relationships between the branches Flashcards

Question

what is meant by judicial precedent?

Answer 1

Judicial precedent refers to when a senior judge establishes a new interpretation of law, which means for all cases with the same material facts to follow this interpretation. Judicial precedent also refers to stare decisis 'let the decision stand' It is vital that Justices of the SC are independent of the legislature and the executive. The rule of law depends on judges not being influenced by the government. Instead the decisions that they reach should be entirely based on the principles of justice. Judges are expected to be neutral, which means that their judgements should never be influenced by any social or political pressure.

Answer 2

Critics of the SCs ability to provide justice argue that its membership is so privileged that the decisions it makes are unlikely to reflect the way in which the law impacts on modern society. Most Justices of the SC have been privately educated and attended Oxford or Cambridge university, and so these rarefied experiences could make them ill-suited to interpreting the law in a contemporary setting. In short, the privileges and prejudices of their class may hinder the Justices from being neutral. Men also dominate the SC. In 2019, for example, there were just three female justices on it, further making it an unrepresentative body. That the members are usually from such an elite background has traditionally led to claims that they tend to favour the Establishment. In 1977, John Griffith, a socialist academic, argued in ‘The Politics of the Judiciary’ that socially and politically conservative judges always favour the status quo. The judiciary was seen largely as a conservative body whose members came from the same social and political background as members of successive Conservative governments. One of the most famous judges of the (20th, Lord Denning (1899-1999) sided with the government on a number of occasions. In the Hosenball case (1977), for example, he boldy asserted, ‘In some parts of the world national security has been used as an excuse for all sorts of infringements of individual liberty. But not in England.’

Answer 3

The government also retains some political influence over the appointment of Justices of the SC. The Constitutional Reform Act 2005 merged the position of Lord Chancellor with that of justice secretary. The justice secretary, who does not need to have a legal background, is a member of the cabinet. Despite this, the selection committee for new Justices of the SC has to pass their recommendations to the justice secretary, who can request further information and retains the right to reject a nominee. This power would only be used in exceptional circumstances and only one nomination can be rejected, but it does show how there is not a complete separation of powers in the UK. Once the justice secretary is satisfied then the PM will ask the monarch to make the appointment. The high-profile involvement of the SC in cases concerning the government also risks it being pulled into major political disputes, which could compromise its neutrality. This was the case over Brexit, as well as in major decisions involving the interpretation of human rights legislation.

Answer 4

- Opened in 2009, the SC is housed in Middlesex Guildhall and directly faces Parliament on Westminster Square. This physical separation from Parliament, is in itself an important statement of the court’s political independence. - A barrister or a solicitor may be permitted to be a member of a political party, but once appointed, a judge, must abandon any political associations or ambitions. - The salaries of judges are not determined by Parliament. Instead the government follows the recommendations of the Senior Salaries Review Body and payment is made directly from the Consolidated Fund. This mechanism ensures that no government could seek to influence the judiciary through providing it with financial incentives to look favourably on its policies. - Since the Act of Settlement in 1701 which established the Protestant succession to the Crown, a senior judge can only be removed by a resolution passed by both houses of Parliament. This means that they have, in effect, security of tenure and so cannot be removed from office by the government. As a result, judges can act according to how they think the law should be interpreted without fearing any consequence of loss of office. - The Constitutional Reform Act 2005 further promoted the independence of the senior judiciary by removing the Law Lords from the Appellate Committee of the HoL and establishing the SC as a separate institution from the legislature. - The Constitutional Reform Act 2005 was also designed to make appointments to the judiciary more transparent. Previously, the Lord Chancellor had advised the PM through ‘secret soundings’ of senior judges. This, it could be argued, led to a self-perpetuating socially elitist judiciary. In its place a new Judicial Appointments Commission was established, which selects judges on their merit and good character, as well as considering the importance of encouraging diversity within the judiciary. - Appointments to the SC are decided by a specifically summoned five-person selection committee comprising the Lord President of the SC, a senior judge and representatives of the Judicial Appointments Commission. If candidates for the SC are deemed to be of equal merit, then the selection committee may ‘prefer one candidate over the over for the purpose of increasing diversity within the group of persons who are judges in the court.’ This is in total contrast to the US, where the president appoints the membership of the SC with the consent of the Senate – this influence makes the US SC a much more politically partisan body than the UK SC. - Since court cases are generally open to the public and judgements are in the public domain, any prejudice or bias shown by a judge would be quickly publicised in the media. - When a case is being heard, it is said to be ‘sub-judice’. This means that Parliament cannot express an opinion as this would breach the separation of powers and undermine judicial independence. If a member of the legislature or executive did express an opinion, this would be contempt of court.

Answer 5

The claim that socially conservative judges are likely to support the government may have once been true. Judges were not expected to challenge the authority of the government in any significant way. They saw themselves as servants of the state rather than an equal partner. However, this relationship has changed considerably. Recent cases suggest that the SC is prepared to confront Parliament and the executive. For example, in the Gina Miller case, it declared that the government did not have the authority to begin the process of withdrawing from the EU. In one of the last rulings of the Appellate Court in the HoL, involving the possible deportation to Jordan of a radical Islamist, the principle of judicial neutrality was upheld. Labour home secretary David Blunkett (2001-04) was especially critical of senior judges for stopping him limiting the rights of asylum seekers: ‘I just want judges that live in the real world as the rest of us.’

Answer 6

The changing relationship between the judiciary generally and specifically the SC and the executive, is a result of the following factors: - the growth of judicial review since the 1960s - the rise of liberal ideology in the UK from the 1960s onwards, including the growth of what is sometimes known as the ‘rights culture’ - the appointment of a series of liberal-minded senior judges since the 1990s - the passage of the Human Rights Act in 1998, giving judges a codified statement of human rights, which could be used to protect citizens against state power - the Constitutional Reform Act of 2005, which improved the independence of the judiciary in general. Therefore, the UK judiciary no longer sees itself as subordinate to the executive. Judges are no longer reluctant to challenge state power and to assert the rights of citizens. In short, the judiciary has become something of a counterbalance to executive power. On the other hand, government does have a claim to greater authority than the judiciary. As long as it can control its majority in Parliament, it can use the sovereignty of Parliament to reverse any decisions made by the judiciary. However much they may protest, the judges must by law, enforce the will of Parliament.

Answer 7

Parliament in the UK is sovereign. This is a fundamental feature of the country’s constitutional arrangements. Recent cases suggest that the SC is prepared to confront Parliament and the executive, however it remains that the judiciary is a subordinate body. The judges are simply not in a position to defy the will of the UK Parliament. Furthermore, the UK Parliament is omnicompetent. This means it is able to do whatever it wants, to pass any law and to expect to have that law implemented and enforced. No matter how abhorrent or undesirable the judges may feel a law is, they must enforce it. They may pass an opinion on the law and they may recommend change, but that is as far as it goes. Judges have to take into account the wishes of Parliament when interpreting law. When determining the real meaning of statue law, judges will look back at the original proceedings in order to establish what Parliament intended. It is not for the judges to decide what is desirable, but only what Parliament thought was desirable. Of courses, if judges make a ruling of which government and/or Parliament does not approve, Parliament always has the option of amending a statute or passing a new one in order to correct what the judges have done. Such a circumstance occurred in 2010. The SC ruled that the government did not have the power to freeze the bank assets of terrorist suspects. PM Brown was incensed but had to accept the judgement temporarily. In the event, though, a new statute was passed later the same year (the Terrorist Asset-Freezing Act 2010) granting such a power to the government. The will of the Parliament prevailed. The SC could do nothing about it. Furthermore, since the UK does not have a codified constitution, the SC cannot refer to a higher constitutional law when delivering its judgements. This makes the UK’s SC less powerful than the SCs of countries which have a codified constitution.

Answer 8

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

Answer 9

Determining the meaning of the law: As the final court of appeal, decisions in the SC carry greater weight in developing the meaning of the law. In R V Jogee (2016), the SC overturned the principle of ‘joint enterprise’, which was established in common law whereby those who were part of a group which incited a murder could be convicted of the crime in the same way as the one who had actually done the killing. Instead, the SC stated that there had to be ‘intent to kill’ shown if members of a group were all held guilty of murder. This judgement opened the door to many similar appeals by convicted murderers in joint enterprise cases. It also means that judges in similar cases will have to be more careful in deciding whether an accomplice should be found guilty of a crime if someone else actually committed it. In a number of cases, the SC has also had to determine the extent to which the Human Rights Act impacts on the individual’s relationship with the state.

Answer 10

Deciding whether a public body has acted beyond its authority: During a judicial review of the actions of a public body, the SC can decide whether the body has acted beyond its authority, ‘ultra vires’. For example, in 2016, the SC stated that when he was justice secretary, Chris Grayling had acted ultra vires when he amended the Legal Aid Act to restrict civil legal aid to people who had lived continuously abroad for 12 months. The SC stated that a decision as important as this should have been debated in Parliament and so Grayling had not the authority to introduce it through secondary legislation.

