UK SUPREME COURT Flashcards
(78 cards)
1
Q
examples of the supreme court NOT protecting individual and collective rights and specify which
A
not protecting individual rights:
- independent worker union of GB v CAC and roofoods ltd 2021 - not protecting the individual right to enter into contract and obtain workers rights
- R v sec of state for housing, communities and local government - violate individual right of privacy and family life 2020
HOWEVER, UPHOLDING COLLECTIVE RIGHTS TO:
1. collective right to bargain
2. preventing anti-social behaviour and protecting community spaces
2
Q
give examples of cases in which the courts don’t have influence over the HRA
A
- belmarsh case 2004
- Al Rawi v the security services 2013
- nicklinson case - article 8 and section
- r v commissioner of police of the metropolis 2015 (searching a bag after someone failed to pay a bus fare) - section 4 of HRA
- begum case
3
Q
what is the role of the UK supreme court
A
- provide a check on the executive/legislative branches (established under the 2009 constitutional reform act)
- interpret the law and make impartial decisions
- enforce judicial review and solve such disputes
- final court of appeal for civil and criminal matters
- makes decisions of constitutional importance from the evidence provided
4
Q
describe the steinfeld and keidan case of 2018
A
- UK legislation in respect to civil partnerships is not compatible with the ECHR
- idea that same sex couples have a choice which different sex couples don’t have when it comes to having a civil partnership
- allowed appeal for different-sex couples to enter into a civil partnership
5
Q
thoburn v sunderland city council laws
A
constitutional statutes cannot bind a future parliament
- means statutes cannot entrench themselves against repeal
6
Q
parliamentary strength over exec has increased recently
A
- wright reforms
- backbench business committee
- the house of lords (no hereditary members expertise)
- increasing convention (ie consultation on miliary action – cameron on syria, may didn’t in 2018
7
Q
describe sec of state for the home department v SC 2022
A
- the appellant would be allowed appeal after having refugee status threatened for criminal acts
- the right to respect family life would not exclude those who have partaken in serious criminal offences
- supreme court ruled that the secretary of state did not have sufficient reasons to justify the deportation of the appellant
8
Q
r (jackson) v attorney general
A
2005
- the fundamentals of the british constitution is the supremacy of the crown in parliament
9
Q
give examples of cases in which the courts have influence over the HRA
A
- HM treasury v ahmed
- steinfeld and keidan case
- AM zimbabwe v sec of state for home department - article 3
- rwanda case 2024
- sec of state for home department v supreme court 2022
*these are DECLARATIONS OF INCOMPATIBILITY
10
Q
UNISON v lord chancellor 2017
A
- UNISON challenged an order which encouraged early settlement - was ruled as ultra vires and preventing access to justice
- forced raab to reimburse claimants and the government to cease taking fees
11
Q
define political sovereignty
A
sovereignty exercised by the PUBLIC
- means leg and exec depend on public consent to govern
12
Q
sovereignty location has changed
A
- brexit
- power w people - 73% of MPs oppose brexit
- miller case - media
- king case to conceal documents was appealed and didn’t rule in favour of him
- judicial activism + review - **judiciary **
- DEVOLUTION
- exec
- military approval convention - increasing use of direct democracy
13
Q
factors which extend executive dominance over parliament
A
- convention - ie sailsbury
- parliamentary majority (ie may or coalition government) for legislation
- royal perogative – PM can act w/o consultation on key issues
- patronage / the whip system
- secondary legislation
- character / nature of the PM (ie if they are more presidential etc)
- useless nature of scrutinising (ie public bills committees are useless)
- private members bills are useless / only 2% rate
14
Q
backbenchers have power over PM
A
- brexit rebellion
- 41% tory MPs vote against johnson vote of no confidence
