theme 4 - relations between the branches Flashcards
what is the supreme court?
The Supreme Court is the final court of appeal for all civil cases in the UK and all criminal cases everywhere but Scotland. Due to its importance the supreme court plays a key role in interpreting the law and figuring out how to best implement it. The Supreme Court consists of 12 judges who are appointed by the monarch.
what are the two key operating principles of the supreme court?
Judicial neutrality
Judicial independence
what is Judicial neutrality?
judges must exercise their powers without personal bias. They have their own code of conduct which ensures they remain neutral. For example, “conflict of interest” cases – judges must refuse to sit in a case that involves a family member, or anyone associated to them. And they are allowed to take part in public activities (like giving lectures), yet they are not allowed to speak on political affairs / activity. They must remain politically neutral.
when has the supreme court not been successful at fulfilling this function?
Out of the 12 judges, all are male apart from one female judge - and all older, privately educated and white.
Due to the composition of the supreme court, it can be deemed biased due to the lack of diversity within the court. We can begin to imagine times where their decision is tainted by their subconscious bias.
Lack of female representation has been seen to massively influence the verdict of a decision. For example, the 2010 case – Radmacher vs Granatino. The case was about a pre-nuptial agreement where two partners before marriage agreed not to claim each other’s assets if a divorce occurred. However, the husband then claimed this pre-nuptial agreement was not valid, as he wasn’t as wealthy as the wife and was therefore under pressure to sign against his will / good judgement. All 11 male judges disagreed with this line of argument, and stated claims made in a divorce should be limited. Yet Lady Hale voted against the popular verdict, as she stated it would be women who would be disproportionality effected by such ruling - as women are more likely to be pushed into signing such agreements.
what is Judicial independence?
+ how is this independence guarnteed?
judges must be free from political interference. Judges must be confident that they can make a decision without risk to their career. There are several in-built guarantees of independence:
1) Judges cannot be removed from office unless they break the law. Judges are also immune from legal action arising from any comment they make during a case in court.
2) before tony Blair’s reform, the highest court in the land was the Law Lords. The court now has its own building to represent this shift and independence. Future recruits to the Supreme Court cannot be made a Lord.
3) Judges are appointed by an individual commission.
when has the supreme court not been successful at judicial independence?
There were concerns raised in 2011 by the supreme courts president (Lord Phillips) on the issue of funding. During the introduction of the coalition’s austerity measures, they proposed spending cuts for the court. Lord Phillips argued the supreme court’s independence was at risk unless it could have its own ring-fenced funding.
He spoke of a `tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire’. The Justice Secretary at the time, Kenneth Clarke, dismissed this argument. He insisted that the Supreme Court was independent of political interference and that the government accepted its judgments, even those that went against it, and that the Supreme Court could not uniquely be permitted to set its own budget.
what does the supreme court use to influence the government / parliament?
judicial reviews
what is a judicial review?
the supreme court can investigate whether a minister has followed the needed procedures when implementing the law. Sometimes their ruling works in favor of the government and sometimes it does not. This is known as: Ultra vires- a Latin phrase translated to “beyond one’s powers”. Have they acted beyond the powers granted to them?
when has a judicial review been successful?
Nigeria vs the home office. Before 2015, the home office trailed the deportation method of “deport first, appeal later”. However, the home offices decision to deport a mother and child back to Nigeria was squashed and the home office ended up locating them in Nigeria and bringing them back. The Judicial review was granted as the decision to deport them did not take into account the mother’s previous history of mental health illness, and therefore ignored the principle to always consider the child’s welfare. It was thought had they returned to Nigeria, they would be subject to prostitution or human trafficking.
After the case, the judicial review led to the government changing their approach to deporting children. The Home Office is now required to make the child the primary consideration in their decision making. This decision also represents the first time the Home Office has been ordered to find and retrieve a deported individual and bear the costs of doing so.
when has a judicial review been not successful?
However, it is important to remember how parliament is the sovereign body in the Uk. There have been cases where a judicial review has ruled that a decision was unlawful, so the government has introduced a new law to make sure this is no longer the case. In 2007 the Home Office freezed assets of suspected terrorists to prevent fundraising for their associated terrorist groups – despite any charge of criminal offence yet. However, this goes against the convention innocent until proven guilty. They would need to have a criminal record of terrorism in order to have their assets freezed. Instead of unfreezing their assets, in 2010 the Government passed the terrorist asset-freezing Act. This act was passed in just 4 days and was “nodded through” (passed without vote) in the HOL. Therefore, showing the structural limitations of judicial reviews – they only check if someone has acted within the existing law, they do not change the law.
what are the 3 ways parliament tries to hold the government to account?
