4- Relations Between The Branches Flashcards
Supreme court
Highest court of appeal in the uk
Established in 2009
12 justices comprise the most senior judges in the country and its judgements can carry great legal, constitutional and political significance
Decisisons it reaches have to be followed in future cases
‘Last word- lord phlips- first presdent
Cra 20056
Called fro greater seperation of powers so removed law lords from hol and into seperation sc
And split up roles of lord chancelor
Role of sc
Final court of appeal where there is a judicial review of how th egoov has acted
Work of new sc is more open to public scrutn y than had been the case with appellate comm (law lords in hol))
Can determine whether an issue aught to be under the jurisdiction of british gov or devolved body
Final court of appeal fo rall cvil cases across uk and for al criminal cases in eng wales and ni
Scotland- hgh court of judiciary fulfils role as court of appeal for crimnal cases
Membership of sc
Determined by a 5 member selection commission made pup of the most semior judges in the uk
Nominations passed to justice secretrary for approval
Has one opportunity to reject a nomination
Once agreed pm asks monarch to make the appointment
Ultra vires
Beyond the powers
Action that is taken without the ega authoorty which is required of it
Is the uk judiciary ndependant and neutral
Cra- independant appointment process
Neutralituty protected by legal and political restrainst
Tenure, protected saleries
Reforms to lord chancellor have greatly iincreased seperation of powers
Cra- independant appointment process- independat and neutral- yes
Created new judicial appointment comm with legal professionals
Position advertised and jac interview candidates before rec to lord chief justce and lord chancellor (who can reject first one))
For sc- select comm, nomnations passed onto judtice secretary for approval, reject once
No- cra- iindepenant appontment process- independant and neutral
Lack of dversity- limited neutrality
No etnc minorty just 3 female justces, older- undemocratic
Public confidnece- balanced and fair
Eg. Radmarcher v granatins- all male sc justice ruled in favour of prenup agreemonets but lady hale opposed
Neutralitu portected by extensive legal and political restirctions- independant and neutral- yes
Years of experience, ofte as barrister
Reasons to be more transparent- sc livestream of court, public with full written report as well as more concise summary
Political restrictions- can vote but no active political affilations
Neutrality portected by extesive legal and political restrictions- no
Inevitable personal views of judges will nfluence the final decision
R (miller) v secretary of state for exiting the eu (2017))
Sc cant detrmine wether gov begin the porcess of exiiting ey using preogrative powers
Daily male- 5 sympathtic to eu, 66 personal relations with remainers
Tenure, protected saleries- yes- independant and neutral
Judges life tenure, until 75, retire, cannot be simply fired for decisions that gov disagrees with
Pay cannot be used to influence decisons by ncreasng or decreasng.
Not controled by budget/gov, instead by ndependant review body that sets salery who meet directly from considadory fund (gov bank account bofe)
Anonymity- dont run for office or secure political funding
Subjudce rule- prevents mps. Lords, pg, public fro, discussing impendng court case
Shie;d from overall influence, if break contempt of court- fine criminal proceedings
Tenure, protected saleries- not ndependant and neutral
Constiiitutioinal convention to not comment outside ocurt room or gov legislation- exec not comment judges or their decisons- esp hr issues
Eg. 20165- defence secretary- fallon- judiciary broad interpetation of hr udermining armed forces ability to combat terrorism
Mar 2018- president sc applied legal aid changes undermine rule of law- conventional criminals pay 150t 1200 towards cost of their case- over 100 magistrates resign in protest
Reforms to lord chancellor have greatly increased seperation of powers- yes more independant and neutral
Historically members of all 33 branches- member of cabinet, rep judiciary iin gov, speaker, head of justice
Cra split up
Lord chancellor- postion of justice secretary, oversee judicial appointments, admission of cases, legal aid and prison sentences
Lord chief justice- presides over lower courts- most senior judge
Lord speaker- elected by peers to preside over hol