- 35 backbenchers vote against government extension of covid restrictions in 2021 (inc steve baker)
- 140 backbenchers rebel against marriage act
- 139 backbenchers rebel in iraq
15
Q
parliament is not the sovereign branch
A
- devolution (power over education, transport, housing, healthcare etc)
- wales act 2017
- scotland act 2016 + 1998
- quasi federalism - powers cannot be easily taken back due to nationalism - power is with people
- referendums
- maj of people wanted brexit, but most MPs disagree with it - sovereignty of parliament - royal perogative
- patronage - talk about judiciary or exec
16
Q
al rawi v security services 2013
A
- courts have no power to adopt a procedure allowing the use of secret evidence in civil trials because it would contradict the idea of open justice and the right to a fair trial
17
Q
nature and significance of judicial review
A
nature:
- ensures other government bodies act within their authority and legal power
- focuses on the fairness of a decision and lawfulness of actions
- ensures there is no procedural impropriety - ensures decision making process is fair
significance:
- ensures the rule of law is upheld
- ensures the government works within its legal limits
- protects individual liberties and rights and challenge unlawful government decisions
- ensures accountability of public bodies
- ensures a separation of powers to prevent an accumulation of legal power and ensure constitutional balance
- shape precedent
- provides a legal remedy against misuse of government power
18
Q
parliament has power over the PM
A
- scrutiny
- lords, opposition, select committees, backbenchers etc - rebellions (esp backbenchers)
19
Q
list the supreme court cases relating to the court declaring government actions to be in ultra vires, and describe each case
A
- miller I 2017
- declared that the prorogation of parliament for brexit was illegal after the referendum in 2015 (referendums are non legally binding)
- claimed legislation must be enacted to remove the UK from leadership of EU
- parliament must be consulted if the UK is going to leave the EU - miller II 2019 - activism
- johnson’s prorogation of parliament was unlawful because it had the impact of preventing parliament from carrying out its constitutional functions, and there was no justification for this - HM treasury v Ahmed 2010
- SC declared that HM treasury had acted in ultra vires by imposing an asset freeze on three brothers being potential terrorist suspects because none had been charged with any terrorism related offence
- the SC thought that the asset freezing order should NOT be contested in court - UNISON v lord chancellor 2017
- UNISON challenged an order which encouraged early settlement - was ruled as ultra vires and preventing access to justice
- forced raab to reimburse claimants and the government to cease taking fees
20
Q
describe the radmacher v grantino case
A
2010
- radmacher and grantino sign a pre-nup, so they cannot benefit from each other’s property
- they later divorce
- grantino (man) applies to high court for financial assistance, giving him 5 million
- radmacher (woman) appeals to the court of appeal and wins, on the basis that the high court should have appealed to the prenup
- grantino (man) appeals to the supreme court and loses
*displays the supreme court overturning the advice of the lower court
21
Q
describe both miller cases
A
- miller I 2017
- declared that the prorogation of parliament for brexit was illegal after the referendum in 2015 (referendums are non legally binding)
- claimed legislation must be enacted to remove the UK from leadership of EU
- parliament must be consulted if the UK is going to leave the EU
- the executive could not bypass Parliament because triggering Article 50 would alter domestic law - miller II 2019 - activism
- johnson’s prorogation of parliament was unlawful because it had the impact of preventing parliament from carrying out its constitutional functions, and there was no justification for this
22
Q
HOW do select committees have influence over parliament
A
- select committee chairs are chosen by secret ballot
- permanent
- specialist
- set their own agendas
- produce cross-party reports
- produced over 1500 reccomendations
