Relations between branches Flashcards
(78 cards)
1
Q
what is the supreme court
A
the highest court of the UK legal system
2
Q
when was the UK supreme court formed
A
In 2005, officially opened in 2009
3
Q
what caused the formation of the UK supreme court
A
the Constitutional Reform Act 2005
4
Q
why was it seen as necessary to form the UK supreme court
A
replacement of the Law Lords in the House of Lords who previously held this judicial role alongside their legislative role.
the office of the Lord Chancellor, which previously held the roles of head of judiciary, presiding officer of the HOL, and cabinet minister, was split to maintain the separation of powers.
the Justice Appointments Commission was created to select candidates free from political interference of the PM or Lord Chancellor.
5
Q
what is the structure of the Supreme Court
A
made up of 12 judges, with head judge being known as the ‘President of the Supreme Court’
6
Q
what are the conditions to become a judge on the Supreme Court
A
- a vacancy: one of the existing judges deciding to retire or resign
- selection commission must be established when there is a vacancy
- applicants must have at least 2 years’ judicial experience and 15 years’ experience practicing law
7
Q
how are appointments to the Supreme Court made
A
- commission appoints a candidate
- Minister of Justice can ask the commission to think again, or outright reject the candidate (but this ministerial power has conventionally never been used)
8
Q
what is the role of the Supreme Court
A
- final court of appeal for all UK civil cases and criminal cases from England, Wales and NI
- hears appeals on arguable points of law of general public importance
- concentrates on cases of greatest public and constitutional importance
- judges expected to interpret legislation in line with the intention of Parliament, and are responsible for the development of common law (precedent)
9
Q
what is the key power of the Supreme Court
A
judicial review
10
Q
what is judicial review
A
power of the judiciary to review the actions of other branches of government to determine whether they have breached the law, gone beyond their power (ultra vires) or are incompatible with the Human Rights Act
11
Q
what is judicial independence
A
the principle that judges should be free of influence from other branches of government when making their decisions
12
Q
what is judicial neutrality
A
the principle that judges should not apply political opinion in their decision-making process, and judges should remain outside of party politics
13
Q
why is judicial independence an important principle for the Supreme Court
A
- ensures they can make decisions based on the rule of law
- Parliament has no say in pressuring the Supreme Court
- as many cases that the Supreme Court deal with will be regarding actions of the government, therefore any influence could undermine legitimacy of the ruling and the Court itself
14
Q
how is judicial independence upheld
A
- The Supreme Court has been a separate branch of government since 2009
- judges are appointed for life (with upper age limit of 75) and cannot be removed by the government: therefore, the possibility of demotion cannot affect decision-making
- judicial salaries are protected and set by the Salaries Review Body
- selection commission to appoint judges is independent of the government
15
Q
why is judicial neutrality an important principle for the UK Supreme Court
A
- when judges reach their decisions, they do so by applying the law without personal or party-political bias
- neutrality should uphold the rule of law by applying the law equally to everyone
16
Q
Arguments for yes (the Supreme Court is neutral)
A
- independent appointments process
- requirement for judicial experience
- judges agree to principle of impartiality
17
Q
Arguments for no (the Supreme Court is neutral)
A
- limited variation in the background of judges
- there has been intense media scrutiny of the character of judges rather than rulings
- judges are taking a more active role in the political arena
18
Q
