UK - Relations Between the Branches Flashcards
Relations between the branches:
The Supreme Court:
The role and composition of the SC:
The role of the judiciary is:
- To interpret the law
- To assess the evidence presented in court
- To control how trials infold in their courtrooms
- To be impartial decision-makers in the pursuit of justice
The role and composition of the SC:
- Very recent institution: 2005 Constiutional Reform Act - active since 2009.
- 12 most senior judges in the UK. Head known as the ‘president’.
- Membership determined by a Special Select Commission of 15 independent members, and the President of the SC (the most senior member), chosen from PEOPLE THAT APPLY THEMSELVES. Nominations are then passed on to the Justice Secretary for approval (they can reject 1 nomination, but this has never happened). PM asks monarch to appoint.
- Jurisdiction reaches across the UK. Highest court of appeals for civil cases (across UK). And for criminal cases in England, Wales and NI - but in Scotland they have a criminal court - The High Court of Justiciary.
- Authority to determine whether any issue is under the jurisdiction of the British govt or the devolved administration.
- Final court of appeal in judicial review.
However, their role does not include striking down legislation, because of the UK’s unmodified constitution (meaning nothing is unconstitutional in the UK by definition), and Parliamentary Sovereignty (what Parliament chooses to pass, is final).
- The SC can rule an institution as acting Ultra Vires (a function of legislative intent - meaning they acted outside their powers/authority/legal ability, but will have the intent to fix this).
- Judicial review: The process of challenging the lawfulness of decisions of public authorities under the rule of law.
- Judicial activism: The argument that judges of the SC have used their position to promote their own ideological positions on the state of social issues, rather than simply interpreted the lawfulness of actions, etc.
Relations between the branches:
The Supreme Court:
The role and composition of the SC:
Make-up of the SC:
- Out of the 12 current justices:
- Only one was born after 1960.
- Only 2 didn’t go to a private school.
- Only 2 are women.
- Only 2 didn’t go to Oxbridge.
- However, as they are ‘self-selecting’, when two nominees are equally qualified, the diverse one is pushed forward).
This has an effect on the outcome of cases:
- Can be seen in the case Radmacher v Granaitno 2010
- The young man (Granaitno) marries very wealthy older woman (Radmacher). They sign a prenup before the marriage at R’s request - neither benefit from the other’s property if they divorce (G doesn’t take legal advice) - eventually they divorce after 8 years.
- G applies to court for financial assistance - High Court awards him £5.5m, reducing the importance of a prenup because of the circumstances it was singed in.
- R appeals to court of appeals and wins: prenup shouldn’t have been adhered to by High Court - G appeals to SC and loses.
- Lady Hale (at the time the only woman) says “there is a gender dimension to the issue which some may think ill-suited to a decision by a court consisting of 8 men and 1 woman”.
- BREIF: Lady Hale criticised the court on making a decision that can be swayed by inherent biases of the male justices towards the man.
Relations between the branches:
The Supreme Court:
Key operating principles of the SC:
Key operating principles of the SC:
The two key operating principles of the SC are: judicial neutrality and judicial independence.
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Judicial neutrality:
- Exists when judges operate impartially
- An essential requirement of the rule of law which is the key doctrine of the UK Constitution.
- Dicey says it has 3 strands:
- No one can be punished without trial.
- No one is above the law.
- The general principles of the Constitution result from the judges’ decisions rather than parliamentary statute.
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Judicial Independence:
- The principle that judges and others in the judiciary should be free from political control.
- Allows judges to ‘do the right thing’ and to apply justice properly, without fear of political consequences.
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Some issues with neutrality and independence:
- Critics of the SC take issue with privileged composition: may always rule in favour of the establishment or similar people.
- UK govt retains political influence over appointments of justices as the Lord Chancellor and Justice Secretary (same position) can block nominees.
- High profile political involvement in cases concerning govt - risks it all being pulled into major political disputes.
- Numerous examples with Brexit (e.g. prorogation Gina Miller cases with Johnson or May).
- Recent issues on ‘judicial activism’ and ‘lefty lawyers’ regarding rights of refugees and the HRA (Shemima Begum).