Answer 11

Establishing where sovereignty is located within the UK: Given how the location of sovereignty can be disputed, the role of the SC in establishing where sovereign power lies is crucial. This was notably demonstrated in the Gina Miler case (2017): R.Miller v Secretary of State for Exiting the European Union (2017) The Gina Miller case demonstrates the constitutional significance of the supreme court. Following the EU referendum on 23 june 2016, the government claimed that it could begin the process of leaving the European union through the exercise of the royal prerogative. However on 24th january 2017, the supreme court by a majority of 8-3, upheld an earlier decision taken in the high court which stated that the government did not have the authority to do this. This was because parliament in 1972 had enacted the legislation which had taken the UK into the EU and so it was parliament's responsibility to enact legislation to remove the Uk from membership of the EU. In addition, since the withdrawal would remove certain legal rights from UK citizens this could not be done without the consent of parliament. As the president of the supreme court, Lord Neuberger stated in the supreme court's judgement: 'Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights... The UK's constitutional arrangements require such changes to be clearly authorised by parliament' The fact that the high court and then the supreme court had both declared that parliament must consent to the government opening negotiations to withdraw from the EU was seen by some supporters of Brexit as an attempt to subvert the result of the referendum. The daily mail ran a highly controversial front cover condemning as 'enemies of the people' the high court judges who stated that parliament must be consulted. Neither court was doing this. Instead, the Gina miller case clarified the following vital constitutional principles: - The supreme court can determine the occasions on which the government can deploy the royal prerogative - the government must consult parliament if it seeks to abolish rights which parliament has already bestowed - claims by the government that the vote to leave the Eu in 2016 referendum gave the government the right to begin the process was illegal, since the result of a referendum is legally non-binding The way in which the Miller case upheld parliamentary sovereignty against claims that the result of a referendum could empower the government to ignore parliament makes it one of the most significant constitutional decisions of the recent years

Answer 12

Neither court was doing this. Instead, the Gina miller case clarified the following vital constitutional principles: - The supreme court can determine the occasions on which the government can deploy the royal prerogative - the government must consult parliament if it seeks to abolish rights which parliament has already bestowed - claims by the government that the vote to leave the Eu in 2016 referendum gave the government the right to begin the process was illegal, since the result of a referendum is legally non-binding The way in which the Miller case upheld parliamentary sovereignty against claims that the result of a referendum could empower the government to ignore parliament makes it one of the most significant constitutional decisions of the recent years

Answer 13

Declaring when government has acted in defiance of the Human Rights Act: Due to the principle of parliamentary sovereignty, the judges cannot strike down an Act of Parliament. However, the Human Rights Act states that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. As a result, there is the expectation that Parliament should legislate in accordance with the ECHR. If this is not possible then the judges can issue a formal statement of incompatibility, which will put significant pressure on the government to amend the law. The Belmarsh case (2004) provides a classic example of this. In 2004, the Blair government used the powers given to it by the Anti-Terrorism Crime and Security Act 2001 to hold foreign terrorist suspects indefinitely without trial. The Law Lords declared that this was discriminatory according to the ECHR since British terrorist suspects were not being treated in the same way. The government accepted the ruling. However, soon after, Parliament legislated to introduce control orders, which enabled the government to monitor the whereabouts of foreign terrorist suspects in a different manner. This shows that, although a declaration of incompatibility can have significant moral influence, Parliament’s power to circumvent the judiciary is still great.

Answer 14

FOR ARGUEMENTS: - The SC is the UK’s most senior court and final court of appeal. - The Justices of the SC are the most senior judges in the UK and their interpretation of the law is final. - If the SC declares a formal statement of incompatibility between an Act of Parliament and the ECHR, that will put significant political pressure on the government to amend the law. - The SC also determines the location of sovereignty in the UK and can declare when a public body has acted illegally by acting beyond its authority (ultra vires).

Answer 15

AGAINIST ARGUEMENTS - Since the UK Parliament is legally sovereign, the SC cannot strike down an Act of Parliament. - The SC cannot initiate cases. It only determines cases which are brought to it. - The government could ignore a declaration of incompatibility. - Although the SC interprets the meaning of the law, it is also bound by what the law states. - Although the SC can quash the decision of a public body for acting beyond its authority, Parliament could then legislate to give that body the legal powers which it did not have before.

Answer 16

- rule of law - judicial independence - judicial neutrality

Answer 17

THE RULE OF LAW: The rule of law is a key doctrine of the UK constitution under which justice is guaranteed to all. Dicey saw the rule of law as one of the ‘twin pillars’ of the constitution, the other being parliamentary sovereignty. According to Dicey, the rule of law has three main strands: - No one can be punished without trial: Although this makes sense in theory, it is not always maintained in practice e.g. terrorist suspects have been subject to a range of punishments, such as indefinite detention, control orders and freezing of their assets, under new measures passed since 2001. - No one is above the law and all are subject to the same justice: A principle that should hold true in all liberal democracies, however some people have always been effectively above the law, including the monarch, foreign ambassadors and MPs. - The general principles of the constitution result from judges’ decisions rather than parliamentary statute: While the decisions of judges (case law) help to define the UK’s constitutional arrangements, parliament remains sovereign and any legal precedent can be overturned by an Act of Parliament.

Answer 18

Judicial independence is a key principle of a democracy. The rule of law clearly demands that judges should operate with a high level of independence. It is important for a number of reasons: - Judges need to be able to enforce the rule of law (equality under the law) without any external pressure. - Judges hear cases of political importance involving the government itself, so they must not be subject to pressure from government if they are to give a neutral judgement. - Judges must be able to protect the rights of citizens without fear of retribution if they defy government wishes. - The judiciary is, in some cases, a key check on executive power.

Answer 19

Judicial independence is upheld in six key ways: -‘Security of tenure’ enjoyed by judges: Judges are appointed for life, limited by the requirement that they must retire by the age of 75 - so they cannot be dismissed if the government disagrees with their judgements. Members of the senior judiciary can only be removed as a result of impeachment proceedings requiring a vote in both chambers. - Guaranteed salaries paid from the Consolidated Fund: Judges cannot have their incomes threatened as a way of controlling them if they make decisions against government wishes – they are paid automatically from the Consolidated Fund. -The offence of contempt of court: Under sub-judice rules, the media, ministers and other individuals are prevented from speaking out publicly during legal proceedings. This requirement is designed to ensure that justice is administered fairly, without undue pressure being bought to bear by politicians or the public in general. - Growing separation of powers: The downgrading of the post of Lord Chancellor and the creation of the SC enhanced the separation between the senior judiciary and other branches of the government. - Independent appointments system: The Constitutional Reform Act (2005), saw the creation of the Judicial Appointments Commission (JAC) which is independent of government. This brought greater transparency to the process of appointments to avoid accusations of bias. - Training and experience of senior judges: Most senior judges have served as barristers and come to the bench having achieved much status. It is argued that they are unlikely to defer to politicians or public opinion as this would compromise their judicial integrity

Answer 20

Judicial independence does not guarantee judicial neutrality because judges may still allow their personal views to influence the way they administer justice. However, the promise of a universal application of the rule of law requires that such bias is not allowed to influence their judicial decisions.

Answer 21

- The relative anonymity of senior judges: Until recently, judges rarely spoke out publicly on issues of law or public policy, and senior judges are still expected to avoid being drawn into open defence of their rulings or criticise government. - Restriction on political activity: Although judges retain the right to vote, they are not supposed to campaign on behalf of a political party or pressure group or make public their political views. - Legal justifications of judgements: Senior judges are expected to offer a legal explanation/justification for their decisions – this in itself, will limit personal bias. Decisions in the SC are published in full on the court’s official website, along with press summaries of significant cases. - High-level training: Judges are part of a highly trained profession regulated by the Law Society. Senior judges have served for years as barristers and their elevation to the higher ranks of the judiciary reflects a belief that they are able to objectively deliver justice. Although the security of tenure enjoyed by senior judges makes it difficult to remove those whose neutrality is questioned, their performance could be monitored, and they could be moved away from serious cases.

Answer 22

Critics point to the way in which senior judges have been drawn into the political fray in recent years, with the suggestion that the passage of measures such as the Human Rights Act (1998) has resulted in the politicisation of the judiciary. However, while some see this increasing public profile and increased conflict between senior judges and politicians as a threat to judicial neutrality, it could just as easily be interpreted as evidence of growing independence and neutrality – not least because senior judges appear increasingly willing to take on the political establishment in defence of civil liberties.

Answer 23

EUROPEAN UNION LAW AND THE SUPREME COURT: Under the European Communities Act of 1972, the UK incorporated the Treaty of Rome into UK law. The effect of this, was to give European laws precedence over conflicting UK statutes, whether past of present. This meant that the UK government could be called to account at the European Court of Justice (ECJ). However, in the wake of the Factortame case (1990), UK courts have been able to suspend UK statutes that appear to be in violation of EU law, at least until the ECJ is able to make a final determination as to the legality of the statute in question. The case took its name from a Spanish-owned fishing company, Factortame Limited, which had challenged the legality of the Merchant Shipping Act 1988 under European law. (This power will disappear when the UK leaves the EU).