Arguments for yes (the Supreme Court is independent)
A
- Supreme Court is separated from Parliament
- life appointments and protections of salaries
- decisions have been upheld by the government, even if government has lost the case
19
Q
Arguments for no (the Supreme Court is independent)
A
- government has openly criticised rulings of the Supreme Court
- the Court was created by Parliament, and therefore could be removed (in theory)
- the Court is required to rule on the actions of the government, which is inherently political
20
Q
Evans v Attorney General (2015)
A
the Supreme Court rules that memos written by Prince Charles to the government could be released
21
Q
Miller v Brexit Secretary (2017)
A
An Act of Parliament was needed to take the UK out of the EU
22
Q
Human Rights Commission for Judicial Review (2018)
A
the Court rules the Northern Ireland Human Rights Commission could not bring a case about abortion in NI as the law was in line with human rights standards
23
Q
Miller v Prime Minister (2019)
A
the PM’s use of prerogative power to prorogue parliament was unlawful
24
Q
Begum v Home Secretary (2021)
A
the Court ruled against Shamima Begum allowing the home secretary to remove her British citizenship
25
Uber v Aslam (2021)
uber drivers are classed as 'workers' for uber, and therefore entitled to minimum wage and holiday pay
26
Abortion Services (Safe Access Zones) (Northern Ireland) bill (2022)
the Court declared that safe zones around abortion clinics was compatible with the European Convention on Human Rights
27
Elan-Cane v Home Secretary (2022)
the Court ruled that the Home Office did not have to offer a 'third gender' option on passports
28
29
is the Supreme Court powerful?- YES
- the Court's rulings have been upheld
- the Court has an accepted place within UK politics, and now has over 200 applications for cases each year
- with withdrawal from the EU, and therefore the European Court of Justice, the Court has gained more power
- judicial review allows the court to declare action of the government ultra vires, therefore challenging government power
- the media report widely on the Supreme Court, recognising the power it holds
- judges are increasingly active figures , giving speeches and appearing in the media
- rulings of incompatibility with the Human Rights Act carry an expectation that the government should amend or abolish said law
30
Is the Supreme Court powerful?- NO
- parliament remains sovereign, and therefore could ignore decisions of the Court, or even remove the Court
- the UK remains part of the Council of Europe and the European Court of Human Rights, so citizens could apply for review here instead
- the Court can only interpret the law of Parliament, and therefore Parliament can just change the law if needed
- the Supreme Court can only act on cases brought to it, rather than seeking out cases it wishes to hear
- as judges are unelected, they lack the legitimacy to of parliament or the executive
- the Supreme Court cannot overturn statute law
31
is Parliament effective at scrutiny?- YES
- humble addresses have been used to force the release of government documents: 16/132 opposition day motions between 2017and 2022 were humble addresses
- select committees have been successful: in 2017, David Davis's appearance before the Brexit Select Committee led to promises that Parliament would vote on Brexit before the UK left the EU
- the use of urgent questions has increased: Speaker Hoyle granted an urgent question in October 2022 directed at PM Truss, following her controversial mini-budget
32
Is Parliament effective at scrutiny?- NO
- the government rarely loses votes in the House of Commons: only votes Johnson lost between 2019 and 2022 were three opposition day motions (which are not binding) and one humble address
- select committee reports can be ignored: the UCL Constitution Unit said about 60% of reports are not acted upon
- PMQs is more about political theatre: In Feb 2016, Cameron told Corbyn to 'put on a proper suit, do up your tie, and sing the national anthem'
33
what is an elective dictatorship?
