Can someone explain this to me about the judiciary? Watch

Aear
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My understanding was that because of Parliamentary Sovereignty, the Supreme Court cannot strike down any laws, but today my teacher was talking about Blair's terrorist detention laws being "rejected" by the Supreme Court, but what can they do? Similarly, I seem to read the Factortame Case lead to the triumph of EU law over UK law, with a UK law at odds with EU law at the time, and the UK law was invalidated, or repealed, or what? This I just don't understand what happened and what happens with both courts. The HRA is also a little shaky, as it seems to be considered more valid than other laws? Does suggest that there are some laws that are considered more important then others, so there is a dualism in the constitution of constitutional laws and other laws? Might this be entrenchment? Any help on this would be appreciated on this little ramble!
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Acts of Parliament aren't the only source of law. There is also secondary legislation which may not be voted on by parliament at all but it still becomes law. However, if the secondary legislation is incompatible with an act of parliament, the courts can quash it.

It's also possible that two Acts Parliament are incompatible with each other. In that case the court would be stuck and would have to get parliament to sort it out.

The general principle in English law is that all Acts of Parliament are equal. I'm not sure how that interacts with the EU, I don't know enough about it.
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leonross97
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(Original post by Aear)
My understanding was that because of Parliamentary Sovereignty, the Supreme Court cannot strike down any laws, but today my teacher was talking about Blair's terrorist detention laws being "rejected" by the Supreme Court, but what can they do? Similarly, I seem to read the Factortame Case lead to the triumph of EU law over UK law, with a UK law at odds with EU law at the time, and the UK law was invalidated, or repealed, or what? This I just don't understand what happened and what happens with both courts. The HRA is also a little shaky, as it seems to be considered more valid than other laws? Does suggest that there are some laws that are considered more important then others, so there is a dualism in the constitution of constitutional laws and other laws? Might this be entrenchment? Any help on this would be appreciated on this little ramble!
The factortame case is just an example of UK law in volition with EU law. EU law's supremacy was first highlighted in the Treaty of Rome (if memory serves), so in effect you're right. Although parliament always remains sovereign (it's the basis of our entire political system) whether or not the UK is a member of the EU, after-all the UK would not be able to withdraw from it otherwise, also the Prime Minister is an MP so she is a member of both Parliament and Government etc. etc. The UK law (had to be repealed or would most likely face sanctions from the EU through a hearing by the European Court of Justice (ECJ) which had previous rulings on the case. The HRA however has nothing to do with the EU, the HRA just incorporated the European Convention of Human Rights which is made by the Council of Europe (not to be confused with the European Council or the Council of EU/Council of Ministers which are bodies of the EU) which doesn't really have any jurisdiction (arguably) in any nation bound to it (see the constant erosion of civil liberties in Russia). I don't know if this fully answered your question or not. But I hope this sort of helped.

Edit: Forgot to reply to the Supreme Court question
The Supreme Court effectively has no power in the British political system due to Parliamentary sovereignty as Parliament has the whole power of the political process. It rules, but parliament can ignore the rules (probably at its own peril though). It can get rid of local councils, merge local councils, get rid of regional assemblies and parliaments like those in Wales, Scotland and Northern Ireland and can get rid of the Supreme Court. It's important to note Parliament made all these institutions too (E.g. Constitutional Reform Act (2005) established the Supreme Court in 2009 and the Scotland Act (1998) created the Scottish Parliament). But as the Supreme Court was only established in 2009, and Blair had resigned by then and Brown was PM he may be talking about the Law Lords possibly. I can't say terrorism prevention is one of my strong suits.
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Aear
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(Original post by leonross97)
The factortame case is just an example of UK law in volition with EU law. EU law's supremacy was first highlighted in the Treaty of Rome (if memory serves), so in effect you're right. Although parliament always remains sovereign (it's the basis of our entire political system) whether or not the UK is a member of the EU, after-all the UK would not be able to withdraw from it otherwise, also the Prime Minister is an MP so she is a member of both Parliament and Government etc. etc. The UK law (had to be repealed or would most likely face sanctions from the EU through a hearing by the European Court of Justice (ECJ) which had previous rulings on the case. The HRA however has nothing to do with the EU, the HRA just incorporated the European Convention of Human Rights which is made by the Council of Europe (not to be confused with the European Council or the Council of EU/Council of Ministers which are bodies of the EU) which doesn't really have any jurisdiction (arguably) in any nation bound to it (see the constant erosion of civil liberties in Russia). I don't know if this fully answered your question or not. But I hope this sort of helped.

