Relations Between Branches (UK Gov 4) Flashcards
What is the judiciary?
Branch of government that delivers justice by ensuring the constitutions os upheld and peoples rights are protected
UK orders of court
Crown, high, court of appeal, supreme court
When and why was the SC made?
-est. 2005 under constitutional reform act
-opened 2009
-replaced the Law lords, providing a separation of powers by also removing Lord chancellor (in all 3 branches) and replacing it with Lord chief justice
Judicial appointment commission
-est 2005 CRA
-independant, to remove government bias from selection process
How many SC judges are there and how do you qualify?
-12
-must have been in senior judiciary for 2 years and a legal qualified practitioner for 15 years
Current Sc makeup
(As of 2023):
-4 members aren’t Oxbridge
-2 women
-all are white and over 60
Arguments stating that SC representation matters
-better diversity= better legitimacy
-more diversity= more perspectives so better decision making
-better access to justice to those who can’t access it as judges can sympathise with them
Arguments that SC representation doesn’t matter
-judges should be judges solely on qualification
-decisions may not remain impartial
-equality of opportunity for capable judges should be the highest priority
Relationship between judiciary and legislative
Parliamentary sovereignty means all court rulings are only advisory and parliament can simply overturn a court ruling by legislating against it (2010 Terrorist asset freezing act)
Relationship between judiciary and executive
-judicial reviews allow courts to review government action and deduce whether they are “ultra vires” (Miller 1 and 2)
-can also issue declarations of incompatibility against HRA (2023 Rwanda)
2022 judicial review and courts act=some human rights and immigration concerns are immune from judicial review and instead the courts can set a time limit for amendments to be made
Evan’s vs attorney general (2015)
SC ruled that under the 2000 freedom of information act, letters Charles 3 wrote to government ministers must be released to public to ensure he remains politically neautral
Shows power over executive
Miller vs Secretary of State for exiting the EU (2017)
SC ruled that Mays government couldn’t trigger article 50 without parliamentary permission because they allowed for it in the first place
Shows gov acting ultra vires and SC upholding PS
Miller vs prime minister (2019)
SC ruled that Johnsons couldn’t lawfully prorogue parliament as it was believed he was doing it to avoid Brexit scrutiny
SC protecting PS and gov acting ultra vires
What is judicial independance?
The idea that judges should be completely separate from other branches of government
What is judicial independence guaranteed by?
-security of tenure
-guaranteed salary
-contempt of court
-an independant judicial appointment commission
Arguments that the SC does not exercise independence?
-government ministers breaking contempt of court in Miller 1 and 2
-limited power by 2022 judicial review act
-since HRA people are more aware of their rights so cases are much more political
-Daily mail “enemies of the people” headline after miler 1
-lack of diversity
SC ruling over Scottish referendum (2022)
Sc ruled that Scotland couldn’t hold a second referendum because it concerned matters that weren’t fully devolved to them
Retaining PS
Examples of UK SC not being neautral
-“enemies of people” daily mail headline lead to the belief that the SC judges were europhilic
-Lord Neurberger was publicly critical of gov after miller 1
-not descriptively representative
Arguments in favour of the executive being dominant over parliament
-control most of parliamentary timetable
-majority in commons and sometimes and elective dictatorship (Johsnon, Blair and thatcher)
-90-95% of legislation is government
-secondary legislation
-limited powers of HoL
-PBC majorities
Arguments in favour of the executive not being dominant over parliament
-parliamentary sovereignty
-PMBs (Liz Truss trying to push through ones of transgender use of toilets and teaching in skls)
-more backbench rebellion (Phillip Davies= 250 times against whip)
-select committees
-BBBC
-questions and opposition days
Timeline of the EU creation
-Britain join EEC in 1972
-1986= EEC becomes a single market
-1992 Maastricht treaty creates the Euro and political union (UK opt out of euro)
-2007 Lisbon treaty gave the European council a permanent president (currently Charles Michel)
Areas that the EU has control over
-trade with non-EU countries (big reason for Brexit)
-some control on immigartion, agriculture, fisheries and environmental policy
-taxation and defences powers are retained by member states
Aims of EU
-achieving peace (no wars between members since WW2)
-upholding a single market and maintaining the 4 freedoms
-establishing political and economic union (creation of a European Central Bank, euro (only UK an Denmark opt-out) and set exchange rates)
-offer freedom, security and justice
What are the 4 freedoms of the EU single market?
Free movement of…
-goods
-services
-people
-capital (money)
Has been largely achieved but was minuted during COVID and 2015 migrant crisis
What is the European council?
Final decision-making body where the heads of government of member states meet and have the final say on policies
What is the European Commission?
The executive body of the EU (represents EU on a world stage and oversees the implementation of policy and proposes most laws)
What is the council of the EU?
Main decision-making body which shares legislative power with European Parliament
What is European Parliament?
-directly elected institution of 705 (due to rise to 720 in 2024) members
Has legislative, budgetary and democratic power
What is the court of justice of the EU?
The judicial branch of the EU (not to be confused with ECHR which is different)
Legal sovereignty
The theoretical exercise of sovereignty (how much power an institution has by law)
Political sovereignty
The sovereignty in practice (how much support you have to actually exercise sovereignty)
Timeline of Brexit
-2016 referendum=52% leave (Cameron resigned since he was Europhilic)
-May struggled to negotiate a Brexit deal and had a weak mandate/ factionalism so also resigned
-Johnson was a hard brexiteer but also dealt with party factionalism (allied with Labour to vote against a no deal Brexit) but eventually got a deal with 2019 EU Withdrawl agreement and we left in 2020
Arguments that Brexit did strengthen parliamentary sovereignty
-no longer a higher court to strike down incompatible laws (EU law no longer supreme)
-parliament can no longer legislate on issues the EU used to control (as exemplified by the 2023 Rwanda bill)
-1993-2014= 231 acts passed which implemented EU law into the UK constitution-we dint need to do that anymore!
-key court cases have strengthened parliamentary sovereignty (Miller 1 and 2 and the 2018 legal continuity bill which ruled that control over legislation previously held by the EU relating to devolved matters shouldn’t immediately go to Scotland)
Arguments that Brexit did not strengthen parliamentary sovereignty
-Westminster don’t have the same amount of control over NI because NI is partially treated like a member state to maintain trade deals and borders with Ireland (even after Sunak implemented the Windsor framework, NI isn’t fully under our control)
-a lot of sovereignty has gone to executive, not parliament (UK gov has the power to make trade deals without parliamentary consent like the 2023 Asia trade deal)
UK lost global influence from pooled sovereignty
-retained EU legislation
What was the working time directive and how has it impacted the UK?
-made it illegal to work more than 48 hours a week
-Major opted out in 1992 but Blair opted in in 1998
-government now don’t have the political sovereignty to change it so its still in order
VAT and tampon tax in the EU and the impact now
-EU law was that standard VAT was at least 15% and reduced VAT was at least 5%
-menstrual products do not qualify for special exemption ( being taxed as much as 27% in some places)
-post Brexit, all tax on period products was removed, allowing the government to be more popular and progressive
The Factortame case (1988)
-example of EU law taking precedent over UK law
-fishing quotas in the U had to be changed because they did not comply with UK law
