Judiciary Roles and Powers (L14) Flashcards
How has Westminster legislation changed the Westminster model?
Devolution statutes (1998).
Require courts to adjudicate boundary disputes between different layers of government (and between legislatures).
Human Rights Act 1998.
Requires courts, where they can, to interpret legislation compatibly with Convention rights.
How did R v Home Secretary, ex parte Pierson [1998] AC 539 change the balance of power between the judiciary and parliamentary government?
Parliament conferred on the Home Secretary a discretionary power (now repealed) to decide when a prisoner serving a life sentence (for murder) may be released.
Could that power be used effectively to increase the sentence (by revising the ‘tariff’ upwards)?
HL ruled (3:2): no it could not.
- Lord Steyn (majority):
“Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law … [albeit that] this assumption … can be displaced by a clear and specific provision to the contrary…
- “Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law …”
How did R v Home Secretary, ex parte Simms [2000] 2 AC 115 change the balance of power between the judiciary and parliamentary government?
Two prisoners serving life for murder were denied permission to speak to journalists about their cases.
- Held: this was an impermissible violation of the prisoners’ right to freedom of expression. It wasn’t an Act of Parliament that denied the prisoners access to the journalists: it was the Home Secretary’s application of the Prison Rules (rules made under an Act of Parliament).
Lord Hoffmann:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights … But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words … In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way, the courts in the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”
How did R (Unison) v Lord Chancellor [2017] UKSC 51 change the balance of power between the judiciary and parliamentary government?
Legislation conferred a discretionary power on the Lord Chancellor to set court fees. Unison (the trade union) challenged the way the LC exercised this power.
Lord Reed:
In considering this matter the court “must consider not only the text of [the legislative] provision, but also the constitutional principles which underlie the text …
“The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other …
“Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them …”.
What are some other cases regarding the balance of power between the judiciary and parliamentary government?
Jackson v AG (2005).
Evans (2015).
Miller/Cherry (2019).
Is the UKSC starting to backtrack on its position i.e. taking a more conservative position in cases since 2021?
R (Begum) v Home Secretary [2021] UKSC 7.
- Home Sec did not act unlawfully in deciding to deprive Begum of her British nationality.
R (SC, CB, at al) v Secretary of State for Work and Pensions [2021] UKSC 26.
- Sec of State did not act unlawfully in imposing a two-child limit on certain welfare payments.
Reference re UNCRC Bill [2021] UKSC 42 (see lectures on the law of devolution).
- Several provisions of a Bill passed by Scottish Parliament were unlawful because they impermissibly restricted the sovereign ability of the UK Parliament to continue to make law for Scotland.