Answer 24

THE SC AND RIGHTS: The SC has a role in controlling the power of the government and establishing the meaning of law alongside Parliament. But it has another role: this is the protection of rights in the UK. It does this together with the European Court of Human Rights in Strasbourg, France. It protects human rights by: - Deciding whether a public body, including the government has acted beyond its authority, through cases of ultra vires. Here the SC will refer to both the European Convention on Human Rights, which is binding in the UK, and UK law, either by statute or common. - An appeal may be based on a claim that the rule of law has not been applied in a case or a decision. - In common law cases, the court examines whether a common law right has been abused.

Answer 25

THE EUROPEAN COURT OF HUMAN RIGHTS: Where there has possibly been a breach of the European Convention, the case may be taken to the European Court of Human Rights. This court, made up of judges from different European countries, will examine cases in the light of their interpretation of the meaning and scope of the convention. Their decision is final. The table shows cases brought from the UK to the European Court of Human Rights in recent years: - Shierby v UK (2009): Shireby (man) had been refused the full 'widows benefit' when his wife died, He claimed he was discriminated against on the grounds of his gender. - ECHR article concerned with article 14 (anti-discriminateion on the grounds of sex) The appeal was allowed. Uk law effectively changed. - McDonnell v UK (2014): Mcdonell was a northern ireland terrorist suspect who died in custody in 1996. There was a delay of 17 years before the inquest into his death - ECHR article concerned with article 2 (the right to life). The appeal succeeded. McDonnell's mother was awarded 18,000 in euros in cost and damages. Voting rights for Uk prisoners (2015). A group of over 1,000 prisoners appealed against a ban on their right to vote. Article 3 (right to a free election). The appeal was allowed but the UK government has refused to comply with the ruling, quoting the sovereignty of parliament. Any judgement made by the European Court of Human Rights applies to all 47 countries that have signed up to European Convention of Human Rights, not just in the country from where the appeal was launched. So, the interpretations of law in the table, apply not only to the UK, but to all 47 countries which agree to the convention. Similarly, interpretations of law in cases from other countries apply in the UK, and all UK courts, including the SC. However, the UK can call upon the sovereignty of Parliament to defy the court. As long as the UK Parliament insists that one of its statutes should stand, even the European Court of Human Rights cannot enforce its judgment (this occurred when the UK refused to allow prisoners to vote in 2015, despite the court’s ruling to the contrary).

Answer 26

The table shows cases brought from the UK to the European Court of Human Rights in recent years: - Shierby v UK (2009): Shireby (man) had been refused the full 'widows benefit' when his wife died, He claimed he was discriminated against on the grounds of his gender. - ECHR article concerned with article 14 (anti-discriminateion on the grounds of sex) The appeal was allowed. Uk law effectively changed. - McDonnell v UK (2014): Mcdonell was a northern ireland terrorist suspect who died in custody in 1996. There was a delay of 17 years before the inquest into his death - ECHR article concerned with article 2 (the right to life). The appeal succeeded. McDonnell's mother was awarded 18,000 in euros in cost and damages. NJDB V UK (2015): NJDB appealed a decision to not grant him legal aid for his child custody case. ECHR article concerned with Article 6 (right to a fair trial and fair access to justice). The appeal was refused. Voting rights for Uk prisoners (2015). A group of over 1,000 prisoners appealed against a ban on their right to vote. Article 3 (right to a free election). The appeal was allowed but the UK government has refused to comply with the ruling, quoting the sovereignty of parliament.

Answer 27

Before 1998, cases brought under the European Convention on Human Rights were heard at the European Court of Human Rights. The HRA came into force in October 2000 and incorporated most of the articles of the European Court of Human Rights into UK law. This allowed citizens to pursue cases under the European Convention on Human Rights through UK courts as opposed to having to go directly to the European Court of Human Rights in Strasbourg. As the HRA is based on the Council of Europe’s European Convention of Human Rights, rather than on EU law, it is not superior to parliamentary statute. Under the HRA, the SC is only able to issue a declaration of incompatibility where a parliamentary statute appears to violate the rights guaranteed – and parliament is not obliged to amend the offending statute. However, the HRA (like the European Convention of Human Rights) has a ‘persuasive authority’ that has enhanced the protection of individual rights in the UK. The following case study illustrates both the extent of the ultra vires power and its limitations, while also demonstrating the extent of the judiciary’s power under the European Convention on Human Rights (and the HRA that incorporates that convention into UK law): Ultra Vires and the ECHR - R. (Reilly) v Secretary of state for work and pensions (2016)

Answer 28

Examples of articles in the Human rights act (1998) include: Article 1 - commits all signatories to protecting the rights included in the European Convention on Human Rights (ECHR) Article 2 - right to life Article 5 - secures liberty and security of the individual against arbitrary arrest and imprisonment Article 6 - guarantees right to a fair trial Article 8 - promotes respect for individuals private and family life Article 9 - protects the freedom of thought, conscience and religion article 10 - enshrines the right to freedom of expression article 11 - protects the rights of association and assembly

Answer 29

The following case study illustrates both the extent of the ultra vires power and its limitations, while also demonstrating the extent of the judiciary’s power under the European Convention on Human Rights (and the HRA that incorporates that convention into UK law): Ultra Vires and the ECHR - R. (Reilly) v Secretary of state for work and pensions (2016): Reilly argued that, in requiring her to work for a private company in order to receive her benefit payments, the department of work and pensions (DWP) had infringed the protection against slavery provided in article 4 of the ECHR. On appeal in 2013, the supreme court concluded that while the DWP had not infringed the ECHR in introducing 'welfare to work', the scheme was unlawful because the department had operated ultra vires, i.e beyond the authority given to it by parliament By then the government had already passed the jobseekers (Back to Work scheme) act which changed the law retrospectively so that no offence had been committed. In 2016, the court of appeal eventually ruled that changing the law retrospectively in this way was incompatible with article 6 of the ECHR (right to fair trial) but confirmed that it was up to the government and parliament to decide how to proceed in light of that decision of incompatibility. In this case, the court of appeal ruled that the government department in question (the DWP) had not established slavery, which is prohibited under the ECHR but had acted beyond the authority given to it by parliament under statute law.

Answer 30

The HRA does not have the same legal status as EU law (or the US Bill of Rights) – as a piece of statute, the HRA can be amended, suspended (derogated), in its entirety or in part, or simply repealed, like any Act. While the courts cannot strike down parliamentary statute under the HRA, they can make a declaration of incompatibility and invite parliament to reconsider the offending statute. Furthermore, where statute law is silent or unclear, the courts can make even greater use of the HRA by using its provision to establish legal precedent in common law. Also, the HRA also has a hidden influence through the process by which draft legislation is now examined by parliament’s Joint Committee on Human Rights in order to ensure that it is compatible with the HRA. R.(Tigere) v Secretary of state for business, innovation and skills (2015) - Example Beaurish Tigere, who had arrived in the Uk from Zambia aged 6 and subsequently completed her A-levels, was not eligible for a student loan for her undergraduate degree because she did not have indefinite leave to remain in the Uk and would not be able to apply to the Uk border agency for this until 2018. In 2015, the Uk supreme court accepted her appeal on the grounds that the negative impact on the appellant's rights under article 2 of the ECHR (right to education) and article 14 (prohibiting discrimination) could not be justified The relationship between the European Court of Human Rights and the European Convention of Human Rights remains ambiguous. This is because the UK has never given up the principle of parliamentary sovereignty in the area of rights. The most appropriate version of the relationship, is therefore, that judgements of the European Court of Human Rights are morally and politically binding on the UK, but not constitutionally or legally binding.

