Relations between the branches

Why was the ‘Miller V Secretary of State for Exiting the EU’ case important

Ensured that Parliament had to have the final say on whether the UK leaves the EU

Why was the ‘Miller V the PM’ case important

Confirmed that the PMs prorogation of Parliament was illegal and that parliament could return

The government claimed it could begin to process of leaving the EU through royal prerogative however the S.C ruled that Gov didnt have the authority to do this since parliament enacted legislation to bring England into the EU and they therefore had to remove it from the EU.

demonstrates the S.C ability to determine where sovereignty lies within the UK

Why was the ‘Al Rawi V The Secret Service’ case important

Secret evidence could not be used as the basis of a conviction

Why was the ‘Horncastle V Others’ case important

Hearsay evidence was permissible as evidence to try someone

Why was ‘Factortame V Secretary of State for Transport’ case important

Said that EU law took precedence over UK law and a UK law could disapply if it was contrary to EU Law (no longer exists since we left the EU)

Why was ‘Nicklinson V Ministry of Justice’ case important

Statute (Parliamentary) law took precedence over the ECHR

Why was the ‘Reilly V Secretary Of State for Work and Pensions’

The government had acted ‘ultra vires’ (outside their power). However, Parliament passed retrospective legislation to ignore this decision

Synoptic links

The move away from the House of Lords as the highest court to a more independent Supreme Court could be seen as more appropriate for a liberal democracy

The decision to leave the EU was confirmed in a referendum with a high turnout

The decision to leave the EU could be seen as tyranny of the majority since it had such a small margin - links to Mill

The Supreme Court was created as part of Blair’s promise for the 1997 election to shake up the UK constitution and deliver constitutional reform

The Rule of Law, a key determinant of the supreme court links to democracy + participation

What is the Supreme court and why did it change to it

Established in 2009 as highest court of appeal in the UK + would clarify meaning of the law by hearing appeals in cases where there was uncertainty

12 justices

Changed from former law lords as there were concerns over fusion of powers as the Law lords also sat in House of lords

Also because the system in which the judges were selected was viewed to be murky + there was confusion over work of Law lords

Judicial Independence

A central principle of the rule of law is that judges must be independent of control or persuasion by the executive or the legislative

Judicial neutrality

The rule of law requires the elimination of political bias. Judgments should never be influenced by any personal prejudice

Ultra Vires

The principle that one has ‘acted beyond one’s authority

Judicial Review

The ability of the Supreme Court to review the lawfulness of a law or action

Elective dictatorship

Phrase first used by Lord Hallsham in 1976 about the ability of the government to dominate parliament

European Union

Successor to the European Economic Community, with increased economic, political and social integration

The Four Freedoms

The free movement of goods,capital,services and people through the EU in order to achieve unity

Political Sovereignty

Means absolute authority. Since the legislature’s authority derives from the public, the public may be said to exercise political sovereignty

Legal Sovereignty

Represents right of parliament to enact legislation which has absolute authority and cannot be overturned by any other body

Role of the European Council

Focus on long term decisions

Role of Council of Europe

Attended by ministers from the various states e.g if it is about farming all the agricultural ministers will attend

Role of the European Commission

The main executive body of the EU. They propose new laws

Role of the European Parliament

Elections take place very 5 years. They vote to approve or reject proposals from the Commission

Role of the European Court of Justice

The Judicial body- one judge from each state

Why is the Supreme Court especially important?

They set legal precedent which will then be referred to in subsequent cases

What is the impact of the S.C being the fin court of appeal?

The judgements reached are of profound importance

In which 3 ways does the S.C have significant influence?

1. Determines whether a government bodies have acted ultra fires

2. Determines whether an issue is under the jurisdiction of a devolved body or parliament (2nd Scottish independence referendum)

3. Judicial review of how the government has acted

How is the membership of the S.C determined?