Cra requies lord chancelllor- senior member of gov to swear oath to ‘respect the rule of law’ and ‘defend the independence of the judiciairy’
Reforms to lord chanceller dont increase independance and neutrality
Cra doesnt require lord chancellor to be a laywer, could be more ambitions, younger minister wuth limited legal experience
Is the judiciary now too powerful
Judicial review
Sc power compared to other countries and in past
Constitutional reforms- greater judicial activism
Independance and neutrality
Judicial review- is the judiciary now too powerful
1982- 685 applications for judicial review- 20013 over 15,700 applcations- substantal increase in immigration and asylum cases
Pm cameron criticism increase hjr- some ‘welll founded, many completely pointless’
Critics argue jr hold up elected gov- prevents ministers from enacting election mandated promises
Many ‘leave ‘ voters critic when jr sought of con gob planning when had royal prerogatve powers to trgger clause 50- start exit negotiations- application of jr just attempt to frustrate results of ref
Critics argue ref result didnt change the fact that ministers still ahd to act with legal policies
Judicial review- is judiciary now too powerful-no
Increased jr essential to rule of law
Av dicey wrote that ‘twn pillars’ of british constution are parliamentary sovereignty and rule of law
Rule of law stresses importance of law over artibitrary power- requires decisions and actions to applied to everyone equally0
Public office and gov have been frustrated when judgedes declare that an action or decision to be illegal processes are imporoper or immoral
When judges rule that decisions of gov minister, are ‘ultra vires’ beyond legal powers- upholding will of parliament- eg. Justice secretary acted uv when ammedned legal aid to restrict civil legal aid
Sc power compared to past judicial too powerful- yes
In the past- hra 1998- declalration of ncommpatibilit- uk law conflcits with echr
Due to parliamentary sovereignty- parliament still decisded how to deal with declaratio
Joint comm on hr in 2015 found that since hra in 2000- 29 declarations, 20 final
Sc power compared to other countries- judiciary not too powerful
Sc much weaker than other countries as lack codfied constitution
If codified- highest courts have power to strike down any laws passed by legislature- as conflict with ‘higher laws’ in constitutoin
Parliament is soveriegn and one main sources of our constitution are passages in parliament- sc strike down for being unconstitutional
Constitutional reforms- greater udicail activism- judiciary now too powerful
Critics hra argue judicial activism- decisions influenced more by personal views of judges than existing laws
Exhr vague-liberal judges increasingly broad view of rights are protected- eg. Echr requires its convention and powers gaurentee to ‘everyone within their jurisdiction’- traditionally judiciary wthin state body- smith v mod 2013- echr intrperted as expanded for brtish soldiers
Hra rases judges to answeer q more personal than legal- once ‘non-justicable’ as rased policy best left to parliament, now in sc due to hr implications- more subjective
Eg. Nicklinson- right to day- court decided had to be debated in parliameent
Judiciary not too powerful- constitutional reforms- law making rule and judges support judicial restriant
Judges cannot be proactve- as must wait for cases be bought to them
Judiciary always nterpet statitute law
Crtics for judiciary overstep constitutional barriers- ncklinson v ministry of health- decided debated in parliament
Independance and neutrality- jduciairy too powerful
Inevitable personal views will influence somewhat
R miller v secretary of state for exiting eu- whether should begn process of withdrawing from eu using preogative powers
Daily mail- 5 sympathtic to eu, 66 personal relations wth remainers
Independance and neutrality- judiciary not too powerful
Pay cannot be used to influence
Independant review body sets, meet with consilidatory fund- gov bank account in bofe rather than budget
Subjustce role- previsou mps, lord, pg, media, public from discussing iimpending court cases- shielded from influence- if break, contempt of court
Years of experience- often as barrister
Transparency needed- release full and summarised report of how and why came to conclusion
Sc livestream court
Pledge of ndpendance oath
System of executive in uk
Executve sits within parliament- exec and legislature are fused
As a result of palriamentary sovereignty- exec accountable to hoc as reps will of british people through mps elected