Answer 31

R.(Tigere) v Secretary of state for business, innovation and skills (2015) - Example Beaurish Tigere, who had arrived in the Uk from Zambia aged 6 and subsequently completed her A-levels, was not eligible for a student loan for her undergraduate degree because she did not have indefinite leave to remain in the Uk and would not be able to apply to the Uk border agency for this until 2018. In 2015, the Uk supreme court accepted her appeal on the grounds that the negative impact on the appellant's rights under article 2 of the ECHR (right to education) and article 14 (prohibiting discrimination) could not be justified

Answer 32

FOR ARGUEMENTS; - The supreme court decides whether a public body has acted beyond its authority (ultra vires) which allows to court to hold the executive to account through the use of judicial review - Example: 2016 - the sc stated that the justice secretary chris grayling had acted ultra vires - The supreme court establishes where sovereignty is located in Uk and deals with cases of constitutional importance - Gina Miller case - The supreme court declares when the government has acted in defiance of the HRA Example: Belmarsh case 2004 - Supreme court determines the meaning of the law, and are the guardians of the rule of law - R v Jogee (2016 - HRA 1998 enables the judiciary to strike down executive acts which offend human rights - SC can declare a statement of incompatibility of some legislation with the ECHR and weaken the authority of parliament

Answer 33

AGAINIST ARGUEMENTS: - Judiciary supreme court remains a subordinate body and judges are not in the position to defy parliament as it is not their job to defy parliament and conflict with parliament constantly - Uk parliament is omnipotent which means it is able to do whatever it wants, to pass any laws and to expect to have law implemented and enforced - Judges powers are limited as no matter abhorrent or undesirable judges may feel a law is, they must enforce it. They can only or may pass an opinion on the law and recommend change. - Judges may strike down executive action, but cannot prevent the government from asking parliament to legislate to overcome judicial objections - Government can ignore a declaration of incompatibility - parliament can circumvent by creating new legislation undermining the supreme court - SC cannot be proactive and initiate cases but must wait until cases are brought before it as they can only determined cases

Answer 34

In past times, it was common to refer to the position of the executive in the UK as an elective dictatorship. A phrase coined by Conservative minister Lord Halisham in 1976, it implied that, having been elected with a mandate, the government became all-powerful and there was little Parliament was likely to do to thwart its will. The HoL was weak and the majority of the HoC was obedient to their party’s leadership and the whips. This reality has now all but disappeared; there is a greater balance between the power and influence of Parliament and the executive.

Answer 35

There is a natural conflict in the relationship between the executive and Parliament. It consists of these two constitutional principles: - Parliament is sovereign. - The government has an electoral mandate to carry out its manifesto commitments. The reality is that when Parliament exercises its right of sovereignty, it is threatening the democratic legitimacy of the government. This conundrum is normally solved by the fact that the government usually enjoys a majority of the members of the HoC. This means that Parliament – the HoC, at least – will not need to exercise its sovereignty as long as the government is operating within its mandate. In this sense, the sovereignty of Parliament becomes, effectively, the sovereignty of the elected government. In addition to this reality, the powers of the HoL are restricted. In particular, there are three limitations on the Lords: - The Parliament Act 1911 - The Parliament Act 1949 - The Salisbury Convention established in the 1940s

Answer 36

CONTROLS ON THE EXECUTIVE: - If the government lacks an electoral mandate for a policy, the Commons may exercise a veto if the government cannot persuade the majority of the MPs to support it. - Parliament; both the HoC and the HoL, may amend legislation to change its character. - Parliament calls government and its ministers to account. This means they are constantly aware that errors or injustices will be exposed. - In very extreme circumstances, Parliament could dismiss a government by passing a vote of no confidence in the government, thus forcing a general election. - Government normally dominates Parliament, but there is something of a balance between the powers of each

Answer 37

The relationship between Parliament and the executive is not static, it changes depending on the circumstances. For example, a minority government or one with a small parliamentary majority will find it much more difficult to pass its legislative programme, especially if it cannot rely on the loyalty of its backbenchers. When this is the case, both houses of Parliament can become more assertive. Equally, if the opposition is united around a strong leader who is widely expected to win the next general election, then this can undermine the confidence of the government.

Answer 38

- weak parliamentary influences | - strong parliamentary influence

Answer 39

Examples of weak parliamentary influence: - 1979-87: Thatcher’s determined leadership of the CP contrasted with divisions within Labour, which led to the party fracturing and the foundation of the Social Democratic Party in 1981. This meant that the Conservatives were facing a split opposition and in 1983, having won the Falklands War, Thatcher increased her parliamentary majority to 144 and neither Michael Foot (1980-83) nor Neil Kinnock (1983-92) were able to effectively challenge her policies. - 1997-2001: In 1997, Blair won a landslide victory, giving him a HoC majority of 179 seats. The parliamentary party was almost totally united around Blair’s third way political philosophy and having suffered the worst defeat since 1832 under the Duke of Wellington, the Conservative only had 165 MPs. Their ability to oppose Blair was further undermined by Conservative divisions over the EU and the ineffective leadership of William Hague (1997-2001). - 2010-13: Cameron’s failure to win a parliamentary majority in 2010 led him forming a coalition with the Liberal Democrats resulting in the support of 363 MPs opposed to 258 Labour MPs. With this majority, the government could survive even significant backbench rebellions such as the 21 Liberal Democrat MPs who voted with Labour not to increase tuition fees.

Answer 40

Examples of strong parliamentary influence: - 1974-79: Labour’s Harold Wilson was elected with a majority of just three. When James Callaghan took over leadership in 1976, the majority disappeared as a result of election defeats and he was forced to establish a confidence and supply agreement with the Liberal Party from 1977-78. The government struggled on until it was defeated in a vote of no confidence forcing a sudden general election which was won by Thatcher in 1979. - 2005-10: By 2005, Blair’s majority was significantly reduced to 66 seats and he won with the support of just 35.2% of the electorate. His influence was in decline as a result of controversies surrounding the invasion of Iraq in 2003. When Brown became PM in 2007, he faced a more confident Conservative opposition led by Cameron, while the government’s authority was further undermined by questions over Brown’s leadership. - 2017-19: Theresa May decided to call a snap general election in 2017 in order to try and win a larger parliamentary majority which would make it easier for her to pass the Brexit legislation that she wanted. However, the Conservatives lost seats and May became PM of a minority administration, forcing her to establish a confidence and supply agreement with the DUP. The fact this meant the government had to pass Brexit legislation without a majority was made even more difficult by growing divisions within the CP over Brexit and an increasingly confident Labour opposition, which had increased its parliamentary representation. Massive parliamentary defeats of May’s proposals in January and March 2019 further shifted the balance of power towards the HoC.

Answer 41

Parliament rarely exercises its power to the full. The normal reality in the UK is that the executive dominates Parliament. There are a number of devices in which the executive does this: - The government normally commands a majority of MPs in the HoC. As long as it does this, it can expect MPs to support it out of party loyalty. - The patronage of the PM is a key factor. The MP has control of all appointments to government, as well as dismissals from it. This gives them power over the MPs in their own party. MPs who regularly cause problems for the government are likely to lose their chance of being promoted to ministerial office, so this encourages loyalty. - MPs dislike elections on the whole. It creates hard work for them and there is also the danger they might lose their seat. MPs in the governing party are, therefore, unlikely to do anything that might bring down their government. The Fixed Term Parliament Act 2011 has however, reduced this possibility. - The party whips exercise control. In extreme circumstances, an obstructive MP can be suspended from their party, which will damage their career. Whips also remind MPs about prime ministerial patronage and how important party loyalty is. There is a variety of ways in which the whips can make life difficult for uncooperative MPs.

Answer 42

Notwithstanding the changing nature of executive-legislature relations, there are some trends and reforms that have contributed towards the changing balance of power and influence between Parliament and the executive: - the growing influence of parliament - factors that retain executive power - governing with a parliamentary majority

Answer 43

The growing influence of Parliament: - Since 2010 there has not been a dominant government majority in the HoC. This is partly due to the emergence of a multi-party system, with the SNP in particular, emerging as a major force. If this persists (it may not), the fragmented nature of Parliament makes it harder for the government to control MPs in general. This is especially true, given the persistent split in the CP. - The executive’s authority has been reduced as in recent years Parliament has insisted on taking over control of UK military intervention abroad. This is largely a legacy of the failed policy in Iraq after 2003. Since then Parliament has demanded that it approves major military adventures and directs military policy. For example, Parliament has been directing the nature of UK intervention in the Syrian civil war. - Although the powers of the HoL have not changed, the peers’ willingness to use them has. The HoL has become increasingly active and obstructive since 1999. For example, from 1999-2010, the Labour government suffered 450 defeats in the HoL. The Lords was highly proactive in opposing the government’s EU (Withdrawal) Bill and the then Labour MP Chuka Umunna tweeted, ‘The HoL have given the Commons a great opportunity to have a full debate on leaving the customs union.’ Measures which are not subject to the Salisbury Convention are vulnerable to problems in their passage through the Lords. However, the constitutional expert Vernon Bogdanor has warned that any government would find it unacceptable if the Lords began to act more as ‘an opposition chamber rather than a revising chamber.’ Nevertheless, the HoL has also lost its inbuilt Conservative majority and become more balanced in its composition. - The Departmental Select Committees (DSC) and the Public Account Committee (PAC) in the HoC, led by powerful chairpersons with a good deal of status, have become increasingly aggressive and intrusive. The committees are now more willing to criticise government and to claim a role in policy making. The Liaison Committee (TLC) calls the PM increasingly to account. - The Backbench Business Committee (BBBC) now controls part of the parliamentary agenda and can order debates which may criticise or influence government. - The backbench members now control membership of the SCs, which used to be controlled by party whips who selected loyal rather than independent-minded MPs. This reform has enhanced their authority considerably and significantly increased the prestige of SCs.

Answer 44

Factors that retain executive power: - Governments still normally enjoy a Commons majority. - The government still relies on a large ‘payroll vote’ where all ministers, numbering over a hundred, are bound be collective responsibility. - Government still controls the legislative programme and the Public Bill Committees which propose amendments. - Prime ministerial patronage still crates loyalty among the government’s own MPs. - Government still has huge advantage in resources (advice and research) over MPs.

