UK government > Relations between branches > Flashcards
Relations between branches Flashcards
when was the supreme court established?
2005 constitutional reform act
was first opened in 2009.
what is the supreme court?
serves as the final court of appeal in the UK
what was the aim of the establishment of the supreme court?
increase the independence of the judiciary from the government- previously the highest court of appeal in the UK was the law lords who were senior judges and also members of the HoL
what was the role of the Lord Chancellor?
a government position was also amended by the Act. Previously, the Lord Chancellor was a cabinet minister (justice secretary), but also the head of the judiciary responsible for appointing judges. This second role was removed from the Lord Chancellor in __2005
what does the supreme court do?
It hears appeals on points of law and matters of legal and constitutional importance. It can make decisions relating to whether government institutions have acted within their powers, including devolved bodies, and can use judicial review to assess whether the government has acted in accordance with existing law.
Gina Miller case?
An example of a case heard by the Supreme Court was in 2016-17, when Gina Miller, a businesswoman, argued that the Prime Minister did not have the right to trigger Article 50 (the formal notice of Britain’s exit from the EU) without the consultation of Parliament. The Court found in Miller’s favour, and Parliament voted to trigger Article 50 in 2017.
Magistrates?
deals with criminal cases mostly
County?
deals with civil cases (eg. landlord/tenant disputes)
Crown?
deals with more serious criminal cases
High Court?
deals with more complicated civil cases (e.g. adoption, large compensation claims)
Court of Appeal?
hears appeals from civil and criminal cases
Supreme?
hears appeals from Court of Appeal
European Court of Justice?
hears cases involving EU laws which may have been broken
European Court of Human Rights?
deals specifically with human rights issues
how many members is the supreme court made of?
12, cases are usually heard by 5-9 judges (always odd so majority verdict can be reached)
How are appointments to the Supreme Court made?
Appointments to the Supreme Court are made by an independent selection commission, who recommend a candidate who is then approved or rejected by the Lord Chancellor, who cannot indefinitely reject candidates.
what is judicial neutrality?
refers to the absence of any form of partisanship or politically biased judgements- a refusal to ‘take sides’ in cases.
How far is judicial neutrality upheld?
In reality, it is impossible to be politically ‘neutral’- so judges must not let their views and beliefs affect their professional behaviour. In the Supreme Court, judges cannot sit in cases involving an associate or family member, and must avoid open political activity.
what is the demographic background of Supreme Court judges?
Due to their narrow background (white, male, privately-educated) judges have been argued to have a conservative bias, and possibly a bias against women, ethnic minorities and poorer people, as they are less likely to consider their needs and empathise with them. I
what did Lady Hale point out in 2015?
In 2015, Lady Hale (the only female judge) pointed out that since her appointment, 13 judges had been appointed, who were all male, all white, all bar two privately educated, and all bar two Oxbridge-educated
what is judicial activism?
there has been a rise in judicial activism, especially relating to human rights and civil liberties case, where judges openly criticise the actions of government.
what is judicial independance?
this is the principle that the actions and decisions of judges should not be influenced by pressure from other branches of government.
How is judicial independence upheld?
Judges are chosen by an independent commission, and only ‘signed off’ by the Lord Chancellor
Once appointed, judges can’t be sacked unless they break the law, so they can’t be threatened with removal for making the ‘wrong’ decision
Judges’ pay is decided by an independent pay review body, without interference from ministers
The Supreme Court is physically separate from the government and legislature (unlike the previous Law Lords)
Criticisms to the extent the supreme court is judicially independent of political pressure?
Concerns were raised by Lord Phillips in __2011 __about the possible effects of spending cuts on the court system as part of wider ‘austerity’ policies. In addition, the court was heavily criticised by some ministers (backed up by the right-wing press) following the ruling that Article 50 must be triggered by Parliament and not the government, possibly putting pressure on future decisions of the court. However, it remains to be seen whether public criticism of judge’s decisions will have much of an effect.
what did Lord Hailisham say the only real check on government was?
Lord Hailsham coined the phrase ‘elective dictatorship’ in the 1970s, arguing that the only real check on government power is a general election every five years or so.
what are government’s able to do with small majorities?
governments are able to pass most of its legislation without amendments, and so can, therefore, act as they wish. Major constitutional change has occurred without any opposition to it, for example, the introduction of fixed-term parliaments in 2011, and the devolving of more powers to devolved governments. Although, it could be argued that in spite of these concerns, Parliament is still able to hold the executive to account.
factors/ arguments suggesting parliament does hold the executive to account?
