The Judiciary

Question 1

What is the conditional context of the Judiciary?

Answer 1

• A.V. Dicey:
  
  • Dicey’s version of parliamentary sovereignty
  • “The sovereignty of the Parliament is, from a legal point of view, the dominant characteristic of our political institutions”
  • “The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that ‘Parliament’ has the right no make or unmake 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…”

Question 2

According to Jennings interpretation of Dicey, what might the parliament do?

Answer 2

• Remodel the British constitution
• Prolong it’s own life (i.e. the term of the parliament)
• Legislate ex post facto
• Legalise illegalities
• Provide for individual cases
• Interfere with contracts and authorise property seizure
• Give unlimited powers to the Government
• Dissolve the UK
• Introduce communism/fascism

Question 3

What does Tomkins suggest about constitutions?

Answer 3

• Purpose of constitutions are to finds ways of allowing the government to get away with less, either politically or legally
• A political constitution is one in which those who exercise political power are held to constitutional account through political means and political institutions
• A legal constitution is one in which those who exercise political power are held to constitutional account through the law and the court room

Question 4

What has been the extent of modern constitutional change?

Answer 4

• Huge change over recent decades; all involving challenges to the overwhelming predominance of the political constitution and thus to the role of the judiciary:
• Major changes in administrative law from the 60s onwards, driven by judges, opening up new ways to challenge local and central government
• Devolution
• Entry into the EU
• Adoption of Human Rights Act
• Judicial reform and Constitutional Reform Act 2005

Question 5

What have been the constitutional ramifications of the EU?

Answer 5

• European Communities Act 1972
• ‘The meaning of section 2(4) is that domestic courts are required to construe and to give effect to parliamentary legislation ‘subject to’ the terms of directly applicable and directly effective EU law, regardless of the date of either’
• Ultimately came to head over fishing boats; Thatcher law disadvantaged Spanish fisheries, they sued. House of lords issued an injunction dis-applying the particulars of the UK law
• Some say this was a legal revolution: no longer consistent with Diceyan parliamentary sovereignty
• Some say it wasn’t; parliament can always repeal EC 72 law
• Some say no contradiction: just 2 legal systems working in parallel
• Regardless, huge constitutional change for the role of the judiciary

Question 6

What have been the constitutional ramifications of the Human Rights Act?

Answer 6

• UK had been bound by the EConventionHR since the 60s, with a right of ‘individual petition’ to the ECourtHR
• The Blair Government promised to ‘bring rights home’
  
  • Make the European Convention rights able to be used without needing to go to Strasbourg: to challenge government action or legislation as contrary to human rights in British courts
  • US had done this - but parliamentary sovereignty
    
    • UK judges reconcile this through a combination of new, carefully limited powers
      
      • Allowed judges to read, interpret and re-write acts of parliament where there is contradiction in the case they are overseeing
      • Allowed judges to inform the parliament that their laws are inconsistent; they listened
• Accordingly unpopular with Brexiters etc

Question 7

What have been the constitutional ramifications of the Constitutional Reform Act 2005?

Answer 7

• Institutional reform
• Until 2009, the highest court in the land for most purposes was the Appellate Committee of the House of Lords
• This raise problems with the ECHR which guarantees an independent and impartial tribunal: the lack of separation of powers in the UK’s case made this unlikely
• Supreme Court from Oct 2009 - important symbolic change, but also legislative reinforcement of judicial independence and the importance of that separation
• Act also changed the office of the Lord Chancellor (previously having been simultaneously the head of the judiciary, a Minister, and the speaks of the House of Lords.
• Brexit deal?
• Second referendum?
• EU law and policy applies after Brexit?
• Working of the Fixed Term Parliaments Act?
• Scottish referendum?
• All now judicial questions, wouldn’t have been before

Question 8

What is royal prerogative?

Answer 8

• Power taken over by the government from the sovereign
• The sole right to make an unmake foreign treaties
• Refusal to give Parliament a vote:
  
  • Protection of royal prerogative: war etc.
  • Political - fear of what Parliament might have done to the Brexit agenda

Question 9

Who is Gina Miller?

Answer 9

• Miller v Secretary of State for Exiting the European Union
• Argument was that triggering Article 50 was not a simple treaty decision
• High Court ruled in favour: parliamentary sovereignty trumps royal prerogative - extreme media reaction

Question 10

What is the importance of Brexit for the constitution?

Answer 10

• Parliament given a say - rejection of referenda approach to decision making
• Royal prerogative constrained
• Concession given to Parliament to vote on final decision
• Reinforcement of the role of Supreme Court