- the NATURE OF THEM MEANS MEMBERS OF PARLIAMENT HATE APPEARING BEFORE THEM SO THIS IMPACTS POLICY FORMULATION
23
Q
describe the EU
A
- formed by the 1992 maastrict treaty which allowed for common european citizenship and foreign policy
- the 2000 treaty of nice increased majority voting and in 2002 the euro was introduced
- in 2007, the lisbon treaty was introduced which gave the EU a legal identity (ie diplomacy rtv)
- in 2009, the fundamental rights of the european union were established to bind members to the lisbon treaty
24
Q
impact of leaving EU on sovereignty
A
- uk doesn’t now need to accept the supremacy of EU law over domestic law
- UK law would now be sovereign
25
give the catagories to talk about for the courts having power over the executive / parliament
1. rulings over human rights
2. rulings over foreign matters
3. limiting executive and parliamentary power
26
examples of the supreme court protecting individual and collective rights and specify which
protecting rights:
- ashers baking company limited v lee - INDIVIDUAL RIGHTS to religious freedom
- r v director of public prosecutions 2021 (gun protect) - INDIVIDUAL RIGHTS of assembly and association
*note that any of the cases on other flashcards which link to the HRA would be relevant here (ie steinfeld v keidan, sec of state v home, zimbabwe etc)
however, violating collective rights of:
1. equality
2. security and public order collective right
27
examples of legal sovereignty
1. strong exec
- FPTP = landslide exec = enact whatever legislation it chooses = difficult to overturn
- war crimes act 1991 + hunting act 2004
- parliament can leg on any subject
28
describe collective rights
- the rights and interests of groups and communities, not just limited to the individual
- it protests cultural, social etc interests
29
examples of cases for the supreme court having power over executive in HUMAN RIGHTS
- home department v supreme court
- steinfeld v keidan
- zimbabwe v home department
30
gov defeats in lords
- ie lords defeat gov 129 times from 2021-2022
- 1999-2010 - lords defeat labour 450 times
31
PMQs have power over PM
- starmer questioning johnson on living standards within the UK
- force accountability (look at parliament flashcards)
- paul goggins ISA scheme point
32
examples of the supreme court being MORE and LESS powerful than executive / parliament in the areas of:
- HUMAN RIGHTS
- EUROPE / BREXIT
- ULTRA VIRES
MORE:
- miller cases - restrict authority - EUROPE AND BREXIT
- sec of state for the home department v SC - HUMAN RIGHTS
- UNISON v lord chancellor - ULTRA VIRES
- rwanda policy - ULTRA VIRES and hUMAN RIGHTS
LESS:
- belmarsh case 2004 - government later introduced control orders - HUMAN RIGHTS
- begum case - HUMAN RIGHTS
R(nicklinson) v ministry of justice 2014 - HUMAN RIGHTS
- fearn v tate case
- rwanda case - ULTRA VIRES
- HM treasury v Ahmed - government introduce terrorist asset-freezing act 2010 which gave the government power to freeze assets of suspected terror suspects
33
how is independence and neutrality of the UK supreme court upheld
1. security of tenure
- in the court until they reach 70 or 75
- can only be removed by both houses of parliament for misconduct
2. security of salary
- cannot be altered by politicians
- paid by an independent body
3. media
- the principle of 'under judgement' means that media and ministers cannot comment on cases being considered
4. separation of powers
- 2005 constitutional reform act - the lords is no longer a judicial body
5. appointments system
- look at flashcards above - the process is independent
6. training and experience
- there is a threshold of experience and reputation (at least 15 years as practitioner)
- decisions made by judges must be on the basis of the rule of law
34
R (Privacy International) v Investigatory Powers Tribunal (2019)
- the government claimed that decisions of the Investigatory Powers Tribunal (which oversees intelligence agencies) were not subject to judicial review
- the court ruled that judicial review cannot be ousted by executive decision, ensuring intelligence agencies remained legally accountable.
- it limited the government's ability to shield intelligence decisions from legal scrutiny.
