1
Q
who is in the supreme court
A
- the Lord Reed of Allermuir (president); past experience as senator of the college of justice, inner and outer house
- Lord Hodge (deputy president)
- Lady Rose of Colmworth (the only woman): lady justice of appeal and justice of the high court
1
Q
what is the Supreme Court
A
- the highest court in the UK
- acts as the final court of appeal in cases of major public importance
- there are 12 justices
2
Q
key supreme court cases
A
- R (Nicklinson) v. ministry of justice (2014)
- Miller v. secretary of state for exiting the European union (2017)
- UK withdraw form the EU (Scotland bill) (2018)
- HM treasury v Ahmed (2010)
3
Q
R (Nicklinson) v. ministry of justice (2014)
A
- do individuals have the right to die (assisted suicide)
- the court supported the government position arguing that article 8 (right to respect for private and family life) of the ECHR could be used to overturn the suicide act 1961 as a means of justifying assisted suicide
4
Q
Miller v. secretary of state for exiting the European union (2017)
A
- Gina Miller argued that the UK government could not trigger article 50 (to leave the EU) without a vote or deliberate debate in parliament
- David Davis, the secretary of state for exiting the EU, argued that the government’s use of the royal prerogative meant that parliament need not be consulted
- the supreme court found in favour of Miller, arguing that as referendums are non binding, the government could not ignore the sovereignty of parliament
- the commons duly had a vote on triggering article 50
5
Q
UK withdraw form the EU (Scotland bill) (2018)
A
- the scottish parliament sought to reaffirm rights on agriculture and fisheries that would return to the UK from EU control following brexit
- the UK government argued that these areas were outside the remit of the scottish parliament and should fall under the jurisdiction of the UK government
- the court found in favour of the UK government, arguing that the bill went beyond the powers of the scottish parliament
6
Q
HM treasury v Ahmed (2010)
A
- the government wished to freeze the assets of suspected terrorists
- the court ruled that the government did not have the legal power to do this, as it infringed the presumption of innocence inherent in common law and the human rights act
- they said the government has acted ultra vires
- however, Gordon Brown’s government passed the Terrorist Asset-Freezing (Temporary Provisions) Act 2010, which bypassed that supreme court ruling
7
Q
a successful decade for the supreme court
A
- the supreme court should be judged as a success as it has effectively defended the rule of law
- however, unlike the US supreme court, which can strike legislation down as being unconstitutional, the UK supreme court can only advise the government that its actions are incompatible with the law
- parliament remains sovereign, so can technically ignore supreme court judgments
- but no government wishes to appear above the law, so governments have always respected the ruling of the supreme court
8
Q
Factortame (1991)
A
- the high court rules that the UK merchant fishing act was in conflict with the EU fisheries directives
- the UK law was set aside, establishing the principle that EU law supersedes UK law
- the supreme court is limited by the precedence set by higher courts
- its independent - ruled against the government
9
Q
Michael Douglas v. hello magazine (2001)
A
- the EU court of human rights ruled that Michael Douglas and Catherine Zeta Jones had the right to not allow unauthorised photos of their wedding to be published under the right to privacy
- judiciary follow acts of parliament
- rights of the individual one being upheld
10
Q
mental health act case (2002)
A
- the UK mental health act required that a person detained with mental illness had to prove their own fitness to be released
- the courts rules that this contradicted the human rights act’s individual right to freedom
- under the change, a patient has the right to freedom unless they are a risk to public safety
- judiciary claims that the rights lie with the individual, upholding civil liberties
11
Q
Belmarsh case (2004)
A
- the house of lords rules that detainees held against their will under their will under the anti terrorism legislation contradiction of the human rights act on the grounds that citizens have the right to not be detained without trial
- example of the supreme court acting against the government
- acting without bias in a time where fear of terrorism was prevalent
12
Q
the office of fair trading v. Abbey national and other (2009)
A
- the supreme court ruled that the office of fair trading had no power to investigate the banks’ system of charging customers for overdrafts which limited the governments control over the banks
- shows neutrality
- went against the judges own personal views
13
Q
suspected terrorist bank assets (2010)
A
- the supreme court ruled that the government did not have the legal power to freeze the assets of suspected terrorists
- this forced the government to pass special legislation to give them this power
