Realtionships between branches Flashcards
What 3 points to discuss when arguing about the power of the Supreme Court
Can decide if the government is ultravires
Interprets rights via the HRA
Huge amount and threat of judicial review cases reduces effectiveness of government
What is ultravires?
If the government acts beyond its remit/ oversteps its powers
What is judicial review?
The act of judges reviewing decisions by political bodies
Two key principles of the Supreme Court since CRA 2005
Judicial independence and neutrality
The Supreme Court has too much power as it can decide to rule a gov. decision ultravires. Examples of this and arguments against.
What are some critiscisms people have of this in regards to the key principles of the court?
Last year said that Holyrood passing a second independence referendum bill would be “undoubtedly” ultravires - outside of the remit of Scotland Act 2014
UNISON v Lord Chancellor - SC held that the gov. couldn’t impose fees on employment tribunals - restricted access to justice
Some argue these are political and sabotage its neutrality however someone has to arbitrate in these cases…. it is its entire role
However, Parliament is sovereign and can simply pass legislation
i.e. Terrorist Asset Freezing Act was swiftly passed in response to SC ruling that the Treasury couldn’t freeze the assets of suspected terrorists
Often works to uphold the rule of law and Parlimentary sovereignty (most important)
i.e. Miller vs PM in 2019 - upheld Parliamentary sovereignty and stopped a highly unconstitutional move by PM
Returned sovereignty to Parliament by limiting the Royal prerogative in Gina v Miller 2016 - Parliament must have a say over Article 50 as rights of citizens are involved
Does the HRA/ ECHR and its alleged superiority over Parliament give the Supreme Court too much power?
Yes - Derailed Blair’s strong mandate in 2004 by ruling in favour of suspected terrorists.
Hirst vs UK 2005 - another controversial case that decreed Blair’s policy incompatible
No - Belmarsh 2004 case was nullified by the Prevention of Terrorism Act 2005
Hirst case was ignored until the end of Cameron’s premiership a decade later - no teeth especially when it regards prisoners/ terorrists etc.
Steinfeld and Keiden vs Sec. of state 2018 - let different sex couples have a civil partnership… had everyones support but was forgotten due to Brexit - no power by thre SC to make it happen
In most cases it simply necessitates sensible amendments to laws i.e. McLaughlin vs UK government protected the rights of widows
How may judicial review and the remit of the Supreme Court challenge the government?
Is this true in reality?
Threat of judicial review and backlog/ slowdown of legislative process hinders the governments mandate i.e. over 3500 cases of judicial review commenced in 2018… was over 15000 in 2013
Stopped the deportation of violent criminals that was ordered by the government… simply costs money
Massive remit - covers all parts of law and even cases from the Commonwealth i.e. ruled on British law using a joint enterprise case from Jamaica
However,,, only 5% of these cases in 2018 actually resolved as 95% were weak. Gov. won 50%.
The government has said it wants to stop the misuse of judicial review and was accused of distorting the outcome of a review – reminder that it could be abolished as eaily as it was reformed.
Judicial review is needed to protect vulnerable i.e. widows,,, prisoners. Could be split up but they would still have the same powers.
How has the power of the Supreme Court been limited since 2020
Since Brexit it has been unable to use EU laws to give decisions, especially important as the Factortame case allowed EU law to override statute law
To be a supreme court justice you need to have either ….. or …..
been a judge for 2 years or a legal practicioner for 15 years
Process after a vacancy in the Supreme court opens up,,, political influence?
5 member committee is set up comprising of SC President and VP and JAC members
Large pool of candidates reviewed and vetted
The nominated candidate is either accepter or rejected by the justice secretary (can only reject one candidate/ cycle)
PM is notified, who then notifies the monarch who officiates it all`
Definition of judicial independence and neutrality
Independence - separation from the government i.e. no longer the Law Lords
Neutrality - apply the rule of law fairly and evenly
How is judicial independence from politics safeguarded - what challenges does it face?
Independent appointment proceess, legal experience and tenured positions with guaranteed salaries all isolate it from politics.
However ultravires rulings and judicial review bring it into conflict with public bodies. Media and political scrutiny also mean it may be threatened i.e. Sun outrage over Miller v SoS for Brexit
How is the supreme courts neutrality maintained
Some challenges to judicial neutrality
Kept out of the public eye i.e. rare media appearances, legal experience/ training and often unanimous decision show that the law is being followed. Restricted in terms of political lobbying.
Increasing scrutiny, novelty of Brexit and limited social backgrounds make them potentially less neutral.
Current composition of SC: age, gender and education
All white, 11 men and one woman. 11 Oxbridge educated. Average age of mid-60s. Soft bias may be threat to neutrality
What did Lord Hailsham claim the executive was
“an elective dictatorship”
