UK Govt- Relations between the branches: SCOTUK

What act established the SCOTUK?

2005 Constitutional Reform Act (started operating in 2009)

What are the key operating principles-

Independence, Neutrality

Factors enforcing the SCOTUK's neutrality-

Justices cannot publicly make political statements, very narrow demographic of justices (white,male), politicians can not comment on court outcomes

Factors effecting the SCOTUK's independance-

Judges have security of tenure (job security), judges salaries are fixed (Consolidation fund), independent appointment process

The principle of independence

The SCOTUK faces no influence from other branches of government (executive, parliament)

The principle of neutrality

The judgements of justices aren't influenced by personal/political opinion

What does 'ultra vires' outcome mean?

The public body has not been given power under law to make the action that they have (beyond powers)

What does a 'declaration of incompatibility mean'?

The legislation is incompatible with the European Convention of Human Rights (embedded by the 1998 HRA)

What are the main grounds for judicial review?

Illegality (misuse of laws, ultra vires), procedural impropriety (unfairness), Irrationality

Around how many declarations of incompatibility have there been?

47

Factors which increase the court's power-

Devolution (court needs to settle disputes), the HRA 1998 (DoIs), high profile cases, increased politicisation, political power

Factors which decrease the courts power-

The rulings are only advisory (can not strike down laws), the sovereignty of parliament's legislation

Example of a declaration of incompatibility-

Civil Partnerships Act 2004 received a DoI in R v Secretary of State for the International Development and was amended in 2019

Example of an ignored DoI (Gabaj v First Secretary of State)-

The Housing Act 1996 faced a DoI in Gabaj v First Secretary and was not amended following this

Miller I-

2016: The court ruled that the PM could not trigger article 50to leave the EU without parliament's approval because statute had not allowed the change

Miller II-

The court ruled that the PM could not prorogue parliament because they didn't have a reason and was stopping the function of parliament

Smith v Scott 2007

The blanket ban on prisoners voting was declared incompatible by SCOTUK, but no legislation has been passed to address this DOI

What is the difference between ultra vires ruling and a declaration of incompatibility?

Ultra vires affects the GOVERNMENT, it rules that an ACTION is beyond their powers. Declarations of incompatibility affect PARLIAMENT, it rules that legislation is incompatible with the ECHR which was embedded by the HRA 1998

Example of the SCOTUK holding MPs to account-

R v Chaytor (and others)- 2010

Case Study: R v Chaytor (2010)

3 Labour MPs were imprisoned for expenses scandals -one of them fraudulently claimed £8,400. They attempted to appeal the sentence by claiming they were protected by parliamentary privilege, they required the money to fulfil their role. The court of appeal AND the SCOTUK unanimously voted to dismiss the appeal, as their actions weren't protected by parliamentary privilege as they weren't part of the proceedings of parliament.

Case Study: P v Cheshire West and Cheshire Council 2014

SCOTUK found that living arrangements for mentally incapacitated people deprived individual liberty using the ECHR to justify this ruling, they ruled that social services should not keep them in these conditions

Case Study: Black Spider Memos

SCOTUK ruled that the monarchy had to release letters from Prince Charles for the press under the 2001 Freedom of Information Act

Case Study: Radmacher v Granatino 2010

This case surrounded divorce and finances, Lady Hale was the outlier in the final vote and said that as a woman she was led to vote differently due to her unique experiences in life w/ things like marriage- she uses this is to argue for more women in SCOTUS

Case Study: Secretary of State for Business and Trade v Mercer

SCOTUK issued a DOI against law allowing sanctions for strike action-- protects trade unions rights and freedom to strike

Before Sec of State for Business v Mercer, when was the last DOI?

In 2021-- they're becoming increasingly uncommon

In 2021, how did SCOTUK refuse to rule on a parliamentary/political area?

They dismissed a case challenging universal credit as this is a parliamentary matter

What was the topic of the 2014 case which SCOTUK decided to not rule on, to leave this a parliamentary matter?

The 2014 Nicklinson case centred around assisted dying-- SCOTUK chooses to not rule on it

What recent constitutional change has arguably enhanced the power of SCOTUS?

Brexit means that the European Court of Justice is not there anymore for the UK

How many applications for cases does SCOTUK receive yearly?

200 applications-- big part of politics

Which courts could UK citizens appeal to instead of SCOTUK?

Council of Europe and European Court of Human Rights-- not ALL jurisdiction falls to SCOTUK

Evans v Attorney General (2015)

SCOTUK ruled that memos written by Prince Charles had to be released due to 2000 Freedom of Info Act + rules that the government could NOT block the release

When was Miller I?

2017-- triggering of article 50

When was Miller II?

2019-- prorogation of parliament

2018 Northern Ireland Human Rights Commission for Judicial Review

SCOTUK dismissed a case where NIHRC was attempting to challenge law criminalising abortion in court-- they say they have no standing BUT do outline some ways in which the law is incompatible with 1998 HRA

Begum v Home Sec 2021

The court allows the Home Office to take away Begum's citizenship

Uber v Aslam 2021

SCOTUK ruled that Uber drivers are workers and so are entitled to minimum wage and holiday pay

Elan-Cane v Home Sec 2022

SCOTUK ruled that the Home Office did not have to offer a third gender option on passports

In 2021, what % of the time did SCOTUK rule in the government's favour?

86% (potentially due to criticism from media and government)

How many DOIs have been responded to by parliament?

22, around 2/3 of all issued-- SCOTUK is powerful

What was the 2004 Civil Partnerships Act case called?

Steinfield and Keiden vs. Home Secretary (2018)

R (T) v Chief Constable of Greater Manchester 2018

SCOTUK issues a DOI against the 1974 Rehabilitation of Offenders Act + the 1997 Police Act (violate right to private life)

Government response to 2007 Smith v Scott

Made a minimal concession to change prisoner voting rights slightly

Parliament's response to R (T) v Chief Constable of Greater Manchester

Inaction over protecting prisoner rights-- they do NOT amend the 1974 Rehabilitation of Offenders Act and 1997 Police Act

2014 Nicklinson v Ministry of Justice

SCOTUK does NOT rule in a case about assisted dying bc parliamentary matter

What ruling did SCOTUK make over devolved bodies in 2022?

2022 ruling that another Scotland referendum can only be called by Westminster

Salvesen v Riddell 2013

SCOTUK ruled that Agricultural Holdings (Scotland) Act 2003 is incompatible with ECHR --SCOTUK ruling in a way that limits devolved bodies legislation

What did SCOTUK rule about the 2014 Agricultural Sector Bill?

They ruled that Welsh devolved body could rule in this area because Senedd can legislate in areas not specifically devolved or prohibited in the 2006 Government of Wales Act-- empowering devolved bodies

What did the 2005 Jackson v Attorney General case controversially decide?

The ruling suggested that there may be some limitations to parliamentary sovereignty