Relations between the branches Flashcards
4
The Supreme Court + its interactions with, and influence over the legislative and policy-making processes.
The SC argued that the government didn’t follow proper procedure during Brexit - as removal from the EU meant changes in the law - which the government lacks the power to do, SC said an act of parliament needed to be passed - article 50. Additionally - led to criticisms over people arguing SC is too ‘pro-remain’. However in the end parliament quickly passed the law.
The Judicial Review Act 2022 makes it harder for people to challenge the Government in court. It ends so-called ‘cart’ judicial review to ‘minimise delays’ in immigration, asylum and other cases that have already been refused permission to appeal by judges; an immigration tribunal can no longer seek a judicial review if it rejects an asylum application.
2,400 judicial reviews in 2022. Decreased since 2010. 2013 - 15,000 judicial reviews
2016 Miller Case - Gina Miller on Article 50 for leaving the EU, reinforced parliamentary sovereignty through unanimous agreement that parliament consent was needed to leave the EU. Led to questions about judicial bias
3
The Supreme Court + its interactions with, and influence over the legislative and policy-making processes - devolution
Scotland scrapped tuition fees in 2008, going against the Higher Education Act 2003 passed in the Westminster Parliament.
In 2023, the government threatened to withhold funding from South Cambridgeshire Council after it trialled a 4-day working week.
2022 IndyRef 2 stuck down by Supreme Court=
Scotland’s Gender Recognition Reform Bill (2022) vetoed by Government under Section 35 in January 2023, not Supreme Court
The aims, role and impact of the European Union (EU) on the UK government
Factortame case in 2000 demonstrated that EU law rules over the acts passed by parliament
Dev, Scot, SC
The location of sovereignty in the UK political system.
Sovereignty = ultimate power and no branch can overrule peacefully; Parliament is sovereign in the UK
If the Parliament is sovereign:
Devolution is asymmetrical and gives Parliament the ultimate right to veto
Devolution control repatriated back from Northern Ireland to Westminster Parliament during Stormont suspension (2022-24)Technically Parliament can retrieve power from devolved bodies and scrap parliaments and local assemblies (Devolution is not entrenched)
The Supreme Court can only interpret laws instead of making laws (as indirect laws) because of judicial independence (not exerting influence over legislation as they have moral authority and would face public pressure) - rulings are based on statute laws (uncodified constitution)
The Supreme Court has judicial power to prevent executive being ultra vires - the Supreme Court rejected prorogation in 2019 proposed by Johnson to prevent constitutional chaos in legislation
Popular sovereignty: Results of referendums are not legally binding
Referendum results act as advisory information for Parliament. Due to a lack of codified constitution, referendum results are not legally binded and statute laws can ignore the results and legislate against the public will in representative democracy
e.g. The Supreme Court does not back Holyrood and Scottish people will to start a second Scottish Independence Referendum because the devolved power is originated from Westminster (align with Parliament)
2023 Gender Recognition Reform Bill had stroke down by the Westminster Parliament: Stephen Flynn MP (SNP Westminster Leader) - This is a “collateral damage” to Scotland democracy
Local, judicial with eg, popular
If the Parliament is not sovereign/parliamentary sovereignty is dispersed:
Local sovereignty - it is inconceivable to reverse devolution because devolved bodies are democratically legitimate (formed by referendum approval)
e.g. devolution Acts (the Scotland Act 1998, 2016 (power to adjust tax); the Northern Ireland Act 1998 had a legitimate foundation from referendums:
1997 the Scottish Devolution referendum
Therefore: if Westminster would like to reverse devolution it definitely will cause political suicide and lose public support which challenges government status quo
Judicial sovereignty - it is a constitutional duty to keep power of executive in checks (fusion of power: executive sits in legislature/Parliament)
Increase in use of ECHR (European Convention of Human Rights) and the legally binded version - Human Rights Act 1998 -> can question if Acts are constitutional
e.g. Terrorist-Asset-Freezing Act 2010 (DNA recognition violated human rights: presumption of innocence, demonstrated protection of freedom); Civil partnership Act 2019: allowing heterosexual couples to register civil partnership -> oblige to make law amendments
Popular sovereignty - it is inconceivable to not firstly resort to people via referendum
Parliament should respect the results produced by electorates
Increase in use of referendum demonstrates that representative democracy is in decline: MPs and their constituents hold different view on issues (unrepresentative), e.g. EU referendum: 52% vote Leave while most of MPs prefer remain in 2016
4
Is there any evidence of judicial neutrality / independence being broken or becoming worse?
Broken numerous times around Brexit
Lack of social diversity - all but one are oxbridge educated, no BAME, all come from relatively similar backgrounds
Right wing critics say that it has an inbuilt liberal bias especially after the miller cases in 2017 and 20 19 where it ruled against the government
Media has undermined neutrality - judges faced extreme scrutiny from the press during the 2017 miller case - the Daily Mail found that 6 justices had personal relationships with people who had been openly supportive of the EU and 5 had expressed sympathetic views towards the EU
Politicians have attempted to politicise the judiciary - Johnson, after the 2019 miller case, announced the creation of the Constitution, Democracy and Rights Commission to look into reforming the SC and the judiciary, one proposal that was floated was that each justice should be confirmed by parliament like in the US where SC judges are nominated by the President and confirmed by the Senate
Johnson threatened “consequences” after the SC forced him to reopen parliament in 2019
Growing attack by the media - in 2016 the Daily Mail’s front page story called the 3 judges “enemies of the people”
5 (2 with eg)
Neutrality and independence is maintained
Judges have substantial legal training and have had long careers as barristers or judges whereby they have practised neutrality - they sign up for judicial neutrality when they become justices - they cannot make decisions without foundation in the rule of law, they’ve had years of legal reasoning and precedent
Peer Reviews protect neutrality - When a case concerns aspects covered by the ECHR, decisions may be referred to the ECourtHR for review + as the SC has no higher court to answer for in the UK, cases are often heard by at least 5 other judges which means that no single personal preference is likely to influence the final decisions as it has to be fully explained to other members
CRA 2005 greatly improved independence - separated the judicial and legislative branches by removing law lords and separated the 3 branches by reducing the role of the Lord Chancellor
The JAC weakened the government’s influence over appointments, gave judges the final say on 97% of appointments to the lower courts
SC is increasingly likely to challenge the government- 2012, 4 Zimbabwean refugees were able to stay in the UK when the government was trying to deport them + the Gina Miller cases of 2016 and 2019 - 2012 Abu Qatada case - but there were questions over neutrality - judges favour rights of individuals over security of state (declaration of incompatibility with prisoners voting)
SC is immune from outside interference - Contempt of Court Act bans the media from publishing information that could prejudice active court proceedings, protecting independence - in 2012 the Daily Mail and the Daily Mirror were fined £10,000 and had to pay a further £25,000 in costs for breaking contempt of court rules
Security of tenure - Judges cannot be removed from office based on decisions they make, only if they’re found to be corrupt can they be removed but this hasn’t happened yet
Sub Judice - any servant of the government cannot interfere with proceedings or even comment on a case in public as it is considered contempt of court
