Relationship between Branches

Question 1

Define “separation of powers”

Answer 1

Each government branch should operate separately from each other, and act as a check on each other.

Question 2

Define “judiciary”

Answer 2

• The branch of government that is responsible for the adjudication (the act of judging a case, competition, or argument, or of making a formal decision about something) of law and setting law disputes between different groups of people
• The judiciary SHOULD operate independently of the government
• The UK does not have a single unified judiciary, due to devolution.

Question 3

Outline the structure of the judiciary system pre-2005

Answer 3

• The Head of the Judiciary was the Lord Chancellor, who was also the Speaker of the House of Lords and a member of the cabinet, meaning the judiciary was heavily involved in government decisions.
• The House of Lords was therefore the highest court in the land with the Law Lords sitting in it and being able to legislate and at the same time judicate.
• The Judges were appointed by the government of the day.

Question 4

Explain effects the 2005 Constitutional Reform Act had

Answer 4

• The Lord Chancellor was removed from the cabinet and instead the title was renamed into Secretary of State for Justice, who was no longer head of the Judiciary.
• The Supreme Court was established, replacing the judicial function of the House of Lords
• The Supreme Court was from 2009 onwards physically detached from the House of Lords
• From now on, Law Lords cannot sit and legislate in the HoL.
• The Judicial Appointments Commission was set up so that judges were no chosen by the government.

Question 5

Explain the two types of law

Answer 5

Criminal law – deals with crimes against the state, where the aim is to punish the individual/group that have broken the law

Civil law – deals with disputes between individuals or groups in society, where the aim is to win compensation

Question 6

Name key facts about the Supreme Court

Answer 6

• Established in 2009 as a result of the 2005 Constitutional Reform Act
• physically separated from Parliament
• Operates in all four nations
• Hears cases on public and constitutional importance

The Court has four main roles:
- final court of appeal in E, W and NI
- Hears appeals on issues of public importance surrounding arguable points of law
- Hears appeals from civil law cases in E, W, NI and S
- Hears appeals from criminal cases in E, W and NI

Question 7

What are the constitutional and political functions of the Supreme Court?

Answer 7

• Determining the meaning of the law, so setting judicial precedents which must be followed in future cases
• Deciding whether a public body, including government, has acted beyond its authority (ultra vires)
• Establishing where sovereignty lies within the UK
• Declaring when government has acted in defiance of the Human Rights Act

Question 8

Outline the system around the appointment process of supreme court judges

Answer 8

There are 12 members of the Supreme Court, but an odd number of judges hear a case in order for a majority to be passed

The President of the Supreme Court is the most senior judge

When a place opens, the Judicial Appointments Commission receives nominations. After that, the Lord Chancellor either accepts or reject a nomination (can only reject 1 nomination). If he accepts, the monarch and the PM have to accept too.

Like all judges, they must retire at age 70

They are not permitted to sit in the HoL until their tenure (time of holding an office) in the Supreme Court ends.

Question 9

Describe what is meant by judicial independence

Answer 9

Judges should not be influenced by the Executive

Question 10

Is judicial independence upheld?

Answer 10

Yes:
- The Head of the Judiciary no longer sits in the Cabinet
- Judges are appointed by the independent Judicial Appointments Commission
- Decisions by judges are immune from legal actions and are not subject to criticism from Parliament
- The Act of Settlement (1701) ruled that both houses are needed to remove a senior judge

No:
- After the 2017 decision of the Supreme Court surrounding Brexit and Article 50, many ministers criticised the judiciary´s decision, which could be seen to be going against judicial independence
- In extreme cases, the government could have power over who is allowed to be a member of the Supreme Court

Question 11

Define judicial neutrality

Answer 11

The decisions of judges should not be politically motivated or politically leaning. Law alone should make the basis of decisions.

Question 12

Is judicial neutrality upheld?

Answer 12

Yes:
- The Judicial Appointment Commission means that appointments are not made by the government of the day.
- The majority of members are Crossbenchers in the HoL
- Personal views can be restricted as appeals can be made
- Judges cannot be members of political parties
- Judges salaries are being determined by the Senior Salary Review Body rather than Parliament

No:
- J.A.G Griffiths criticised the judiciary as being influenced and controlled by an elite
- There is a lack of ethnic and gender diversity within the Supreme Court
- Growing judicial activism can be seen to reduce neutrality

Question 13

What does “tenure” mean?

Answer 13

Judges cannot be removed based on a decision they made.

Question 14

Outline what Judicial Review means

Answer 14

This describes the act of reviewing actions of government ministers and officials (most often regarding human rights). This is to ensure they work within the law.
An action that is found to be unlawful or beyond one´s power is declared as “ultra vires”

Question 15

What does “ultra vires” mean?

Answer 15

Latin = “beyond the power”

Question 16

Outline what is meant by Declarations of Incompatibility

Answer 16

If a law is in conflict with the ECHR of 1998 the Supreme Court can state that parliament should modify the law to bring it into line with HRA.