the domination of Parliament by the government, resulting in ineffective checks on government
34
Is the UK an elective dictatorship?- YES
- the government usually has a majority due to the FPTP voting system
- whips ensure that the government should win most votes
- the 'payroll vote' is usually 140-160 MPs, which goes a long way to guaranteeing government success in Parliament
- the government has majorities on the committees in Parliament
- the backbench business and opposition days that are scheduled are not binding (no mandatory attendance)
- the House of Lords has limited powers to check the government
35
Is the UK an elective dictatorship?- NO
- recent elections have seen lower or non-existent government majorities
- number of backbench rebellions has risen in recent years, especially as party divisions have deepened
- the House of Lords has become more willing to challenge the government following 1999 reform
- other bodies have challenged the power of the government, such as the Supreme Court and devolved bodies
36
which factors have changed the relationship between Parliament and the executive
- majority that the government holds
- national circumstances
- policy issues
- polling
- reforms
37
how has the majority that the government holds changed the relationship between Parliament and the executive
using whips and a strong majority, the government could dominate Parliament, but this is more of a struggle in coalitions, minority governments, and small majorities
38
how have national circumstances changed the relationship between Parliament and the executive
in the event of national crises, it can be important for Parliament to be seen as united and representing the UK as a whole e.g. following 9/11 or July 7th bombings in London
39
how have policy issues changed the relationship between Parliament and the executive
if a policy issues is controversial, it can divide a party into factions (groups within political parties that share a common ideological belief), which can allow Parliament greater power e.g. in 2017 May faced three defeats in the Commons on Brexit
40
how has polling changed the relationship between Parliament and the executive
popular PMs may have more influence over Parliament, being able to control their party and the media. This is especially true when elections focus on party leaders. Weaker PMs may find Parliament more willing to challenge them
41
how have reforms changed the relationship between Parliament and the executive
a number of reforms to Parliament since 1997 have affected this relationship e.g. formal reforms (House of Lords Act 1999) or informal reforms (increased use of urgent questions and humble address
42
how could reforming the electoral system for a PR system affect the relationship between Parliament and the executive
reduce the size of government majority, making it more possible for backbench rebellions or the powers of Parliament to be used to scrutinise the government
43
how could reforming the HOL to a fully or partly- elected chamber affect the relationship between Parliament and the executive
giving greater legitimacy to the HOL, making it more likely to challenge the government. This could also challenge the Parliament Acts 1911 and 1949, as the Lords would now have a mandate
44
how could greater devolution to the regions and nations of the UK affect the relationship between Parliament and the executive
reduce the areas over which the government has power, therefore reducing the influence of government within the UK or increasing the willingness of Parliament to scrutinise these more limited areas
45
how could the formalisation of parliamentary powers/ reduction in prerogative powers e.g. declaring war affect the relationship between Parliament and the executive
reducing the power of the government to act alone e.g. Cameron's loss of the vote on military action against Syria suggesting Parliament should have a greater role over decisions on military actions
46
how could reform to the monarchy affect the relationship between Parliament and the executive
any reform to the UK monarchy could affect this relationship, by removing prerogative powers from the PM, or requiring a new head of state to be found, resulting in possible direct elections for the Prime Minister
47
what is the European Union
a political and economic union of 27 European countries, which aims to promote peace, protect freedom of citizens, protect the environment, and establish an internal market and monetary union
48
which institutions make up the European Union
- European Commission
- Council of Ministers
- European Council
- European Parliament
- European Court of Justice
49
what is the European Commission
the executive arm of the EU, which proposes legislation and policies, and represents the EU in external negotiations
50
what does the Council of Ministers do
coordinates member states' policies and refines the EU's foreign policy
51
what does the European Council do
high-level policy-making to set the EU' strategy and budget
52
what does the European Parliament do
shares legislative power with council, exercises democratic supervision of EU institutions, shares authority with council over the EU budget
53
what does the European Court of Justice do
gives legal judgement on cases brought before it
54
what are the four freedoms of the EU
- free movement of people: allowing workers and citizens to move between member countries with ease
- free movement of goods: allowing trade without custom barriers or tariffs
- free movement of money: allowing payments to move between member states easily
- free movement of services: allowing companies to operate easily throughout member countries
55
why did the Conservatives include a referendum on EU membership in their 2015 manifesto
- pressure from euro-sceptics in the party
- rise of UKIP (the brexit party)
- the balance of power between the EU and the member states
56
what were the results of the Brexit referendum
57
how has leaving the EU impacted the UK
- result of the referendum led to difficulty in passing the Brexit legislation, resulting in two snap-elections (2017 and 2019), and two PMs resigning (Cameron and May)
- Withdrawal Agreement 2018 included the retention of lots of current EU law in UK statute law. The Retained EU Law Bill 2022-23 would overhaul the retained EU law
- many parties in the 2019 general election pledged a second referendum on EU membership for the UK. The Conservatives won with a majority
- and EU-UK trade agreement came into force in 2021, providing for free trade and cooperation in a range of policy areas
- controversies over the Northern Ireland Protocol and possible use of Article 16, further exposing factions in the Conservative party
- the final cases involving the UK were heard in the European Court of Justice in 2023, which began before the UK left the EU. The ECJ no longer has jurisdiction over the UK
58
example of the role of the EU
Thierry Delvigne v Commune de Lesparre Medoc (2015)
- Delvigne challenged the French government in the ECJ over not being allowed to vote as a prisoner
- it was claimed this violated the EU charter of Fundamental Rights
- the ECJ decided against Delvigne, saying the punishment was proportionate
- if the ECJ had ruled in favour of Delvigne, the UK would have been bound by this decision
59
example of the role of the Council of Europe
Hirst v UK (2005)
- Hirst challenged the UK government in the European Court of Human Rights over not being allowed to vote as a prisoner
- it was claimed this violated the European Convention on Human Rights
- the court ruled in favour of Hirst, saying the UK's ban on prisoners not having a vote should be overturned
- the UK ignored this ruling
- a compromise was accepted in 2017, giving around 100 prisoners the vote
60
what is the Council of Europe
an international organisation dedicated to upholding human rights, democracy and the rule of law across 46 member states. They have no legal sovereignty over member states. The main court is the European Court of Human Rights- they try to protect human rights through the European Convention on Human Rights.
