P2 T4: The Supreme Court, The EU, and Sovereignty

Question 1

4.1 When did the Supreme Court begin and what did it replace?

Answer 1

Replaced the Law Lords as the highest court in Oct. 2009. Initially consisted of existing Law Lords, but as Supreme Court justices, who ceased to be members of HoL

Question 2

4.1 How did the Constitutional Reform Act 2005 (CRA) strengthen separation of powers between the executive, legislature, & judiciary?

Answer 2

• Before judiciary being asked abut constitutional issues that was inappropriate for Lords to decide
• e.g. Jackson vs. Attorney-General 2005 - Law Lords had to resolve whether the 1911 & 1949 Parliament Acts allowed the 2004 hunting act - judges were members of HoL

Question 3

4.1 Define ‘judicial neutrality’

Answer 3

Absence of any form of partisanship or commitment; a refusal to take sides so that decisions are objective; impartiality

Question 4

4.1 Define ‘judicial independence’

Answer 4

Constitutional principle that actions & decisions of judges are not influenced by pressure from govt.. Protects citizens from unjustified govt. power & impartially resolves disputes

Question 5

4.1 How did the CRA address long-term concerns about the independence of the judiciary?

Answer 5

The Judicial Appointment Commission (JAC) was created to prevent ministers from appointing judges

• Before, Law Lords were appointed by crown by advice of PM OR on advice of Lord Chancellor (who was appointed by the PM & was an MP)
• JAC created to select candidates impartially & diversely
• JAC appoints judges but not SC Justices

Question 6

4.1 Give an example of the Supreme Court being for the whole UK

Answer 6

Miller vs. PM 2019:
- Whether within prerogative powers to advise Queen to prorogue Parliament in run up to leaving EU
- Divisional court of E&W had ruled it non-judiciable & Court of Session in Scotland said unlawful
- SC decided it on a UK-wide basis

Question 7

4.1 What is the role of the Supreme Court?

Answer 7

• Hears appeals on arguable points of law
• Concentrates on cases w/ greatest public & constitutional importance
• Final court of appeal for all UK civil cases & criminal cases
• Adjudicates whether devolved govts. have exceeded their powers

Question 8

4.1 How are Supreme Court Justices appointed?

Answer 8

• When a vacancy appears, select commission is created
• Interview candidates who have applied
• Candidates must have held a judicial high office for 2 years or have been a barrister/solicitor for 15
• Commission chaired by incumbent President of the SC who nominates a senior judge who is not in the SC
• Representative from separate JAC for E&W, Scotland, & NI; one of these reps. a non-lawyer

Question 9

4.1 How is the appointment of Supreme Court Justices immune to political interference?

Answer 9

• Senior judge that is nominated is not in the SC
• Rep. is from separate JAC and one is a non-lawyer
• Minister for Justice does not reject candidates
• Entrenches the principle of separation of powers

Question 10

4.1 Define ‘Ultra vires’

Answer 10

Literally ‘beyond their power’; this applies when public bodies have acted illegally b/c their actions have no statutory authority

Question 11

4.1 Define judicial review

Answer 11

The power to review actions taken by public bodies on the grounds that they are ultra vires & to review Acts of Parliament to see if they are compatible w/ the HRA

Question 12

4.1 Give the five points that explain why no one, not even ministers, is above the law

Answer 12

• All must be equal before the law
• The law must be clear and accessible
• The law must provide protection of basic human rights
• There must be a clear legal mechanism for resolving disputes
• The state will comply w/ its obligations in international & national law

Question 13

4.1 Outline the events of the Miller vs. Secretary of State for exiting the EU Case Study

Answer 13

Events:
- Govt. proposed to use prerogative powers to withdraw from the EU by triggering Article 50
- Issue raised on whether the govt. could do this w/o prior authorisation from an Act of Parliament
- Case brought by Gina Miller who argued there was an established principle that prerogative powers could not be applied to acts that might lead to a change in domestic law

