UK: Relations Between the Branches

Question 1

ETVT the UK Supreme Court is too powerful (unchecked)

Answer 1

INTRO: define what too powerful is, on the one hand, S.C. needs to act as a check and defend constitution, on the other hand it is undemocratic

1. Enforcing constitution:
   - Supreme Court has the ability to rule and check the executive through judicial review (Miller 1, Brexit deal struck down, Miller 2, session resumed)
   - On the one hand, this could be seen as too powerful as the government is the elected leading body
   - On the other hand, government is not above constitution or rule of law
2. Enforcing the ECHR
   - Supreme Court has used ECHR in Belmarsh 2001 and Heterosexual Partnerships act
   - Hirst v. UK stated UK was going against human rights
   - On the other hand, what consequences were there, as they UK has still not introduced prisoner voting
3. Government bias and polarisation
   - Parliament currently considering bill to limit the powers of the courts (Judicial Review and Courts Bill)
   - Suella Braverman, Attorney Gen. promising to limit powers
   - Under Labour government, law lords become Supreme Court with constitutional rights, whereas conservatives have opposed this as a party issue (Enemy of the People in 2017)
   - Reflect the uncodified constitution, can influence but not strike down laws. SC not protected therefore, not too powerful

Question 2

What were the Black Spider memos

Answer 2

Evans v. Attorney General 2015, Supreme Court rules under the freedom of information act the letters of Prince Charles sent to politicians must be released. Previously, when this was demanded the government was granted veto power under section 53 of freedom of information act.

Established the equality of Parliamentary sovereignty and rule of law

Question 3

Advantages and disadvantages of Supreme Court

Answer 3

AD:

• Maintains rule of law, both community and common (ECHR)
• Lawyers do not have to be descriptive representation they are tools for the law
• Retire at 70 (not for life it is a job)

DIS:

• Unelected and unrepresentative, many of those at the top of their profession are old and white and male
• Court may overlook marginal struggles
• Constitution unentrenched and codified

Question 4

Describe Miller II and the outcome

Answer 4

Miller v. PM 2019, Johnson prorogues parliament in an attempt to pass Brexit legislation. When prorogued, it was argued Parliamentary sovereignty was also prorogued and therefore, rule of law was applicable.

Question 5

Describe Belmarsh case and the outcome

Answer 5

A v Sec. State for Home Dep. where foreign nationals were imprisoned for suspected criminal offence under Anti-terrorism Crime and Security Act 2001. SC ruled there was no emergency during such a time under which it was ok to suspend human rights

Shift in power after this as SC adopts human rights as its judicial power over government

Question 6

ETVT Parliament is still sovereign FOR

Answer 6

• Legally Parliament is completely sovereign
• Popular sovereignty must move through Parliament (e.g. EU Withdrawal Agreement). On the other hand, Brexit was popular but 2017 and 2019 sessions had most defeated PMs ever
• Power dependent on party (e.g. 1990s conservative party removed Thatcher) therefore they are not a monarch
• Devolution implies Parliament may rescind its orders at any time (+ lack of demand and competence in Devolution, wales + n.ireland)
• Johnson has refused Scottish referendum, and it is not possible without his permission
• No Parliament can bind its successor, all bills are reversible as new session is sovereign

Question 7

ETVT Parliament is still sovereign AGAINST

Answer 7

• Politically, parliament is not sovereign unless the government is a minority (e.g. May gov.)
• EU undermines Parliamentary sovereignty (e.g. Factortame) and while it can be said Parliament is more powerful as it left, that was popular sovereignty
• PM is threat to Parliament, fusion of powers means “elective dictatorship” and can overstep many obstacles (e.g. Owen Patterson caught lobbying, Johnson orders MPs to let him off using party whips)
• SNP won 2021 Scottish Election, proposing non-binding referendum without government permission (which has potential to be politically binding)