Relations Between Branches Flashcards
Mmebersp in eu took uk legal sov
Legal sovereignty do
Hra
Authoritative works like bogarts english constitution suggests that while the EU has some legal parliament is sovereign and can make and unmake law - can leave eu or get hra out of law.artule 50 2017 triggered leaving eu.
Brexit means that the UK withdrew from the Treaty of Rome, meaning EU law would no longer take precedence over UK law, and the ECJ would no longer have jurisdiction over the UK
- Makes UKSC top court of the land
- SC not longer has to enforce EU law over UK
- Proportion of its cases been EU law in recent years
- STILL has to comply with EcHR
-ECHR rules in 2005 in the case of John Hirst that a blanket ban on allowing prisones to vote was incompatibile with ECHR- allowed 500 prisoners to take legal action through the ECHR
Prisoders cant vote now failed
Eu had legal sov
1992 Maastricht treaty which consolidated powers of the EU creating a quasi-federal state gave EU powers over immigration
Jurisdiction of the ECJ extends to the UK so cases can be appealed ot the highest EU court. So ECJ undermins legal sovereignty supersedes SC in the UK and appellants can appeal if rights in ECHR have been contrasted,
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European Communtties Act 1972- entered EU, Treaty of Rome into UK law. Gave European laws precedence over UK statues, UK could be called to account at the EcJ, after factortame 1990, UK were permitted to suspend UK statutes that appeared to be in violation of EU law
Factortame 1990: ECJ Established the precedent that UK Courts could suspend any UK statute law where it appeared to violate EU law- came from Spanish fishing company which challenged the legality of the Merchant Shipping Act 1988, which attempted to close the loop hole for Spanish fishing boats to register as British to use British quota
Uk had political sov over eu
POlitical sovereignty
Parliament holds the EU commission accountable as its an unelected body
EXAMPLES
Low turnout in european elections only rising by 1% in 2019 to 38%, turnout is less than half of majority of eligible voters.
Voted 52% leave in 2016
Uk didn’t have political so over eu
The UK have a minority of MEP no eto on legislation - no legal influence.
Slowly becoming more integrated with new treated GVIE EXAMPLES OF FURTHER INTEGRAION
Uk maintained economic sov in the eu
Economic Sovereignty
Started as the EEC 1972 , restricted foreign independency
Brexit means opportunity to trade increased
Refusal to join the Euro
Uk did not maintain political sov in eu
Membershop led to freedom of movement, goods and labour so pressure of uk to have remained.
Attempted to join economic thing ( black wednsday ) shows european pressure to cater to satdnrds the uk could not ???
Examples of sc defending hra
nstitutional statutes are not entrenched
(ECHR)
Anti terrosm crime and securities act 2001 , the law lrods made a declaration of incompatibility as the act allowed for the indefinite detention of SUSPECTED foreign terrorists with no charges to be apprehended and have assets frozen.
AHMAD V HMT 2010
RECENT EXAMPLE TERROISM?
Tigere V Secretary of State for Business, Innovation and Skills (2015) demonstrates this well. Tigere, female student from Zambia, arrived in UK aged 6, did not have permanent residency, and so could not apply for student loans to get a university degree. UKSC accepted the appeal on the grounds that it violated Article 2 of the ECHR (right to education) and Article 14 (prohibiting discrimination)
Sc rules Ruwanda unsafe to send assyclum seekers
Examples sc can’t defend hra
The act got royal assent in a month, displaying the bill to have poor scrutiny passed in a panic due to 9/11 threat of terrorism. Judges cant strike bill down only decalre incompatible.
Al rawi v security forces 2010. Zeveral men had been held at guantaemo bay claimed compensation for their alleged deternion and mistreatment.
Government used ‘ closed material procedure’ SOTUL ised common lsw to rule this unconstitutional in ordinary civil trials parliament responded with justice and security act 2013, allowed civil courts to use CMP when such evidence would undermine national security.