Question 14

4.1 Outline the significance of the Miller vs. Secretary of State for exiting the EU Case Study

Answer 14

Significance:
- Reasserted authority of Parliament & defined the boundaries of executive power
- Leaving the EU will clearly change UK law, so withdrawal requires an Act of Parliament
- SC made a decision - not political, just interpreting the law

Question 15

4.1 Explain the first way the HRA works: actions of a public authority

Answer 15

• Unlawful for a public authority to act in a way that is incompatible w/ HRA
• Courts can cancel decisions and award compensation
• Zimbabwean facing deportation, SC ruled his case incompatible w/ Article 3 as he was HIV positive and couldn’t access his medication back home

Question 16

4.1 Explain the second way the HRA works: declarations of incompatibility

Answer 16

• SC interprets legislation so that it is compatible w/ ECHR
• If decided incompatible it will issue a ‘declaration of incompatibility’
• SC ruled Civil Partnership Act 2004 for opposite sex couples couples to enter into a civil partnership was incompatible w/ ECHR

Question 17

4.1 Why is it argued that the Supreme Court is unaccountable?

Answer 17

Made up of 12 unelected judges, more difficult when doing cases where public opinion is deeply divided, can lead to assumptions that judges make moral decisions when deciding legal Qs

Question 18

4.1 KTD: Is the Supreme Court independent and neutral? Give the arguments FOR

Answer 18

FOR:
- Threats largely neutralised by passage of CRA in 2005
-Judicial independence relies on commitment of ministers to uphold independence of the judiciary
- Judges should recognise their limits to rule on lawfulness of actions & not make decisions on policy so that they ensure they do not become political players
- Judges sign up to principle of impartiality & acknowledge they are accountable to the law - SC is livestreamed so senior judges must explain rulings
- Judiciary slowly becoming more diverse - Lady Hale first woman President of SC (2017-20)

Question 19

4.1 KTD: Is the Supreme Court independent and neutral? Give the arguments AGAINST

Answer 19

AGAINST:
- Biggest threat to judicial independence is it could become tangled w/ executive & legislative function - highest court was Law Lords which fused legislative & judiciary, 3 state functions fused in office of Lord Chancellor
- Concern about judicial independence stems from more willingness of ministers to criticise the courts
- Judges argued to be taking a more active role as more political Qs due to HRA
- More attacks by media on character of judges rather than decisions
- Bias from male, white, upper-middle class, Oxbridge judges - left argues bias against minority groups, right argues inbuilt liberal attitudes in favouring individual rights

Question 20

4.1 KTD: Does the Supreme Court have too much power? Give the arguments FOR

Answer 20

FOR:
- Power of judicial review limits power of the executive as courts can declare actions to be ultra vires or in contravention of the HRA, e.g. UNISON 2017 Fees Order was ruled ultra vires, govt. ceased collection & pledged to reimburse already collected fees
- SC has power to declare Acts of Parliament as incompatible w/ HRA - encourages Parl. to take action
- Large increase in no. of judicial review cases & this is limiting ability of democratically elected govt. & Parl. to deliver - peaked in 2013 w/ 15,600 cases
- SC becoming judicially activist, making decisions that take the court beyond its legal role & into political debate - left see politically active role as problem due to lack of diversity, right see this as a problem due to a liberal bias

Question 21

4.1 KTD: Does the Supreme Court have too much power? Give the arguments AGAINST

Answer 21

AGAINST:
- Rulings by court only interpret the law. Can only work within legal framework & only executive has power to place a new bill - cannot initiate cases
- Declaration of incompatibility works within principle of Parliamentary sovereignty
- Despite a rise in judicial review cases, evidence shows cases have levelled off - 2014 only 4000 claims issued b/c immigration cases were transferred to Upper Tribunal for Immigration & Asylum Chamber
- SC not becoming more activist, simply fulfilling its role as the UK constitutional court - HRA passed by Parl. who voted to give judiciary greater role in checking executive, membership of EU, HRA, & devolution have allowed SC to resolve key constitutional Qs

Question 22

4.3 What was the main aim of the EU?

Answer 22

Create closer economies in the belief that countries who trade with each other become economically interdependent which helps to maintain peace.

