Relations between branches

Question 1

What does the judiciary do

Answer 1

Enforce laws

Interpret laws including constitution

Protect human rights

Judge whether government or another public body has acted ‘beyond their powers’ - ultra vires (judicial review)

Interprets where sovereignty lies between executive and parliament

Question 2

Highest court is

Answer 2

Supreme court

Question 3

Why was judicial reform necessary

Answer 3

○ The Role of the Lord Chancellor (Derry Irvine was the last one). They are a cabinet minister (executive), chair of the House of Lords (legislative), head of the judiciary appointing judges (judiciary). Shows the fusion of powers/branches however the judicial branch should be independent

○ Appointment of judges. Senior judges were appointed by the PM and the Lord Chancellor so was no guarantee that the judiciary would be independent.
House of Lords. Judges were part of the HOL and could vote on legislature so could make and implement the law (fusing powers).

Question 4

What Blair did in 2005 constitutional reform act

Answer 4

○ Split the Lord Chancellor into
§ Exec: minister of justice done by Secretary of State for Justice and Lord Chancellor (Alex Chalk)
§ Legis: Lords Speaker (elected by secret ballot by Lords) currently Lord McFall
§ Judiciary: Lord Chief Justice (Lord Burnett of Maldon)

• The 12 Law lords are supreme court judges and have their own president
• There is now a Judicial appointments commission to choose judges. If the justice secretary does not approve the JAC choice he has to accept the second JAC choice.
  There is an independent selection commission and to fill a vacancy they choose.

Question 5

What ways can the supreme court claim to be independent

Answer 5

• Opened a separate building in 2009 and faces parliament but has physical separation as a statement
• Judges salaries are determined by the Senior Salaries Review Body and made from the Consolidated Fund not by Parliament.
• Appointment system is independent of the other two branches
• While case is being heard, parliament and the executive cannot comment also known as being contempt from court

Question 6

Criticism of the independence of the supreme court

Answer 6

• Justice Secretary can reject the first only recommendation of the SC appointments committee. They then must accept the 2nd (although this has not yet happened)
• The government can put pressure on the SC such as by not criticising right-wing press and implying they have more of a mandate than the unelected judges
• Conservative threats to repeal the HRA and replace with British Bill of Rights would reduce the authority and independence of SC. A probably weaker British Bill of Rights would give them less power to protect rights and because it could easily be amended by Parl at anytime, would undermine both rights provision and by extension authority of SC.

Question 7

What is judicial independence

Answer 7

The rule of law that judges must be independent of control and must be separate from other branches

Question 8

What is judicial neutrality

Answer 8

The rule of law eliminating political bias and judges cannot be influenced by personal prejudice.

Question 9

How can the SC implement their role of juding whether government or other public bodies have acted ‘beyond their powers’

Answer 9

The UKSC can rule whether government or any other public body such as the NHS or Scottish government is acting beyond the powers given by an Act of Westminster Parliament.

Question 10

What is ultra vires

Answer 10

The actions are beyond the scope of the powers that have been granted to the authority by legislation.

Question 11

Examples of the SC implementing ultra vires

Answer 11

eg Gina Miller 1 2017, SC ruled that due to 1972 European Communities Act Parliament, not executive alone, needed to agree to asking the EU to trigger Article 50, setting leaving in motion.

In Scottish Independence referendum case 2022 SC ruled Gov’t had not acted beyond their powers in rejecting Scottish parliament demand for second referendum because they had acted within the powers given by them in the 1998 Scottish parliament Act.

Question 12

How does the SC interpret where sovereignty lies

Answer 12

The UKSC does not have a codified constitution to interpret like the USSC. But it does hear cases relating to parliamentary sovereignty, which is the principle that the UK’s uncodified constitution rests on eg Gina Miller 2 2019 prorogation of parl.

Question 13

How does the SC and the European Court of Human Rights implement its role of protecting human rights

Answer 13

By judging whether laws/policies are compatible with the 1998 HRA. (The HRA incorporates the text of the European Convention on Human Rights and the SC tends to respect the European Court of Human Rights, which UK citizens can still go to as a final court of appeal on HR issues).

