8. Judiciary and relations between the branches Flashcards

Question

Is the UKSC too powerful?

Answer 1

**Yes** - Not neutral : An upper class liberal elite undermining mandate of elected politicians - Not in toutch with society Eg. Only 2 women, still overwhlemingly old, upper class and male - Since the 2005 CRA, they have been more assertive nd independent but dragged more into the political landscape becuase of HRA, devolution and Brexit meaning the judiciary is becoming 'politicised' and respect for it will be undermined - As the champions of the European Convention on Human rights, they undermine British ability to adapt HR **No** - Every democracy had an idependent judiciary, therefore it is right that Blair made the UKSC more independent and seperate - In actuality, it could be argued that the government attack to SC to much and conflicts 'desisions with political consequences, with 'political decisions' - As Britains has an uncodifed constitution, it requires a SC to interpret it just as much as in countries with a codifed constitutions - Rights are more likely to be protected by a SC interpreting a hard to amend Convention like ECHR than by a British Bill of rights that may be amended

Answer 2

**Yes** - As FPTP often leads to large majorites it could be seen as a 'elective dictatorship' - There is a parliamentary system of government so governments are able to use the power of patronege and whips to subdue independent minded MPs - Government controll timetbale, majorities on Public Bill committees and use of statutory instruments which does not go through full legislative scrutiny process - Foreign policy Eg. Mays strikes on Syria chemical installations 2018 - The Salisbury Convention hampers Lords **No ** - 1979 Parliament voted no cofidence in Callaghan government leading to election - 2010 to 2015 coalition and weak minority May government shows Parliament can have periods of asserting itself Eg. In 2021 Johnson had to rely on Labour MPs when 99 Conservatives voted against Covid passes - Since 1979 select committee system had increased the effectivness to hold the executive to account - Lords inflicited 450 amendment defeats on government from 1999 to 2010 Eg. defeated Osbornes tax credit cut and had much opposition to EU withdrawral Bills and Rwanda policy

Answer 3

1.** Voter ID **- In 2022 it ruled that the cabinet office did have authority to introduce voter identification for elections 2. **Gender identity** - In November 2021the SC ruled that the government did not have an obligation to provide a third gender option on passports 3.** Protection of rights** - In 2021 the SC ruled that Scottish Parliament did not have the power to introduce a law requrding rights of Scottish children 4.** Devolution **- In 2022 the SC blocked Scotlands attempt to bring in a second independence referendum

Answer 4

- Gina Miller is a bussines owner and activist - She Initiated the 2016 R (Miller) v Secretary of State for Exiting the European Union court case against the British government over its authority to implement Brexit without approval from Parliament - She also was one of a number of parties to launch legal proceedings against the Johnson government for advising the Queen to prorogue parliament saying to do so was unconstitutional

Answer 5

On the 24th September 2019, the Supreme Court ruled unanimously that the advice, and subsequent prorogation, were unlawful, void and of no effect because it had "the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive."

Answer 6

- The Scottish Parliament cannot hold a second refurendum without Westminster approval - The SC ruled in Nov 2022, in a unanimous judgment that Westminster governemnt was interpretating the 1998 Scottish Parlimament Act correctly, which says Westminster keeps control constitution - Huge impact : SNP first Minister Nicola Sturgeon resigned

Answer 7

- It hears importanat cases that are in the public intrest that lower courts such as the high courts, Court tribunals and country of appeal cannot decide

Answer 8

- The top 12 judges were also made peers and sat in a side room of the House of Lords hearing cases - Senior judges were appointed by the PM and the Lord Chancellor was speaker of the Lords and a member of the cabinet in charge of justice policy - However, there was to much fusion of the branches

Answer 9

- In 2005 Blair passed the Constitutional Refrom Act which didn’t start until 2009 - The Lord chancellor was reduced to just being a governement minister in charge of judicial policy, no longer speaker of Lords or appointer if judges - A more independent judicial appointments commision was set up to appoint judges - The Supreme Court became more independent in its own building, the guildhall, with its own president - Have been more powerful since as they can act independently

