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relations between branches, EU and sovereignty, parliament - Coggle Diagram
relations between branches
role of the judiciary
dispensing justice
interpreting law
making law - common law, judicial precedent
judicial review - check on government power
public inquiries - into areas of major public concern - mad cow disease, covid
the supreme court
highest court in the UK
only UK parliament can overturn decisions of SC by passing new legislation or amending existing law
membership
12 senior judges - extensive legal expertise
head of the court is president of the SC
judges appointed by independent panel of country's senior legal figures (JAC) - judges independent of political pressure
role
final court of appeal for all civil (UK) and criminal cases in wales, england and NI
concentrates on cases of public concern and constitutional importance
may hear constitutional law cases, criminal and civil law cases
hears appeals on arguable points of law - clarifies meaning and application of law
case studies
miller II - 2019
PM prerogative powers to prorogue parliament
PM advised the monarch to suspend parliament - allows for short recess in between parliamentary sessions - did johnson do this to avoid scrutiny of brexit bill
court ruled johnson's advice to monarch had been unlawful since it was given with intention to avoid parliamentary scrutiny
miller - 2017
PM prerogative powers over treaties and diplomacy
challenged PM claim that article 50 (lisbon treaty) could automatically be triggered
only parliament could give PM authority to trigger article 50 - powers could not undermine parliamentary sovereignty
friends of the earth v heathrow airport - 2020
judicial review
had gov ignored UK climate change commitments under paris agreement by approving third run way for heathrow
construction of third run way could proceed as gov still taking in to account legal obligations to the environment
schindler v duchy of lancaster - 2016
right to vote
should UK citizens who lived abroad more than 15 years be able to vote in 2016 EU ref
vote denied for such citizens as they had forfeited their rights be living abroad
judicial nuetrality
judges should show no political bias
judges should not show any bias in favour of or against any section of society
judges should base judgements purely on principles of law and justice - not own prejudices
judges have security of tenure, cannot be dismissed on basis of their judgements
definition
: principle that judges should not be influenced by their personal opinions and that they should remain outside of party politics
judicial independence
judges need to be able to enforce rule of law without external pressure
definition
: principle that the judiciary should be free of political interference and criticism, particularly from the executive
judges hear cases of political importance involving gov itself - must not be subject to pressure from government if they are to give neutral judgement
judges must be able to protect rights of citizens without fear of retribution if they defy government wishes
judiciary is key check on executive power
how is judicial independence upheld?
judges appointed for life - cannot be dismissed if gov disagrees with judgement
judges cannot have their incomes threatened if they make decisions against gov wishes
judges appointed by commission which is independent of government
duty of gov to protect judges from external pressure - for example media scrutiny
debate on independence and neutrality
independent and neutral
limits to independence and neutrality
supreme court and protection of rights
how SC can protect rights
SC enforces the rule of law - cadder v HM found that scottish police were in breach of the ECHR and scotland act 1998 in the way that they detained suspects
asserts common law rights - dover district council v CPRE kent ruled that when planning permission has been granted against the advice of own professional local authorities obliged under common law to give reason for doing so
SC can interpret ECHR - brester case confirmed that cohabiting couples enjoyed the same pension rights as married couples
rules on freedom of information cases - evans v attorney general ruled that press had right to publish royal correspondence that was sent to gov departments by king charles
SC can use incompatibility statements given to it under the HRA to rule that proposed laws are in breach of the HRA
limits on SC ability to protect rights
rule of law is what politicians say it is - UK constitution is not entrenched parliaments can overturn rights and liberties with simple act of parliament
rights have better legal standing and greater legitimacy when confirmed by parliament - countryside and rights of way act clarified and confirmed the common law right to roam in the countryside
UKSC has no enforcement power - environmental groups have claimed that the gov has failed to respond fast enough to court rulings that found the gov breached air quality laws that affect the health rights of citizens
gov has frequently sought to limit scope of freedom of information - following court decision on royal correspondence FOI was amended to exempt royal family
incompatibility statements are not binding upon parliament
influence of the SC on executive and parliament
checks and balances prevent abuses of power and assert the rights of citizens against the state
methods
courts impose common law asserting the rights of citizens
courts impose rule of law, ensures that all citizens are treated equally - occurs as result of judicial review
courts cannot set aside a piece of parliamentary legislation but can declare laws incompatible with the ECHR - puts pressure on gov to amend
in cases of ultra vires the courts decide whether public body has exceeded legal powers - same for gov exceeding constitutional powers
