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w UK Government 4 : relationship between branches > The Supreme Court and its interactions with, and influence over, the legislative and policy making process > Flashcards

The Supreme Court and its interactions with, and influence over, the legislative and policy making process Flashcards

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1
Q

What is the judiciary ?

A
  • All the judges and courts which operate in the UK
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2
Q

How are the judiciary fully independent of the Government ?

A
  • The Constitutional Reform Act 2005 created a fully independent judiciary in the UK
  • This meant that the role of Lord Chancellor lost its judicial significance, while the Supreme Court was created to rule on the most important and controversial judicial cases
  • Creation of the supreme court
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3
Q

What are the 6 roles of the judiciary?

A
  1. Dispensing justice
  2. interpreting law
  3. establishing case law
  4. declaring common law
  5. conducting judicial reviews
  6. holding public enquiries.
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4
Q

How does the judiciary fulfil its role of interpreting the law?

A
  • The judiciary interprets law by creating precedents on disputed matters (which become binding on lower courts), as well as when ruling on specific cases which require an interpretation of Parliament’s intentions when passing a certain statute.
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5
Q

How does the judiciary fulfil its role of conducting judicial reviews?

A
  • The judiciary conducts judicial reviews by reviewing decisions of public bodies to observe if they have acted ultra vires (outside of their legal powers), with this often done to ensure that government has not acted outside the law or diminished the rights of citizens.
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6
Q

How does the judiciary fulfil its role of holding public enquiries?

A
  • The judiciary holds public enquiries by investigating matters of public importance in a politically impartial manner
  • This is assisted by their political neutrality.
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7
Q

What does it mean for a body to have acted ultra vires?

A
  • To act ultra vires is to act outside of one’s legal authority, and as such mean that the law has been breached
  • Judges have the power to overturn actions deemed to be ultra vires and demand compensation for this
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8
Q

What examples are there of public enquiries held by judges? (3)

A
  • Leveson Enquiry: investigated the conduct of the media following the phone hacking scandal, leading to OFCOM.
  • Chilcot Report: investigated the conduct of Tony Blair in commissioning the Iraq War, as well as the UK’s role.
  • MacPherson Enquiry: investigates possibility of institutional racism within the Met Police following murder of Stephen Lawrence.
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9
Q

When was the Supreme Court ESTABLISHED? When was it OPENED?

A
  • The Supreme Court was established in 2005, later being opened in 2009
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10
Q

Under what 4 circumstances does the Supreme Court hear cases?

A
  • The Supreme Court hears cases with major implications for groups/individuals, important and disputed interpretations of law, which involve human rights and also important judicial reviews.
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11
Q

What is Judicial Precedent? How can these be overwritten?

A
  • Judicial precedent is where a court either makes a piece of common law or a decision on a certain type of situation which must be followed by all courts below it
  • These can only be overwritten by a higher court.
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12
Q

What single area of justice is the Supreme Court not the final court of appeal for?

A
  • The Supreme Court can have decisions on human rights matters appealed to the European Court of Human Rights, on account of the UK’s subscription to the European Convention on Human Rights.
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13
Q

What is formal equality?

A
  • Formal equality is the equal treatment of all citizens before the law, also known as the Rule of Law
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14
Q

What is legal sovereignty?

A
  • Legal sovereignty is when a body has the legal right to exercise their sovereignty
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15
Q

What is political sovereignty?

A
  • Political sovereignty is where Parliament, in practice, has the ability to create whatever laws it wishes
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16
Q

What is the relationship between the Judiciary and Parliament on legislation?

A
  • The judiciary is subordinate to Parliament in that it primarily interprets statutes created by Parliament
  • It must make rulings in accordance with Parliamentary law.
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17
Q

When was the ECHR incorporated in to UK law ?

A
  • 1998 HRA
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18
Q

What happens if the statute conflicts with the ECHR ?

A
  1. Judges cannot overrule statute (Parliamentary sovereignty)
  2. Can issue a declaration of incompatibility
  3. Parliament can then change law in order to comply or ignore court’s ruling
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19
Q

How many declarations of incompatibility were made 2010-5 ?

A
  • 3

- Each time the government asked parliament to amend existing law in each case

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20
Q

Why was the judiciary seen as socially conservative until the 1970’s ?

A
  • Same background as Tory MPs
  • Didn’t usually challenge government’s authority
  • Saw themselves as servants of the state
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21
Q

Relationship between the judiciary and executive in the last 40 years ?

A
  • Growth in judicial review (more likely to challenge official decisions)
  • Appointment of more liberal minded judges
  • Impact of the HRA 1998 and CRA 2005
  • More eager to assert citizens rights against the power of the state
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22
Q

Why should power lie with parliament ?