Answer 10

Shabana Mahmood

Answer 11

Lord Mcfall

Answer 12

Lord Burnett of Maldon

Answer 13

1. The Lord Chancellor convenes an indpendent selection commision made up of representives of each of the judicial appointments bodies of England / Wales, Scotland and NI (at least one of these must be a non lawyer) 2. The commision consilts a number of senior politician and Judges across the UK and a shortlist is made based on merit 3. After interviews, a report is then sent to the Lord Chancellor for her consideration 4. Another round of consultation and then the Lord Chancellor can acceptt the commissions recommendation or ask to reconsider 5. When the Lord Chancellor accepts a reccomendation, the name is sent to the PM, who sends it to King 6. After formal approval, the Prime Ministers Office makes an announcement

Answer 14

- Judges in the UK are not permitted to be members of a political party and a barrister or solicitor may be a member of a political party but once appointed a judge must abandon any political ambitions and associations - Since court cases are generally open to the public and prejudice or bias shown by a judge would be quickly publicised in the media

Answer 15

- The UK SC is housed in the Guildhall a building opposite Parliament, but seperate - Judges salaries are not determined by parliament but followd the recommendations of the Senior Salaries Review body - Since the Act of Settlement in 1701 a senior judge can be removed only by a resolution passed by both Houses - The CRA make appointments to the judiciary more transparent Eg. the judicial appointments commission was established which selects judges based on their merits and character - Appointments to the SC are decided by a specially summoned 5 person selection commitee - When a case is being heard it is said to be 'sub judice' meaning that Parliament cannot express an opinion as this would undermine judicial indpendence

Answer 16

The principle that judges should not be influenced by other branches of governemnt particularly the executive

Answer 17

The principle that judges should not be influenced by their personal political opinions and should remain outside of party politics

Answer 18

- If judges are not independent there is a danger that the governemnt will exceed its powers without legal justification and without any effective check on governemnt power tyranny may result - Citizens may need to feel certain that any legal cases will be dealt with on the basis of injustice and the rule of law with citizens in a democratic state must believing that their rights are effectively protected - An independent judiciary can prevent discrimination - Important that judges aren't influenced by short term changes in public opinion, reflected by politicians, and instead independent judges can take a long term view - Independence implies that judges are selected on a neutral basis to prevent collision between the judiciary and the government

Answer 19

1. **Security of tenure ** - Attempts to ensure the political independence of the judiciary of tenure - This principle says that judges cannot be removed from office on the grounds of the kind of decisions that they make - Only way a judge can be removed is if they can shown to be corrupt as a result of personal conduct incompatible of being a judge - Means that judges are free to make decisions without fear of dismissal even if it offends the governemnt 2. **The rule of sub judice ** - Means that it is contempt of court for any servant of the government to attempt to interfere with the result of a court case or even to comment on such a case in public or in parliament - This rule is designed to prevent any political pressure being placed upon judges 3.** Indpendent appointments ** - Since 2005 appointments to the supreme court are largely indepdent of the governemnt 4. **Judicial pay** - As employees of the state there is a danger that the governemnt could infulence judges by pay - Therefore, the salary of judges is decided by an independent body (the Senior Salaries Review Body) , which makes recommendations to the PM on the pay of judges, senior servants and senior military officers - Judicial salaries cannot be cut and there are rules about what expenses may be claimed to ensure there can be no political manipulation of the judges that may reduce their independence

Answer 20

- The rule of law is one of the key principles of the UK consitution and UK democracy and as the rule of law demands that all people are equal in the eyes of the law, judges must consider all people equally with no perosnal prejudge based on anything - Judges are only supposed to interpret the meaning of the law not the 'fairness' of the law so must remove any perosnal feelings or emotions and so if people believe a law is unfair they must act through parliament to change the law, not the judicary - In democracy people must have faith that their cases will be heard on a fair basis and without prejudice so must have confidence in the neutrality of the judiciary - The neutrality of the judicary is another way of ensuring its indpendence from politcal influence so judges will not have any personal views that may infuence their decsion making in relation the governemnt of that day