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How are neutrality and independence maintained?:
- Independent appointments process
- Contempt of court rules
- Independently set salaries
- Limitations on political activity
Relations between the branches:
The Supreme Court:
Is the SC neutral?:
Arguments for neutrality:
- Constitutional Reform Act 2005 removed most threats to their independence. (It replaced the ‘Law Lords and Lord Chancellor, with the independent SC, and made the independent Special Select Commission (with 15 independent members).
- They cannot be removed as ministers/judges due to their decisions - scrutiny of tenure.
- They can’t be threatened with loss of income if politicians are unhappy with decisions as they are set salaries by The Senior Salaries Review Body (a non-departmental, public and independent commission - they also advise on MPs, the PM, Ministers, police officers, senior army members, etc).
- Appointments are largely independent of politics (the Justice Sec has never rejected an appointment that the most senior judge has nominated).
- No recent evidence of bias in favour of or against govts.
Arguments against neutrality:
- Ministers can exert some influence over the final appointments of judges (the Justice Sec can reject nominations).
- Also, the President of the SC, sits on the Select Commission, so there could be some discrimination, as it keeps one social group dominant over the SC (old, white men).
- Neutrality is challenged on the basis that they come from a very narrow social background (universe and old).
- Some claim that the SC contains too many lawyers of liberal disposition - they favour rights over law and order (e.g. Belmarsh case).
- 2 judges have peerages (but can’t sit in the Lords until they leave the SC), but may have some conflicting interests and existing connections to current life peers (this could affect decisions on the state of the Lords chamber, salaries, controversies, etc).
Relations between the branches:
The Supreme Court:
The degree to which the SC influences both the executive and parliament:
Case Examples:
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A v Secretary of State for the Home Department 2004 (Belmarsh Prison Case):
- The UK govt vs Belmarsh Prisoners - a number of foreign national suspected terrorists held in prison indefinitely, without a trial under the Anti-terrorism, Crime and Security Act 2001. The prisoners claimed it was against the ECHR Article 5 (right to liberty), but the govt used Article 15 to trump this and suspend their rights. This Article can only be used in times of war or public emergency, and the suspension must be proportionate to the emergency.
- The question of the Lords Appellate Committee was whether the UK govt was allowed to use article 15 of the HRA, in these circumstances (whether the situation qualified for its use). And, whether the executive should be able to call this anyway (of if it needs a parl vote).
- Main constitutional principles: Parl sov (HRA 1998) v Rule of law.
- Outcome: They ruled with the prisoners as the govt had not tried lesser measures before, they issued a ‘declaration of incompatibility’ between the HRA and the Anti terrorism, crime and security act 2001. This has no legal binding, but put political pressure on parl, so they changed the law to include British nationals too.
- It set a precedent that the SC could now rule on matters of National Security, and that more grounds were needed to invoke Article 15.
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Evans v Attorney General 2015 (Black Spider Memos):
- Evans (journalist) vs Executive branch use of the FOIA 2000 Section 53 - this section allows a minister to withhold public info if it “is the public’s interest more, to do so, rather than releasing it”.
- The SC ruled in favour of Evans, that the use of Section 53 here was ‘inconsistent with the rule of law’ - the AG had acted Ultra Vires (beyond the rule of law, and one’s own power/authority).
- The main constitutional principles in tension: the rule of law v parliamentary sovereignty (S53 seemed to contradict the rule of law but have been established by parl sov).
- The SC increased their own hoper here by enforcing that the rule of law had supremacy over parl sov, and so parl is subject to court rulings.
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Miller 1 (2016) and Miller 2 (2019) (Brexit):
- Miller 1 - Parliament had to vote to trigger article 50 (under May), as the power to invoke the article did not lie with the executive.
- This case resulted in the vote on the European Union Withdrawal Act 2017 (which was successful due to Tory whips, and DUP confidence and supply).
- Miller 2 - Prorogation of Parliament had been unlawful (under Johnson) - the govt had acted ultra vires.