- backbenchers (backbencher committee and backbencher rebellion)
- select committees
- ministerial questions / PMQs
what is the backbencher committee and when has it been successful at influencing government / holding it to account?
Backbencher committee 2010 – allows the backbenchers to choose a topic for debate for 35 days in each parliamentary session. An example of a successful topic chosen by backbenchers which got passed into law, would be Harveys law (2015) – that states the highway agency much notify owners if their pet has been killed on the road. This was brought to backbenchers’ attention after 130k signed a petition for it to be debated in parliament. Backbenchers may also have a stronger tie to their constituency, and thus prioritize their concerns during debate, which may go against party policy. For example, Zac Goldsmith left the conservative party after they decided to expand Heathrow –siding with his constituencies environmental concerns.
Backbenchers’ rebellions – Borris Johnson saw 80 conservative MPS rebel against him when he wanted to introduce covid passports. Instead, he had to rely on the opposition to vote for his policy for it to pass through parliament. This is significant, as Johnson did everything he could to make sure his own party didn’t rebel – he held a meeting with backbenchers an hour before the vote pleading for them to vote in favor, he spent the day calling specific people he thought would oppose, and he got Chris Witty to brief MPs on the spread of the virus. This presents a disunited party, with a government reliant on the opposition to pass their bills – this is unsustainable.
Equally, the government may not even propose a bill in parliament if they feel like it will cause a backbencher rebellion.
^Thersea May held off from proposing her Brexit bill multiple times. However, her bill was defeated 3 times in the HOC - with 118 conservative MPs rebelling against it.
Factions begin to arise in the backbenches - for example, the “common sense” faction in the conservative party. this ruins party unity as groups within the party form new identities.
^The PM may try and appease to some factions by promoting a representative to government. For example, everyone was shocked when May made Boris Johnson foreign secretary.
what is the evaluation to the backbenchers influence?
the backbencher committee has many structural weaknesses. Many of the 35 days allocated just serve as their concerns being aired – rather than turning into actual legislation. For a bill to pass into law it must go through all necessary procedures (first reading, second reading, etc.) before it an become law. This requires time to be allocated to such a cause – however it is the government who decides the timetable of the HOC. If the government doesn’t want a bill to pass, they would just not allocate enough time to do so.
The threat of backbencher’s rebellions holds more weight when the government is working with a small majority. However even in these cases, the government can find loopholes through “confidence and supply” agreements. For example, the DUP voted alongside the conservative party for their budget and confidence motions. In return, the conservative party promised to increase state pensions and £1 billion more to be spent on Northern Ireland. Equally, the threat of a backbencher rebellion being successful seems no existent with a healthy majority – this is why so many socialists had to tame their views during the new labour government, as they knew there was enough alternative MPs for the whip not to be scared to make sanctions – like making an MP an independent MP.
The whip - if an MP votes against a 3-line whip often, then the whip has the power to remove them from the party, forcing them to stand as an independent, or defect onto another party.
^For example, Lee Andersons deflection to the Reform party
^Both Jeremy Corbyn and Diana Abbotts have been banned from standing in the next general election for the labour party - following antisemitic comments by the both of them.
The whip can also make recommendations to the PM on loyal MPs to promote to government - this is known as the power of patronage. A loyal MP is more likely to uphold CMR than a previous rebellious MP.
what are select committees and when have they been successful at holding the government to account?
Select Committees scrutinise government through conducting inquiries, writing reports, and getting witness statements from ministers. They can call any minister into questioning, for example:
-the privileges committee scrutinized Boris Johnson’s Party gate scandal.
-The health and social care committee also gathered evidence from Matt Hancock on his covid-19 response.
^Such inquiries are often live streamed, gaining a lot of media attention.
The Wright reform (2010) has also given select committees more independence form the government - allowing them to scrutinise effectively. This reform stated that now MPs are voted onto select committees through a secret ballot, rather than being chosen by the government.
Equally in 2008 it was decided the government should publish a review of every act of parliament 3-5 years after it had been implemented to see how effective it was or not. This gives select committees more material to work with
what is the evaluation to select committees significance?
Select committees hold a lot of structural weaknesses. For example, the committee must reflect the makeup of parliament – so the government’s party will always be a majority in the select committee.
The Committee also doesn’t have any legally binding power, and it doesn’t hold any authority to force a minister to attend a meeting for them to be questioned. Only 40% of suggestions are actually taken on board. For example, Theresa May blocked a select committee from questioning the head of the M15 due to security risks.
Another example would be how Johnson refused 3 times before attending the privileges committee over the party gate scandal. Even when he did show up on the 4th time, this can be seen due to pressure from the media, rather than the authority of the select committee itself.