Parliament passed a bill to say Ruwanda safe bypassing sc
Sc can defend rights via constitutional law
Common law recognises statues cannot be eroded immediately by palrimane tand courts can issue declarations of incompatibility which are politically hard to ignore
2017 and 2019
Gina miller cases
Sc can’t defend rights on common law
Common law can be swiftly overridden be ignored parliament
Eg. sex offenders rights to apppeal agaisnt registration fornlife (aprile 2012)
R on the application of f v sec of home dept 2009, sex offenders challenged sexual offences act 2003 whereby all persons sentences to 30 months imprisonment or more for sexual offences become subject to lifelong registry by police.
governemnts positino ws that individuals who had committed serious sexcual offences in england and wales must register with police for life after arrest but SCOTUK argued this to be a breach of rights
Nothing came of the case the act is in effect and sex offenders over 30 months in jail have to register for life.
Sc can rep diversity
Lack of diversity
Of the 12 judges 2 are woman ( lady simler and lady rose ) and none of BAME backgrounds so may ineffectively be able to sympahtise with minority causes.
Eg. Radmacher V. Grantino 2010 involving prenups between marriag partners a majority upheld that claims made after the ivproce shou;d be limited. Lady hale ( ex-president of the scotuk) voted against it believing this would be against the benefit of woman. Displaying gender representtion to be imprtant as true neutrality in this case was difficult and voted on genfer lines on this issue voting 8-1.
Sc can’t rep diversity
Judicial neutrality
Conflicts of interest
Public activity ( educate public )
These are guaranteed by: Security of Tenure, Guaranteed salaries, contempt of court, a growing separation of powers, an independent appointments system, training and experience. And Impartiality
guaranteed by Anonymity, Political Activity, high-level training and legal justifications of judgements
Sc control gov in hr matters
Challenges governemnt in human rights over health and social care
eg. AM zimbabueae v Home secretary 2020
MORE RECENT ONE
Ultra Vires and the European Court of Human Rights:
- Reilly v Secretary of State for Work and Pensions (2016) - Ruled that the Department for work and pensions, although not breaking Aritcle 4 of the EcHR had acted unlawful because the department had acted Ultra Vires beyond the authority given to it by parliament. Entirely up to the government
to decide how they wished to proceed in light of the declaration of incompatibility
-UKSC Declares governments 2004 Civil Partnership Act incompatible with HRA in 2018- government amended act in 2019
Check gov on national security and civl rights
Ahmed v HMT did brown pass act to let his assets be frozen regardless
-Investigatory powers act 2016- allows for greater state surveillance in Britain- with the police given new powers to collect date from devices and requires web and phone companies to store everyone’s web browsing history for months and give unprecedented access to the data on police
Belmarsh 9 , aw lords declared incompatible as they were imrisoner w out a trial apart of crime and securities act blair had to release them
Sc doesn’t control gov in hr matters
Private jason smith 2010 died of heatstroke his family argueed the authoruty should be kept him safe high court ruled in favor of the family but scotuk said it did to combat situations.
FIND OUT MORE ABT THIS AND HOW RELATES TO POINT
Ruwanda scheme they said unsafe country rpsunak passed 2024 act that it is
- Begum v Special Immigration Appeals Commission and the Secretary of State for the Home Department (2020)- right to challenge withdrawal of British citizenship- UKSC ruled that she would not be allowed to return to the UK to fight her citizenship case
2011: Al Rawi v the Security Service: Secret hearings, outlawed the use of secret evidence in court by the intelligence services
Gov responded making an act shown in previous plan
Sc control gov on political issues
Checks government political power
Miller cases
In august 2019 BJ sought to
suspend parliament for 5
weeks, record time
Achieved through royal
prerogative not a vote in
parliament and MPs felt this
gave parliament limited time to
scrutinise Brexit legislation
before 31 October
Case brought in by Gina Miller
who had brought on an earlier
case in 2017
A case involving extent of PM
power and ability of parliament
to debate and decide on key
issues, also brought spotlight to
function of royal prerogative
Gov defeated and sc ruled the propagation was unlawful and scotu overruled appeal court decided coirts had the power to rule on the use of prerogative scotuk ruled the motives of the pm and effect of proroguing frustrated and present parliaments function and supervsor to exec cause rep a vocitory for comsititionsl sovereignty
Sc don’t control gov on political issues
2019 miller case had little effect on vrexit process as johnson called another election and won 365 seats.
