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