Question 14

What happened in the case involving Shamima Begum in 2021

Answer 14

Shamima Begum 2021, they ruled that Home Sec had been acting within their powers given by Acts of parliament when they withdrew Begum’s citizenship

Question 15

How did the SC become involved in Sunak’s Rwanda Bill in regards to protecting human rights

Answer 15

They ruled on the Rwanda policy 2023 that the government was breaching both HRA and international commitments like ECHR and UN Convention on Refugees. This is why Sunak attempted to pass the Rwanda Bill because he wants to prevent the situation where he tries to deport asylum seekers and the SC agrees to hear their cases. He believed the backing of an Act of Parliament saying Rwanda is safe will make it less likely the SC will do this

Question 16

What can the SC do if an act of parliament breaches the HRA

Answer 16

If an Act of parl breaches HRA the SC can issue a ‘declaration of incompatibility. Gov’t does not have to comply

Question 17

Example of when the SC has issued a ‘declaration of compatibility’

Answer 17

The then law lords ruled in Belmarsh 2004 that Blair gov’t had breached European Convention on Human Rights with its Anti-terrorism Crime and Security Act because it discriminated against foreign suspects. Gov’t complied, releasing foreign suspects. But then passed new law Prevention of Terrorism Act 2005 giving them control orders over both foreign and domestic suspects.

Question 17

What is the Rule of Law

Answer 17

The UK constitution is based on the law and everyone is bound by the law equally

Question 18

What is the HRA

Answer 18

1998

Previously the UK believed it protected human rights by giving all citizens freedom to do whatever they wanted unless prohibited by Act of Parliamnet. This meant free speech unless inciting racial hatred (contravening Race Relations Act 1976. The HRA took the rights in the post war European Convention of Human Rights, such as free speech, right to a fair trial, and incorporated them into domestic law, effectively codifying them.

Question 19

How many justices are there and how many of them are women?

Answer 19

12 including a President - currently Lord Reed

Only 2 of the 12 as of 2024 are women

Question 20

How are ordinary judges appointed

Answer 20

By the Judicial Appointments commission which is a transparent system

Question 21

How are SC justices appointed

Answer 21

A 5 person team consisting of:
- president of SC
- senior judge
- representatives of judicial appointments commissions for England/Wales, Scotland and NI

Question 22

How to remove a justice

Answer 22

Both Houses of Parliament have the power to petition The King for the removal of a judge of the High Court or the Supreme Court. Although, it has never been attempted

Question 23

What is retirement age for a justice

Answer 23

75 yrs

Question 24

In what ways can the SC claim to be neutral

Answer 24

- Judges are not permitted to be members of a political party (barrister or solicitor can)

Question 25

Criticisms of the SC being neutral

Answer 25

○ Members of SC are normally from an elite background and so claims say they favour the establishment and status quo ○ E.g Lord Denning sided with gov't several times such as Hosenball case It's memberships is so privileged that the desicions are unlikely to reflect how the law impacts on modern society. Most are Oxbridge and male - as 2023 only 2 female judges on supreme court.

Question 26

Are the SC justices more likely to be liberal or conservative and an example of this.

Answer 26

In the past judges were criticised for being upper class (private school, Oxbridge) and naturally cautious and small c conservative eg anti trade unions. Now they are more likely to be criticised for being from the kind of upper class elite which is too liberal ie favours individual rights over the rights of the majority. It is more likely they will be criticised by Conservative than Lib/Dem or Labour politicians. In 2019 Home Secretary Truss failed to defend SC justices when right wing press was calling them traitors and enemies of the people due to Gina Miller 2.

Question 27

Why did the UK leave the EU

Answer 27

1. Opposition to free movement which undermined sovereignty over immigration policy 2. Loss of sovereignty more widely eg agriculture and fishing; public not convinced that we were ‘pooling’ rather than ‘losing’ sovereignty 3. Belief that EU becoming ever more federal in ambitions 4. Net contributor to budget

Question 28

How did the UK leave the EU

Answer 28

2013 Cameron promise of referendum if re-elected; 2016 referendum 48% Remain 52% Leave May triggered EU procedure for a country leaving (Article 50) March 2017 (had tried to do it by royal prerogative but SC in Gina Miller 1 Jan 2017 forced her to consult parliament). May could not get future relationship (EU Withdrawal Agreement Bill) through parliament (she resigned after it was defeated for the third time); but Johnson eventually did (Dec 2019). We ‘left’ Jan 2020 but with one year transition where we continued to follow EU law).