- the supreme court is restricted by the power of government as a result of parliamentary sovereignty , parliament don’t have to follow supreme court ruling
14
Q
Radmacher v Granatino (2010)
A
- the supreme court ruled that pre nuptial agreements can be enforced in UK law
- example of disagreement within the judiciary
- the one who voted against was the only woman and the only expert in family law (Lady Hale)
- issues of neutrality
15
Q
the judiciary does successfully defend civil liberties
A
- the constitutional reform act (2005) gave senior judges the independence to protect our rights - stronger separation of powers, brings greater legitimacy encouraging the judges to be more active in challenging the government and defending our rights
- the supreme court issues declarations of incompatibility when laws undermine human rights
- judicial reviews allows judges to examine whether officials have acted within their powers
- UK citizens have successfully defended their rights at the ECHR - under article 46 of the ECHR the UK is required to implement its judgments
- judges have proven increasingly willing to publicly speak out on human rights issues
16
Q
the judiciary does not successfully defend civil liberties
A
- judges cannot be proactive, they have to wait for cases be brought before them
- parliament has proven reluctant to follow some verdicts from the ECHR
- parliament could theoretically repeal the human rights acts
- parliament remains sovereign and can pass new legislation if found to have acted ultra vires
- parliamentary sovereignty limits the impact of these declarations
- supreme court can not strike down laws, like equivalent courts in other nations - UK has an uncodified constitution
17
Q
what is the Supreme Court
A
- the highest court in the UK
- acts as the final court of appeal in cases of major public importance
- there are 12 justices
18
Q
the judiciary in the uk
A
- the term judiciary refers collectively to all UK judges, from lay magistrates to the 12 senior justices sitting on the UK supreme court
- Scotland and NI operate under different legal arrangements than those in England and Wales but the supreme court is the highest court of appeal for all three systems
19
Q
judicial review
A
- the process by which judges review the actions of public officials or public bodies in order to determine whether or not they have acted in a manner that is lawful
- due to parliamentary sovereignty and supremacy of statute law, judicial review in the UK is generally seen as being less significant than in the US
- in the US, the supreme court can strike down regular statutes that are judged to have violated the US constitution
20
Q
common law
A
- also called case law or judge made law
- is the term for the body of legal precedent resulting from the ruling of senior judges
21
Q
rule of law
A
- the rule of law is a key principle of the UK constitution and A.V Dicey saw it as one of the ‘twin pillars’ of the constitution
- according to Dicey, there are three main strands:
1. no one can be punished without trial
2. no one is above the law and all are subject to the same justice
3. the general principles of the constitution, such as personal freedoms, result from the decisions of judges rather than from parliamentary statute
22
Q
reform under new labour
A
- in 2003, the labour government announced plans to reduce the power of the Lord Chancellor and place most senior judicial appointments into the hands of an independent body
- the constitutional reform act (2005) reduced the power of the Lord Chancellor and placed most senior judicial appointments into the hands of a judicial appointments commission (JAC)
- it was hoped that this change would enhance the separation of powers, and result in a senior judiciary that was more socially representative of a broader population
23
Q
the power of the uk judiciary
A
- unlike the US supreme court, UK courts can’t declare an act of parliament unconstitutional
- however, senior judges in the UK still wield considerable power and can:
- decide whether the actions of the government are unlawful or ‘ultra vires’
- issue a declaration of incompatibility where a parliamentary statute appears to violate rights guaranteed under the human rights act
- (the UK supreme court was able to ‘suspend’ UK statutes that violated EU law when we were a part of the EU)
24
judicial independence and judicial neutrality
- **judicial independence** is the principle that those in the judiciary should be free from political control
- **judicial neutrality** is where judges operate impartially, ie without personal bias in their administration of judges and is an essential requirement of the rule of law
- a lack of judicial independence will threaten judicial neutrality because if judges are subject to external control, their will be compromised but it doesn't guarantee it
25
how is judicial independence maintained
judicial independence in the UK is based upon 6 main pillars
1. the security of tenure enjoyed by judges
2. guaranteed salaries paid from the consolidated fund
3. the offence of contempt of court (legal ramifications if they don't maintain their independence)