By a selection committee who recommends a candidate to the PM will then ask the monarch to make the appointment

Who makes up the select committee that chooses appointments?

• The selection commission is made up of the President of the Court, another senior UK judge (not a Supreme Court Justice)

• a member each from the Judicial Appointments Commission,

• the Judicial Appointments Board for Scotland

• Northern Ireland Judicial Appointments Commission.

What can the S.C not do when delivering rulings due to uncodified constitution?

They cannot refer to higher constitutional law

What are 4 significant constitutional and political functions of the S.C?

1. Determine meaning of law/precedent

2. Ultra vires

3. Establishing where sovereignty lies in the UK

4. Declaring whether gov has acted in defiance of HRA

Why did the S.C rule that Chris Grayling in 2016 acted ultra vires?

He amend the legal aid act to restrict civil legal aid to people who had lived abroad for 12 months through secondary legislation- had to be debated in parliament

What is there an expectation that parliament should legislate in accordance with?

The European convention of human rights

What can justices do if a law defies the ECHR?

A declaration of incompatibility

What is an example of the S.C issuing a declaration of incompatibly?

In 2018, the S.C declared the 2004 civil partnership act incompatible- Gov changed this act in 2019

What is a limitation to the S.C’s ability to interpret the law?

It is already bound by what the law says

How can parliament undermine rulings on government bodies acting ultra vires?

parliament can then pass legislation giving that body more legal powers

Why is a declaration of incompatibility limited in significance?

The government can ignore it

What is the impact of parliament being sovereign on the S.C?

The s.c cannot strike down an act of parliament

does the S.C have control over which cases it rules on?

no- the sc cannot initiate cases.

When does popular sovereignty occur?

When the public expresses its sovereign will through direct democracy

What provides a good example of the sovereign will of the people conflicting with that of parliament ?

What provides a good example of the sovereign will of the people conflicting with that of parliament ?

What does AV.Dicey say parliament possesses the legal sovereignty to do?

Enact any law without this being overruled by any other body

Who is parliament accountable to?

The people

Why is the UK traditionally considered a unitary state ?

Sovereign authority is located in one place- westminister

What is the impact of not having a codified constitution on parliaments sovereignty ?

There is no law higher than a parliamentary statute

What can British judges not do unlike in the US?

Strike down an act of parliament

What do Referendums demonstrate?

A transfer of authority from representatives in parliament to the people

What can parliament do after a referendum but most likely wont?

Ignore the result

what percentage of MPs opposed leaving the EU?

73% - but because the people had decided to leave (popular sovereignty), they had no choice but to leave

What happens when a government has a large parliamentary majority?

There will be a few legislative constraints on its authority

What has allowed for decentralisation of power to a degree?

Devolution

In theory why did Westminster not lose any of its sovereign power?

Parliament can legally reclaim those powers

What is an example of parliament reclaiming devolved powers given to an assembly?

2002-2007 in Northern Ireland

What can both the Scottish and Welsh governments claim however?

Popular legitimacy

What did the Scotland Act 2017 and the Wales Act 2017 recognise?

The permanence of these governments as they can now only be abolished as a result of a referendum

What do some political commentators suggest the UK is evolving into?

A quasi-federal state (a system of government where the distribution of powers between the. Center and the state are not equal.)

Who is royal prerogative exercised by?

The prime minister means that for the sovereignty of parliament some areas of parliament are not sovereign - eg powers of patronage

In what ways can parliament be seen to challenge royal prerogative ?

• Debating over military action in Iraq 2003- Parliament now expects to be consulted over military action

• Fixed term parliaments act 2011 (now repealed)

• Gina Miller Ruling 2017

What convention has developed since 2003?

Whereby the commons should be consulted over the use of military force- not set out by law

Who in 2018 joined American led air strikes on Syria without consulting parliament?

Theresa May - demonstrates that without a codified constitution the location of sovereign authority is difficult to determine

What did the UK have to accept when European law was established ?