35
PM has weak parliamentary influence
1. thatcher's support was divided over the falklands war
2. may = confidence + supply agreement
3. coalition gov 2010
4. election in 2005 -- blair was defeated over 2005 prevention of terrorism act
36
factortame case 2000
- entrenched the supremacy of EU law over UK law
- member states of the EU could have financial liabilities imposed on them for breaching EU law
37
give examples of the cases which display judicial activism and describe each case
1. fearn v tate 2023
- supreme court overturned the decision of lower courts, claiming that tate modern viewing visitors were a nuisance to flat owners
- it was claimed that peering into the flats from the tate was an intrusion which could be considered a nuisance
- only a 3:2 majority
2. factortame case 2000
- entrenched the supremacy of EU law over UK law
- member states of the EU could have financial liabilities imposed on them for breaching EU law
3. miller cases (I + II) 2017 + 2019
4. secretary of state for the home department v SC 2022
- the appellant would be allowed appeal after having refugee status threatened for criminal acts
- the right to respect family life would not exclude those who have partaken in serious criminal offences
- supreme court ruled that the secretary of state did not have sufficient reasons to justify the deportation of the appellant
38
2004 belmarsh case
- claimed that holding foreign terrorist suspects indefinitely without trial was discriminatory according to the ECHR, because british terrorist suspects were not being treated in the same way
- blair's government introduced control orders under the Prevention of Terrorism Act 2005. These allowed restrictions on suspects without full trials
39
examples of cases for the supreme court having power over executive by LIMITING THEIR ACTIONS (ie ultra vires)
- factortame case 2000
- UNISON v lord chancellor
- R (Privacy International) v Investigatory Powers Tribunal (2019)
- miller cases
40
key cases on individual and collective rights
1. ashers baking company limited v lee 2018
2. R v director of public prosecutions 2021
3. independent worker union of GB v CAC and roofoods limited 2021
4. R v sec of state for housing, communities and local government 2020
41
location of sovereignty has not changed
1. devolution
- overarching power with westminster
- section 35, wales act
- northern ireland etc
- sewel convention
- power can be rescinded
2. popular soveriengty
- always bound by needs of people
- referendums
3. power w parliament
- SC cannot strike down law
- act of parliament is above all else
42
describe the interactions between the supreme court and government on anti-terror legislation
- the blair government introduced the anti-terrorism, crime and security act 2001 to detain foreign nations w/o trial, and the government justified this under the derogation clause of the ECHR
- 2004 = a v sec of state for home department
- 2005 = prevention of terrorism act introduced which imposed control orders to restrict movement of those suspected of terrorism and limited evidence given to terror suspects
- 2007 = sec of state for home dep v JJ - control orders were depriving people of liberty
- 2009 = sec of state v AF = individuals with control orders must be given sufficient information about the case of them to challenge it
*displays courts always being willing to impose checks on government work and constantly limiting the expansive power of the executive to preserve individual liberty
- the supreme court fulfill the idea of robust and adequate judicial oversight in order to limit arbitrary state power
43
R (Johnson) v Secretary of State for the Home Department (2016)
- the Supreme Court ruled that denying British citizenship to a person born out of wedlock was discriminatory.
the government amended nationality laws but still imposed bureaucratic obstacles for affected individuals
44
R(nicklinson) v ministry of justice 2014
- the question of imposing a ban on assisted suicide allows section 2 of the HRA to engage w article 8
- declared that the court cannot declare section 2 incompatible w section 8, without parliamentary advice
- wanted an absolute ban on assisted suicide to prevent risk to vulnerable individuals who felt they would be a burden to their family
- wanted to protect those who are most at risk
45
examples of cases for the supreme court NOT having power over executive by LIMITING THEIR ACTIONS (ie ultra vires)
- HM treasury v Ahmed (brown introduced a bill giving the government the ability to seize the assets of suspected terrorists) - COUNTER TERRORISM ACT 2008
- UNISON v lord chancellor - the government tried to introduce other procedural hurdles to minimise the impact of the ruling
- johnson v sec of state for home dep 2016 - court introduced obstacles to obtaining citizenship
46
5 powers / roles of the UK supreme court
- protect individual rights
- check the executive
- judicial activism
- ultra vires
- dec of incompatibility
47
list the 6 supreme court cases relating to the protection of individual rights and describe each case
1. sec of state for the home department v SC 2022
- the appellant would be allowed appeal after having refugee status threatened for criminal acts
- the right to respect family life would not exclude those who have partaken in serious criminal offences
- supreme court ruled that the secretary of state did not have sufficient reasons to justify the deportation of the appellant
