Relations between Institutions Flashcards
Why was the Supreme Court established?
To create a greater separation of powers
Appointment of justices, consists of…
12 members, but cases are heard by an odd number - to reach a majority verdict
Constitutional Reform Act 2005 aim
Aim was to increase judiciary’s independence from the government. Established the independent Judicial Appointments Commission (JAC)
Lord Chancellor was the head of the judiciary responsible for appointing judges (this was removed from the Act)
Who were the Law Lords?
highest court of appeal in the UK
- senior judges
- HoL
What is judicial neutrality?
Judges shouldn’t be politically active or motivated, and shouldn’t show no personal bias (should reach decisions alone)
- Can vote but discreetly (can’t openly support)
Positives of judicial neutrality
- JAC identifies and eliminates from promotion any judges who lack neutrality
- Broader life experiences and backgrounds encouraged
- Legal training and their lengthy experience binds them to a set of professional ethics
Negatives of judicial neutrality
- Demographically unrepresentative (‘male, pale and stale’ - so more conservative bias)
- Growing judicial activism can be seen as lacking neutrality
- Judges are seen as ‘Establishment’
What is judicial independence?
Actions and decisions of judges shouldn’t be influenced by pressure from the executive and Parliament
All in all, how are judges made independent?
- 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
Positives of judicial independence
- Security of tenure (Appointed until retirement)
- Fixed salary (Parliament can’t threaten to reduce it as they don’t decide it)
- Appointments (appointed by JAC using a procedure free from political involvement)
Negatives of judicial independence
- Government retains some role in the final decision of appointing judges (could be abused)
- Growing trend of ministers being prepared to criticise judges rulings
What is judicial review?
Where judges review whether the actions taken, or decisions made, by a public body are lawful
- Ministerial decisions and actions can be declared unlawful when they are ‘ultra vires’
Is the Supreme Court influential? YES ARGUMENT
- Since HRA, the Supreme Court has increased its ability to protect citizens’ rights
- ‘final court of appeal’ - dealing with the most significant matters affords them significant power
- In freedom of information cases, the Supreme Court has upheld decisions to publish information against the wishes of minsters
Is the Supreme Court influential? NO ARGUMENT
- The Supreme Court cannot be pro-active - it must wait for cases to be brought before them (unelected)
- Supreme Court cannot overturn statutes even if they go against the ECHR (no ‘higher’ constitutional laws)
R v Horncastle [2009] - Supreme Court case
‘Hearsay’ statements from absent witnesses - not under oath or able to cross examine
UK government felt the stance posed a risk to justice ( SC justices agreed)
What are the four freedoms?
Free movement of workers
Free movement of goods
Free movement of capital
Free movement of services
What is Legal Sovereignty?
Person or body who makes laws and whose laws are final - recognised by courts
What is political sovereignty?
The location of real, exercisable, power and influence within the state, influenced by the accountability of Parliament to the people - political sovereignty
What is federal sovereignty?
A system of government where sovereignty is divided between central & regional bodies, each with their own separate spheres of power and authority
What is popular sovereignty?
The principle that government is created by, & subject to the will of, the people, who are the source of all political power and authority
What is pooled sovereignty?
Term used when states voluntarily decide to share decision-making powers, over a number of policy areas, in a system of international cooperation
What is Parliamentary sovereignty?
A form of legal sovereignty - Parliament has the ability to make, unmake or remove any law as it wishes
No Parliament can bind its successor, meaning…
any government could undo previous laws - even HRA
What does the absence of a codified constitution ensure?
There’s no higher authority than Parliament
What are some of the limits to Parliamentary sovereignty?
HRA 1998
Devolution
Pros of devolution
- Hasn’t altered the legal sovereignty of Parliament (UK remains a unitary state)
- Devolution Acts state that Parliament retains the right to make laws on any matter
Cons of devolution
- Was not a one-off event, subsequent Acts devolved more powers.
- Policy differences continue to multiply in Scotland, NI, Wales and England
Our fused executive and legislative branches means that…
the executive is sovereign
Pro and Con of Executive Dominance
pro - Sometimes the executive dominates, sometimes the Commons (never a constant situation)
con - A PM with a large majority in the Commons can enjoy considerable power
What are the key checks and balances on the executive in the UK?
- PARLIAMENT (core c&b) - HoC has the power to grant or withdraw confidence in the government. Provides scrutiny and accountability.
- COURTS - applying the law as made by parliament. Courts interpret, but cannot overturn, primary legislation. Play a more significant role through secondary legislation and prerogative powers.
- IMPARTIAL OFFICIALS (CIVIL SERVICE OR constitutional regulators) - CIVIL SERVANTS are required to maintain anonymity, neutrality, confidentiality, and permanence. UK constitutional watchdogs do not always have decision-making powers, but foster good practice and investigate and identify wrongdoing.
- MEDIA (and civil society) - report, analyse, and comment upon political activity. Scrutinises politicians and public officials
Which 3 parts are designed to uphold the doctrine of parliamentary sovereignty
The relationship between courts, parliament and the executive. Fusion of powers
What’s parliament’s role in legislation?
A bill is a proposed law which is introduced into Parliament. Once a bill has been debated and then approved by each House of Parliament, and has received Royal Assent, it becomes law and is known as an act. Any Member of Parliament can introduce a bill
Check and challenge the work of the Government (scrutiny)
Make and change laws (legislation)
Debate the important issues of the day (debating)
Check and approve Government spending (budget/taxes)
Roles of UK Parliament
What is a ‘declaration of incompatibility’?
If it’s believed that an existing piece of legislation is in conflict with the European Convention on Human Rights (Supreme Court can’t strike down laws due to Parliamentary Sovereignty)