Primacy of European law over domestic law (factortame case)

In cases involving protection of civil liberties what do British courts refer to?

The 1998 HRA-

What is the HRA no different from?

another act of parliament- parts of it can be suspended/repealed

What article of HRA was suspended after 9/11 and what did this allow?

Article 5- allowed terrorist suspects to be held indefinitely without trial

Can an act of parliament become law even if it is in defiance with the HRA and what may happen?

Yes- declaration of incompatibility but the courts cannot strike down the legislation

How can globalisation be argued to have restricted UK sovereignty ?

Membership in international organisations such as the world trade organisation means that the UK is expected to obey their trading rules and is committed to the principle off Article 5 of NATO’s constitution that an attack on one member states is an attack on all member states

What was the aim of the EEC?

To unite all people in Europe

How would member states increase political influence?

By sharing power within a much larger organisation- greater pooling of sovereignty

What did the integration and expansion of EU aim to encourage?

Too encourage peace, prosperity and liberal democracy

What did the EU want to eliminate?

Nation differences which cause conflict

What are the 4 Freedoms?

1. Free Movement of Goods- No tariffs

2. Free Movement of Services- businesses should be able to operate in any member state

3. The free movement of capital

4. The Free movement of people- no internal barriers should stop citizens of the EU working in any member states and should be able to claim same benefits

What should the elimination of national barriers achieve ?

Prosperity and prevent war

What did the Maastricht treaty (1992) establish?

• Monetary Union (the euro)

• The European Central Bank

What did the Social chapter of the Maastricht treaty protect?

The rights of EU workers

What type of rights did the social chapter ensure for workers?

• Health and safety

• Freedom from discrimination and equality

What is legally bending to all members?

The incorporation of the ECHR

What did the Maastricht treaty commit EU Members too in terms of policy?

Common foreign and defence policy

Why did the Migrant Crisis after the Syrian war and conflict in Libya cause conflict between member states?

Some members accepted more migrants than others, causing resentment

What did the migrant crisis allow for the rise in?

The influence of nationalist parties such as UKIP

What has the expansion of the EU allowed for in former communist states?

The expansion of democracy

What has the European Charter of Fundamental Freedoms entrenched ?

Core civil Liberties in European law

In 2018, what number was the EU ranked in the biggest economies ?

2nd- Largest single market in the world

What has the EU provided the lead on?

Key issues such as climate change

What have critics said the Expansion of the EU has resulted in?

It has diluted its purpose and made it more difficult to provide a United response to key issues

Why has there been a decrease in support for the EU in south European countries?

Due to Austerity programs by European Commission+European central bank

What has exposed tension between member states?

Migrant crises

What reduces trade which the EU acknowledges?

Tarrifs

In 2016 what percentage of British trade was with the EU?

43%→ worth £241 billion

Who supports the EU due to economic benefits?

Economists

Why has the UK benefitted from EU Migrants?

They join the work force and pay taxes

How much did EU Migrants pay in tax in 2013-14?

£14.7 Billion

How much did EU Migrants claim in benefits in 2013-14?

Only £2.6 billion

How many British jobs rely on the EU for trade?

3 million

In 2017 how many brits were living in the EU?

1.3 million

How has the EU membership increased rights protection?

• The Social Chapter

• Charter of Fundamental Freedms

What have critics of the EU argued the EU has undermined?

Parliamentary sovereignty

Why has the EU been accused of having a democratic deficit ?

• EU Commission and gov are not elected

• EU parliament is elected however it has less influence

What does the EU create an unnecessary layer of and why is this an issue

• Creates an unnecessary layer of law

• May not be applicable/in the interest of all member states

How much has the implementation of EU relations cost yearly?

£33 billion

What percentage of trade was with the EU in 2006 and what does this suggest?

• 54% (decreased in 2018)

• Suggests that UK should be engaging further in the global market