devolution (NI, Scotland tyranny of the majority)
What is the Gina Miller 2019 case?
- On 28 August 2019, Miller was one of a number of parties to launch legal proceedings against the Johnson government for advising the Queen to prorogue parliament saying to do so was unconstitutional
- A similar case lodged before the Scottish Court of Session ruled several days later that the advice was justiciable, that it was motivated by an intention to circumvent Parliamentary accountability, and the it was unlawful, void and of no effect, setting up a hearing before the Supreme Court for 17 September.
- 24th September 2019, the Supreme Court ruled unanimously that the advice, and subsequent prorogation, were unlawful, void and of no effect because it had “the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.”
What is the difference between Prorogation and dissolution?
Prorogation= brings a session of Parliament to an end, next session (usually a short time later) begins with the Queen’s speech
NOT dissolution (Commons members cease to be part of Parliament, general election is called)
What is the 2005 Constitutional Reform Act?
As part of Blair’s drive to democratise and protect rights he split the post of Lord Chancellor (see key dates)
Lord Chancellor title now goes to Justice Secretary, a minister in charge of justice policy
Lords now elects own speaker
A judge, Lord Chief Justice, oversees the judiciary helped by Judicial Appointments Commission largely independent of gov’t
In addition the CRA moved the law lords to a separate building, Guildhall, and enhanced their independence, creating the Supreme Court.
What are the roles of the SC?
Highest Court of Appeal in UK
Interprets where Sovereignty lies between Executive and Parliament
Judges whether gov’t or other public body have acted ‘beyond their powers’ (ultra vires)- Judicial Review
Protects Human Rights
How does the SC interpret where Sovereignty lies between Executive and Parliament?
The UKSC does not have a codified constitution to interpret like the USSC. But it does hear cases relating to parliamentary sovereignty, which is the principle that the UK’s uncodified constitution rests on eg Gina Miller 2 2019 prorogation of parl.
How does the SC conduct judicial review?
The UKSC can rule whether government or any other public body like the Scottish gov’t or NHS is acting beyond the powers given it by an Acts of the Westminster Parliament eg Gina Miller 1 2017, SC ruled that due to 1972 European Communities Act Parliament, not executive alone, needed to agree to asking the EU to trigger Article 50, setting leaving in motion. In Scottish Independence referendum case 2022 SC ruled Gov’t had not acted beyond their powers in rejecting Scottish parliament demand for second referendum because they had acted within the powers given by them in the 1998 Scottish parliament Act.
How does SC protect Human Rights?
by judging whether laws/policies are compatible with the 1998 HRA. (The HRA incorporates the text of the European Convention on Human Rights and the SC tends to respect the European Court of Human Rights, which UK citizens can still go to as a final court of appeal on HR issues). Shamima Begum 2021, they ruled that Home Sec had been acting within their powers given by Acts of parliament when they withdrew Begum’s citizenship. In contrast they ruled on the Rwanda policy 2023 that the government was breaching both HRA and international commitments like ECHR and UN Convention on Refugees. This is why Sunak is passing the Rwanda Bill because he wants to prevent the situation where he tries to deport asylum seekers and the SC agrees to hear their cases. He believes the backing of an Act of Parliament saying Rwanda is safe will make it less likely the SC will do this. If an Act of parl breaches HRA the SC can issue a ‘declaration of incompatibility. Gov’t does not have to comply. EG The then law lords ruled in Belmarsh 2004 that Blair gov’t had breached European Convention on Human Rights with its Anti-terrorism Crime and Security Act because it discriminated against foreign suspects. Gov’t complied, releasing foreign suspects. But then passed new law Prevention of Terrorism Act 2005 giving them control orders over both foreign and domestic suspects.
What did judges decide in the middle Ages
local judges get in the habit of making judgements to give people rights eg to a fair trail or free speech. Other judges follow, setting a precedent. These ‘common law’ judgements form the basis of UK protection of rights.
How did Monarchs influence the judiciary in the middle ages?
Monarchs make top judges ‘lords’ and they sit in the House of Lords as the highest appeal court. The Monarch appoints a Lord Chancellor who has three roles; to advise the monarch ie be a member of the executive, to keep the Lords in order ie be a member of the legislature and to be head of the judiciary branch.
What are features of SC appointments?
There are 12 SC justices including a President, Lord Reid. 2 of the 12 are women (in 2024).
Ordinary judges are appointed by Judicial Appointments Commission, more transparent than pre 2005 CRA system. SC justices are appointed by a 5 person team consisting of president of SC, a senior judge, representatives of Judicial Appointments Commissions for England/Wales, Scotland and NI. They are trying to increase diversity; they can take it into account if two people under consideration are of equal merit.
How are SC justices removed?
Only by resolution both Houses of Parliament, which has never been attempted.
Retirement age: 75
How is the SC independent?
In all democracies it is considered important that judges are independent from control or persuasion by the executive or the legislature as this is the only way they can administer justice fairly.
Separate building signifies independence
Appointment system is independent of executive and parliament.
Senior Salaries Review Board automatically determines salaries; gov’t cannot influence this.
While case is being heard parliament/exec cannot comment or it is contempt of court.
How is SC not independent?
the Justice Secretary can reject the first only recommendation of the SC Appointments Committee (although not so far occurred).
Gov’t can put pressure on SC eg by not criticising right-wing press and implying they have more of a mandate than unelected judges.
Conservative threats to repeal HRA and replace it with British Bill of Rights would reduce the authority and independence of the SC. The European Convention on Human Rights cannot be easily amended and therefore SC can have confidence when they rule that an Act of Parliament violates ECHR. A probably weaker British Bill of Rights would give them less power to protect rights and because it could easily be amended by Parl at anytime, would undermine both rights provision and by extension authority of SC. Do Conservative criticisms more generally of the UKSC threaten its independence?