The UK is still a member of the Council of Europe
61
what is legal sovereignty
the legal rights of an entity to exercise power in a political system
62
what is political sovereignty
the political ability of an entity to exercise power in a political system
63
what is de jure sovereignty
legal sovereignty- where power lies in a political system according to the laws or constitution of that country (power lies in theory)
64
what is de facto sovereignty
political sovereignty- where power is actually exercised in a political system (power lies in reality)
65
how does the Supreme Court challenge Parliamentary sovereignty
The government lost twice over Brexit in the Supreme Court in 2017 and 2019
66
how has Parliament remained sovereign despite the Supreme Court
the SC upheld the home secretary's decision to remove citizenship from Shamima Begum
67
how have devolved assemblies challenged Parliamentary sovereignty
Scotland has used its power to enact different policies to the UK on tuition fees and prescription charges
68
how has Parliament remained sovereign despite devolved assemblies
the SC rules that Scottish government did not have the right to call a second referendum on Scottish independence
69
how has the use of referendums challenged Parliamentary sovereignty
expectation of the use of referendums has led to calls for wider use, undermining the power of Parliament to make those decisions e.g. referendums on Brexit, Scottish independence, AV
70
how has Parliament remained sovereign despite the use of referendums
referendums are called by Parliament only, and therefore many requests have been denied. The SC upheld this power of Parliament
71
how has the EU challenged Parliamentary sovereignty
despite leaving the EU, it has remained a challenge to ensure the position of NI within the union due to the Northern Ireland Protocol
72
how has Parliament remained sovereign despite the EU
retained law is being challenged and removes by the 2022-23 bill going through Parliament *******
73
how has the government challenged Parliamentary sovereignty
the government's dominance of Parliament means that it can overcome parliamentary sovereignty and force legislation through, using its majority in the HOC and the limits on the HOL, such as the Hunting Act 2004.
the repeal of the Fixed-term Parliament Act again gives power to the PM to call elections
74
how has Parliament remained sovereign despite the government
recent governments have had smaller majorities and faced a range of challenged by Parliament trying to reclaim its sovereignty, such as the use of urgent questions and the humble address
75
how has the European Court of Human Rights challenged Parliamentary sovereignty
the Government's plan to fly asylum seekers to Rwanda was successfully challenged by the Court in 2022, delaying the implementation of this plan
76
how has Parliament remained sovereign despite the European Court of Human Rights
Parliament can make any law it wishes, and reaction to the Court has included suggestions of a British Bill of Rights, removing the power of the Court, or even leaving the Court
77
how has the Human Rights Act challenged Parliamentray sovereignty
the HRA and declarations of incompatibility can limit the law and Parliament can make
78
how has Parliament remained sovereign despite the HRA
Parliament can change legislation or ignore 'incompatibility' declarations as has been seen with various anti-terrorism Acts allowing for detention without trial
