Relationship between branches Flashcards
What are the three branches of government?
- Legislature (Parliament)
- Executive (PM, Cabinet, ministers, civil service)
- Judiciary (judges)
What is the rule of law?
The principle that everyone, including the government, must follow the law and be held accountable if they don’t.
What does parliamentary
sovereignty mean?
Parliament can make or unmake any law. It cannot bind its successors.
Describe the difference
between legal and political
sovereignty.
Legal sovereignty: formal power, usually where laws are made (Parliament)
Political sovereignty: Practical power, (usually governing party/cabinet/ prime minister)
(Parliament is not politically sovereign – it has legal right to make any law it wishes, but not always the political ability to do so)
Key features of the Supreme
Court
- Highest court in UK.
- Only Parliament can overturn decisions of Supreme Court by passing new legislation.
- Made up of 12 senior judges who have extensive legal experience.
- Set up by Constitutional Reform Act 2005 to replace previous system where the most senior judges, the law lords, sat in HOL.
Supreme Court appointment
process.
Appointed by independent panel of senior legal figures so that it can be independent of political pressure.
What is judicial neutrality?
Why important? How is it
protected?
- Judges should not be influenced by their personal opinions.
- Rule of law demands everyone is treated equally, enhances independence, ensures public confidence.
- Protected by: judges are not allowed to join political parties, cases are heard by at least 3, usually 5, judges, reasons for rulings are published, oath.
What is judicial
independence? Why
important? How is it
protected?
- Judges should be free from political interference and criticism.
- Prevents abuses of power and knee jerk reactions to public opinion.
- Protected by: separation of powers, independent appointments process, security of tenure (appointed for life), independent pay body, sub judice rules.
Ways in which Supreme
Court is influential.
- UK’s most senior court.
- Its interpretation of the meaning of the law is final.
- If it declares an Act of Parliament is incompatible with ECHR this places very strong moral/political pressure on Parliament to change the law.
- SC determines the location of sovereignty in the UK
- SC can declare when a public body has acted illegally by acting beyond its powers (ultra vires)
Judicial activism
Since HRA and CRA, the Supreme Court has become increasingly involved in political decisions (Art 50, prorogation, immigration, terrorism)
leading to criticism of judicial activism or political motivation. However, there have been criticisms from both sides of political spectrum.
Ways the Supreme
Court’s power/influence is
limited.
- Since UK Parliament is sovereign and in absence of an entrenched constitution, the Supreme Court cannot strike down an Act of Parliament. Government can choose to ignore statements of incompatibility.
- Although the Supreme Court can quash the decision of a public body for acting beyond its authority, Parliament could then legislative to give that body the legal powers it did not have before.
- Supreme Court cannot initiate cases.
- The elected branches passed HRA, CRA and devolution acts. SC is just delivering on the role it was set by Parliament in those laws. Moreover, none of them are entrenched, so its powers can be curtailed by Parliament at any time.
What is meant by an ‘elective
dictatorship’?
The idea, first expressed by Lord Hailsham in 1976, that if the governing party enjoys a parliamentary majority, it is able to drive through any legislation it wishes.
Ways Parliament can
constrain the Executive.
- Power to dismiss a government in a vote of no confidence.
- HOC can veto legislation.
- HOL can delay legislation by a year.
- Can amend legislation.
- Vocal opposition/ backbench rebellion.
- Scrutiny by departmental select committees, liaison committee and parliamentary questions.
Ways Executive can
control Parliament.
- Fusion of powers: Government usually has a majority in the Commons as well as a large payroll vote, can therefore expect to win every important vote.
- Promise of jobs/ threat of sanctions used by whips to ensure loyalty.
- Government controls timetabling for legislation, limiting time for debate.
- HOL’s powers are limited and it lacks legitimacy to challenge HOC
- Can delay but not veto.
- Cannot vote on budget.
- Salisbury Convention means HOL cannot block manifesto commitments.
How has the relationship between Executive and Parliament changed in recent years?
- Constitutional reforms: election of select committee chairs and members has reduced patronage power of whips and increased effective scrutiny; Backbench Business Committee increased time available for non-govt business (eg debate on Petitions such as Esther Ransome’s on assisted dying April 2024); Liaison Committee detailed scrutiny of PM 3x a year. Also Speakers have increasingly allowed Urgent Questions.
- Coalition: minority and small majorities (reliance on Confidence and Supply agreement with DUP) 2010-19
- Covid pandemic: emergency powers often relying on secondary legislation (Speaker called this ‘a total disregard for the House’)
- Brexit: parties deeply divided, public view (as expressed in referendum) different to Parliament’s, Supreme Court rulings on Article 50 and Prorogation, use of secondary legislation to retain, repeal or amend retained European legislaton.
