Politics 8 : Relations Between the Branches
Supreme Court
Highest court of appeal in the UK for civil and some criminal cases
Separation of powers hence separate building
Judges interpret laws gov have created
The constitutional reform act 2005 - improved and guaranteed independance of judiciary
Opened in Oct 2009
Once decision has been made it has to be followed in future cases (called Doctrine of Precedent)
Two female supreme court Justices
Lady Rose
Lady Simler
Lady Chief justice Carr - head of Judiciary
Justice secretary (politician and called Lord Chancellor) Alex Chalk
Leader of Supreme court Lord Reed
In the old system the Head of Law Lords was Lord chancellor and had 3 roles
Speaker of HoL
Cabinet ministrer
Head of the judiciary
Miller cases
2016
Against the secretary of state for exiting the EU
Could the gov trigger article 50 without parliamentary approval?
May and Davis argue yes (prerogative power)
Gina Miller argued no (human rights will be affected)
goes to the supreme court
Government lost 8 votes to 3
Lord Neuberger was the president of the Supreme court at the time
2019
Against Boris Johnson
Lady Hale replaced Neuberger as president of the Supreme court
Was Johnson suspension of Parliament legal?
No because Boris's suspension was unlawful
parliament was being suspended for 3+ weeks before queens speech when it should only be 4-6 days
wanted to avoid Brexit discussion (31st of October deadline)
Parliament then went on for normal time after it was suspended like nothing happened
Boris was unhappy - "there are a lot of people who want to frustrate Brexit"
unaminous decision (11 judges agreed)
The role of the Supreme Court
make sure law is being correctly applied and followed by everyone
Is an appeliate court
Reasons why a case might be brought forward
may be important judicial review concerning the gov or another important body establishing legal powers
case may implicate other citizens/bodies
may involve important interpretation of the law
may be a case with a lot of public interest
may be a key issue surrounding human rights
Ensuring rule of law is applied
makes sure all parties get fair hearing
overseas work of the lower courts in the UK
Interpretation of the law
can come in conflict with what the law is supposed to mean
Judicial Precedent - once its been interpretated in one way judges must follow same interpretation
Conducting judicial reviews
Ultra Vires - gov is 'beyond the powers' action that is taken illegally
helps make sure gov doesn't overstep powers and asserts rights of citizens
Very important to clarify legal rights with devolved administrations
Hearing cases
normally only 5 judges hear cases (unless impotant)
judgement needs majority
Appointment process
1) Vacancy must occur
2) Lord Chancellor convenes special commision
3) Not legally required but commision will advertise the position and encourage formal application from those elegible
Judge held 'high judicial office' for 2+ years
or qualified practitioner for 15+ years (Lord Sumption like this in 2012)
4) Commision consults senior politicians and other senior judges and makes a shortlist
5) Shortlist is then interviewed by commision
6) commision creates report with recommendation sent to Lord Chancellor for consolidation
7) Another round of consolidations with senior judges and politicians
8) Lord Chancellor accepts or rejects but no matter what they say name must be given to PM
9) Once accepted Lord Chancellor passes name to PM
10) PM submits name to monarch for formal approval
11) once approved by Monarch justice is announced by PM
Pros
Cons
have to be very highly qualified to even apply
Lords remain neutral so politics don't impact cases
PM has no direct impact and little political involvement
if intended to be neutral doesn't background have an impact?
Is becoming more diverse
limiting for who can apply
ultimately down to the Lord Chancellor
Potential politiciasation if Lord Chancellor has strong view
Only 2 women of 12
Cambridge, white, male dominated
might not be completely neutral therfore
argued they are part of the establishment and have done well
Independance
Security of Tenure
judges more free to make any decision without worrying about job security ensuring honest decisions
may affect how they are viewed depending on their decision despite their job not being at risk
can still be removed if they are corrupt
The rule of sub justice
can help prevent any political pressure and stop any servant of gov interfering with cases
politicians have commented occasionally - eg Johnson over Miller case
Independant appointment
makes sure gov isn't involved and can't influence the decision
Some politicians do still have small say and PM does sign off process
Judicial pay
stops gov influencing judges with their pay
Supreme Court Justice - £254,274
President of Court £263,256
The independant body (Senior salaries review body) only makes recommendation to PM although mostly followed PM can resist
Neutrality
Rulings on basis of law
must explain how that decision was reached based on what laws
if the law isn't clear may lead to different interpretations leading to different outcome
Peer review
cases are reviewed by groups of at least 5 judges meaning there is no single person prejudice
May argue still liberal judges looking over other liberal judges work
Restrictions
Judges are restricted on which groups they can join (eg political party)
If judge seen to have personal views affecting case they can recuse from it
Despite restrictions judges will have an unconcious bias due to upbringing
Training/ experiance
Judges will have long career and highly trained so accostormed to being neutral
Impartial judges won't get promotion therefore will never reach this judge
Some conservatives argue there is liberal lawyers so will favour state security over law and order
Long career means they are older and therefore less diverse views
The Supreme Court and Parliament
Parliament is sovreign so judges cannot defy will of Parliament
Parliament is Omnicopetent so can pass any law
If gov don't agree they can just pass new law
eg 2010 Judges rulled gov didn't have power to freeze bank assets of terrorists so Brown passed law so he could
Most power held by court is due to HRA which isn't entrenched so chance it could be replaced
2015 conservative manifesto replace HRA with BBoR
would remove provisions from the European Court of Human Rights
Would require all members of council of Europe to agree (almost impossible)