Question 23

4.3 What were the 6 major stages of integration for the EU?

Answer 23

1. European Coal & Steel Community (ECSC)
2. European Economic Community (EEC), 1957
3. Single European Act (SEA), 1986
4. Maastricht Treaty, 1993
5. Treaty of Nice, 2000
6. Treaty of Lisbon, 2007

Question 24

4.3 What was the ECSC?

Answer 24

European Coal & Steel Community:
- Power to regulate the coal and steel industries in six member states
- First development towards a European Community

Question 25

4.3 What was the EEC?

Answer 25

European Economic Community: - Established by 1957 Treaty of Rome - A customs union with the goal of 'an even closer union' - Many supporters favoured a 'federal' Europe where sovereignty was 'pooled' - Turned out to be a more 'functionalist' one - based around incremental steps towards economic cooperation

Question 26

4.3 What was the SEA?

Answer 26

Single European Act, 1986: - Envisaged an unrestricted flow of goods, services, capital, and people throughout a 'single market'

Question 27

4.3 What was the Maastricht Treaty?

Answer 27

- 1993 - Led to the creation of the EU - committed 15 members to a political & monetary union

Question 28

4.3 Define customs union

Answer 28

Internal free trade among member states with common external tariffs from goods outside the union

Question 29

4.3 Define pooled sovereignty

Answer 29

Combination of the national sovereignties of member states to enhance their power & influence

Question 30

4.3 Define political union (EU)

Answer 30

Establishment of common citizenship rights within the EU and a strengthening of EU institutions to ensure common policies in designated areas

Question 31

4.3 Define monetary union (EU)

Answer 31

Establishment of a single European currency, the Euro, regulated by a European Central Bank

Question 32

4.3 What was the Treaty of Nice?

Answer 32

- 2000 - Practise of qualified majority voting (QMV) being applied to a wider range of policy areas

Question 33

4.3 What was the Treaty of Lisbon?

Answer 33

- 2007 - Confirmed power of EU to act in areas of human rights, judicial and foreign policy, and strengthened EU independence

Question 34

4.3 Summarise the EU's single market

Answer 34

- Key objective by SEA - Aimed to remove tariffs on trade & included free movement of goods, services, capital, & people - Create seamless trade between member states - 450m consumers & 22.5m small & medium enterprises

Question 35

4.3 Summarise the EU's economic union

Answer 35

- Member states adopted the Euro after the Maastricht Treaty, 1993 - Handed regulation to European Central Bank - Major secured an opt-out - 19 states, financial crisis caused debt crisis for many, these received a huge financial bailout, this weakened the case for others to join

Question 36

4.3 Define national veto

Answer 36

Power of member states to block Council of Ministers' decisions on matters that threaten vital national interests

Question 37

4.3 Define qualified majority voting (QMV)

Answer 37

Voting system within the EU Council of Ministers in which different majorities are needed on different issues, with states' votes weighed (roughly) according to size

Question 38

4.3 Summarise the EU's political union

Answer 38

- 'Luxembourg Compromise' of 1966 said unanimous voting in the Council of Ministers to ensure each state had a national veto. - As a result of SEA 1986 & Maastricht Treaty 1992, QMV introduced to increase efficiency of law making but requires much more than just a simple majority - 80% of EU's legislation adopted using QMV

Question 39

4.3 What has the widening of the EU caused?

Answer 39

More difficult for decisions & coherent strategies to be made b/c all political interests have to be satisfied. These problems were exposed by 2015 migrant crisis w/ 1mil people crossed into Europe.