2. R Begum v home sec 2021
- the court of appeal ruled that begum should be allowed to return to the UK to pursue her appeal
- the home secretary appealed this decision to the SC
- the supreme court unanimously ruled in favour of the home sec, overturning the decision by the court of appeal
- dismissed Begum's applications for judicial review and claimed she could only return to the uk when the safety of the public will not be compromised
3. 2004 belmarsh case
- claimed that holding foreign terrorist suspects indefinitely without trial was discriminatory according to the ECHR, because british terrorist suspects were not being treated in the same way
4. al rawi v security services 2013
- courts have no power to adopt a procedure allowing the use of secret evidence in civil trials because it would contradict the idea of open justice and the right to a fair trial
5. R(nicklinson) v ministry of justice 2014
- the question of imposing a ban on assisted suicide allows section 2 of the HRA to engage w article 8
- declared that the court cannot declare section 2 incompatible w section 8, without parliamentary advice
- wanted an absolute ban on assisted suicide to prevent risk to vulnerable individuals who felt they would be a burden to their family
- wanted to protect those who are most at risk
6. AM zimbabwe case
- the appeal of the citizen in zimbabwe should be heard under article 3 because he was HIV positive and would not be able to access medicine in zimbabwe
48
describe the legal changes made under the 2009 constitutional reform act
- removed the lord chancellor, instead established role of a lord chief justice (non political, senior judge)
- the lord chancellor only works in the cabinet, not in the judiciary
49
AM zimbabwe case
- the appeal of the citizen in zimbabwe should be heard under article 3 because he was HIV positive and would not be able to access medicine in zimbabwe
50
how is independence and neutrality of the UK supreme court NOT upheld
1. the PM must approve appointments to the supreme court, with the help of the lord chancellor who are both in political positions - lord chancellor can veto an appointment
2. unwritten constitution
- concept of parliamentary sovereignty gives parliament the authority to dissolve and get rid of the supreme court whenever / if it wants
3. media and ministers presence
- the portrayal as "enemies of the people" politicises the court and enforces conformity in voting behaviour
- jacob reece mogg described the miller II case as a "constitutional coup"
51
overall argument for if the courts have more power than the executive and legislature
- courts do not exercise more power
- parliament has the authority of parliamentary sovereignty, giving it the power to overrule decisions of the courts
- creates an imbalance of power
52
parliament does not have power over the PM
1. decision making
- majority of decision making by COVID act 2020 meant only a minority were making decisions w no parliament approval
- secondary leg (may point of 300/5000)
- PM will override demands of backbenchers (ie iraq, marriage etc)
2. whip system
- starmer + johnson
53
examples of sovereign executive
1. PM can deploy military forces without consent of parliament (but it is convention todo so)
- may sends jets into syria due to use of chemical weapons in 2018 w no approval
54
judiciary maintains judicial review and independence 3 paras
55
examples of cases for the supreme court having power over executive in FOREIGN MATTERS / JURISDICTION DISPUTES
- both miller I and miller II cases
56
describe A v sec of state for the home department
2004
- claimed provisions in the Anti-terrorism, crime and security act of 2001 were incompatible with the ECHR (willing to check the executive in order to protect human rights)
57
describe individual rights
- the freedoms each person is entitled to, and which are enshrined in law (ie right to life, freedom of expression, privacy etc)
58
examples of popular sovereignty
1. referendums
- force government to bind and respect the result / view leveraged by public
- transfer of authority from reps in parliament
2.
59
examples of sovereign judiciary
1. HRA = rulings from ECHR go into UK law, allowing a sovereign judiciary
- was suspended in 2001 - article 5
- dec of incompatibility (civil partnership act)
2. 2005 constitutional reform act (lords power of appeal given to parliament)
3. can enforce ECHR law over UK law - ie rwanda
60
describe the key operating principles of the supreme court
- judicial neutrality
--- idea of declaring actions to be ultra vires and the government going beyond their power
- judicial independence
---- being independent from other branches of government to protect the quality of their decision making
61
HM treasury v Ahmed 2010
- SC declared that HM treasury had acted in ultra vires by imposing an asset freeze on three brothers being potential terrorist suspects because none had been charged with any terrorism related offence
- the SC thought that the asset freezing order should NOT be contested in court
62
define legal sovereignty
every parliament has the right to enact whatever legislation it chooses
- no greater power than an act of parliament and cannot be overturned by another body
63
select committees have power over PM
- 2010 wright reforms
- cummings 2021 hearing to health + social care committee which undermined johnson