4. growing separation of powers
5. an independent appointments system
6. the training and experience of senior judges
26
how is judicial neutrality guaranteed
it is impossible to guarantee judicial neutrality absolutely (eg Radmacher v. Granatino) but:
- judges are expected to maintain a relatively low public profile
- there are restrictions on their political activities
- they must provide legal justifications for their judgements
- they are highly trained and chosen from the ranks of highly experienced lawyers
27
the supreme court is neutral
- the rule of law is central to judicial actions and they have a responsibility to uphold this in their choices, this allows them to focus on specific cases
- judges are not allowed to engage in open political activity and many will not discuss where their personal political allegiances lie
- judges are bound by rules of interpretation (doctrine of judicial precedent) when making their judgements, they would be in trouble if they departed from these too much so will stray internally consistent
- the belmarsh case and the mental health act show changing attitudes within the judiciary and show a history of challenging the views of government, regardless of their party
- 2010: the supreme court ruled that the government did not have legal power to freeze the assets of terrorists despite mounting pressure from the government to do so
- the human rights act has provided the judiciary with increased 'ammunition' to be used against the state in civil cases, which means they can act freely and feel empowered
28
the supreme court is not neutral/bias
- the judiciary consists of a very narrow social, economic and professional background, mostly male, former QCs from Eton and Oxbridge (11/12 are oxbridge graduates)
- the supreme court has only 1 female member
- the Griffith theory argued that judges were naturally inclined to favour the state/public order over those of the individual and were more likely to be conservative than liberal (1977)
- many supreme court judges formerly sat in the house of lords, which is seen as incredibly conservative institution and could therefore be influenced by former colleagues
- they tend to come from social backgrounds with a bias against certain groups - women, homosexuals and trade unionist
- it is impossible to act neutrally on issues of morals, ethics and debate, any choice based on theses will elicit a response, whether it is obvious or not
29
the Supreme Court has too much power
- it can set aside the view of democratically elected politicians
- it can make declarations of incompatibility
- increased judicial review
- lacks legitimacy, not elected, narrow social group
30
it can set aside the views of democratically elected politicians
- the supreme court can set aside executive actions if they are unlawful, irrational or made in the wrong way
- eg in 2013, when quashing Jeremy Hunt's decisions regarding the maternity and A&E departments at Lewisham hospital as it was deemed beyond his legal powers
31
it can make declarations of incompatibility
- the supreme court can make a declaration of incompatibility with a regard to an act of parliament, which has effectively originated from the executive
- whilst not legally binding because parliament is still sovereign, such decisions generally lead to the government proposing changes to the law to satisfy court ruling
32
increased judicial review
- there has been increased judicial independence since the constitutional reform act and compatibility since the human rights act
- the increase in the number of judicial reviews has slowed down decision making, added costs to public projects and made ministers increasingly cautious for fear of litigation
- since 2016, the number of judicial review petitions presented to the court has increased by approx. 16%
33
the relationship
- the relationship is unequal, with the executive as the dominant actor
- the government has significant control over the legislative process
- without control, the government could not fulfil its mandate
- executive dominance does not mean the parliament is impotent
34
legislative - executive relations
- these are shaped by the institutional resources (e.g. cabinet, civil service) they posses and the political context
- key factors are: the government's majority and the extent of parliamentary unity
35
minority government
- in a minority government, the party with the largest number of seats governs alone, it may be able to persuade a smaller party to support it on the budget and the king's speech - this is known as a confidence and supply deal (e.g. May's 2017 government and the DUP)
- it must still find parliamentary majorities on a bill by bill basis
- a minority government may be relatively stable in the short term, particularly if other parties do not want another general election
- it is difficult to sustain a minority government for long, although the fixed term parliament act did limit what counts as a confidence motion (although it has since been repealed)
36
four post war minority government