Question 40

4.3 What are the four freedoms of the EU? What are they enshrined by?

Answer 40

Free movement of goods, services, capital, and labour - enshrined in the 1957 Treaty of Rome, 1986 SEA, 1992 Maastricht Treaty, 2007 Lisbon Treaty

Question 41

4.3 Summarise the EU's policy of free movement of goods

Answer 41

- Clear priority of 1957 Treaty of Rome - Goods can move between member states w/o taxes or trade barriers - Consumer protection regulations mean goods must meet specific standards, e.g. food standards

Question 42

4.3 Summarise the EU's policy of free movement of people

Answer 42

- Aim of producing a mobile workforce across the EU - Removal of any nationality discrimination in employment - Became a mainstream issue in the UK from 2004 onwards

Question 43

4.3 Summarise the EU's policy of free movement of capital

Answer 43

- Removed restrictions on funds being moved between member states - Aim of generating economic growth by enabling efficient capital investment

Question 44

4.3 Summarise the EU's policy of free movement of services

Answer 44

- Allows people/companies legally operating in one state to offer services in another - Services are crucial to single market, making up around 70% of its economic activity & employment

Question 45

4.3 What social policies lie with the EU?

Answer 45

- Treaty of Rome - free movement of people, equal pay for men & women - Social Chapter - Major opted out, adopted by Blair, protections for workers & invested in deprived areas - European Pillar of Social Rights, 2017 - equal access to labour market, fair working conditions, & social protection & inclusion

Question 46

4.3 KTD: How influential has EU membership been on UK politics? Give the arguments FOR

Answer 46

FOR: - Significant for policy areas like agriculture and fishing - EU created divisions within main parties & has given rise to new parties - EU post-2010 became a high-priority issue & impacted voting behaviour & opinion - European Communities Act 1972 - transfer of more areas to EU, plus extension of QMV, major constitutional change

Question 47

4.3 KTD: How influential has EU membership been on UK politics? Give the arguments AGAINST

Answer 47

AGAINST: - Large areas of UK policy have remained unaffected - Post Brexit, divisions within parties are less significant & new parties have lost relevance - Public opinion has remained indifferent or Euroskeptic for the whole of the UK's membership - Withdrawal Act 2018 - UK took back control by repealing European Communities Act & leaving ECJ jurisdiction

Question 48

4.4 Define legal sovereignty

Answer 48

Supreme legal authority that is an unchallengeable right to establish any law one wishes

Question 49

4.4 Define political sovereignty

Answer 49

An unrestricted ability to act however one wishes

Question 50

4.4 Summarise the principal of parliamentary sovereignty

Answer 50

- Concept associated w/ AV Dicey's 1885 book - Said statute law, passed by Parl., is supreme over all other kinds of law, like common law - No other body, like another legislature or the SC, can challenge/set aside Parl.'s statute law - No Parl. can bind its successors, meaning no laws can be passed that future Parls. cannot change

Question 51

4.4 Define popular sovereignty

Answer 51

Supreme authority lies with the people

Question 52

4.4 Why is there a contradiction between Parliamentary and popular sovereignty?

Answer 52

Parl. receives authority from electorate and tensions arise when they pass laws that are in conflict with public opinion, e.g. Poll tax

Question 53

4.4 What are some other political constraints on Parliamentary Sovereignty?

Answer 53

- Powerful pressure groups - Public opinion - EU, WTO, UN

Question 54

4.4 KTD: Is Parliament sovereign? Give the arguments FOR

Answer 54

FOR: - Parl. is and always has been legally sovereign and has no legal limits on its law making ability - Parl. remains legally sovereign b/c it can recall devolved powers - Judiciary cannot strike down a statute for breaking HRA & Parl. can repeal the HRA - UK had more political sovereignty through pooled sovereignty of EU & always has had the power to leave - Only Parl. can call a ref. & the result is only advisory - Parl. legally sovereign & the executive has to rely on it for all legislation

Question 55

4.4 KTD: Is Parliament sovereign? Give the arguments AGAINST

Answer 55

AGAINST: - Parl. never been politically sovereign: it is limited by popular sovereignty & real world political limits - Power has passed to devolved assemblies as UK becomes increasingly quasi-federal - Parl. feels obliged to respect & respond to judicial decisions suggesting there are limits to Parl. sovereignty - During UK's EU membership, EU had law primacy - Unrealistic that Parl. would reject a clear ref. result on a decent turnout - The executive, particularly w/ a large maj., dominates Parl. & controls the law making process