2014: R (Nicklinson) v Ministry of Justice - Article 8 of the ECHR could not be used to justify assisted suicide
Sc check gov on national security and civil rights
Check gov on national security and civl rights
Ahmed v HMT did brown pass act to let his assets be frozen regardless
-Investigatory powers act 2016- allows for greater state surveillance in Britain- with the police given new powers to collect date from devices and requires web and phone companies to store everyone’s web browsing history for months and give unprecedented access to the data on police
Sc doesn’t check gov on civil rights and Nat sec
Begum v Special Immigration Appeals Commission and the Secretary of State for the Home Department (2020)- right to challenge withdrawal of British citizenship- UKSC ruled that she would not be allowed to return to the UK to fight her citizenship case
2011: Al Rawi v the Security Service: Secret hearings, outlawed the use of secret evidence in court by the intelligence services
Government used ‘ closed material procedure’ SOTUL ised common lsw to rule this unconstitutional in ordinary civil trials parliament responded with justice and security act 2013, allowed civil courts to use CMP when such evidence would undermine national security.
Commons is effective scrutiny
PMQs:
50% of questions asked by the executives party members-> Can be staged or asked before the questioning in common to executive so they can be ready to answer the question-> decreases legitimacy and trust within the executive
Opposition days:
20 opposition days per parliamentary session-> 17 given to Labour(largest opposition party HOC) | 3 given to SNP(second largest opposition in HOC) out of a total 152 days in the 2021-22 session-> very limited scrutiny towards executive due to a small amount of days allocated to opposition parties being able to question and dictate the agenda against the executive
SNP opposition day on Gaza ceasefire motion was scrapped and was changed to Labours motion on the gaza ceasefire because of Starmer talking beforehand to the speaker on the issue of Labour MPs gaining death threats-> shows the limited effectiveness of opposition days towards the executive as in some instances the motions aren’t properly argued and discussed
Executive is able to dominate parliament due to the lack of scrutiny made by opposition parties because of the functions of the House of Commons favouring the executive
Commons poor at scrutiny
PMQs:
50% of questions asked by opposition members-> Questions asked to executive can catch them off guard and occur tough scrutiny towards the executive
Urgent questions:
2022-23 parliament had 175 urgent question-> Increased over time compared to the year 21-22 with roughly 100-> opposition scrutiny getting stronger and more effective against the executive with constant bombardment of questions towards the actions of the executive
An urgent Question was granted to Conservative MP David Davis about the Post Office Horizon Scandal. The question was posed to the Department for Business and Trade.-> Liam Byrne, the chair of the business select committee, interviewed the chief executive of the Post Office, Nick Read, saying justice required those representing the organisation to work “round the clock”.
Hol ineffective check on exec
hunting act2004
eventually passed after speaker of commons envoked parliament acts 1911 and 1949. Exec dominated hoc and hoc dominates hol then exec dominates hol.
Life peers are also appointed by PMs often the 2 main parties then ideologically aligned with government.
Cameron appointed to the lords under Sunak to make him foreign secretary 2023 didn’t need to stand in a bielection.
Hol effective check on gov
lord Griffith (labour MP) granted a platform by the House of Lords to talk of his own experience and allowed him to effectively scrutinise free school meal funding over holidays during Covid. Variety if backgrounds allowed for proper scrutiny as House of Lords is historically made up of elites
Hunting act 2004 house delayed it for a year frustrated it also caused some public unrest by countryside alliance
Cameron appointing shami chakrabati 2016
She scrutinised him often and example of honourable appointment
Committee provide poor check in executive
Select Committees:
The government can use its majority on Select Committees to try to influence reports in their favour.
Govt can reject reports the some of the time and there is very little the Select Committees can do if the government doesn’t follow up on their recommendations
Boris Johnson avoided the Liaison committee, to “concentrate on Brexit”
Public Accounts Committees:
Oversees government expenditure and to ensure they are effective and honest. The committee is seen as a crucial mechanism for ensuring transparency and accountability in government financial operations
Backbench Business Committee
Committee priovide adequate check in executive
Select Committees:
They can call for expert witnesses and can ask for documents and people to appear before them and give testimony.