Answer 45

Governing with a parliamentary minority: In June 2017, the CP under Theresa May was returned to power but without a majority of seats in the HoC. The party was asked to form a government because it was the largest party. How can a government govern with a minority? The following factors emerge: - Most proposals have to be negotiated individually with MPs from all parties to try to secure a majority of support. - The government is constantly facing the possibility of defeat. - To survive, the government must satisfy two conditions. First, it must survive any votes of no confidence. If it loses, it must resign. Second, it needs to secure the approval of the HoC for its overall financial budget proposal. Failing this would also require the government to resign, as it cannot govern without money. The June 2017 agreement with the DUP of Northern Ireland seemed to ensure a slim government majority on such votes.

Answer 46

The EU can be traced back to the Schuman Declaration (1950) when in the aftermath of WW2, in which Robert schuman proposed that France and Germany pool their production of coal and steel under one authority, which other western european states would be free to join 'by pooling basic production and by instituting a new high authority, whose decisions will bind France, Germany and many other countries, this proposal will lead to the realisation of the first concrete foundation of a european federation indispensable to the preservation of peace' Th idea was that by removing coal and steel production from national control, war between member states of the european coal and steel community (ECSC) would be impossible. The ECSC provided the basis for the european economic community (EEC) which was established by the treaty of rome in 1957. This states that the aim of the the EEC should be an ever closer union among the people of the europe. Reflecting this, all subsequent treaties between its member states increased the process towards fuller european intergration. According to the principle of pooling sovereignty, member states would achieve greater political influence by sharing power within a much larger political organisation

Answer 47

The Eu is founded on the values of 'human dignity, freedom, democracy, equality, the rule of law and respect for human rights including the rights of persons belonging to minorities. The main aims of the EU is: to promote peace and the Eu's values, establishing a single European market, promoting economic, social and territorial cohesion, establishing an economic and monetary union, establishing an area of freedom, security and justice without internal frontiers and combating discrimination and promoting equality. These values and aims form part of the accession criteria for prospective new members. The EEC/EU significantly increased its membership and by 2013, it had increased to 28 member states from six in 1957. The aim of integration and expansion were to encourage peace, prosperity and liberal democracy across Europe, so banishing the prospect of war by eliminating the national differences and jealousies which can encourage conflict. The deepening of the relationship between member states and the widening of the EU to cover most of the europe have taken place in step.

Answer 48

DEEPENING OF EU EXPANSATION: - 1957 The European Economic Community is established by the Treaty of Rome - 1985 The Schengen Agreement establishes the principle of passport-free travel across most members states of the European Union. - 1986 The Single European Act commits the European Economic Community to the creation of a single internal market. -1992 The Maastricht Treaty establishes the European Union with a common citizenship. It commits members to pursuing a common foreign and security policy and launches plans for a single European currency. (Euro - Maastricht treaty was controversial under john major gov - he negotiated an opt out deal due to splits in the party over the treaty) - 1997 The Amsterdam Treaty incorporates the Schengen Agreement (omitting the UK and Ireland) and the Social Charter into EU law. (Blair gov scrapped majors negotiations and wanted to deepen the uk's relationship with the EU. The social charter included social/economic rights to protect vulnerable persons in relation to housing, education, healthcare, employment etc.) - 2000 The Nice Treaty further reduces occasions when member states can use their national veto by increasing opportunities for qualified majority voting. - 2002 The European single currency is launched into circulation as national currencies are withdrawn in the eurozone. - 2007 The Lisbon Treaty provides the EU with its own diplomatic corps an creates the new positions of a full0time EU President and High Representative for Foreign Affairs and Security Policy in order to give the EU the potential for greater international influence. (enhances political influence of EU as negotiations with other non-EU members are done through the EU with EU ambassadors and representatives)

Answer 49

Four freedoms refer to the core economic aspiration of the European integration is expressed in the 'four freedoms' of the EU which were laid out in the original treaty of Rome and envisaged a European single market. The single European act and the Lisbon treaty have further recognised the centrality of a fully functioning single market to European integration. Under the four freedoms: - Free movement of goods - Free movement of services - Free movement of capital - Free movement of people

Answer 50

Free movement of goods refer to where member states can trade with each other without any tariffs (taxes on goods and services being imposed) or any other regulations on goods from another state, so creating a customs union. It also means that members of a customs union cannot make a separate arrangements with external countries.

Answer 51

Free movement of services refer to the right of businesses to be able to open up and operate in any member state. This means that there is completely free movement of goods, services, money, workers and people across borders. It is a single market. It also means that goods and services must be produced and sold under the same regulations in every member state

Answer 52

Free movement of capital refers to when capital should be able to more freely throughout the member states. It is an economic union. This means it is responsible for economic development throughout the EU but especially in countries where national income is relatively low. There is a system of grants and agricultural subsidies paid for from the EU budget. Most members states also use the same currency: euro

Answer 53

Free movement of people refers to the idea that no internal barriers should stop citizens of the EU working in any member state and being able to claim the same social benefits. (Brexiters were heavily critical of this freedom as they were largely anti-immigrant)

Answer 54

The belief was, that by eliminating national barriers through the four freedoms, members of the EU would achieve so much prosperity through interconnectedness, that war between them would be unthinkable. The liberal principle of Frederic Bastiat (1801-50) 'that if goods do not cross borders, armies will' is therefore of central importance to European integration.

Answer 55

In addition to economic integration, the EU has pursued 'ever closer union' in terms of social, political and monetary unity as well as developing closer foreign policy and defence objectives.

Answer 56

Monetary Union: At the Maastricht Treaty (1992), the principle of monetary union was agreed. This established that European integration would aspire to both economic and monetary union (EMU). In 1999 the euro was introduced as a trading currency and in 2002 the founding member states of the eurozone physically replaced their existing currencies with the euro. The Maastricht Treaty also created the European Central Bank to set a common interest rate for members of the eurozone. By 2019, there were 19 EU members in the eurozone.

Answer 57

Social Unity: In the 1980s, the president of the European Commission, Jacques Delors, emphasises that European integration should also encourage workers’ rights. In recognition of this, the Maastricht Treaty included the Social Chapter, which established certain rights which all workers in the EU can claim in areas such as health and safety, freedom from discrimination, equal treatment for men and women, paid holidays, working hours and conditions and parental leave on the birth of a child.

Answer 58

The protection of human rights: In 2000, the Charter of Fundamental Rights of the European Union was proclaimed and became legally binding on all members states when they ratified the Lisbon Treaty in 2009. The human rights which the charter guarantees significantly overlap with the ECHR. The main difference is that the charter applied only to areas connected with Eu law and is applied through the European Court of Justice.

Answer 59

Political union: Since the Single European Act 1986 all EU treaties have restricted the occasions on which nation states are able to exercise the veto in the Council of Ministers/European Council, so advancing political integration. The Maastricht Treaty (1992) also established a common EU citizenship and, significantly, changed the name of the European Economic Community to the European Union

Answer 60

Common foreign and defence policy: The Maastricht Treaty (1992) committed the EU to a common foreign and defence policy. This was advanced in practical terms by the Lisbon Treaty (2007) as it provided the EU with legal identity so that it can negotiate on equal terms with nation states and an EU diplomatic service. Lisbon also established a full-time president of the European council and a high commissioner for foreign affairs and security policy, both of whom represent the EU in its dealings with other world leaders

Answer 61

EU has five main institutions: - The european commission - the council of ministers - the european council - the european parliament - the european court of justice

Answer 62

EU: partly an intergovernmental and supranational organisation. Intergovernmental is an organisation composed of member states and form a union that services their common interests e.g. the council of ministers, the european council. Whereas, supranational is where an organisation has power that transcends national boundaries of the government e.g the european commission, the european parliament and the european court of justice

Answer 63

The european commission (supranational) refers to the government/executive of the EU. Each member state sends a commissioner who represents the interests of the EU rather than their own state to its own headquarters in Brussels. The commission is responsible for developing EU policy, drafting european legislation and organising the implementation of the EU policies. In essence, it is the civil service of the EU - it is a politically independent executive arm of the EU and is staffed by non-elected officials

Answer 64

The council of ministers (intergovernmental/supranational) is like the cabinet of the EU. This is because there is a number of councils each dealing with one aspect of the EU's activities, such as finance, economy, agriculture, transport or foreign policy. Collectively, these form a ministry for government ministers from the EU. Ministers from the elected governments of member states attend meetings. Their role is to negotiate final legislation and to ratify new laws. In effect, they are legally sovereign body of the EU.

Answer 65

The european council (intergovernmental) convenes four times a year when the leaders of the EU, heads of state (leaders of the EU member states) and their foreign ministers meet. It defines the EU's overall political direction and priorities. They develop EU foreign policy and make and ratify important strategic decisions concerning the future of the EU and occasionally agree new treaties. Along with the councils of ministers, this is the sovereign body of the EU.