Question 29

What are the three types of soveriengty

Answer 29

Legal, political and popular

Question 30

What is legal sovereignty and an aspect and example of it

Answer 30

Legal sovereignty means parliament is the supreme law-making body in the UK. The judiciary cannot strike down an act of the Westminster Parliament. One aspect of parliament’s legal sovereignty is that one parliament cannot bind a future parliament; eg as part of Brexit the UK parliament repealed the 1972 European Communities Act.

Question 31

What is political sovereignty

Answer 31

Reminds us that voters elect parliament every five years

Question 32

What is popular sovereignty

Answer 32

Refers more to referendums giving voters direct control over a single issue

Question 33

What are the factors that have been said to undermine Westminster's sovereignty (SHRED P)

Answer 33

Supreme court Human rights act Referendums European Union Devolution Prerogative powers

Question 34

How can it be said that the supreme court undermines Westminster's sovereignty

Answer 34

Supreme Court increasing independence and activism

Question 35

How can it be said that the HRA undermines Westminster's sovereignty

Answer 35

HRA 1998 meaning parliament constrained

Question 36

How can it be said that referendum's undermines Westminster's sovereignty

Answer 36

Referendums, increased use of since 1998. Now expectation that any major constitutional change requires parliament to hold a referendum and abide by its results.

Question 37

How can it be said that the EU undermines Westminster's sovereignty and how does the UK's status of it now affected

Answer 37

EU was undermining parliamentary sovereignty; however full sovereignty has not been restored by Brexit because executive has kept to many restored powers via delegated instruments. Some critics of ECHR would also argue it is another ‘E’ that undermines sovereignty. Also don’t forget the biggest E undermining parl sov is Executive dominance.

Question 38

How can it be said that devolution undermines Westminster's sovereignty

Answer 38

2016 Scotland Act says Westminster can only

Question 39

How can it be said that prerogative royal powers undermines Westminster's sovereignty

Answer 39

Prerogative Royal powers of PM which since 2022 repeal of Fixed Terms Parl Act include setting election

Question 40

Areas impacted by the of leaving the EU (SEPED)

Answer 40

Sovereignty External relationships Political Executive authority Devolution

Question 41

How has leaving the EU impacted the UK's sovereignty

Answer 41

Full restoration of parliamentary sovereignty.

Question 42

How has leaving the EU impacted the UK's external relationships and examples

Answer 42

The four freedoms (free flow of goods, services, capital and persons) no longer apply to the UK. EU has no external sovereignty over the UK so the UK can negotiate its own trade deals (but the withdrawal legislation enshrined existing EU legislation into UK law). Conflict with EU members over territorial issues. UK government sent warships to Jersey when French fishing boats threatened to blockade over post-withdrawal disputed fishing rights. UK sovereignty over Gibraltar has become contentious, since the UK and Spain no longer share EU membership.

Question 43

How has leaving the EU impacted the UK politically and examples

Answer 43

Raised significant constitutional complications and exposed unresolved tensions within UK democracy. Johnson removed the whip from 21 pro-EU Conservatives. 4 of them returned to parliament in 2019 and consequently the Conservative Party is fully Eurosceptic leaving pro-EU Tories homeless.

Question 44

How has leaving the EU impacted the UK's executives authority and examples

Answer 44

Brexit has allowed the executive to increase it's authority. Johnson enacted legislation allowing the PM to determine the date of a general election in 2019 because parliament didn't want an early election. Clashes between the SC and the executive such as in the First Gina Miller case when May tried to withdraw the UK from the EU without parliament's consent and the second Miller case when Johnson wanted to prorogue parliament.