Because the UK constitution being uncodified, the Supreme Court cannot modify legislation by themselves.

Although, Parliament is not forced to make the change.

Question 17

Outline the “Gina Miller vs Brexit Secretary 2016” Case

Answer 17

In the 2016 Brexit referendum the British public voted 52% to 48% to leave the EU.
However, the result of referendums in the UK are not legally binding – This meant there was no legal precedence for the UK government to initiate the Brexit process (Legal precedent means that a decision on a certain principle or question of law has already been made by a court of higher authority, such as an appeals or supreme court)
Gina Miller asked whether the power to invoke Article 50 to start the process for the UK to leave the EU lay with the executive or Parliament.
In 2017, the Supreme Court ruled that Parliament did need to give its consent – This meant that a parliamentary vote by MPs was required to initiate the withdrawal process.

Question 18

Outline the “Gina Miller vs UK Government 2019” Case

Answer 18

Two months after Johnson became Prime Minister, he intended to prorogue parliament
Johnson proposed to prorogue parliament for 5 weeks instead of 18 day. However, it was noted that the return date was just days before the UK was scheduled to leave the EU.
Many saw this action as removing Parliament´s ability to scrutinise the Executive and Brexit withdrawal process.
Gina Miller challenged these action because it prevented Parliament from carrying out their constitutional duties.
The Supreme Court ruled in favour of Miller and stated that it is unlawful “because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification”
As an ultra vires act, parliament´s prorogation was instantly ended, and MP´s returned to Westminster the following day.

Question 19

What does it mean to prorogue parliament?

Answer 19

The official term for shutting down Parliament is “proroguing”. During this period, there are no sittings in the House of Commons, or the House of Lords. That means MPs and peers do not hold debates, or vote on laws

Question 20

Define the term “Elective Dictatorship”

Answer 20

Refers to the executive dominating Parliament, and therefore reducing Parliament´s ability to hold it to account.
For example, Tony Blair in 1997 or Margaret Thatcher in 1979 both had very large majorities and were therefore able to dominate Parliament.

Question 21

What are Lobby Fodder?

Answer 21

MPs who vote according to the party line but otherwise contribute little or nothing.

Question 22

How does the executive dominate parliament?

Answer 22

• They provide the majority
• They organise the agenda
• They determine the legislative programme
• They shape the outcome and timing of legislation
• They almost always win
• They monopolise the time of the House
• They control the flow of information to the House

Question 23

What causes the dominance of the executive over parliament?

Answer 23

• The FPTP electoral system, which tends to produce single-party majority governments
• The use of whips, meaning parties are very strict in how they vote
• Government domination of the executive timetable (the PM can set the agenda of cabinet meetings)
  . The Salisbury Convention, meaning the HoL cannot oppose manifesto pledges.

Question 24

What are ways in which Parliament can scrutinise the executive?

Answer 24

• Question Time (most famously PMQ)
• Debates
• Early Day Motions
• Parliamentary committees
• Motions of Confidence

Question 25

What are arguments against the idea that the executive dominates parliament?

Answer 25

• Increased popularity of minority parties
• Rebelling backbenchers
• Parliamentary committees can be chaired by opposition MPs
• The media brings the government´s actions to the public eye

Question 26

How is the power of backbenchers limited?

Answer 26

• Whips can blackmail rebelling backbenchers which means that they threaten rebelling MPs that their constituencies could lose investments if they continued to rebel (Boris Johnson´s government)
• Whips act as a bridge between the backbenchers and the senior ministers and are therefore able to influence who becomes the next higher position

Question 27

Name the types of sovereignty

Answer 27

• Legal sovereignty
• Political sovereignty
• External sovereignty
• Internal sovereignty
• Zero-sum sovereignty
• Pooled sovereignty

Question 28

Define legal sovereignty

Answer 28

the legal right to exercise control over a country (sovereignty in theory)

Question 29

Define political sovereignty

Answer 29

the ability to exercise sovereignty (sovereignty in practice)

Question 30

Define external sovereignty

Answer 30

the right to make relationships with other states and organisations

Question 31

Define internal sovereignty

Answer 31

the ability for a government to make laws affecting its citizens

Question 32

Define zero-sum sovereignty

Answer 32

the idea that the more sovereignty you give away, the less you have, and vice versa

Question 33

Define pooled sovereignty

Answer 33

sovereignty that is shared within a group or organisation, such as the EU

Question 34

Define parliamentary sovereignty

Answer 34

• A form of legal sovereignty, it refers to the ability for parliament to make, remove or edit any law it wishes
  No parliament is able to bind its successor, and any subsequent parliament can remove or repeal previous bills
• Parliament cannot be challenged by another institution over an Act of Parliament
• Transfer of power can be reserved (such as devolution)
• As the UK constitution is uncodified, it does not act as a higher authority than parliament.