A
  • Elected and accountable
  • Clear mandate to run the country
  • can respond to public opinion quickly
  • Overaching responsibility to protect citizens even if individual rights have to be set aside in interests of national security
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23
Q

Why should power lie with the judges ?

A
  • Politically neutral
  • Rational decision-makers (legal training)
  • Expected to be immune to outside influences (eg elections)
  • unelected : can take a long term view (not just the next 5 years)
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24
Q

What judicial neutrality ?

A
  • Judges shouldn’t be influenced by their personal political beliefs and should remain outside party politics
  • Conflicts of interest : judges must refuse to sit in a case involving a family member or friend or professional colleague
  • Judges must avoid party political activity
  • Welcomes public scrutiny : website/televised hearings/ visitors
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25
Q

What is judicial independence ?

A
  • Judges should not be influenced by other branches of government
  • It is important because judges may be asked to consider cases where there is a conflict between the state and the individual
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26
Q

What are the guarantees of judicial independence ?

A
  • Security of tenure
  • Pay
  • Appointments
27
Q

What are the top 3 levels of the judiciary ?

A
  1. Supreme Court
  2. The high court
  3. The court of appeals
28
Q

Regina v. Jogee (2016)

A
  • Examined judicial precedent + effectively rewrote the law on joint enterprise
  • Jogee was convicted of murder even though he hadn’t directly killed the victim
  • Then reduced to manslaughter
29
Q

Dispensing justice

A
  • The courts have a vital role in ensuring that legal justice is delivered
  • Must uphold the principle of ‘formal equality’
30
Q

‘Making law’

A
  • Common law is unwritten and judges must declare the meaning of such law if they believe it exists
  • A good deal is judge made
31
Q

Interpreting law

A
  • Precise meaning of statute law is not always clear + there will always be disputes in courts
  • Judicial precedents became important here (once it has been interpreted in a certain way, )
  • Often with regards to human rights
32
Q

Establishing case law

A
  • It is not clear how the existing laws are applied to a particular case
  • Eg in the case of women’s rights it is unclear as to what to do in specific circumstances
33
Q

Declaring common law

A
  • Not all law is made by parliament
  • There can be issues as there is no relevant common law (judge made) and no statute
  • The judge must take the evidence and decide what the common law is
  • Common law examples : murder, manslaughter and common assault
34
Q

Statute law

A
  • Law passed by parliament
35
Q

Administrative law

A

Regulations made by ministers under powers granted by parliament

36
Q

Case law

A
  • Interpretations by courts of how the law should be applied in particular types of cases
37
Q

Common law

A
  • Law that hasn’t been written or passed down by parliament but that comes through traditional practices
  • Exists when a judge declares that it exists
38
Q

Equity

A
  • law declared by a court when no other kind of law can be found
  • Based on the general acceptance of ‘fairness’
39
Q

Judicial review applications in 2013 ?

A
  • 15,000
40
Q

Typically how many judicial reviews are successful ?

A
  • 2014 : 4,000 and 36% were successful

- Expected to settle at 4,000 a year with 1/3 successful

41
Q

Sentencing issues

A
  • This is a political issue so jeopardises the neutrality of the judiciary
  • Since the 1990’s MPs have sought to take control away from judges and to force their hand
  • The government seems to be winning with the introduction of minimum sentences taking away from the judiciaries powers
42
Q

What cases do the SC take ?

A
  • Key HR issues
  • Public interest
  • Implications for other citizens and bodies
  • Important judicial review
43
Q

Schindler v. Duchy of Lancaster

A
  • 2016
  • Whether a UK citizen who lived abroad for over 15 years should be able to vote in the referendum
  • Principle of ‘rule of law’
  • The court ruled the government had the right to deny them vote
44
Q

Trump Golf club v. Scottish ministers

A
  • 2015
  • Trump argued a decision by the Scottish gov. to allow wind farm to be built near his golf course was beyond its power
  • Ultra vires
  • Trump lost the case
45
Q

Vince v. Wyatt

A
  • 2015
  • Wyatt and Vince divorces after which Vince became wealthy + Wyatt claimed for maintenance based on Vince’s new wealth
  • Interpretation of family law
  • Ruled Wyatt had a right to make such claim
46
Q

PJS v. News Group Newspapers

A
  • Unnamed celebrity sought to prevent the media publishing details of his private life
  • Extent to right of privacy and freedom of expression
  • SC ruled that the celebrity’s right to privacy should be upheld + took precendee over freedom of press
47
Q

What effects the relationship between judiciary and parliament ?