Answer 66

The European parliament (supranational) is the EU's only directly elected body. It sits in both brussels and Strasbourg and shares budgetary control with the council of the EU. MEPS are elected from member states - most representing political parties. The European commission is accountable to the European parliament and it elects the president of the commission. It has a veto on appointments to the European commission and can amend or even block legislation in some circumstances. It has gradually acquired substantial political and legislative power.

Answer 67

The European court of justice (supranational) is the judicial institution of the European union and is based in Luxembourg. It ensures that European law is applied equally and interpreted in the same way in all member states. It deals with disputes between member states, interprets EU law when it is disputed and can punish states which disobey EU law. It is the highest court of appeal and its rulings are binding on all member states. Essentially, it is the european supreme court and is staffed by judges drawn from member states.

Answer 68

FOR ARGUEMENTS: - By 2018 the EU had expanded from 6 to 28 members. Turkey, Macedonia, Albania, Serbia and Montenegro have all applied to join. - The expansion of the EU has encouraged democracy in former Communist states in Eastern Europe. - The European Charter of Fundamental Freedoms has entrenched core liberties in European law. - The implementation of the four freedoms means that the EU is now the biggest single market in the world, providing EU citizens with the right to live, work or study in any member state. - In 2018 the EU’s GDP was worth $19.7 trillion, making the EU the second-biggest economy in the world. This represents 22% of the value of the global economy. - The euro is the world’s second reserve currency (after the US dollar). - The EU has provided a global lead on issues such as combating climate change and has been responsible for the most environmentally-friendly legislation in the world.

Answer 69

AGAINIST ARGUEMENTS: - The expansion of the EU has diluted its purpose, making it more difficult to achieve a united European response to contentious issues such as the Russian annexation of Crimea and the Syrian civil war. - The commitment of member states such as Hungary and Poland to the democratic principles of the EU is disputed, undermined the EU’s sense of common purpose. - The austerity programmes demanded by the European Commission and the European Central Bank in response to the euro crisis have undermined support for the EU in South European countries such as Greece, Italy, Spain and Portugal. - The removal of barriers to the free flow of workers (one of the four freedoms) has encouraged the rise of populist parties across Europe which are committed to protecting their workforce from ‘foreign’ competition. - The migrant crisis has exposed significant tensions between the liberal approach of the German and French governments and the more defensive approach of states such as Hungary and Italy. - Little progress has been made on establishing a European sense of identity. National identities have even been strengthened as a result of austerity, the free movement of workers and the migrant crisis.

Answer 70

IMPACT OF THE EU ON THE UK - BENEFITS FOR THE UK: - Membership of the EU has provided the UK with duty-free access to the world’s second-biggest economy. Tariffs reduce trade and UK exporters benefit from being able to sell abroad more cheaply, while UK consumers benefit from cheaper EU imports. In 2016, 43% of British trade was with the EU and was worth £241 billion. - Most economists agree that the UK economy has benefitted from EU immigration. EU immigrants come to the UK to join the workforce and so contribute more to the state in taxation than they claim back in benefits. In 2013-14, non-British EU citizens living in the UK paid £14.7 billion in tax and national insurance and claimed just £2.6 billion in tax credits and child benefit. - Over 3 million British jobs rely on trade with the EU. The Confederation for British Industry estimated, during the EU referendum, that the net benefit to the UK economy of EU membership was worth between 4% and 5% of GDP. - As a result of the four freedoms, British entrepreneurs can set up businesses anywhere they want in the EU, students can study freely in the EU and the elderly can retire to any EU country and still receive their British pension. In 2017, 1.3million British citizens were living in other EU countries. - Since 1987 the EU’s Erasmus programme has encouraged educational exchanges across the EU. Up to 200,000 British students have taken advantage of this to study in EU countries. - The Social Chapter of the Maastricht Treaty, which the Blair government accepted, provides important safeguards to workers’ rights such as the Working Time Directive which guarantees a maximum 48-week working year with 4 weeks’ paid holiday. - The European Charter of Fundamental Freedoms was incorporated into European Law with the Treaty of Lisbon. This has meant that when exercising European law, the British government has had to act according to the charter, which has helped to increase the rights of workers and immigrants in the UK. - In an increasingly multipolar world comprising huge nation states like the US, China and Russia, the UK has been best able to assert shared values such as democracy, human rights and the rule of law through membership of the EU. - The EU is the world’s most advanced example of a liberal approach to global politics, bringing together independent nation states into a union. From 1900 to 1950, an estimated 110 million people died in European wars. However, since 1957, the EEC/EU has encouraged peace and stability across Europe

Answer 71

AGAINIST EU MEMBERSHIP: - British membership of the EU undermines parliamentary sovereignty. The key principle of democracy is that representatives are accountable to the public in regular elections. As a result of the pooling of sovereignty in the EU, Parliament has lost its sovereign right to legislate on behalf of the British people. In November 1991, Tony Benn MP put the democratic case against the EEC/EU, and the membership of it, in the HoC: ‘If democracy is destroyed in Britain it will not be the communists, Trotskyists or subversives but this House which threw it away. The rights that are entrusted to us are not for us to give away.’ - The EU has been accused of having a democratic deficit at its heart, since its government, the European Commission, is not directly elected and the EU’s only directly elected body, the European Parliament, has less direct influence than most legislative assemblies. - Critics argue that EU legislation creates another layer of unnecessary law which, since it is applicable to all members of the EU, may not serve the interests of a country’s citizens. The implementation of EU regulations in the UK, the think-tank Open Europe estimates, costs £33 billion every year. - The Common Agricultural Policy (CAP) represents 38% of the EU’s budget for 2014-20. It helps to protect the livelihood of EU farmers by subsidizing production and protecting them from outside non-EU competition. In 2015, the number of people working in agriculture across the EU as a whole was 4.4% of the EU’s workforce. The UK employs just 1.1% of its population in agriculture and so gained proportionately less from CAP, than countries such as Romania where 25.8% of the workforce is employed in agriculture. - Critics of the CAP also argue that, as a member of the EU, the UK has had to subsidise a protectionist scheme, which discriminates against the developing world and goes against the free-market principle on which the EU is supposed to be founded. - Although UK trade with the EU in 2016 was 43% of total British trade, it had been 54% in 2006. This suggests that the UK has the potential to engage further in global trade rather than prioritizing the European market. - The UK contributes more to the EU than it gets directly back. This means that although it receives money back through CAP and regional grants to poorer regions of the UK such as Cornwall and South Wales, it is still a net contributor to the EU. In 2017, the UK made a net contribution of £8.9 billion to the EU. - Attempts by the EU to integrate Europe through the promulgation of the four freedoms have had the opposite effect in member states such as the UK. Rather than encouraging a sense of European identity, it as encouraged xenophobic resentment, especially among C2, D and E voters who generally gained least from EU immigration.

Answer 72

SOCIOECONOMIC IMPACT ON EU MIGRATION: - In 2004 the EU expanded from 15 to 25 member states, including 8 from Eastern Europe. In 2007, Bulgaria and Romania also joined. Under the principle of the four freedoms, members of the EU enjoy the right to work and claim social security in any member state. Some restrictions were placed on Romanian and Bulgarian work permits, but by 2014 were removed, establishing complete freedom of movement. - The socio-economic impact of EU migration on the UK was profound. The UK’s position as a member of the single market contributed to a significant increase in immigration. From 1991 to 1995, on average, immigration amounted to 37,000 people, whereas from 2013 to 2017 the figure was 277,000. By 2017, 3.8 million people living in the UK were citizens of another EU country. This represented approximately 6% of the UK’s population. The largest number of EU migrants to the UK were, by far, from Poland, with over a million Poles living in the UK in 2017. UK citizens were much less likely to take advantage of the single market, with just 785,000 British nationals in 2017 living in other EU states excluding Ireland. - There is a strong case to suggest that the UK economy benefitted from EU immigration. Most EU immigrants were in their 20s and took up paid employment, some contributing more to the economy than they claimed through social services. In 2018, unemployment levels in the UK were just 4% - the lowest since 1975 – which suggests that the UK was easily able to absorb EU immigrants. Fears that EU immigrants were changing the social fabric of the UK nevertheless had a powerful resonance in many non-metropolitan centres. People began to feel that their communities were being potentially changed forever by EU migration. One in five of the population of Boston in Lincolnshire, for example, was an immigrant in 2016 and Boston voted 75.6% to leave the EU. - In 1968, Enoch Powell had warned that, as a result of Commonwealth immigration, British-born citizens would find ‘their homes and neighbourhoods changed beyond recognition, their plans and prospects for the future defeated’. Almost 40 years later, in 2016, it was by appealing to fears such as these that the Leave campaign was helped to achieve victory in the EU referendum.