- The PM does in fact have the power to prorogue parliament (thought the Queen), but there must be reasonable grounds to do so, which there wasn’t here.
- The SC was deciding how far the power of prorogation stretches.
- Main constitutional principles: Miller 1 - sovereignty via referendum vs parliamentary sovereignty (referendums still are subject to parl, and are therefore not legally binding).
- Main constitutional principles: Miller 2 - Parliamentary sovereignty (+rule of law) v Royal Prerogative power (parl sovereignty takes supremacy of prerogative powers in this instance, and established limits to the prerogative power through PS and RoL).
- Miller 1 - Parliament had to vote to trigger article 50 (under May), as the power to invoke the article did not lie with the executive.
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Factortame Ltd v Secretary of State for Transport 2000 (fishing/Brexit case):
- Factortame (Spanish fishing company) said that the UK govt was in breach of EU law (under the European Communities Act 1972) for requiring boats to have majority British owners if registered in the UK (under the Merchant Shipping Act 1988).
- The SC ruled with the ECtHR and Factortame, that Community (ECA) law takes precedent over statute law (MSA) - the main constitutional principles here were EU law vs UK law (not parl sov, because parl passed the ECA 1972).
- This established a hierarchy of laws (EU above UK).
- This is no longer relevant after Brexit.
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Thoburn v Sunderland City Council 2002 (Metric Martyrs Case):
- In the ECA 1972, it says only kgs can be used as measurements in the UK. However, the UK parl in 1985 passed the Weights and Measurements Act (and then a 1994 S.I), that said any measurements were legal. The metric martyrs that used lbs under the new law, were convicted by the court of using illegal measurements under the ECA 1972. The martyrs then argued that the WMA actually implied repealed the ECA due to their incompatibility, so it was legal!
- The SC ruled that there was no incompatibility, and ruled that the ECA had become entrenched in UK law, via common law. This established hierarchies between laws for the first time, and said the ECA (and other community laws) were ‘constitutional laws’, and the WMA was an ‘ordinary law’, where the former can only be repealed explicitly.
- The main constitutional principles: Doctrine of implied repeal v community law.
- This still applies after Brexit to any constitutional laws (like the HRA 1988).
Relations between the branches:
The Supreme Court:
Who has the stronger claim to establish justice and rights?:
The claims of the executive:
- The executive is elected and accountable to the public.
- They have a clear mandate to run the country and protect its citizens (as they were elected).
- They respond to public opinion (referendums, petitions, ten minute rule bills, etc).
- They have an overarching responsibility to protect the citizens - even if that means setting aside individual rights int he interests of national security.
Claims of the SC:
- Judges don’t allow political considerations to interfere with their protection of rights.
- They are highly qualified lawyers and bring a totally rational bearing to questions of the law and justice.
- They are expected to be immune from the outside, populist influences.
- They are not elected and so can take a longer-term view than politicians who have to constantly deal with immediate problems for re-election.
Relations between the branches:
The Supreme Court:
How can the SC influence the executive and parliament?:
Factors that allow SC influence:
- The independence of the court is guaranteed in law.
- They can set aside executive actions that contradict the ECHR, rule of law, or acts of parliament.
- They can interpret the law and so affect the way it is implemented.
- They can’t overrule parl sov, but can declare proposed legislation incompatible with the ECHR which is influential.
- With Brexit, their judgements can’t be overturned by a higher court (used to be the EctHR).
Factors that limit SC influence:
- They can’t activate their own cases - they rule on appeals.
- Parl sov means that its judgements can be overturned by parl statute.
- No power to enforce their rulings, relying on the political pressure on the exec and leg branches to implement their rulings.
- Power and status are granted by statute law - they can be overturned and altered by parl
- The HRA could be replaced, removing a key component of judicial power and influence for them to rule on (possibly the British Bill of Rights?).
Relations between the branches:
Info that is cut out the course (but maybe still relevant for context):
This is on the Masterdoc on word in files:
(4. 2 - relationship between exec and parl)
(4. 3 aims and roles of the EU on parl)
(4. 4 the location of sovereignty in the UK)