1) can defeat the government by voting against legislation
2) Opposition to government policy may mean that a free vote is offered (free from whip’s involvement)- for example the issue of same-sex marriage in 2013
3)Select committees have the decision to elect their chairs, who are independent from the government. Committees can call witnesses and scrutinise government policy in depth. For example, the Public Accounts Committee is responsible for overseeing government expenditures, and ensuring they are effective and honest. The committee is seen as a crucial mechanism for ensuring transparency and accountability in government financial operations and is one of the most important select committees
4)Increased willingness of the Lords to challenge government bills due to the lack of single-party control and removal of most hereditary peers (so increasing legitimacy)- for example the defeat of proposed tax credit cuts in 2015
5)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
6)Debates can be held on issues, which can raise their profile or have an impact on executive action. For example, in __2013 __the government was defeated in its attempt to action military intervention in Syria
7)Opposition parties are allocated 20 days to discuss issues not set by government
8)The Backbench Business Committee allows for debates not set by government
9)The Commons can remove the government through a vote of no confidence
10)The last decade has seen more backbench rebellions in Parliament, where MPs defy the government, leading to the withdrawal of bills likely to be voted down
11)Parliament now has the authority to authorise military action (see Syria example)
factors/ arguments suggesting the executive still has the ability to dominate parliament?
1)Defeats in the Commons on government legislation is very rare- Tony Blair did not lose a vote during the first 8 years of his premiership
2)Party discipline and the influence of the whips ensures that the majority of government bills are passed without difficulty. Even if MPs rebel, the governing party can often rely on support from opposition MPs to get a bill passed
3)The government often has an extensive ‘payroll vote’ made up of ministers, junior ministers and parliamentary private secretaries- this amounts to around 100 MPs who will always vote with the government
4)The Parliament Act allows the government to push through legislation that has been blocked by the Lords (for example, attempted amendments to the Article 50 bill). Under the Salisbury convention, much legislation will not be blocked by the Lords at all
5)Ministers can block the appearance of witnesses at select committees, and the government does not have to act on select committee recommendations
6)The work of the Backbench Business Committee receives little publicity, and the government sets the time allowed to debate issues- this is also the case for time allowed to discuss Private Member’s Bills
7)A vote of no confidence has not happened since 1979. MPs are reluctant to use this, as their own seats are put at risk by a general election
8)Most ministerial resignations are due to pressure caused by the media (not Parliament), or external events- for example Cameron’s resignation following the vote to leave the EU in 2016
9)The government has extensive powers under secondary legislation, allowing them to change laws
what is the history of the EU?
The European Union (EU) is a political and economic union of 28 states, which arose out of the establishment of the European Coal and Steel Community established by 6 nations in 1950. This developed into the European Economic Community in 1957, and the European Union was established by the Treaty of Maastricht in 1991.
Brexit referendum?
On 23 June 2016, the British people voted to leave the EU in a referendum by a margin of 52%-48%, meaning that the UK will become the first member state to leave the EU.
Article 50, formally notifying the UK’s wish to withdraw, was triggered by Theresa May in March 2017, following a vote in Parliament to approve the triggering. The UK has two years to negotiate the terms of its withdrawal before it ceases to become a member in March 2019 (although the negotiating time can be extended if all parties agree)
The main factors to suggest that Parliament has become more significant and powerful?
hat it must be consulted over measures such as military action, the increasing right of Parliament to independently select its own officers (for example the speaker and select committee chairs), the ability of the Backbench Business committee in setting part of the parliamentary agenda, and the increasing assertiveness of the Lords.
the executive is still dominant?
it has responded to the above by increasing the size of the ‘payroll vote’ of ministers and PPSs, and party control through the whips remains strong.
the common fisheries policy?
the aim of this was to preserve fish stocks, by introducing a quota of the amount of fish that could be caught. This created controversy in the UK over the Factortame case. UK law was that, in order to fish in UK waters, fishing boats needed to have a majority British crew (this was to protect British fishing boats from competition). This conflicted with the EU law that EU member states had equal access to each other’s waters. A Spanish fishing company argued that they were unlawfully being prevented from fishing in UK waters, and the European Court of Justice (backed up by the Law Lords) ruled in favour of the Spanish company. In addition, grievances were raised over the fact that fish had to be thrown back into the sea to meet quotas.
1991 Maastricht Treaty ?
aimed to establish guaranteed rights for workers, for example, equal rights for full and part-time workers, entitlements to parental leave and paid holidays. John Major refused to sign the UK up to this, fearing that businesses would be disadvantaged. Tony Blair did adopt the Social Chapter in __1997, but did not want to sign up to future expansion of EU social policy, to strike a balance between workers’ and business freedoms and rights.
Impact of the EU on the UK’s political system and policy-making?
Profile of the PM has been heightened, as they attend European Council meetings. Cameron was very visible in renegotiating the terms of UK EU membership
The foreign secretary also attends European Council, and Council of the EU meetings, raising their profile. Other ministers responsible for policy affected by the EU are also involved in negotiations with their counterparts. Mostly ministers rely on the work of the civil servants working for the EU (COREPER)
A committee on European affairs has been set up for cabinet members to develop UK policy towards the EU, coordinating the work of government departments
Parliament must examine EU laws, and proposed legislation from the EU must be reviewed by the Commons European Scrutiny Committee, although the amount of EU legislation makes this difficult to perform effectively
Some policy areas affected by the EU are now devolved to regional institutions. The UK Parliament therefore consults with devolved governments in policy-making in these areas
The above relationship is set to change due to Brexit. Negotiations will take place over the terms of the UK’s withdrawal from the EU, and there have been divisions amongst ministers and MPs as to what those terms should be. Eurosceptics favour a ‘hard Brexit’, which would see the UK give up full access to the single market and customs union (meaning tariffs would be introduced when trading with other countries), and have complete control over its borders. Others favour a ‘soft Brexit’, where the UK would give up its seats and MEPs on EU institutions, but retain access to the single market, meaning that the ‘four freedoms’ would have to be retained.
