Relationship between branches Flashcards
(21 cards)
What are your 3 paragraph themes for “Evaluate the view that Parliament retains sole sovereignty within the UK political system”
Devolution, PM and executive, Supreme Court
What is your argument that Devolution has challenged sovereignty
Devolution has dispersed Primary Legislative powers over certain policy areas to the devolved bodies outlined in the Scotland and Wales Acts. This demonstrates how Parliament is not sovereign in policy making
Northern Ireland is a special case, and it is almost impossible to imagine the reversal of devolution in Scotland and Wales without the support of the majority of the populations in those countries, suggesting Parliament is not politically sovereign
The Scotland Act 2016 and Wales Act 2017 recognise this fact, by stating that the devolution settlements can only be reversed via referendum. This appears to recognise that the UK has moved to a quasi-federal system of government and all the political pressure is now for more devolution of powers not less
Argument that devolution has not challenged sovereignty
There is no loss of legal sovereignty because devolution is not the same as federalism.
- The power that has been devolved can be called back and the Devolution Acts could be repealed by Parliament or, as has happened in Northern Ireland, the devolved government can be suspended.
- In 1972 the Stormont Parliament was suspended, after 50 years of home rule, to be replaced with direct rule from Westminster. Since the 1998 Good Friday Agreement, the Northern Ireland Assembly and Executive has been suspended five times, leaving the running of government to Northern Ireland’s Civil Service and the British government.
- Scottish Parliament tried to introduce a law to make it easier to change your sex. UK government blocked it which shows that the Scottish Parliament does not have power to legislate in these areas
Argument that Supreme Court has challenged sovereignty
While Parliament remains legally sovereign, it is clear that Parliament feels obliged to respond to judicial decisions regarding the Human Rights Act.
* In the case of civil partnerships and the police keeping fingerprints and DNA on file, Parliament has amended the law in response to judicial decisions, showing that there are real restrictions on the political sovereignty of Parliament
Whilst the Supreme Court cannot strike down an act of Parliament, it can still declare a declaration of incompatibility which advises the government to amend the legislation
Argument that the Supreme Court has not challenged sovereignty
Parliamentary sovereignty means that the Supreme Court cannot strike down statutes and, while the Court is part of the discussion about rights, Parliament has the final say in determining
the law regarding human rights
* In the case of A and others v Secretary of State for the Home Department in 2004, otherwise known as the Belmarsh case, it was ruled that the indefinite detention of terror suspects was incompatible with human rights. However, the Home Secretary did not release the suspects until Parliament had passed new legislation granting the powers to use control orders, electronic
tagging and other restrictions
Parliament, because it is legally sovereign, has the power to repeal, replace or amend the Human Rights Act and withdraw from the European Convention of Human Rights.
* The 2019 Conservative manifesto included a pledge to update the HRA in order to give ‘a proper
balance between the rights, our vital national security and effective government
Argument that the PM and executive has challenged sovereignty
In the UK, the fused executive and legislative branches mean that, in practice, politic sovereignty has passed from Parliament to the executive when a Prime Minister has a large majority in the House of Commons.
* This is particularly the case with the two Thatcher Governments of 1983 and 1987 and the Blair Governments of 1997 and 2001, where both Prime Ministers enjoyed a majority of over 100 seats
The Royal prerogative, including the power of patronage and the party whip system, helps ensure the Prime Minister’s dominance over Parliament.
* Tony Blair did not lose a vote in the House of Commons from 1997 to 2005, suggesting that political sovereignty resides in the executive.
The power of the executive over Parliament is being changed by the UKs departure from the EU
* The EU Withdrawal Act, through Clauses 7, 8 and 9, grants significant delegated law-making powers to ministers to correct the deficiencies in EU-retained law at the expense of Parliament.
Argument that PM and executive have not challenged sovereignty
Ultimately only Parliament has the power to make or unmake any law.
* So whatever the size of the majority, the executive still has to rely on Parliament for legislation.
* While Parliament may rarely exercise its power to veto legislation proposed by the executive, its ability to use this power means that the executive often has to compromise with Parliament by amending the legislation in order to get it passed.
The relationship between Parliament and the executive is constantly changing.
* When the Prime Minister is weak, Parliament is more dominant, such as during the period Theresa May was in power where she suffered 33 defeats in the Commons.
Even where there is a strong Prime Minister, such as Blair, Parliament can still exercise its powers, as it did in 2005 when Blair was defeated on his proposal to allow the police to detain terror suspects for up to 90 days without charging them
What are your 3 paragraphs for “Evaluate the view that the British Supreme Court remains independent and neutral”
Neutrality, structural independence, debate surrounding independence
What is your argument that the SC is not neutral
For: lack of diversity+ impartiality-
increasing attacks by the media on the character of judges rather than their decision plus the increasing visibility of Judges as public figures undermines their impartiality-
* Lord Neuberger the president of the supreme court at the time, publicly criticized some of the attacks by the media, claiming that they undermine the rule of law and the reputation of the legal system, also being critical of the government for not defending the judiciary quickly or clearly enough
* Radmacher v Granatino (2010) 9-1 vote with the only women voting against this was over a prenup agreement where the man had sued the women.