Answer 21

- All judges must make their decisions based on the law and explain how they have reached their decisions - This is done when they write their formal opinion and announce it demonstrating how they have reached their decision based on law rather than perosnal opinions **Restrictions on group membership ** - Judges and justices are restricted in which groups they may join - No serving justice may join a political party or certain other groups causing a conflict of intrest - Justices may still vote and have their perosnal views but no formal link to a political organization - If a justice had a conflict of intrest that might impact their neutrality they would have to declare it and possibly recuse themselves (excuse themselves from hearing a case) to ensure neutrality **Training and experience ** - All senior judges must have enjoyed a lengthy career as a lawyer and be highly trained - Must be accustomed to the principle that cases must be judges on the strict basis of law and not according to personal opinion - Junior judges who gain a reputation for a lack of impartiality are unlikely to be put up for promotion - The justices of the supreme court are the most highly reguarded and best qualified legal minds in the UK giving them the highest level of expirence at maintaining professional neutrality

Answer 22

- Justices are human and have their own internalized views and prejudges - Eg. People belive that Judges will be swayed by personal appearance people who do not share similar backrounds will have some degree of bias - Most judges in the UK coming from a narrow range , being mostly older white males, privately educated and Oxbridge educated - Bigger threat to the independence of judges is the risk of politicans and attempts to politicize the judicary - Supremes courts decision that Boris johsnon suspensions of parliment in 2019 was unconstitutional

Answer 23

- The constitutional Reform Act 2005 removed most threats to their independence - Justices cannot be removed by ministers as a result of their decisions and they have secuirty of tenure - Justices cannot be threatened with loss of income if politicans are unhappy in their decisions - Ministers have little or no infulence over which justices are appointed and appointments are largley indepdent from politics - There is no recent evidence of bias either in favour of or against governemnts and both Labour and Conservative governments have equally been controlled by Supreme Court decisions

Answer 24

- Minsters can exert some infuence over the final appointment of justices on the supreme court - The neutraility of justices is sometimes challenged on the basis that they come from a very narrow social backround - Some conservatives politicans claim the Supreme Court contains too many lawyers of liberal disposition who tend to favour state secuirty and law and order - Though currently disqualified from sitting in the house of lords, Lords Reed and Kerr both hold life peerages and so will be able to sit in the Lords once they step down from the SC and may have some exisiting connections to fellow life peers

Answer 25

- European Convention of Human rights which set rights out US style - UK citizens believing the UK governemnt or other body was undermining the ECHR rights could take them to the European court of human rights in Strasbourg - Sometimes Eg. Prisoners right the vote the UK ignored its rulings and it was able to do this as in the UK Parliament is sovereign and parliament has not incorporated the ECOHR into UK Law

Answer 26

- Incorporated the ECOHR into UK law - Now citizens could take the UK government or other body to court in the UK - The Human Rights Act did not authorize the UKSC to strike down Westminster Parliament Laws that violated the ECOHR - It did say the UKSC could issue a 'declaration' that a law was 'incompatible' with the HRA

Answer 27

**Yes** - Since CRA, UKSC more indpendent of UK governemnt and parliament and therefore more likely to stand up for rights - The SC stood up to the previous governement by saying its Rwanda policy contrary to HR - As long as HRA stands, because it incorporates ECOHR which can only be amended by unamious European council rigths remain 'entrenched **No** - Government still hold judicial policy Eg. Governemnt restricted criteria for judicial review and cases fell to 44% 2015 to 2019 - SC is vulnerable to public opinion

Answer 28

France and Germany

Answer 29

- Joined in 1973 under Conservative PM Edward heath after 2 failed attempts - Changed its name to the European union when it became more powerful when other countries joined - The UK gave up controll in three key areas … 1. Trade 2. Agriculture 3. Immigration