- Wilson (1974): labour government had no majority after the February 1974 election, Wilson called another election in the October and won a majority of 3 seats
- Callaghan (1976 - 1979): labour majority disappeared after by election defeats, under the 1977-78 'lib-lab pact', the liberals supported the governments on key votes in the commons
- Major (1996 - 1997): Major's government lost its majority in 1996, following by election defeats and defections, it was supported by ulster unionists on some divisions, but there was no formal deal
- May (2017 - 2019): agreed to a confidence and supply deal with the DUP after losing her majority in 2017
37
coalition government
- in a coalition government, two or more parties dorm the government having reached a formal agreement in a legislative programme and cabinet posts
- when the 2010 election failed to deliver an outright majority for the conservatives, they formed a coalition with the lib dems
- this was the first coalition since WW2 and the first peacetime since the 1930s
- the conservatives - lib dem had a healthy working majority of 79, this proved sufficient for the government to get much of its legislation through the commons
- the coalition agreement permitted the lib dems to abstain on parliamentary votes on tuition fees and nuclear power
- disputes between the coalition partners saw two key bills fall when rebel conservative MPs blocked the house of lords reform and lib dems blocked the revision of constituency boundaries
38
how effective are backbench MPs
- the strengthening of select committees has given MPs more opportunity to have a voice, now they are elected members, it gives them more autonomy
- creation of backbench business committee and the greater use of urgent questions (example of parliament forming checks on the executive) has given greater opportunity to scrutinise government
- high failure rate of PMBs suggests that backbench MPs have little impact on legislation
- it is a common perception that MPs slavishly follow the party whip and MPs do indeed vote with their party on the overwhelming majority of divisions in the commons (fracking vote)
- when a rebellion occurs, it is usually small and can easily be absorbed by a government with a working majority
- however, rebellions have become more frequent in recent years and along with threats of rebellion, force concessions from the government
39
has parliament become more effective
- parliamentary scrutiny of the executive has been enhanced in recent years by the increased assertiveness of backbench MPs and the house of lords (e.g. the supreme court empowering parliament on article 50)
- the prime minister is now obliged to get parliamentary consent before calling an early election
- in 2009, a select committee on reform of the house of commons recommended changes to parliamentary procedure that enhanced parliamentary scrutiny ands it agenda setting ability (the increase in direct democracy, gives parliament more power): the elections of select committee chairs and members, the creation of backbench business committee, new mechanisms for citizens to petition parliament
40
parliament and brexit
- brexit poses significant challenges for parliament
- the 2016 referendum was a move away from parliamentary sovereignty towards popular sovereignty
- it provoked competing claims of legitimacy (advisory of binding referendums, etc)
- debaters about the role of parliament also reflected concerns that brexit could further strengthen the executive in its relationship with the legislature
- the supreme court rules that the government did not have prerogative power to trigger article 50, without the involvement of parliament
- significant workload will be created by repealing EU legislation, which may result in increased secondary legislation which would strengthen the executive but weaken parliament
41
has parliament's reputation improved
- parliament’s reputation was damaged by the 2009 MPs scandal
- the Hansard society’s annual audit of political engagement has traced public attitudes towards parliament
- the 2017 report found that only 30% of people were satisfied with how parliament works - partial recovery from the lows seen during the expenses scandal
- more people agreed than disagreed in 2017 that ‘debates and makes decisions about issues that matter to me’ and ‘hold the government to account’
- 73% agreed that ‘parliament is essential to our democracy’
- each scandal throws support array
42
the aims of the eu
set out in article 3 of the EU treaty and they include:
- promoting peace and the EU values
- establishing an economic and monetary union
- establishing a single EU market
- establishing an area of freedom, security and justice without internal frontiers
43
eu values
- the EU is founded on the values of ‘human dignity, freedom, democracy, equality, the rule of law and respect for human rights , including the rights of persons belonging to minorities’
- these form parts of the accession criteria for prospective new members
- EU membership has helped to embed liberal democracy in states that have recently been under authoritarian and ‘communist’ rule
- eurosceptics claim that the EU has ignored popular concerns about integration, they believe democracy is rooted in the nation state