courts enforce the ECHR when interpreting executive actions and in cases of judicial review
public inquiries by judges can be persuasive in forcing gov to take certain actions
judiciary/gov conflicts
freedom of expression
gov seeks to control spread of religious extremism (prosecuting extremist preachers) judges have duty to preserve freedom of expression
freedom of information
gov believes that some info should be secret (in national interest) judges positive toward appeals under freedom of info act
rights
judges have duty to preserve HR may hinder gov attempts to maintain national security - terrorism
judicial review
judges become more open to hearing appeals by citizens against public bodies - gov claims too many judicial reviews inhibit its ability to govern
sentencing in criminal cases
judges wish to have free hand in sentencing on case by case basis - gov (responsible for law and order) insists it needs to impose minimum sentences - eg. weapons possession
ultra vires and judicial review
ultra views is common subject of judicial review
citizens and organisations may appeal against a decision by public body on the grounds that it was acting outside the powers granted to it by law
value is to prevent public bodies from acting unlawfully
if case is proved, results in cancelation of the decision and compensation
meaning: acting beyond the powers
power of the SC
too powerful
creation of the SC makes conflict more likely leading to more active and independent court - disputes over immigrations, terrorism, human rights and brexit have increased - recent rwanda
HRA allows UKSC to interpret ECHR and issue incompatibility statements - hinders ability of gov to fight terrorism etc. - 2019 SC found that home office policy of detaining asylum seekers prior to their removal amounted to 'false imprisonment'
judicial review gives judges too much influence over public policy and the democratic process - two brexit related reviews in the SC contributed to delay despite approval from the public in the 2016 EU ref
not too powerful
politicians undermine the independence of SC and judiciary - successive govs have set minimum terms for criminal offences and sentencing guidlines for judges
courts ensuring rights are protected - powerful executive determines range and scope of rights - justice and security act 2013 allowed 'closed material proceedings' into justice system - something SC is powerless to stop
court must wait for case to be brought before it - no power to initiate review - number of applicants for review fell by 44% between 2015-19 - largely as a result to cuts to legal aid
EU and sovereignty
political impact of UK decision to leave the EU
some MPs called for 2nd ref others called for soft brexit
pro brexit faction of cons party supported clean break/hard brexit
both labour and cons divided over next steps to take - difficult to pass legislation relating to brexit
post ref two GEs held - 2019 resulted in parliamentary majority for cons with mandate to get brexit done
two PMs forced to resign over the issue - cameron post ref and may after failing to win parliamentary support for deal
EU withdrawal act passed in 2020 - resulted in UK leaving EU political institutions
2016 ref vote 51.9% voted leave 48.1% remain
EU and UK agreed to trade deal in dec 2020 - subsequently approved by parliament - different set of trading arrangements for NI
constitutional impact of the UK leaving the EU
increasing divide between scotland which voted largely to remain in the EU ref and england which voted to leave
calls for scottish independence
under withdrawal act - NI will continue to dollow many of EU rules to avoid custom checks on border it shares with republic of ireland - separate trading relationship with EU
european court of justice no longer have jurisdiction in the UK - will cease to be highest court of appeal on EU matters
UK gov and parliament with process of removing/retaining EU laws and regulation in UK law
changing location of sovereignty in the UK
parliament is sovereign
political sovereignty
is not fixed and is restricted by parliamentary assertion - party with a thin or non existent majority will find it much more difficult to control the parliamentary agenda - speaker can decide to accept or reject the request - more likely to accept if gov lacks majority - wrestling it away from government and allowing it to initiate its own votes on brexit
spring and autumn of 2019 parliament voted to take over the agenda of parliament using standing order 24 - standing order 24: allows an MP to request an emergency debate on a particular topic
despite devolution parliament retains sovereignty and still takes major decisions affecting the nation
sewel convention not legally binding and so devolved bodies can be ignored by parliament
SC ruled in 2017 that devolved bodies could not reject what parliament passes in relation to brexit
brexit
has meant that the UK parliament once again enjoys
full legal sovereignty
- prior to brexit it was accepted in the
factortame case
that eu law had primacy over UK law - UK parliament could not introduce law that conflicted with EU law but now can for example rwanda bill and the deportation of immigrates
factortame case:
ruling by former law lords which asserted that EU laws on fishing rights took priority over a UK law that banned foreign vessels in UK waters
if
popular
will is divided, as shown by EU referendum and also by 2017 general election, net effect is to empower ordinary MPs who hold more power in a hung parliament - allowing parliament to take control of decision making
different forms of sovereignty
political sovereignty
refers to body that in practice holds most influence over decision making - in UK governing party/cabinet have political sovereignty
popular sovereignty
rests with the electorate which votes in referendums and elections - outcomes binding on gov
legal sovereignty
formal power that lies where laws are made - in uk parliament has legal sovereignty