Answer 73

THE EUROPEAN UNION AND THE MIGRANT CRISIS: - The Syrian civil war, conflict in Libya, climate change and the chance for a better life have encouraged migrants from across Africa and the Middle East to attempt the dangerous journey to Europe. Unequal responses have meant that some member states have accepted more migrants than others, fueling resentment. Fears of being swamped by an ‘alien culture’ have led to the rise of extremist parties across the EU and put the Schengen Agreement under enormous pressure as nation states see advantages to, once again, controlling their own borders. - In the UK, Nigel Farage deployed anti-migrant feeling to encourage support for Brexit, and hard-line governments in Hungary and Italy have established a common anti-migrant front. - In 2018, the President of the European Commission, Jean-Claude Juncker, even warned that the crisis could destroy the EU as member states looked to their own interests rather than those of Europe as a whole: ‘The fragility of the EU is increasing. The cracks are growing in size.’

Answer 74

EU REFERENDUM IN 2016: From when it joined the EEC in 1973, the UK rarely had an easy relationship with its European partners. In the 1970s and 80s, the LP saw membership of the EEC as a barrier to socialism, while more recently a large section of the CP focused on the loss of national identity and threat to parliamentary sovereignty posed by European integration. A major reason for the UK’s historic lack of commitment to the EU is that it did not join until 16 years after it was established by the Treaty of Rome and so it had to accept rulings such as the Common Agricultural Policy, which conflicted with British interests. Britain’s imperial legacy, which is still apparent in the existence of the Commonwealth, also made European integration seem less pressing. The UK, as an island nation state, has also developed separately from continental neighbours and avoided being conquered by either Napoleon or Hitler, further fostering a separate British identity. When David Cameron pledged to hold an ‘in/out’ referendum on the UK’s membership of the EU, it was widely expected that the UK would vote to remain in the union. The PM and most of the cabinet campaigned to remain, as did Labour and the Liberal Democrat leadership. The Confederation of British Industry (CBI) and the Trades Union Congress (TUC) argued strongly in favour of the economic advantages of membership. The Governor of the Bank of England, Mark Carney, announced that Brexit could ‘possibly include a technical recession’ and the chancellor of the exchequer, George Osborne, went further, stating that Brexit would push the UK into an immediate recession costing 820,000 jobs in 2 years. However, unlike the 1975 referendum, in which the UK voted decisively to remain in the EEC, in 2016 the strong economic arguments to remain the EU proved less influential than expected with the electorate. Instead, the Leave campaign’s focus on restoring British sovereignty was highly popular, especially among C2, D and E voters, who felt that their economic opportunities were being lost and that the social fabric of their communities was being irretrievably altered without their consent. The morning after the EU referendum, at 4.39am on Friday 24th June, David Dimbleby confounded most polling forecasts when he announced on BBC television, ‘The British people have spoken, and the answer is we’re out.’ The result was close but decisive: Remain 48% and Leave 52%. It remains the case that the UK has enjoyed considerable economic benefits from membership of the EU’s single market. The free flow of trade, services, capital and workers represented by the four freedoms has benefitted the UK’s economy and so the economic consequences of Brexit are highly controversial - Supporters of a ‘soft’ Brexit are keen to continue to be able to take advantage of as much of the single market as they can, without the complete free movement of people, while opting out of political integration. This is modelled on the sort of relationship that Norway and Switzerland have with the EU. Those who have favoured a ‘hard’ Brexit, such as Boris Johnson, have been more optimistic that the UK could entirely cut its toes from the single market and succeed in making its own trade deals in the global economy

Answer 75

IMPACT OF THE UK'S EXIT FROM THE UK: The constitutional impact: The position is clear. Upon leaving the EU, the UK Parliament regains its sovereignty. EU laws are no longer part of UK law and the UK is no longer subject to EU treaties. The European Court of Justice (not to be confused with the ECHR) has no jurisdiction in the UK. The political impact: The picture is less clear. The political repercussions of the UK people’s decision to leave the UK will be felt for many years to come. These include the following: - The top level of the CP who had supported the ‘remain’ side of the campaign lost power, notably Cameron and Osborne. - The CP is seriously divided between those who wish to return close relations with the EU and those who want a clean break (so-called ‘soft’ or ‘hard’ Brexit). - The LP is similarly divided. - The referendum revealed deep divisions in UK society, between young and old, England and Scotland, the cities and the countryside, the well off and the poor. The vote to leave was seen as something of a protest against the ‘political class’ in Westminster and a populist movement against powerful vested interests in general. - Because Scotland voted overwhelmingly to remain inside the EU but will be forced out, there are renewed demands for Scottish independence so that Scotland can remain in the EU. - The UK will now have to undertake a long-term programme of developing new political and trade links with other countries. When the UK was a member it was not free to develop separate trading arrangements with states outside of the EU. - The issue of immigration control, which is now potentially in the hands of a newly independent UK, will be a key issue for years to become.

Answer 76

The UK will become a completely sovereign state when it leaves the EU. However, at some stage there may well be a new treaty with the EU. If there is such a treaty it might have the following conditions: . The UK may be obliged to allow workers to enter the workforce without hinderance. . There may be reciprocal arrangements to allow people to move freely in and out of the UK from EU countries. . If there is a trade deal, it may be that the UK will have to allow goods and services to be imported without any import taxes (tariffs), in return for tariff-free exports to the EU. . There may be a reciprocal arrangement to allow the free movement of financial capital in and out of the EU. . There may be other agreements governing international policing, security, drug enforcement, internet control etc. The so-called ‘four freedoms’ of the EU are: Free movement of (a) people, (b) labour, (c) financial capital and (d) goods and services. Even when the UK is no longer a member of the EU it may still be forced to accept one or more of these freedoms if it is to remain in the European single market or have special trading arrangements with the EU. Despite any such agreements, the UK will remain sovereign and will be able to cancel such treaty agreements. In the absence of any agreements, the EU will cease to have direct influence over the UK.

Answer 77

It is a difficult concept, but one that must be fully understood to appreciate the relationships between different parts of the political system. A general description of the term is ‘ultimate power’,

Answer 78

- Sovereignty implies a power which cannot be overruled. - It is the source of all other political powers. In other words, a sovereign body can delegate its powers to others, but reserves the right to recover those powers. - Sovereignty can only be removed or transferred, at least in a democracy, by some special procedures which usually involve popular consent.

Answer 79

In the UK, the most important application of sovereignty is parliamentary sovereignty. The official parliamentary website describes this principle as: ‘Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliament sovereignty is the most important part of the UK constitution The sovereignty of Parliament is the principle example of legal sovereignty. This is a constitutional reality which will be enforced in law. It may not, though, reflect political sovereignty. This refers to where real power lies as opposed to theoretical power.

Answer 80

LEGAL SOVEREIGNTY: This is the absolute right that every Parliament has to enact whatever legislation it chooses. Parliament’s sovereignty has been given to it by the people, once it legislates there can be no power greater than an Act of Parliament. Parliament’s laws will be supreme in all circumstances. This is sovereignty that cannot be overturned without acting in an unconstitutional manner. Therefore, legal sovereignty is where ultimate constitutional power lies. Political power can only be exercised if Parliament explicitly grants that power to a body. The UK’s exit from the EU is the final confirmation of parliamentary sovereignty. The EU’s laws were superior to parliamentary statutes, but this is now in the past.

Answer 81

POLITICAL SOVEREIGNTY: Political sovereignty means absolute authority. Since the legislature’s authority derives from the public, the public may be said to exercise political sovereignty. Legal sovereignty is not the full story. It does not reflect what actually happens within the political system. In reality, it is the UK government that develops most national laws and not Parliament. The government is effectively sovereign, especially as it enjoys the democratic mandate granted by the electorate. Therefore, political sovereignty relates to where ultimate power actually lies.

Answer 82

According to the constitutional expert, A.V Dicey (1835-1922), Parliament possesses the legal sovereignty to enact any law without this being overruled by any other body. As Dicey put it: ‘Parliament…has, under the English constitution, the right to make any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’ The power of Parliament is, though, not of its own making, Dicey noted, because the HoC is accountable to the public in regular general elections.

Answer 83

THE EXTENT TO WHICH SOVEREIGNTY HAS MOVED BETWEEN BRANCHES: Traditionally, the UK has been viewed as being a unitary state, since sovereign authority is located in one place: the Westminster Parliament. Unlike in federal systems of government such as the US, power is not shared between the federal government and the states. Instead, Parliament has supreme legislative authority. The fact that the UK does not have a codified constitution means that there is no law higher than parliamentary statute. Unlike American judges, British judges cannot strike down an Act of Parliament since they have no higher law of the constitution to which to appeal. The legal doctrine of parliamentary supremacy was clearly stated in the case of R (Jackson) v Attorney General (2005) when Lord Bingham stated that the ‘bedrock of the British Constitution is… the Supremacy of the Crown in Parliament’. However, the location of sovereignty in the UK is much more complicated than this implies. Although Parliament does possess legal sovereignty, the extent to which it can exercise this in all circumstances is debatable.