44
four freedoms
- the single European market or internal market is ‘an area u internal frontiers in which the free movement of goods, services, persons and capital is ensured’
- the single European market is widely regarded as one of the EU’s successes
- it is estimated to have created more than 2.5 million jobs across the EU and helped to increase GDP bu 15%
- however, some sectors, e.g. energy and public procurement, have proved difficult to open up
- critics in the UK note that EU regulations are costly for small and medium sized enterprises and financial services
- the 4 freedoms include: free movement of goods, services, people, capital
45
the eu political system
- the EU’s institutions don’t fit as neatly into categories of executive, legislature and judiciary
- the court of high justice is the EU’s independent judicial branch
- on economic and related policies, the EU legislative branch has the equivalent of two ‘houses’ (an upper, where national governments are represented and a lower, with member states represented roughly in line with population)
- the European court us the executive branch of the EU, it does not have the power of national cabinets but resembles them in that each commissioner has a policy portfolio
- it makes proposals to the legislative branch and is responsible for implementing laws
- the council of Europe also preforms some executive functions
46
qualified majority voting
- QMV is a mechanism used within the European council and council of the EU to take decisions without the need for unanimity but which go beyond a simple majority of members
- there are two forms of QMV: standard and reinforced
- standard: decisions are adopted if at least 55% of member states (15/27) representing at least 65% of the EU population approve
- reinforced: at least 72% of member states must approve, representing the same proportion of the EU population, abstentions counts as a vote
47
the common agricultural policy
- the common agricultural policy (CAP) is an EU system of agricultural subsidies and price interventions
- farmers receive direct subsides from the EU for producing crops and livestock and the EU intervenes to buy farm outputs if prices fall below an agreed level
- it also taxes agricultural imports and subsides exports
- the CAP is controversial but has been difficult to reform, given the support it enjoys from some states (e.g France) and powerful farming interests
- it is the largest area of EU expenditure, covering 38% of the EU budget
48
the common fisheries policy (2014)
- from 1983, the EU regulated the amount of deep sea fish that could caught with a system of quotas
- it allowed fishing boats from other member states to have equal access to each other’s fishing grounds
- critics argued that it allowed large fishing fleets from other countries to drive small UK trawler operators out of business
- they also maintained that the policy was ineffective at conserving fish stocks
- as a result of the fishing quotas, dead fish had to be thrown back into the sea
49
Factortame (EU)
- 1990 - 2000
- a spanish fishing company, Factortame, sued the UK government for restricting its access to waters
- the law lords (highest court at the time) followed the EC of justice ruling that the merchant shipping act (1978), which the government has using to support its position couldn’t be allowed to stand because it violated EU law
- Europe legislation, establishing a single European market, stated that individual EU member states couldn’t restrict access to each others fishing grounds
- this controversial case established the primacy of EU law over an act of parliament
50
there is a democratic deficit in the EU
- legislation is initiated by the European commission, which is not directly elected
- citizens do not understand or identify with the EU - it is too complex/distant - and have opposed key developments
- national governments can be outvoted under qualified majority voting, and this may mean that the will of the electorate is thwarted
- the directly elected European parliament is not sufficiently powerful
- elections to the European parliament are now dominated by national issues and turnout is low
51
there is not a democratic deficit in the EU
- the European parliament shares a legislative power with the council of the European union in most policy areas, there is a system of checks and balances
- the European commission, which initiates legislation, is accountable to the European parliament and its key personal are nominated by national governments
- the EU does not have power in key areas of national life, such as taxation, social security and education
- the EU's supranational institutions have greatest autonomy in technical matters (e.g. competition policy, central banking)
- national governments are represented in the council of the EU and the European council, where bargaining is the norm
52
the EU has achieved its objectives
- by 2018, the EU expanded from 6 to 26 members,
- in 2018, the EU's GDP was worth $19.7 trillion, making it the second biggest economy in the world, this represents 22% of the value of the global economy