Edit: Forgot to reply to the Supreme Court question
The Supreme Court effectively has no power in the British political system due to Parliamentary sovereignty as Parliament has the whole power of the political process. It rules, but parliament can ignore the rules (probably at its own peril though). It can get rid of local councils, merge local councils, get rid of regional assemblies and parliaments like those in Wales, Scotland and Northern Ireland and can get rid of the Supreme Court. It's important to note Parliament made all these institutions too (E.g. Constitutional Reform Act (2005) established the Supreme Court in 2009 and the Scotland Act (1998) created the Scottish Parliament). But as the Supreme Court was only established in 2009, and Blair had resigned by then and Brown was PM he may be talking about the Law Lords possibly. I can't say terrorism prevention is one of my strong suits.
Good point, it must have been the Law Lords then, but I assume it's the same if not similar to the Supreme Court. So then when the Supreme Court rules against a law for whatever reason, Parliament could in theory ignore them totally and do what they want? Over such a ruling, however, they tend to willingly but grudgingly repeal the law in question? If so, then how does the relationship work with the executive? Could the case over notifying the triggering of Article 50 (was it through the Supreme Court, I don't remember?) have been ignored or was it compulsory on the government because they are the executive while the legislature, Parliament, has the unlimited sovereignty? If it in the reverse was ruled that Parliament could not trigger Article 50 and instead the PM must do it, could Parliament have ignored the ruling and passed the bill of notification anyway?

My question about the HRA was its relation to the Supreme Court/Law Lords? It seems to me that if a law contradicts the HRA then that law is considered invalid by the Supreme Court/Law Lords, which I don't understand. It just confuses me substantially with what it can do and its power. I thought that in the event of a contradiction between one law and a newer law, the newer law supersedes the contradictions of the older one and becomes the new law, so surely any law passed after 1998 that contradicts the HRA supersedes the HRA?
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leonross97
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(Original post by Aear)
Good point, it must have been the Law Lords then, but I assume it's the same if not similar to the Supreme Court. So then when the Supreme Court rules against a law for whatever reason, Parliament could in theory ignore them totally and do what they want? Over such a ruling, however, they tend to willingly but grudgingly repeal the law in question? If so, then how does the relationship work with the executive? Could the case over notifying the triggering of Article 50 (was it through the Supreme Court, I don't remember?) have been ignored or was it compulsory on the government because they are the executive while the legislature, Parliament, has the unlimited sovereignty? If it in the reverse was ruled that Parliament could not trigger Article 50 and instead the PM must do it, could Parliament have ignored the ruling and passed the bill of notification anyway?

My question about the HRA was its relation to the Supreme Court/Law Lords? It seems to me that if a law contradicts the HRA then that law is considered invalid by the Supreme Court/Law Lords, which I don't understand. It just confuses me substantially with what it can do and its power. I thought that in the event of a contradiction between one law and a newer law, the newer law supersedes the contradictions of the older one and becomes the new law, so surely any law passed after 1998 that contradicts the HRA supersedes the HRA?
A lot of questions and I am just a humble student but I will try answer to the best of my abilities.

Parliament can in theory ignore the Supreme Court, it has no authority legally speaking, the Supreme Court does not have the power of judicial review (unlike in the United States) but it would probably lead to unpopularity among the populous if Parliament ignored the Supreme Court.