Why did the UK leave the EU?
Opposition to free movement which undermined sovereignty over immigration policy
Loss of sovereignty more widely eg agriculture and fishing; public not convinced that we were ‘pooling’ rather than ‘losing’ sovereignty
Belief that EU becoming ever more federal in ambitions
Net contributor to budget
How are judges neutral?
Judges are not permitted to be members of political parties.
The cases are held in open and filmed much of the time, thus if there is bias public can notice and call to account.
How are judges not neutral/biased?
BUT are they from the same social elite? In the past judges were criticised for being upper class (private school, Oxbridge) and naturally cautious and small c conservative eg anti trade unions. Now they are more likely to be criticised for being from the kind of upper class elite which is too liberal ie favours individual rights over the rights of the majority. It is more likely they will be criticised by Conservative than Lib/Dem or Labour politicians. In 2019 Home Secretary Truss failed to defend SC justices when right wing press was calling them traitors and enemies of the people due to Gina Miller 2.
How did the UK leave the EU?
2013 Cameron promise of referendum if re-elected; 2016 referendum 48% Remain 52% Leave
May triggered EU procedure for a country leaving (Article 50) March 2017 (had tried to do it by royal prerogative but SC in Gina Miller 1 Jan 2017 forced her to consult parliament).
May could not get future relationship (EU Withdrawal Agreement Bill) through parliament (she resigned after it was defeated for the third time); but Johnson eventually did (Dec 2019).
We ‘left’ Jan 2020 but with one year transition where we continued to follow EU law).
Does the UKSC have more power over Exec or Parliament?
UKSC has considerable power over executive because judicial review of ministers’ actions. In 2013 Reilly v Secretary of State for Work and Pensions they ruled Minister had been ultra vires in introducing welfare to work scheme, but gov’t then passed an act of parl making the power retrospective, to avoid compensation. By 2013 judicial review cases had reached a peak of 15,600 p.a. Coalition limited pressure gps’ ability to bring judicial review cases then 2022 Judicial Review Act reduced the type of cases that could be brought and how SC dealt with them; the number of successful judicial review cases halved to 2.25. This suggests SC Judicial review powers will be less extensive and have less impact. Also, the SC is often helpful to exec eg re denying second Indy referendum.
UKSC arguably has less power over parliament because it cannot strike down Acts. However this also indirectly benefits Executive as they dominate Parliament.
How is the UKSC too powerful?
Not ‘neutral’: an upper class liberal elite undermining mandate of elected politicians eg trying to implement anti-immigration policies. Suella Braverman while Attorney General accused SC of ‘encroachment’ saying they ‘strained the principle of parliamentary sovereignty’.
Not in touch with society: only two women, still overwhelmingly white, old, upper class and male.
Since 2005 CRA they have been more independent and assertive, more dragged into the political realm because of HRA, devolution and Brexit. This means the judiciary is becoming ‘politicised’ and respect for it will be undermined.
As the champions of the European Convention on Human Rights they undermine British ability to adapt HR. We stopped the EU Court of Justice making rulings on British commercial and other policy areas by leaving the EU. We should follow suit by leaving the ECHR.
How is the UKSC not too powerful?
Every democracy has an independent judiciary, therefore it is right that Blair made the UKSC more independent and separate. By doing so it was always inevitable and justified that they would become more assertive. All Party Parliamentary Group on Democracy and the Constitution issued a report 2022 saying the gov’t attacking SC too much, conflating ‘decisions with political consequences’ with ‘political decisions’.
Britain’s uncodified constitution requires a SC to interpret it just as much as in countries with codified constitutions. The UK’s (complex) devolution could not operate without some kind of ‘constitutional’ court.
Rights are more likely to be adequately protected by a SC interpreting a hard to amend Convention like the ECHR than by a British Bill of Rights that parliamnet might be more frequently tempted to amend, thus undermining the SC but also rights protection.
How is the Executive too dominant?
Lord Hailsham described British political system as ‘elective dictatorship’ in 1976 because executive could do what it wants in between elections due to a) FPTP delivering large majorities b) parliamentary system of gov’t – government able to use power of patronage and whips to subdue independent minded MPs, gov’t control timetable and c) majorities on Public Bill committees and use of statutory instruments/delegated legislation which does not go through full legislative scrutiny process.
Executive reduction in judicial review and undermining of SC shows they are dominant over judicial branch.
Johnson breaching of democratic norms eg lying, no ethics adviser, shows lack of codified constitution can lead to excessive executive dominance
Brexit has increased executive dominance because many powers brought back from Brussels kept within Whitehall rather than UK and devolved parliaments.
Foreign policy: despite Cameron conceding to parliamentary vote preventing military action on Syria, PMs still act first when it comes to ‘smaller’ actions such as May’s against air strikes on Syria chemical installations 2018.
Salisbury Convention hampers Lords.
How is the Executive not too dominant?
1979 Parliament voted no confidence in Callaghan gov’t leading to election.
2010-2015 coalition and weak and minority May gov’ts show Parliamnet can have periods of asserting itself. Even in 2021 Johnson had to rely on Labour MPs when 99 Conservatives voted against COVID passes.
Steadily since 1979 select committee system has increased effectiveness to hold executive to account.
Lords inflicted 450 amendment defeats on gov’t 1999-2010, defeated Osborne’s tax credits cut (controversial because arguably financial), much opposition to EU Withdrawal Bills and Rwanda policy