- liason committee asking johnson about partygate, response to ukraine, covid testing etc
- liason committee exchanges with may were focused on brexit
- liason committee with johnson exposed his weaknesses over party authority + control
- sarah wollaston chair of liason = impartial
- bernard jenkins = scrutinised for tories wanting him to chair
- meg hillier point over control on NHS
64
examples of cases for the supreme court NOT having power over executive in FOREIGN MATTERS / JURISDICTION DISPUTES
- rwanda case 2024
- gibraltar and the EU 2018 (supreme court ruled that decisions on the relations between gibraltar and the EU were for westminster to solve)
- Welsh Senedd challenges the UK internal market act 2021 (supreme court ruled that authority for legislation is still retained with westminster
65
describe the appointments process to the UK supreme court
- there is a vacancy in the court (due to age, or misconduct)
- the lord chancellor convenes a special commission with the chief justice, another UK judge and a representative of devolved bodies (who are not lawyers)
- the commission will advertise positions to those eligible
- the commission shortlists those eligible
- the lord chancellor consults with other first ministers (based on the advice of the commission) -- lord chancellor has the power to reject candidates
- lord chancellor forwards an appointment to the PM
- the monarch gives approval and the PM announces their appointment
66
examples of cases for the supreme court NOT having power over executive in HUMAN RIGHTS
- begum v secretary of state
- rwanda case 2024
- nicklinson case
- belmarsh case 2004 -- - blair's government introduced control orders
- HM treasury v Ahmed
67
composition of the UK supreme court
- there are 12 justices in the UK supreme court - 5,9 or 11 judges will make rulings
- the number of justices on the courts differ depending on the case
- 1 chief justice and 1 deputy chief justice
- before there was only 1 woman, and 10 men, mainly oxbridge educated
68
strong parliamentary influence
1. tony blair government majority
2. johnson power - labour was split under corbyn (esp over anti-semitism)
69
parliament is the sovereign branch
1. brexit - triggering of article 50 bc EU membership was threatening sovereignty - although britain excepted EU sovereignty, parliament can legislate to restore sovereignty
- miller cases - parliament = sov, despite referendum + exec action
2. powers still with westminster (foreign policy, defence etc)
- 2002-2007 = direct rule over northern ireland established
- parliament can take back devolution in scotland + wales
- cannot entrench laws in UK
4. parliament + military action
5. fixed term parliament act = 2/3 of house of commons must support dissolution of parliament
6. no law is higher than parliamentary statute
- SC cannot strike down act of parliament
- HRA can be suspended
- parliament isn't obliged todo anything about SC decisions
70
sec of state v AF
2009
- individuals with control orders must be given sufficient information about the case of them to challenge it
71
reasons for why the courts do and do not protect individual and collective rights
do:
1. the courts are willing to take a more activist and forward approach to rights protection - increasing media scrutiny may support them
do not:
1. unelected judiciary - cannot be seen to go against the executive (members of which are democratically elected) - judiciary members lack a mandate and legitimacy
2. judiciary cannot strike down laws to be unconstitutional
3. parliamentary sovereignty - they lack the power and authority - power is vested with a democratic body
72
describe the supreme court's case on the rwanda policy
- the government's rwanda policy is unlawful
- sending people to rwanda would be unlawful, because it is not safe
- more power from the executive, because sunak later claimed that rwanda was a safe country, by introducing emergency legislation, which would allow for rwanda to be enforced
73
judiciary does not maintain judicial review and independence 3 paras
74
EU allows and doesn't allow parliamentary sovereignty
allow:
1. parliament ignore EU rulings (ie on prisoners)
2. brexit - parliament can simply withdraw from EU - membership is only through an act of parliament
don't allow:
1. EU law above UK law - factortame
75
describe sec of state for home dep v JJ
2007
- control orders deprived individuals of liberty and were unlawful
76
R Begum v home sec 2021
- the court of appeal ruled that begum should be allowed to return to the UK to pursue her appeal
- the home secretary appealed this decision to the SC
- the supreme court unanimously ruled in favour of the home sec, overturning the decision by the court of appeal
- dismissed Begum's applications for judicial review and claimed she could only return to the uk when the safety of the public will not be compromised
77
fearn v tate 2023
- supreme court overturned the decision of lower courts, claiming that tate modern viewing visitors were a nuisance to flat owners
- it was claimed that peering into the flats from the tate was an intrusion which could be considered a nuisance
- only a 3:2 majority
78
what are the four freedoms of the EU
free movement of:
- goods - no tariffs = create a customs union
- services - businesses open in any state
- capital must freely flow between states
- people - all people could migrate and claim social benefits from the EU
