Uk govt component 4: relations between the branches

Judiciary:

Branch of govt that enforces the law and interprets the meaning of laws

The process of law making in the UK

1. Executive develops and drafts legislations

2. Legislature scrutinises and passes legislation

3. Judiciary reviews law, interprets its meaning and how it should be applied

How many justices are there:

12

The rule of law

Fundamental principle of UK constitution - law should be applied equally to all - depends on judges being uninfluenced - decisions must be based entirely on principles of justice

Judge made law:

The way in which senior judges interpret acts of parliament and set precedent and resolve cases

How was the SC created

Constitutional reform act 2005 - created because msot senior judges formerly sat in HoL - breached seperation of powers

Civil liberties:

Rights and freedoms given to Citizens through the legal system - freedom of speech, assembly etc

Difference between human and civil rights:

Human rights are fundamental and universal to all people - civil rights are the freedoms recognised by a particular country

Aim of the creation of the SC

Create a final court of appeal that was transparently independent - a distinct constitutional entity

How are SC justices appointed

Vacancy arises - Independent Selection Commission convenes - widely advertised - consults senior politicians and judges - shortlist based on merit - interviews - report sent to Sec of State for justice - can accept, reject or ask ISC to reconsider x3

Uber BV v Aslam 2021

Drivers argued they were entitled to workers rights paid holiday/time off - rubber argued they were self employed - SC riled they worked for uber and were entitled to workers rights -

R v sec of state for international development 2018

Heterosexuals not being able to enter civil partnerships was unlawful - 2004 Civil Partnership Act ruled incompatible with ECHR

Neutrality

The personal beliefs and attitudes of judges can not effect a case

Unconscious bias

Rule of law is not effectively applied if a judge has a personal prejudice based on social class, race, gender, sexuality etc

Lord sales

63, white male, attended Cambridge and oxford to study law, highly experienced

Peer review

Any judicial opinion can be appealed and reviewed by a higher court - cases concerning the ECHR can be appealed to Strasbourg

Judicial independence

Those in the judiciary should be free from political control - allows judges to apply justice properly without fear of consequences

Why are judges unelected

Frees them from any electoral restraints - The govt doesn’t appoint judges - so based on ability not political affiliation

2016 Gina Miller v Sec of State for exiting the EU

The exec cant trigger article 50 without parliamentary approval = asserting parliamentary sovereignty

Enemies of the people

Daily mail article - argued Gina Miller 2016 SC ruling defied the will of the people (EU referendum) - argued it went against democracy - politicisation of the court

Johnsons prorogation of Parliament

Supreme Court ruled unanimously that the prorogation was both justiciable and unlawful - thus null and of no effect - outside the powers of the prime minister

R (AAA) v Sec of State for the Home Department

Government policy to send asylum seekers to Rwanda was unlawful - Judicial review

Safety of Rwanda Act

Reaffirmed parliaments power to legislate bypassing the SCs judgement - Parliament ‘deemed’ Rwanda safe regardless of evidence - 1st time sovereignty has been used to establish a fact as law contrary to a court judgment

Did SORA undermine separation of powers

YES: Parliament took over the role of the judiciary by interpreting and applying legal rules as fact

SC checking devolved powers: NI

2018 majority of justices found NI’s abortion restrictions incompatible with HRA - devolved govt was suspended - increased pressure on UK govt to decriminalise abortion in NI 2019

SC checking devolved powers: Scotland

UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018 was a preemptive Scottish Government bill designed to keep EU laws active in devolved areas after Brexit - SC ruled it was acting beyond its devolved competence - couldn’t become law

SC isnt effective at checking govt - retrospective legislation EXP

After Reilly V SSWP 2013 govt passed retrospective legislation to avoid 130 mil in compensation - Back To Work Schemes Act 2013

How many SC cases against the govt are successful

Only 4.6% from 2016-2020 - costly and time consuming

Decline in judicial review

2020-21 successful review cases fell by 50% to 2.2% of cases - less effective checking of govt

The SC is influential:

Most senior court/final court of appeal - justices are most senior in UK and interpretations are final - if SC declares an incompatibility they out significant pressure on govt to amend the law - the SC also determines the location of sovereignty i.e whether ScotGovt can call a second independence referendum

The SC is NOT influential:

Parl is soverign so SC cant strike down an act of Parl - the SC cant initiate cases - govt can ignore a declaration of incompatibility - SC cant initiate cases interpret law but is bound by what it states - Parl can legislative around a ruling

What makes a PM powerful?

Majority size - untied cabinet/party - winning elections - Presidentialism - personality - public speaking - personal popularity

What makes a PM weak

Internal party conflict - declining majority - lost authority over party - issues/national crisis - cabinet challenges

Parliaments control over govt has NOT increased

FPTP/large majorities/elective dictatorships i.e 170majority - Salisbury convention - planted questions / Punch and Judy politics / Sunak sending deputy to PMQs - CMR/payroll vote - 3 line whips

Parliaments control over govt HAS increased

FPTP less majorities 2017/2010 - BB rebellions/opposition pressure - ministers questions/urgent questions - patronage not including Big Beasts so rebellions / resigning ministers - cross bench lords/ lords cause embarrassment Archbishop of Canterbury + Rwanda

Govt control over parl HAS reduced

Increasing rebellions/free votes - restrictions on prerogatives i.e authorising military action - BBBC est 2010 gives BBs more control over debate - Select Committees grown in status as MPs select chairs - Assertiveness of HoL increased

Govt has HUGE control over parliament

Whips/PM patronage, payroll vote of 100MPs - high majorities hard to beat - right to change laws in secondary legislation - control of legislative agenda, limited time for PMBs - can obstruct select committees - lords deferred to the will of Hoc, Salisbury convention

EU four freedoms:

Movement of people, goods, services, capital

EU objectives:

Pooled sovereignty, integration and expansion encourage peace/prosperity - member states protected from in foreign policy and defence

The EU HAS achieved its objectives:

27 member states + more applying - encouraged former communist states to adopt democracy - ECHR entrenched in European law - EU biggest single market in the world - EU GDP $18trillion 2nd biggest economy in the world - Euro snd reserve currency - global lead on environmental policy - lead in foreign policy i.e EU strongest sanctions on Russia

EU has NOT achieved its objectives:

Expansion of EU has diluted its purpose as harder to unite on contentious issues - member states cant agree on ban on Russian oil+gas - Hungary+Poland commitment to democratic principles is disputed, undermines common purpose - populist anti immigration undermines Freedom of Movement - migrant crisis exposed differences in approach - no European identity