devolved sovereignty
parliament agrees for other bodies to take decisions - devolved powers can be taken back by UK parliament at later date
parliament is not sovereign
political sovereignty
rests with the governing party the cabinet and the PM - fusion of powers allows government to sit in parliament and to control the agenda - despite parliament's approval of the article 50 process the decision to comply with request to extend article 50 and this delay brexit lay with the PM and the cabinet
article 50:
legal mechanism for a member of the EU to leave the EU - essentially a notice period that a country gives to leave - can be extended through mutual consent
popular sovereignty
has challenged parliamentary sovereignty
outcome of EU referendum (2016) served as an instruction to parliament to deliver on brexit
many of the powers returning to the UK will not be subject to parliamentary jurisdiction but instead be wielded by government ministers in the form of secondary legislation
parliamentary sovereignty has been effectively
devolved
to new institutions such as scottish parliament
sewel convention
implies that devolved bodies should be asked for their consent to laws passed by parliament that are considered to be under the jurisdiction of the devolved admisnitrations
nature of the european union
four main features of the EU
free, single market - no barriers to free movement of goods, services, finance, labour or people between member states - common citizenship rights across union
partial political union - laws made by institutions of the EU which apply throughout the union - importance of consistency and use of same laws - ECHR
customs union - no tariffs - member states cannot have separate trade agreements with countries outside EU
some states part of monetary union - eurozone
parliament
executive dominance of the UK parliament
executive dominance of parliament described as an elective dictatorship
lord hailsham: belief that when a governing party holds great majority able to drive through any legislation it wishes
how executive can control parliament
gov controls legislative process and can block most amendments from the HOC and HOL
HOL can delay but not veto legislation
patronage of PM demands loyalty of party MPs - so does influence and sanctions of whips
salisbury convention means lords cannot block legislation for which gov have electoral mandate
gov usually enjoys majority in HOC - can expect to win critical votes
example/explanation
2020 gov overturned 5 HOL amendments to brexit bill before EU withdrawal agreement bill passed into law
parliament act 1949 limits lords power of delay to a year
removal of whip in sept 2019 from 21 MPs who voted against gov brexit showed PM can not only reward loyalty but also punish
any proposal contained in winning party manifesto cannot be blocked by HOL
johnson's 80 seat majority allowed his gov to introduce set of post lockdown system of tiers for different parts of the country - despite misbehaving MPs
changing relationship between parliament and the executive
factor
issue
authority of PM
type of gov
gov handling of emergencies and events
how this increases influence of parliament
any issue that divides governing party results in greater scrutiny - TM lost several votes on brexit bill
weak PM will face more scrutiny from parliament - johnson gov barely survived vote of no confidence
gov without majority in HOC more likely to suffer defeats - HOL held up reforms to welfare system proposed by coalition gov in 2010-15
gov is perceived to be failing or lacking decisiveness scrutiny will increase - con BB rebelled over changes to english tier system of controls to address covid 19 in 2020
how this retains executive influence
some issues unify governing party and divide opp - vote on military action against ISIS in 2015
strong PM can evade parliamentary scrutiny - blair attended parliament less frequently in first therm in office than any of his postwar predecessors
gov normally enjoys majority in commons can push through legislation - johnson 80 majority allowed for smooth passing of EU withdrawal act 2020
generally accepted that gov should have flexibility to respond to emergencies - coronavirus act 2020 gave extensive power to gov to slow spread of virus
the influence and effectiveness of the UK parliament
how parliament can control the executive
HOL can amend legislation - decisions can be reversed in the HOC
gov may face a BB rebellion
commons can amend legislation
departmental select committees have become increasingly effective in calling gov to account
HOL can delay legislation for a year
when gov allows a free vote, MPs or peers may vote according to their beliefs rather than party allegiance
parliament has reserve power to veto gov legislation
ministers obliged to present themselves before parliament to account for decisions and policies
parliament has power to dismiss gov in vote of no confidence
example/explanation
lords backed dubs amendment to EU act 2020 - aimed to protect rights of child refugees after brexit - rejected by HOC
con party dropped plans to relax sunday trading hours after 27 MPs sided with opposition in 2016
pressure from BB gov agreed to amend internal market bill in 2020 - removing gov ability to override parts of EU act
2020 commons culture, media and sport select committee criticised gov or a lack of effective planning in rolling out gigabit capable broadband
plans to reduce tax credits blocked by lords in 2015
DC allowed conservative MPs free vote on legalising gay marriage
TM sustained largest parliamentary defeat in history when her brexit deal was rejected by a majority of 230 votes in 2019
increase in the number of urgent question forced ministers to answer before parliament at shorter notice and more frequent intervals
callaghan's labour gov lost a vote of no confidence in 1979 triggering GE