Answer 30

The UN Convention of Human Rights of the Child

Answer 31

Deemed that it was out of the power of the Socttish Parliament

Answer 32

To encourage diveristy in the range of persons avaliable for selection for appointments

Answer 33

Council of Europe was made in 1949 launching the path to the EU

Answer 34

The Treaty of Rome created the EEC (European Economic community) the forerunner of the EU

Answer 35

The European council was established which defines the overall political direction of the EU

Answer 36

In 1973 the UK under the Conservative government joined the six in the EEC along with Ireland and Denmark

Answer 37

In 1981 Greece joined followed by Spain and Portugal in 1986

Answer 38

- In 1986 the single market was established which meant that all the countires would have the same saftey regulations and also siad they would uphold the 4 freedoms … 1. **Capital** 2.** Free trade** 3. **Services ** 4. **People can go an work in any other EU country**

Answer 39

In 2002, there would also new currency and the European Central Bank was established which the UK opted out of

Answer 40

By November of 2004, the treaty establishing a constitution had been signed by all member states but the next year this was slammed during a refurendum in France

Answer 41

The 2007 Lisbon treaty made the EU more powerful with a European Parliament

Answer 42

1. The** ‘democratic deficit’** in EU institutions like the EP, ECommission and Council of Ministers and were seen as remote and unaccountable 2. **Too much red tape** (regulation) of business 3. As the ‘political’ side increased, many felt **UK losing sovereignty** 4. Fear of a long term project of a ‘**federal’ Europ**e 5. UK a net contributor 6. Fear free movement would mean ever **increasing migration** UK would not be able to control

Answer 43

An estimated £250 million

Answer 44

- European parliament is elected creating legitimacy with the UK having 70 representatives - The EU allows for the free trade and the freedom of movement of goods - Parliament still the most sovereign thing - Kept the British currency instead of moving to the Euro showing Parilament still has the veto in decision making - By joining a big organization and having a signifigant say we are not losing sovreighty in actuaility its being transferred - The UK has to invest in order to make a return and generates lots of money in return in regards to infrastructure

Answer 45

- Depsite the executive being made up of people who also serve in Parlimanet , the two branches find themsleves in conflict with each other - At time the executive dominates parlimanet - Under power executive Eg. Blair and Thatcher it was common to refer to the position of the executive in the UK as an elective dictatorship

Answer 46

- When parliament exercises right of sovereignty, it threatens democratic legitimacy of government - Usually solved as Government has House of Commons majority, so Parliament has no need to exercise sovereignty as long as government is operating within its mandate - Sovereignty of Parliament becomes sovereignty of elected government - Eg. Johnson won clear mandate for pledge to secure Brexit without delay in 2019, passing Brexit legislation without major difficulty compared to May + Johnson government of 2017-19 that had no clear mandate from British Public

Answer 47

1. **Parliament Act 1911** : Prevents House of Lords having any control over government financial arrangements (spending and tax). Also states if a law is passed 2 consecutive years in House of Commons, Lords cannot block it Eg. Gay Marriage act 2. **Parliament Act 1949** : Delaying power of the Lords should be reduced to only 1 year 3. **Salisbury Convention** : Developed in 1940s, Lords must not block piece of legislation that was contained in winning government's last election manifesto means unelected House

Answer 48

- Depends on circumstance as there is no role for effectiveness of parliament to holding executive to account - Eg. Success of the PM can change the balance of power - 2019-2020, Johnson: Parliament effectively controlled the executive, forcing him to ask EU for extensions for UK leaving EU, despite PM reluctance. - Post 2019 GE, Johnson powered through more policies, Parliamentary effectiveness in holding executive accountable decreased Eg. Johnson and ministers like Priti Patel cancelling appointments to see the Liaison Committee and select committees

Answer 49

- Seen under Theresa May - Most proposals have to be negotiated individually with members of parliament from all parties to try and secure majority of support - Government is constantly facing possibility of defeat - Small number of MPs, in other parties or from their own, gain tremendous influence and can make demands from the executive in order to secure their own votes

8. Judiciary and relations between the branches Flashcards

(75 cards)