Daren Jones, Labour MP, led on issues related to the economy, business and jobs as well as national security and climate change.
Also a prominent member of the Liaison Committee
Questioned P&O Ferries CEO, calling him a “merciless criminal”
The PM must appear twice a year before the Liaison Committee, which is made up of the chairs of select committees, and must justify government actions
independence mechanisms in scotuk
Independence: mechanisms
SC is now physically separate from the House of Lords, has its own budget and staff - some financial and administrative independence.
Appointment is by an independent Judicial Appointments Commission (JAC), and the Lord Chancellor’s veto is only single-use (i.e. he cannot block the commission’s second choice.)
Judges have tenure to age 75, and pay is also decided independently.
not independent mechanisms scotuk
Independence: mechanisms
The Lord Chancellor still has the influence over final appointments. They may veto appointments Ken Clarke did this several times in 2011.
Pay of top barristers much more than pay of judges - could judges be lured back to practising?
Scotuk Independence in decision ( yes )
Miller cases
Ruwanda
SCOTUK not independent in decisions
After miller case 2016 enemies of the people headline 2020 51% sided q exec in line w average 56% but 84% in 2021
JOHNSON ADONISTRARION LIKE PATEL CRITICAL OF EM
Neutrality mechanisms
Not diverse because they r neutral
Can’t say they aren’t unprovable
But
Lady hale In radmancher v grantino
Said her BeI a woman inoacted decision
Black judges 1.02 in 2014 to 1.09 in 2019
75 % senior judges went oxbridge
GRIFFITH STUDY
Supreme Court over exec
Ahmed v hmt 2010
Evan’s v attorney general 2015
But
Miller cases
Ruwanda
Exec over sc
Can make law overriding decision in causes as Parliament legal sov ev brown asset freezing act 2010 after Ahmed and ruwanda act 2024 after ruwanda doi
INCREAINGLY SIDED W EXEC
Sc Power over parliament
R v chaytor and others 2010 ruled against MPs claiming parliamentary pro lodge during the expense scandal
22 dec on board 2 /3 Tf ammending primart seckndart or making new leg.
Steinfeld and kaisen v home sec 2018
SEC STATE FOR BUSINESS AND TRADE V LERCER 2024
Parliament power over scotuk
Miller cases
Can make laws to negate case
Prisoner voting
NICKLESON V MINISTRY IF JUSTICE 2005 the suicide act 1961 upheld
Parliament power over scotuk
Miller cases
Can make
Sc on devolved bodies
SALVESTON V RIDDEL2013 as agricukture holdings act 2003 foudn ti violate ECHR article 1 protocol 1
But
Wales 2014 agricultural sector bill 2014 allowed sjnce not given tk westmejneustrr in 206 Gov of sales act
How referendum undermine parliament sov
Challenges poltical v popular sov
But
Brexit only HAOOENED when Johnson won maj purged party of remainders
PPERA means park I vote of having ref
Parliament sov over devolved bodies
Could get rid of them
Broke Sewel conv on Scot gender recog bill violates Scot act 1998 sect 35
Governed ni often
Decide when Scotland or if they can have another ref
But
Increasing powers from Westminster indep referendun
MORE POWERS POST BREXIT EG ANIMAL WELFARE
Leaving EU impact on domestic law
1972 parli essentially bound future
Maastrictch treaty and QMV uk lsot veto on 30 areas eg consumer protection
Worriers rights eg work time directive can be abandoned
But
Chose to enter it
Left
LOOK ON DOC CANES
Retained ei law
Sunset provision under truss changed under sunak
587 pieces of law chose whag to keep
Yk law sovereign over EU law
But
Power to ministers not parliament
Eu law and pre leaving in law still eu law sov
Sunak sunset clause
No mandate law
Trans Nat issues
Fisheries act
Agricukture act
TCA 2020
Immigration policy
WINSOR FRAMWWORK
But
Immigration up since leaving ( not an ei issue )
TCA makes reikatoon or risk tariffs
JORTHER IRELAND ESENTUALLY STILL THERE DUE TO NI PROTOOCL