Answer 84

- referendums - devolution - strong executive - royal prerogative - The EU - Human Rights Act 1988 - Globalisation

Answer 85

REFERENDUMS: Since the election of the Blair government in 1997, a precedent has been established whereby referendums have been called to determine the opinion of the public on important constitutional questions such as Scottish independence and the UK’s membership of the EU. However, the results of these referendums have not been legally binding since the questions have been only advisory. However, it would be constitutionally highly improbable and dangerous, for the government to ask the public a question and then ignore the result. Referendums therefore demonstrate a de facto transfer of authority from the people’s representatives in Parliament, via direct democracy, to the public – it is the people who are sovereign. This most controversially occurred in 2016 when the public voted to leave the EU. Although it is estimated that 73% of MPs opposed Brexit, in 2017 the HoC consequently voted 498-114 to allow the government to open negotiations to exit the EU.

Answer 86

In a referendum the location of sovereignty lies with: People who will vote on the question being asked as the people have political sovereignty - will of the people

Answer 87

DEVOLUTION: Devolution also provides de facto evidence for a change in the location of sovereignty and the introduction of a federal system – where sovereignty is divided between central and regional authorities. However, in theory, Westminster did not lose any of its sovereign power when it devolved, rather than gave away certain domestic powers to the Scottish Parliament and the Welsh and Northern Irish assemblies. This therefore means that the Westminster Parliament could legally reclaim those powers. This occurred in Norther Ireland in 2002-07 when direct rule was re-established, and ongoing difficulties in power sharing make it possible that this could temporarily occur again. However, to do the same for Wales and Scotland would be much more difficult, since both the Scottish and Welsh governments can claim popular legitimacy. Also, the Scotland Act 2016 and the Wales Act 2017 recognise the permanence of their governments and establish that they can only be abolished as a result of referendum in each country.

Answer 88

With devolution the location of sovereignty lies with: local/regional governments who are delegated power from west minister

Answer 89

STRONG EXECUTIVE: When a government has a large parliamentary majority there will be few legislative constraints on its authority as it has been granted sovereignty. This was the case in 1997 when Blair won a massive parliamentary majority. Blair was supported by highly favourable media coverage and he was able to exert enormous political influence.

Answer 90

With a strong executive, the location of sovereignty lies with the government who has a majority

Answer 91

ROYAL PREROGATIVE: The royal prerogative is exercised by the PM and means that in certain areas Parliament is not sovereign. These areas include patronage powers, such as recommendations to the Crown of life peers and Anglican bishops. The PM also decides who will be in cabinet. Parliament is increasingly challenging the royal prerogative, however: - Since debating military action in Iraq in 2003, Parliament now expects to be consulted over military action. This has not been set out in law, so there is no legal restraint on the PM still choosing to exercise the royal prerogative when committing British forces to conflict. For example, in 2018, May used the royal prerogative to authorize an RAF bombing raid on government targets in Syria – this demonstrates how, lacking a codified constitution clearly setting out the relationship between the branches of government, the location of sovereign authority in the UK is difficult to determine. - As a result of the Fixed Term Parliaments Act 2011, Parliament can no longer be dissolved through the use of the royal prerogative. Instead, if a PM wants an early dissolution then s/he requires the support of two-thirds of the HoC.

Answer 92

With a royal prerogative the location of sovereignty lies with: prime minister granted power by the queen/monarch

Answer 93

THE EU: As a member of the EU, the UK pooled its sovereignty with other members states. Where European law was established, the UK had to accept the supremacy of European law over domestic law. This principle was recognised in British law by the Factorame case (1991), which stated that in cases of conflict, British courts must implement European law over British law. The question as to what extent this meant that parliamentary sovereignty had been compromised was solved when, as a result of the vote to leave the EU in 2016, Parliament began the process of enacting legislation which would repeal the laws under which the UK had joined the EEC in 1973. This demonstrates that, although the UK pooled its sovereignty as a member of the EU, Parliament retained the sovereign right to legislate to restore full parliamentary sovereignty on the principle that no parliament may bind its successor.

Answer 94

As a member of the EU the location of sovereignty lies with: EU but this no longer applies to the Uk as the UK has left the EU and now parliament is sovereign

Answer 95

HUMAN RIGHTS ACT 1988: In cases involving the protection of civil liberties, British courts can refer to the Human Rights Act (HRA) 1998, which incorporates the ECHR into British law. However, the HRA still falls far short of being a codified constitution which really would limit Parliament’s sovereignty. As it stands, the HRA is no different from any other Act of Parliament and so parts of it can be suspended – as occurred when Article 5 was suspended after 9/11, enabling the government to hold foreign terrorist suspects indefinitely without trial. An Act of Parliament can also still become law if it is in defiance of the terms of the HRA on the principle that no parliament may bind its successor. In these circumstances, the judiciary should acknowledge the contradiction by issuing a formal statement of incompatibility, but the SC could not strike down the legislation. The conflict between parliamentary sovereignty and the ECHR is demonstrated by Parliament’s unwillingness to allow inmates of UK prisons to vote in elections. According to the ECHR in Strasbourg, the British government has been acting in defiance of their human rights by fobbing prisoners to vote. In 2011, the HoC voted on the issue and the motion was defeated 234-22. In 2017 a compromise was reached, which allows a tiny number of prisoners to vote. In this case, Parliament has demonstrated that its sovereignty is intact even in cases involving the jurisdiction of the ECHR

Answer 96

With the HRA the location of sovereignty lies with: parliament

Answer 97

GLOBALISATION: It could be argued that membership of international organisations such as the International Criminal Court and the International Court of Justice, as well as the impact of globalisation, has restricted UK sovereignty. For example, the UK is expected to obey the trading rules of the World Trade Organisation, and is committed to the principle of Article 5 of NATO’s constitution that an attack on one-member state, represents an attack on all member states. UK governments can also not control capital flows and flights, suggesting that the UK government’s sovereign control of the economy is practically restricted. The distinction between power and sovereignty are, therefore, blurred. It has been suggested, that we should abandon the distinction between legal and political sovereignty.

Answer 98

With globalisation the location of sovereignty lies with: International organisations e.g NATO, UN and WORLD TRADE ORGANISATION depending on the situation

Answer 99

Legal sovereignty refers to sovereignty that cannot be overturned without acting in a unconstitutional manner as legal sovereignty is the theoretical exercise of sovereignty whereas political sovereignty refers to the political ability to exercise sovereignty (sovereignty in practice) in which sovereignty given by the people

Answer 100

THE LOCATION OF SOVEREIGNTY TODAY: The first observation we can make about sovereignty today – is that Parliament does appear to be restoring some of its past constitutional powers. It is claiming control over UK foreign and military policies, it has control over when general elections can be held, and it is increasingly determined to have its say over key political issues. These include agreements the UK makes with foreign powers and international organisations, and measures for which the government does not have a mandate. The second current development is that sovereignty is increasingly being divided into different functions. In other words, sovereignty resides with whichever body or individual has ultimate power over a particular political issue. This may be called ‘functional sovereignty’. This works as follows: - The people have sovereignty over key constitutional changes, such as devolution, the electoral system, the independence of Scotland and membership of the EU. - The devolved administrations are sovereign when decisions and policies concern only Scotland, Wales or Northern Ireland. - The courts, including the ECHR, are sovereign when human rights and civil liberties need to be defined. - The PM is sovereign when determining who shall form the government. - Parliament is sovereign when the government is proposing a major military initiative. - The monarch would be sovereign if there were a major political crisis which could not be resolved by elected politicians. All of this can be changed if Parliament wishes, as Parliament remains legally sovereign

Answer 101

FOR ARGUEMENTS: - There has been no challenge to the legal sovereignty of Parliament. . Parliament legislated to leave the EU. This means that even when the UK was part of the EU, in spite of the Factorame case, Parliament reserved the right to enact legislation to repeal UK membership. - The Miller case confirmed that Parliament remains sovereign even after a referendum decision. - Since the UK does not possess a codified constitution, there is no law higher than parliamentary statute. The SC may not, therefore, strike down an Act of Parliament. - Although the ECHR has been enacted through the HRA, it is no different legally to any other Act of Parliament so it can be suspended or repealed. The UK does not have to conform to rulings by the ECHR. - Devolution can be reversed by Parliament – it could, in theory, abolish the devolved assemblies by Act of Parliament. - Parliament is not legally bound by the result of a referendum.

Answer 102

AGAINIST ARGUEMENTS; - The executive continues to claim political sovereignty as long as it has a mandate. - The devolved governments of Wales and Scotland can only be abolished by parliament following referendums calling for their removal. It is highly unlikely that devolved powers will ever return to Parliament. - There is now a convention that major constitutional decisions should be agreed by the public in referendums rather than by Parliament. - Parliament accepted the result of the EU referendum in 2016, although most MPs disagreed with it. This suggests that political sovereignty of the public is superior to that of the Westminster Parliament. - The Westminster Parliament is not sovereign in those areas involving the PM’s exercise of the royal prerogative. - Although the UK does not have a codified constitution, there is a growing expectation that parliamentary legislation should conform to the principles of the ECHR. The ECHR is increasingly entrenched, making it difficult for Parliament to defy its terms