- the expansion of the EU has encouraged democracy in former 'communist' states in eastern Europe
- the European charter of fundamental freedoms has entrenched cire civil liberties in European law
- the implementation of the 4 freedoms means that the EU is now the biggest single market in the world, providing EU citizens with the right to live, work or study in any member state
- the euro is the world's second reserve currency (after the US dollar)
53
the EU has not achieved its objectives
- the expansion of the EU has diluted its purpose, making it more difficult to unite on contentious issues
- the removal of barriers to the free flow of workers has encouraged the rise of populist parties across the EU
- the commitment of member states, such as Hungary and Poland mean that the democratic principles of the EU are disputed
- the austerity programmes demanded by the European central bank in response to the euro crisis have undermined support for the EU
- little progress has been made establishing a European sense of identity, national identities have been strengthened as a result
- the migrant crisis has exposed significant tensions between the liberal approach of the German and French governments and the more defensive approach by states such as Hungary and Italy
54
how important is the size of the government's majority
- the size or absence of a majority for the governing party in the house of commons is an important factor in the relationship between the legislature and the executive
- FPTP often but not always delivers a working majority for the party that wins the most votes in the general election
- a government with a large majority is a commanding position, able to push its legislation through parliament by utilising the whipping system and controlling the parliamentary timetable (e.g. 1997 bair)
- the larger the government's majority, the less likely it is that the other parties in the commons will be able to defeat or amend government bills
- the ability o backbenchers to influence policy is also limited because a government with a substantial majority can also absorb dissent within its own ranks
- with a majority of 167 in the 2011 election, Blair government survived large rebellions from labour backbenchers on Iraq, tuition fees and foundation hospitals, the government suffered its first commons defeat within months of its majority being cut to 65 in the 2005 government
- a governing party that has a slender majority, or none at all, can find itself in a precarious position
- a hung parliament occurs when no single party commands an absolute majority of seats in the house of commons, then a minority or coalition government is likely (e.g. 2010)
55
how has the EU influenced policy
- EHCR led to the human rights act (1998)
- factortame
- northern Ireland power sharing border issues
- Brexit - led to bilateral/multilateral trade agreements
- EU funding, e.g., the Eden project
- clean air act - client earth to the UK to EU court and the UK was found guilty
56
sovereignty has returned to Westminster since the UK left the EU
- EU schemes have been replaced with UK alternatives, e.g., the Turing scheme replacing the Erasmus scheme, and the agriculture act replacing the CAP
- legal sovereignty strengthened
- UK can implement all treaties by passing UK legislation
- assimilated laws are not supreme and can be restated if parliament decides
57
sovereignty has not been returned to Westminster
- devolution - sovereignty still lost to an extent
- still retained legal authority as we could revoke the ECA (1972)
- still bound by the EHCR
- social policy, e.g., the point based migration system
- lost power to vote and negotiate laws/treaties that will impact the UK economy, migration, water, etc
- political sovereignty is weaker and limited opportunities to affect EU decision making (e.g., no MEPs)
58
legal sovereignty
the UK parliament remained sovereign, whilst as a member of the EU because it could repeal the the European communities act (1972) if it wanted
59
political sovereignty
EU laws were 'supreme' and could take direct affect in the UK, without input from the UK parliament
60
retained EU legislation
- the 2018 European union (withdrawal) act made provisions the European communities act (1972) to be repealed once the UK had left the EU
- once the ECA had been repealed, new EU laws would no longer take direct effect in the UK
- however, the government argued it is not possible to simply erase 50 years worth of EU law
- as a result, all existing EU laws would be retained on UK statute books as a new category of law called retained EU legislation
- retained EU law would remain supreme over existing UK law
61
assimilated law
- the retained EU law (revocation and reform) act stated that any retained EU laws that remained after 31/12/2023 would be known as assimilated law
- they are no longer supreme
62
restated law
- ministers can convert secondary assimilated laws into new, domestic statutory instruments
- when restating a statutory law, minsters can choose to reinsert the supremacy principle