It is argued that a bias tends to operate within the senior judiciary, which stems from the fact that judges are predominately male white upper middle class and public school and Oxbridge educated
This argument that supreme court is not neutral, but naturally pro the establishment, has been traditionally made from the left of politics, but is increasingly a view taken by the right. The left has tended to attack impartiality in terms of bias against minority groups in society due to their lack of social representation. The right have attacked the judiciary for its inbuilt liberal attitudes in favouring individual rights over the public interest and being Anti-Brexit. Radmacher v Granatino (2010) 9-1 vote with the only women voting against this was over a prenup agreement where the man had sued the women
What is the argument to suggest that the SC is neutral
They are impartial+ diversity not an issue-
* Judges are expected to refrain from any activities including political activity which might create the impression of bias or conflict of interest
* The Supreme court is live streamed so that it is accessible to everyone. This creates a level of accountability as senior Judges must explain their rulings highlighting in the process the points of law that have affected them. Those watching either Article 50 or prorogation cases should see that the court was tackling legal questions about the constitutional issues of the balance of power between legislature and executive, not a debate about the pros and cons of membership of the EU.
* R (Nicklinson) v Ministry of Justice (2014)
the judiciary is slowly becoming more diverse and this will increase the diversity of the Supreme Court over time
Lady Hale President of the Supreme Court between 2017 and 2020 pointed out that when she joined the Law Lords in 2004 she was the only women and the only state educated judge. By the time she stepped down she was one of three female justices and one of three justices who was state educated. Since the establishment of the JAC the proportion of women recommended for the high court increased from 13% pre JAC to 29% in 2017-2018, while the proportion of BME candidates recommended in the same period increased from 2% to 6%
What is your argument that SC is not structurally independent
For: The UK has been seen to be the way judicial function was entangled with the executive and legislative function before CRA- The highest court of the land was the law lords, fusing the legislative and judicial functions R(Jackson) v Attorney-General (2005)- Case to solve a dispute between the HOL and HOC surrounding fox hunting, Law Lords are technically members of the HOL
What is your argument that the SC is structurally independent
these threats have been largely neutralised by the CRA in 2005, while independence was already protected around pay and tenure- The CRA moved judicial independence from a constitutional convention to an Act of parliament, also that the Lord Chancellor and all ministers must uphold the continued independence of the judiciary- Black Spider Memos reflected this as it demonstrates the supreme court pushing back against the executive and blocking the ministerial veto. Which therefore highlights the separation of powers between the legislature and the judiciary and reinforces the idea of parliamentary sovereignty
What is your argument that the SC is not independent(debate around independence)
activist rulings and criticism from politicians- The Rwanda bill as an activist ruling and Starmer and Badenoch calling out judges ruling on the Palestinian family claiming refuge in the UK using the Ukrainian loophole 2025
What is your argument that the SC is independent(debate around independence)
They demonstrate judicial restraint and rulings do get support from politicians- This is the practise of judicial restraint as can be seen when the court rejected the challenge to the law on assisted suicide in the R (Nicklinson) V Ministry of Justice case of 2014 stating that it should be given to parliament to deliberate on as it is a moral case
What are your 3 paragraphs for “Evaluate the view that the Supreme Court has become too powerful”
Judicial review, power over parliament, activist rulings
Argument that SC is too powerful(Judicial Review)
- Judicial Review limits the power of the executive branch as the courts can declare actions of the executive to be ultra vires or in contravention of the HRA, and quash them.
- Judicial review acts to protect the rule of law an d ensure that the public grave the ability to challenge the lawfulness of the actions of the public bodies, including the government
- In the UNISON case of 2017, the Fees Order was ruled ultra vireos. The government immediately ceased collecting them and pledged to reimburse the fees it had already collected
- There has been a large increase in the number of judicial review cases and this is limiting the ability of democratically elected government and Parliament to deliver
- The number of judicial review cases reached a peak in 2013 with 15,594 cases initiated. Critics argue that many of these cases were weak and lacked real substance and were simply clogging up the judicial system and wasting taxpayers’ money
- Critics argue that cases are just adding delays and costs to the management of public services. For instance in 2014, the Supreme Court dismissed the appeals that brought before it in relation to the building of HS2 in regard to the governments’ assessment of its environmental impacts
- Critics argue that judicial recites has made governments departments and Ministers too cautious, as they as they constantly have to consider the potential threat of judicial review
Argument that SC is not too powerful(Judicial Review)
While there has been a rise in judicial review cases, recent evidence shows the number of cases has levelled off and that judicial review has a positive impact on decision making.
* In 2014, only 4,062 claims were issued because immigration cases were transferred to the Upper Tribunal for Immigration and Asylum Chamber in November of that year.
* Judicial review plays a crucial role in limiting decisions by public bodies that are unlawful, bringing measurable benefits to claimants, who are often the more vulnerable in society. Between 2000 and 2011, success rate in judicial review cases averaged around 40%.
* Judicial review, rather having a negative impact of the quality of decision making, improves decision making and ensures public bodies, including government departments, are aware of their legal obligations.