Would increase power of gov
Argued really bad for citizen protection
1950s HCHR declared separate from EU copied into UK law in 1997
Supreme court Rulings
PJS v News Group Newspapers (2015)
unnamed celeb wanted to prevent media publishing details about his private life as its infringing on privacy
Right of privacy v freedom of expression
Outcome was celebs private life should be upheld
Public being interested is not the same as public interest
Trump International Golf Club v Scottish Ministers (2015)
Trump argued the decision by Scottish gov to build wind farm near his course was beyond its powers
Ultra Vires at stake - Trump argued gov was acting beyond its legal powers
Trump lost case Supreme court thought Gov had acted within its powers
Vince v Wyatt (2015)
Mrs Wyatt and Mr Vince divorced after which Mr Vince became very wealthy and Wyatt made claim for considerable maintaience based of Vince new wealth though the couple had been poor when married
Principle at stake was interpretation of family law
Ruled Wyatt did have right to make claim after many years opening door to similar cases
Should the HRA be replaced by the BBoR
Yes
would prioritise right of collective not individual which HRA does
will stop legal uncertainty and confusion
would rebalance power between UK courts, the ECHR and Parliament
Mean UK would have more independance which may be wanted after Brexit
BBoR would be just UK not for Europe as a whole as HRA gives too much weight to European law
Argues rights may be strengthened and more protected
HRA has led to rights inflation
HRA gives judiciary too much power
No
HRA priorities right of individual not collective
By introducing BBoR would allow gov to decide who has rights
BBoR would make it harder for people to challenge the abuse of their rights
Claimed BBoR would give public authorities licence to ignore peoples rights
means gov can alter rights to suit them and their policies
Supreme court and the Executive
Relationship was very different until the 1970s as judiciary was percieved as a conservative body as people came from that background
Judiciary used to show support for state not citizens and didn't challenge authority of gov
Reasons why the relationship changed
growth of judicial review
rise of liberal idealogy and growth in right culture
Appointment of liberal minded judges since 1990s
HRA in 1998
Constitution reform act 2005
Judiciary no longer seen as subordinate to gov now more of a counter balance
Gov does claim to have greater authority over judiciary as long as they can control their majority can use their sovreignty to reverse decisions
Balance of power between executive and Parliament
Used by executive to control Parliament
Patronage - can offer and threat positions
Party Whips - rarely obstructive MPs can be suspended from Parliament
The national platform - PM can talk directly to media and make public put popular pressure on MPs
Important for these devices to be used correctly - May couldn't afford to dismiss and whips had little influence
Pretty fluid in the short term
In long term trend since 1960s there is more focus on PM and exec due to social media and increased TV giving the exec more power
Constitutional changes
The removal of most hereditary peers
Creation of the Backbench Business committee (only gets 23 days)
Election of members of select committees
Growing power of the liason committee
PM can postpone eg Johnson 3 times
since march 2010 liason committee is now elected by whole house so role of whips
Parliament controls the executive
smaller majoirty eg May failed brexit deal 3 times
Divided governing party eg Callaghan vote of no confidence
With strong opposition eg Starmer over Sunak
Less dominant leader eg Brown Major May
Executive controls Parliament
Large majority eg Johnson passing brexit first time after election
when governing party is united eg Blair with new Blairite MPs
Weaker opposition eg Cobyn against Johnson
When leader is more dominant eg Thatcher and Blair
What is the EU
Made up of 27 countries
not country of federation but a supportive orgaanisation
Member transfer some sovreignty to EU
Main functions
Economic intergration
common policies
European parliament
Became EU after 1993 after being known as EEC
Components
European commission - executive body proposes new laws
European parliament - meets 12 times a year based in Brussels
European council - made up of ministers of different EU states
European court of Justice - pushed away from (UK)
Major opted out (eg of the euro) linked to the Maastricht but Blair opted in (eg social chapter')
Advantages and disadvantages of being in the EU
advantage
Economically use of the Euro helps standardise and speed up transactions and facilitates trade
European courts of Justice have helped standardise right
Helped maternity leave and pay
helped discrimination in employment services
Led to peace after WW1 and WW2 has been no conflict within EU
The freedoms of the single market
Freedom of movement of goods
Free movement of services
Free movement of people
Free movement of capital
Estimated to have created 3-4million jobs
Politically spread ideas of liberal democracy with HRA
Helps keep political stability eg after downfall of soviet union didn't turn to more conflict and dictatorship
disadvantage
sanctions and threats from EU aren't very effective due to lack of military eg Russia Ukraine
EU cant do much to actually protect and impose tights on members of states
Can cause political tensions with countries who are or want to be in it going against EU values
eg Turkey and Ukraine
eg Poland and Hungary
Some believe free migrations is issue eg coming to UK for free healthcare and abusing system
Euro wasn't completely effective as not all countries using it (Denmark, Sweden, UK)
Euro caused problems in 2008 where currency was too strong for some states
Established in Maastricht treaty
Impact of UK's exit of EU
Constitutional
Parliament regained all sovreignty
EU and UK laws completely seperate
The political impact
Remainers lost power eg Cameron and Osbourne and soft brexiters removed in 2019
Caused deep divisions in 2 main parties
referendum caused deep divisions in society (old and young)
more demands for scottish independance
Immigration control now up to UK and is still a big problem
UK parliament and courts will have to 'unpick' elements of EU legislation which have been embedded
Position of NI is unclear as it shares border with EU member Ireland