In terms of EU law supremacy and the executive, it's important to understand the formulation of EU law the executive are represented by the Council of the EU and the European Council and they sign treaties and laws as the European Parliament do that are fully binding to every EU member state (of course this will not be the case after Brexit). So in fact it means the executive would have signed 2 contradicting laws (The contradiction in Factortame was the Common Fisheries Policy) and in such case EU law is supreme. We signed the Treaty of Rome we signed in effect the Common Fisheries Policy so we binded it into EU law and subsequently into UK law too. It's important to note in terms of EU law, it's not all proposed (and hardly ever is) by a shady European Commission (after-all the Commission works on directives given by the member states) that nobody knows but with the consent of Parliament and successive British Governments (and other EU governments). If there is a contradiction EU law always follows suit for obvious reasons (violation of common-rules in the common market creates unfiar advantages for the UK) so it must take precedent.

The case around triggering Article 50 [of the Lisbon Treaty] was brought to the Supreme Court by Gina Miller who in effect argued that the Prime Minister was violating the constitution effectively an ultra-vires case. Arguing that the Prime Minister must give the parliament permission for Theresa May to trigger Article 50, after-all the whole focus of the British political system is parliamentary sovereignty. The case was nothing to do with the EU, but to do with the Prime Minister exceeding her own power (it's important to note Prime Ministerial power is a shady subject as we have no codified constitution that sets out the Prime Minister's power like the President's power in the U.S.) but the general consensus tends to be that the Prime Minister as he/she is an MP, they are "primus inter pares" (if I spelled that right) or "first among equals". But parliament in effect could have ignored it (which begs the question as to how powerful the Prime Minister is if there is no truly independent judiciary). As for parliamentary sovereignty it is THE most important part of our political process, as I mentioned earlier that the PM is "first among equals" the government is always the party with the most seats in parliament and if that parliamentary majority is small (or if there is no majority) and cannot pass legislation parliament ultimately has the decision to call another election in a motion of no confidence (although arguably limited by the fixed term parliament act, but obviously parliament could repeal that with a simple majority in parliament)

As for the HRA you are 100% right, as you may tell i'm a politics student, not a law student but in my studies of the judiciary I can tell you (as you probably already know) that the HRA seems to be deemed higher than other laws, this is because in effect it is the only single modern "Bill of Rights" so it tends to take precedent. But as said, parliamentary sovereignty can always repeal the HRA and other laws would apply instead in terms of what judges wish to apply. As I said though, not a law student so I'm unaware of contradictions of laws after the HRA. But it's one of the arguments that the Supreme Court are just "politicians in robes".
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(Original post by Aear)
Good point, it must have been the Law Lords then, but I assume it's the same if not similar to the Supreme Court. So then when the Supreme Court rules against a law for whatever reason, Parliament could in theory ignore them totally and do what they want? Over such a ruling, however, they tend to willingly but grudgingly repeal the law in question? If so, then how does the relationship work with the executive? Could the case over notifying the triggering of Article 50 (was it through the Supreme Court, I don't remember?) have been ignored or was it compulsory on the government because they are the executive while the legislature, Parliament, has the unlimited sovereignty? If it in the reverse was ruled that Parliament could not trigger Article 50 and instead the PM must do it, could Parliament have ignored the ruling and passed the bill of notification anyway?
Judges have no authority to tell parliament what to do . Parliament can do what it wants anyway. That is what parliamentary sovereignty means.

Judges interpret and apply law. They never tell parliament to repeal laws, that is not their job.

Judges aren't like politicians. They can't just do things because they feel like it. If they rule against something it is because it is illegal. Since by definition, law is legal, on what grounds could a judge rule against it?

The Supreme Court does not rule against the law, the whole point of courts is to rule in favour of the law.

Courts can rule against the government all they please because whatever government do, just like everybody else, has to be done in accordance with the law. That is why there was the article 50 case. It was ruled they didn't have power under the law to exercise article 50 so parliament had to change the law to give the government that power.

Article 50 is a process and is a role for government. They could pass an act of parliament but that wouldn't be triggering article 50. Article 50 requires notification to the EU which parliament can't do because that is an executive action. Its no different to how parliament can't negotiate a trade to with the EU.

They could still take us out of the EU if they really wanted to repealing the European Communities Act.
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