A
  • Parliament is sovereign and omnicompetent (ability to do anything)
48
Q

Example of the parliament being more influential than the SC ?

A
  • Parliament can alway amend a statute or pass a new one in order to correct what the judges have done
  • 2010 : SC ruled that the Gov. didn’t have to power to freeze terrorist assets
  • Terrorist Asset freezing act was passed in 2010 allowing them to do so
49
Q

Judiciary and the executive

A
  • In recent years the judiciary no longer see themselves to be subordinate to the executive
  • They are no longer reluctant to challenge state power
50
Q

How does the government have a greater claim to authority ?

A
  • Parliamentary sovereignty as long as it can contain it’s majority
51
Q

How have the judiciary and the government become equal in recent decades ?

A
  • Growth of Judicial review (since Ridge v. Baldwin 1964)
  • Rise in liberal ideology and the ‘rights culture’
  • Appointment of more liberal minded judges since the 1990’s
  • Passage of the HRA giving a codified statement of human rights
  • 2005 constitutional reform act as it improved judicial independence
52
Q

Arguments that the government better establishes justice and rights

A
  • Government is elected and accountable unlike the judiciary
  • Government has a clear mandate to run the country and protect its citizens
  • Governments can respond to public opinion
  • Government has an overarching responsibility to protect citizens even if it means setting aside individual rights in the interest of security
53
Q

Arguments that the judiciary better establishes justice and rights

A
  • Judges don’t let political considerations to interfere with their protection of rights
  • As qualified lawyers, judges bring totally rational bearing to questions of law and justice
  • Judges are immune to outside influences
  • They are unelected so can take a long term view whilst politicians have to consider there short-term re-election prospects
54
Q

Miller v. Secretary of State for exiting the EU

A
  • 2016
  • Requested a judicial review in to other the secretary of state for exiting the EU had to prerogative power to trigger article 50 of the EU + start the leaving process
  • The government must obtain parliament’ approval due to parliamentary sovereignty, referendums aren’t legally binding, the rule of law is superior and it is for the judiciary ti determine limits of the governments prerogative powers
55
Q

Radmacher v. Granatino

A
  • 2010
  • Whether pre-nuptial agreements can be enforces in law
  • Meaning of common and statute law
  • Agreements were ruled as enforceable
56
Q

R. v. Met commissioner of police

A
  • 2011
  • Whether DNA of innocent people can be retained
  • Meaning of right to privacy
  • SC ruled such records couldn’t be kept and should be destroyed
57
Q

Evans v. Attorney General

A
  • 2015
  • Whether Prince Charles’ letters to the government should be published
  • meaning of the freedom of info act
  • Court ruled the letters should be published under the act
58
Q

Arguments that UK judges are independent and neutral ?

A
  1. CRA 2005 removed the threat to their independence
  2. Judges cannot be removed by ministers as a result of their decisions as they have security of tenure
  3. Judges cannot be treated with loss of income if politicians are unhappy
  4. Ministers have little to no influence over which judges are appointed + appointments are independent of politics
  5. No recent evidence of bias
    - Judges uphold the rights of all sections of society so appear neutral
59
Q

Arguments that the UK judges aren’t independent or neutral

A
  1. Ministers do have some influence over the final appointments of the most senior judges
  2. Th neutrality of judges is sometimes challenged on the basis of their background (eg everyone attended Oxbridge and 11/12 are white men)
  3. Some rights campaigners argue that some members of the judiciary tend to favour the establishment over citizens rights
  4. The judiciary has two many lawyers of a liberal disposition who tends to favour rights over security and law
60
Q

Weaknesses of the SC

A
  • Cannot activate its own cases and must wait for appeals
  • Parliamentary sovereignty
  • ECHR can hear appeals and over turn them (no longer true after Brexit)
61
Q

Power of the SC

A
  • Independence is guaranteed by law
  • Set aside executive actions that contradict the ECHR or rule of law
  • Can interpret law so decide how it is implemented
  • It can declare proposed legislation as incompatible with the ECHR
  • With the UK leaving the EU, it cannot be overturned by a higher court
62
Q

S and others v. Home secretary

A
  • 2006
  • Circumstances when the government culled ignore the ECHR and the UN refugee convention
  • Afghan citizen claimed asylum after hijacking a plane in to the UK as they claimed a duress
  • Ruled the goveinnnet had to apply same asylum seeking rules and recommended a change in the law
63
Q

R. v. Ministry of justice

A
  • 2014
  • UK law incompatible with EU law (suicide act)
  • SC dismissed the appeal that England’s law on assisted suicide infringed the ECHR

w UK Government 4 : relationship between branches (2 decks)

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