The rulings by the Court are about the lawfulness of an action by interpreting the law on cases that are brought before it. It can only work within what the law states, and the executive has the power to place a new bill in front of Parliament to change the law-
In Her Maiesty’s Treasurv (Respondent) v Mohammed labar Ahmed and others (FC) (Appellants)
2010, the Supreme Court ordered that the Terror Order to freeze assets of suspected international terrorists based on a UN resolution was ultra vires. In response, the Government put emergency legislation in front of the Commons, which essentially set out the same asset-freezing regime, and was passed as the Terrorist Asset-Freezing Act 2010.
* This decision in effect, stated that only Parliament, not the executive, had the right to determine in what circumstances fundamental rights could be legally restricted. * The Supreme Court is also bound by the fact that it cannot initiate cases; it can only rule on cases that are brought before it * The case of P v Cheshire West and Cheshire Council(2014) * Al Rawi v Security Service (2011) * Miller v Secretary for Exiting the European Union (2017)
Argument that SC is too powerful(Power over Parliament)
- The Supreme Court has the power to declare Acts of Parliament as incompatible with the HRA.
- While the court cannot force the legislature to change the law, a declaration of incompatibility encourages Parliament to take actions to amend or removed the law in question
- Perhaps the most controversial declaration that illustrated the power of the Supreme Court in this area was made by its predecessor, the Law Lords in 2004. In A and others v Secretary of State for the Home Department in 2004 (Belmarsh Case), it was ruled that the clause of the Anti-terrorism, Crime and Security Act 2001 allowing indefinite detention without trial of firing nationals suspected of international terrorism was incompatible with Articles 5 and 14 of the ECHR. Despite being highly critical of the judgement, the Government introduced the Prevention of Terrorism Act in 2005, which replaced indefinite detention with control orders, and this was passed by Parliament
- Al Rawi v Security Service (2011) was a UK Supreme Court case concerning the use of secret evidence in civil trials. Former Guantanamo detainees sued UK security services for alleged complicity in their mistreatment. The government sought to use a “closed material procedure” (CMP), allowing evidence to be withheld from claimants and their lawyers for national security reasons. The Supreme Court ruled that courts could not introduce CMPs in ordinary civil claims without parliamentary authorization. The judgment reinforced the principle of open justice, affirming that fair trials require parties to see and challenge the evidence against them.
Argument that SC is not too powerful(Power over Parliament)
A declaration of incompatibility works within the principle of Parliamentary sovereignty. The Court cannot strike down an Act of Parliament or force Parliament to take action.
* In the Belmarsh case, the Anti-terrorism, Crime and Security Act 2001 was not invalidated; the Government and Parliament chose to change the law.
* It is not the case that all declarations are deeply controversial and Belmarsh may be more the exception than the rule. In response to the Steinfeld and Keidan case of 2018, the Court ruled the Civil Partnerships Act 2004 was incompatible because different-sex couples could not enter into civil partnerships. The Government then decided to amend the law the following year via The Civil Partnership (Opposite-sex Couples) Regulations 2019 in a relatively uncontroversial move.
* Ruling on the Scottish Independence Referendum Bill 2022
* UK Withdrawal from the EU (Scotland Bill) 2018
R (Miller) v The Prime Minister (2019)
Argument that SC is too powerful(Activist rulings)
- The Supreme Court is becoming more judicially activist, making decisions that take the Court from beyond its legal role into the heart of the political debate
- Given that the court is unelected and unaccountable, Ito is seen as unacceptable that the Court is involving itself in political debates and decisions making. Politics decisions are the reserve of democratically elected politicians in the executive and legislature
- Critics here point to cases around deportation, immigration and asylum as well as the cases on prorogation and Article 50 as examples of the Supreme Court taking a more active political role
Those on the Left see this as more of a problem due to the lack of diversity on the Court, while those on the Right attack the liberal bias and the judiciary
Argument that SC is not too powerful(Activist rulings)
The Supreme Court is not becoming more activist, it is simply fulfilling its role as the constitutional court for the UK, resolving key constitutional and legal questions.
The Human Rights Act 1998 was passed by a democratically elected Parliament. In laying out a series of individual rights in UK law, Parliament voted to give the judiciary a greater role in
protecting civil liberties in the UK and checking the executive. In protecting the rights of the most vulnerable in society against the state, the Court is fulfilling the judicial role it has been given.
* The huge levels of constitutional change brought about by membership of the EU, human rights and devolution have created a situation where the Supreme Court has to resolve key constitutional questions. * In both the Article 50 and prorogation cases, the Supreme Court was resolving key constitutional questions about the separation of powers in the UK * In the case of Scotch Whisky Association and others (Appellants) v The Lord Advocate and another (Respondents) (Scotland) [2017] UKSC76, the Supreme Court ruled on an appeal that the 2012 Alcohol Act, which set a minimum pricing regime for alcohol in Scotland, broke EU law. The Court dismissed the appeal, stating the Act did not break EU law, and minimum pricing was a proportionate means to achieving a legitimate aim. R (Nicklinson) v Ministry of Justice (2014)