Question 35

Evaluate parliamentary sovereignty

Answer 35

Enhanced parliamentary sovereignty:
- the HRA can be repealed by parliament and the Supreme Court cannot overrule parliament
- Devolution can be reserved, and power returned to Westminster
- the UK remains unitary, so devolution has not altered the UK´s legal sovereignty

Limited parliamentary sovereignty:
- Judges have had the power to declare Acts of Parliament incompatible
- The interpretation pf judges must be in line with the ECHR
- Power of Parliament is reduced through power given to Scotland, Northern Ireland and Wales
- Devolution is difficult to stop

Question 36

Define “parliamentary privilege”

Answer 36

(a constitutional part) the privilege MPs have to be able to speak freely in the two houses without the fear of being prosecution.

It also protects Parliament´s internal deliberations from being interfered with by the courts – “Exclusive cognisance”

Question 37

What two key elements does parliamentary privilege regulate?

Answer 37

• Freedom of speech – MPs cannot be sued for anything that they say as part of any proceedings in either House or any of its committees.
• Freedom of each House to regulate its own affairs

Question 38

Why is parliamentary privilege significant?

Answer 38

Without parliamentary privilege, debate and discussion could well be silenced for fear of legal repercussions.

Question 39

Outline John Hemming´s case of parliamentary privilege

Answer 39

John Hemming named the footballer Ryan Giggs based who was accused of having an extramarital affair with a glamour model, even though the court ruled that the media cannot use his name. However, John Hemming relied on the principle of parliamentary privilege which, in this example, sets him above the law in some way.
This started a debate about whether parliamentary privilege is a privilege MPs should have or not.

Question 40

Outline Heather Brooke´s case of parliamentary privilege

Answer 40

Heather Brooke requested (under the freedom of information act) for a list of MP´s expenses in 2005. When the expenses were published, several MPs faced criminal charged for fraudulent claims. Three former Labour MPs attempted to invoke parliamentary privilege, arguing that any investigation or sanction lay with Parliament and not the civil courts. The Supreme Court dismissed their case in 2010, arguing that parliamentary privilege did not cover “ordinary” alleged crime.

Question 41

Explain the historical background of parliamentary privilege

Answer 41

Parliamentary privilege was initially established to protect MPs and peers from the power of the monarch. Parliament wanted to be autonomous and legally answerable only to itself.

Question 42

Outline the Supreme Court case “Al Rawi and other vs The Security Service and others (2011)

Answer 42

When former detainees of the American prison Guantanamo Bay claimed that the British security service shared responsibility for their imprisonment and ill treatment, the British government argued that the evidence of the heads of security should not be given in public in case it breached national security. The Supreme Court decided in favour of the detainees a departure from the principle of open and natural justice which are essential features of a common law trial.

Question 43

Outline the Supreme Court case of R (on the application of UNISON) vs Lord Chancellor (2017)

Answer 43

In 2017 the trade union UNISON brought a case to the Supreme Court declaring that the government´s introduction of employment tribunal fees was unlawful. The Supreme Court agreed that the fees risked denying justice to those on low incomes and so were discriminatory. In their judgement the justices declared: “The Fees Order is unlawful … because it has the effect of denying access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed.

Question 44

What does Ultra vires mean?

Answer 44

Means “beyond one’s legal power or authority”
- It is used to describe an act that requires legal authority but is done without it
- The opposite of “ultra vires” is “intra vires,” which means “within the powers”

Question 45

How did the balance of power between Parliament and the Executive change?

Answer 45

The main factors suggest that Parliament has become more significant and powerful:
- it must be consulted over measures such as military actions
- the right to independently select the speaker and the chairs of select committees
- increased assertiveness of the House of Lords
- the ability of the Backbench Business committee to set part of the parliamentary agenda

However, the executive is still dominant because:
- the size of the payroll vote of ministers increased
- the control of backbenchers through whips remains strong

Question 46

Arguments that the executive does not dominate parliament

Answer 46

• Parliament can defeat the government by voting against legislation
• The HoL is increasingly more balanced (Labour and Conservative)
• Because select committees can appoint their chairs, who are independent from the government, they are increasingly powerful in scrutinising
• General debate can raise awareness in the public about issues
• backbench rebellions are now more common

Question 47

Define “payroll-vote”

Answer 47

The term ‘payroll vote’ has traditionally been used to describe MPs who hold positions from which they would have to resign in order to oppose the government. This includes paid and unpaid positions, and comprises positions across all seniority levels.

Question 48

How has sovereignty moved been different branches of government?

Answer 48

It lies within the executive because of the dominance it has over Parliament. However, majorities are increasingly more unlikely which makes Parliament more able to challenge the government.

Parliament has also the power to create devolved bodies and grant them powers, but retains control over them.

The Supreme Court can challenge parliamentary legislation through judicial review or declaration of incompatibility. However, the Supreme Court can also be abolished by Parliament.