Question 45

How has leaving the EU impacted devolution in the UK

Answer 45

Undermined integrity of the UK. 62% in Scotland and 55.8% in Northern Ireland voted to remain in the EU. The SNP are pushing for another independence referendum in the hopes of re-joining the EU. NI protocol established to enable free flow of goods across border between NI and ROI ( still in EU). Checks on EU goods would be carried out on goods going into Britain from NI. NI say it threatens its membership of the UK and the DUP withdrew from the power-sharing agreement in 2022, leading to the collapse of the NU government. Encouraged Labour to commit to rebalancing of power in the UK to maintain union involving power being devolved from Westminster, and the HOL being replaced by an elected Assembly of Regions and Nations

Question 46

Arguments that the SC has more power over the executive

Answer 46

UKSC has considerable power over executive because judicial review of ministers’ actions. In 2013 Reilly v Secretary of State for Work and Pensions they ruled Minister had been ultra vires in introducing welfare to work scheme, but gov’t then passed an act of parl making the power retrospective, to avoid compensation. By 2013 judicial review cases had reached a peak of 15,600 p.a. Coalition limited pressure gps’ ability to bring judicial review cases then 2022 Judicial Review Act reduced the type of cases that could be brought and how SC dealt with them; the number of successful judicial review cases halved to 2.25. This suggests SC Judicial review powers will be less extensive and have less impact. Also, the SC is often helpful to exec eg re denying second Indy referendum.

Question 47

Argument that the SC has less power over parliament

Answer 47

Because it cannot strike down Acts. However this also indirectly benefits Executive as they dominate Parliament.

Question 49

Arguments that the SC are too powerful

Answer 49

Not ‘neutral’: an upper class liberal elite undermining mandate of elected politicians eg trying to implement anti-immigration policies. Suella Braverman while Attorney General accused SC of ‘encroachment’ saying they ‘strained the principle of parliamentary sovereignty’. Not in touch with society: only two women, still overwhelmingly white, old, upper class and male. Since 2005 CRA they have been more independent and assertive, more dragged into the political realm because of HRA, devolution and Brexit. This means 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. We stopped the EU Court of Justice making rulings on British commercial and other policy areas by leaving the EU. We should follow suit by leaving the ECHR.

Question 50

Arguments the SC too powerful

Answer 50

Every democracy has an independent judiciary, therefore it is right that Blair made the UKSC more independent and separate. By doing so it was always inevitable and justified that they would become more assertive. All Party Parliamentary Group on Democracy and the Constitution issued a report 2022 saying the gov’t attacking SC too much, conflating ‘decisions with political consequences’ with ‘political decisions’. Britain’s uncodified constitution requires a SC to interpret it just as much as in countries with codified constitutions. The UK’s (complex) devolution could not operate without some kind of ‘constitutional’ court. Rights are more likely to be adequately protected by a SC interpreting a hard to amend Convention like the ECHR than by a British Bill of Rights that parliament might be more frequently tempted to amend, thus undermining the SC but also rights protection.

Question 51

Arguments that the executive is too dominant

Answer 51

Lord Hailsham described British political system as ‘elective dictatorship’ in 1976 because executive could do what it wants in between elections due to a) FPTP delivering large majorities b) parliamentary system of gov’t – government able to use power of patronage and whips to subdue independent minded MPs, gov’t control timetable and c) majorities on Public Bill committees and use of statutory instruments/delegated legislation which does not go through full legislative scrutiny process. Executive reduction in judicial review and undermining of SC shows they are dominant over judicial branch. Johnson breaching of democratic norms eg lying, no ethics adviser, shows lack of codified constitution can lead to excessive executive dominance Brexit has increased executive dominance because many powers brought back from Brussels kept within Whitehall rather than UK and devolved parliaments. Foreign policy: despite Cameron conceding to parliamentary vote preventing military action on Syria, PMs still act first when it comes to ‘smaller’ actions such as May’s against air strikes on Syria chemical installations 2018. Salisbury Convention hampers Lords.

Question 52

Arguments that the executive is not too dominant

Answer 52

1979 Parliament voted no confidence in Callaghan gov’t leading to election. 2010-2015 coalition and weak and minority May gov’ts show Parliament can have periods of asserting itself. Even in 2021 Johnson had to rely on Labour MPs when 99 Conservatives voted against COVID passes. Steadily since 1979 select committee system has increased effectiveness to hold executive to account. Lords inflicted 450 amendment defeats on gov’t 1999-2010, defeated Osborne’s tax credits cut (controversial because arguably financial), much opposition to EU Withdrawal Bills and Rwanda policy.