The issue of Scottish independence has been raised again by the Brexit vote, as the majority of Scotland voted to remain in the EU. The SNP has sad that Scotland should not be taken out of the EU against the wishes of its people, and that the only way for Scotland to have EU access is for it to become an independent country. However, calls for ‘indyref2’ were weakened by the decline in SNP support in the __2017 __general election.
The EU has power over some policy areas, but not others. For example, trade, the single market, social and employment, agriculture and fisheries, and environmental policy is the preserve of the EU, or at least the EU negotiating with member states. Areas such as defence, taxation, healthcare and education remain the exclusive preserve of the UK.
what is legal soveriegnty?
This term refers to who or what has supreme (unchallengeable) law-making authority in a state. The body which has the power to issue final commands in the form of laws is the legal sovereign in a state. Historically in the UK, legal sovereignty lay with the monarch, but it has now transferred to Parliament. Legal sovereignty is defined by constitutional law.
has parliamentary sovereignty moved? yes
Due to the dominance of the executive over Parliament, the executive maybe where real sovereignty lies. Although, the executive governs because it has the confidence of Parliament. Recent general election results have seen small (or no) majorities, which potentially makes Parliament more able to challenge the government
Devolution has transferred power away from Parliament, and devolved institutions are not going to have their powers taken away due to the public backlash that this would cause. More powers have been given away in recent years. However, these powers are granted to devolved bodies by Parliament, which retains overall sovereignty
Referendums have been used more in recent years, which transfers sovereignty to the people, away from Parliament. Although they are advisory rather than binding, Parliament is, in reality, compelled to respect and enact the result. In theory, Parliament does retain sovereignty in deciding whether to respect the outcome of an advisory referendum
EU membership has impacted on parliamentary sovereignty, as EU laws can impact on UK laws. The Factortame case in __1991 __established the primacy of EU law over UK statute law. Cases such as these are cited by those who claim that sovereignty has been lost, and that the only way to reclaim it is to leave the EU. Although, EU supporters suggest that sovereignty has been ‘pooled’, and that all EU member states agree to share aspects of sovereignty in exchange for the benefits that being in the EU brings. In addition, the UK is a member of the EU because Parliament allows it to be, so in this sense Parliament retains sovereignty
what is political sovereignty?
this sits above legal sovereignty. In a democracy, the electorate is the political sovereign. Dicey suggested, “behind the legal sovereign that the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow.” In a democracy such as the UK, the legal sovereign (Parliament) receives its authority from the electorate (through being democratically chosen and so reflecting the wishes of the people). Parliament is therefore accountable to the electorate for its actions. Parliament makes laws on the basis of the policy approved by the electorate, and the electorate has the right to elect a new Parliament at regular intervals.
has parliamentary sovereignty moved no?
The Supreme Court can challenge parliamentary legislation, and it replaced the Law Lords as the UK’s final court of appeal. Although, the court was established by an Act of Parliament, so could be abolished (or have its powers reduced) by Parliament. Also, the court cannot strike down laws- it is up to Parliament to do this
parliament is still sovereign?
Parliament retains legal sovereignty in the UK- statute law outranks all other UK laws, and decisions by other institutions
Parliament allows for the creation of devolved bodies, and grants them powers, but retains control over them (it could take powers back if it wished)
Judges can recommend changes to laws using judicial review and other means, but this can be ignored by Parliament (for example, the European Court of Human Rights ruled that banning prisoners from voting was against their human rights, however nothing has been done to change this)
The Human Rights Act can be used by judges to challenge Parliament, but this can be amended by Parliament if it wishes
Referendums tend to be advisory rather than binding, so Parliament is not compelled to respect the result
Parliament makes the decision to be part of the EU, and be subject to EU laws, and can decide to leave the EU. The importance of Parliament in this process was highlighted by the Supreme Court decision that Parliament must be consulted before the triggering of Article 50
parliament is no longer sovereign?
Parliament’s legal sovereignty rests on the political sovereignty of the electorate- ultimately, power lies with the people
The executive has grown in power and influence to such an extent that it can dominate Parliament, so real power lies with the executive
Judges have successfully challenged legislation using judicial review and the Human Rights Act
Parliament has given away powers to devolved bodies, and, even though legally speaking Parliament could reverse this process, in reality, these powers are not going to be taken back (due to the consequences that would follow)
Although referendums are advisory, in reality Parliament cannot ignore the result (for example, many MPs who did not want Britain to leave the EU voted to trigger Article 50, respecting the wishes of their constituents)
It could be argued that a nation having complete sovereignty over its affairs is unrealistic in a modern, globalised society, so ‘pooling’ sovereignty is one of the natural consequences of this
meaning of ultra vires?
beyond their powers
