7 ms·

The problem is largely the UK's lack of a constitution. There are no checks or balances in the UK. Parliament can literally do anything they want. The courts

by nsnick 9y ago

The problem is largely the UK's lack of a constitution. There are no checks or balances in the UK. Parliament can literally do anything they want. The courts can't block Parliament. Parliament can just abolish the courts. The house of lords can't stop the house of commons, the commons can just override the lords. The queen won't veto the commons because she fears parliament will just abolish the monarchy.

dtech 9y ago
The US has shown with the NSA and FISA courts that a constitution will not prevent practices like this.
- rcthompson 9y ago
  It's a necessary but not a sufficient condition. That doesn't make it useless.
  - bitJericho 9y ago
    I think the US proves that the "constitution" as any mechanism for safety is absurd. It's ignored or abused when it's convenient.
    - ende 9y ago
      The problem is that the protections of civil liberties work for for the times and contexts under which they were formulated, but they are not adapted to evolving technology and culture as frequently as efforts to circumvent them. It's reverse hill climbing via million slippery slopes.
      - theandrewbailey 9y ago
        > The problem is that the protections of civil liberties work for for the times and contexts under which they were formulated... The people who wrote the US Constitution and its Bill of Rights survived a time when the most powerful army in the world was marching through their backyards. I have no doubt they had that in mind when they were writing freedoms into law.
        bllguo 9y ago
        How is that relevant? The salient point in the comment you quote is "they are not adapted to evolving technology and culture." It doesn't matter how clever the founding fathers were, or how much foresight they had. They could not have anticipated the realities of today.
  - nsnick 9y ago
    I wish I could give you more upvotes.
lucozade 9y ago
Right, because constitutions don't generally have a mechanism to be amended? And the judiciary in countries with constitutions don't tend to apply constitution to areas that they were clearly never intended e.g. encryption. The idea that the UK parliament would abolish courts doesn't really need addressing, it's so absurd. I take it you're also aware that we regularly (some would say too regularly) democratically elect parliament? That's usually consider a check if not a balance. The problem isn't the lack of a UK constitution or any of the other specious arguments. The problem is that a large number of people, very probably the majority, either agree with this idea or simply don't care. At the very least they don't care enough to make it an important issue in a general election and we've just had a couple.
- nsnick 9y ago
  Even if a large number of people want a particular restriction in the US it does not always become law even if passed by congress. This is never the case in the UK. If the commons passes something it is law. Amending a constitution is generally extremely difficult and requires a very high bar, and has to be approved by the court. It is not just the lack of a constitution that is dangerous in the UK it is the total lack of separation of powers. The courts are not really independent. Parliament passes laws that change how the courts work all the time. The constitutional reform act that created the supreme court of the UK was passed with a simple majority of Parliament, and it can be repealed with a simple majority of Parliament.
gaius 9y ago
You should check out Venezuela's constitution
- anotherbrownguy 9y ago
  You should check out Israel's.
ue_ 9y ago
As an anecdote related to this, there is a law that came into force in the UK in 2009 which made illegal drawings showing fictional characters who appear to be under 18 engaging in sex, or in the presence of sex. A similar law came into force in the United States (the PROTECT act), and it was stricken down by SCOTUS because a clause making illegal drawn pornography turns out (unsurprisingly) to violate the constitutional to free speech. Currently there are about 20 prosecutions per annum (and it is rising) under this law in the UK. I don't think this truly hideous law will be stricken down by a court (even the ECHR, which is May's sworn enemy) nor will it be repealed by parliament, because nobody cares about disgusting speech.
- paganel 9y ago
  > As an anecdote related to this, there is a law that came into force in the UK in 2009 which made illegal drawings showing fictional characters who appear to be under 18 engaging in sex So you're saying that watching most hentai is borderline illegal in the UK? That's crazy.
  - ue_ 9y ago
    I wouldn't say most, but a good proportion is, even possession of it. The catch is that the character has to give the "predominant impression" of being a child, so they can have non-child like features (such as slightly larger breasts, antennae (as was mentioned during the debate) etc.) and still be counted under the law. And you think you can encrypt to get away from it? No chance! If you refuse to hand over your keys to an encrypted volume you can face a maximum of 4 years in prison.
    - DanBC 9y ago
      > If you refuse to hand over your keys to an encrypted volume you can face a maximum of 4 years in prison. The requirements for getting you to hand over your keys are a bit stricter than "they ask for them". The long and complex law is here: http://www.legislation.gov.uk/ukpga/2000/23/contents http://www.legislation.gov.uk/ukpga/2000/23/contents The RIPA sentences for failure to handover passwords is either 2 years or 5 years. It's 5 years for child indecency cases, but the relevant laws are listed in subsection 7, and it doesn't include The Coroners and Justice Act of April 2009. (And that only applied to England, Wales, and NI. It doesn't apply to Scotland.) It's not clear that most hentai is made illegal by the C&JA2009. See below. http://www.legislation.gov.uk/ukpga/2000/23/part/III http://www.legislation.gov.uk/ukpga/2000/23/part/III (7)Those provisions are— (a)section 1 of the Protection of Children Act 1978 (showing or taking etc an indecent photograph of a child: England and Wales); (b)Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (corresponding offence for Northern Ireland); (c)section 52 or 52A of the Civic Government (Scotland) Act 1982 (showing or taking etc or possessing an indecent photograph of a child: Scotland); (d)section 160 of the Criminal Justice Act 1988 (possessing an indecent photograph of a child: England and Wales); (e)Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (corresponding offence for Northern Ireland).] I don't think RIPA mentions the Coroners and Justice Act, so I don't think they can force you to reveal passwords for those images. But maybe I'm missing some changes? http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2 http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2 (2)A prohibited image is an image which— (a)is pornographic, (b)falls within subsection (6), and (c)is grossly offensive, disgusting or otherwise of an obscene character. I'd suggest it could be argued lots of hentai fails (c). (5)“Child”, subject to subsection (6), means a person under the age of 18. (6)Where an image shows a person the image is to be treated as an image of a child if— (a)the impression conveyed by the image is that the person shown is a child, or (b)the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.
marrs 9y ago
I'm really not trying to be pedantic, but that's not true. The UK has no written constitution but it does have a constitution. It's important to make the distinction because it is entirely possible that this proposal is unconstitutional (and I wonder if that's why the Home Secretary is asking for companies to voluntarily adopt it rather than passing legislation). It smells unconstitutional to me because it is an attack on individual sovereignty and the right to privacy. I would love to hear an expert or two give their opinion on the matter.
- pmyteh 9y ago
  There's no entrenched right to privacy in the domestic constitution. The Human Rights Act has, though, brought Article 8 of the European Convention on Human Rights into UK law: > 1. Everyone has the right to respect for his private and family life, his home and his correspondence. > 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. [Note the exceptions, which are (by design) wide enough to drive a bus through] An Act of Parliament restricting end-to-end encryption for the expressed purposes of preventing crime and preventing terrorist atrocities would fairly clearly be constitutional, I think. Even if it was ruled incompatible with the ECHR, the courts have no power to overturn primary legislation - just to punt it back to Parliament with a declaration of incompatibility. If a minister tried to do it without Parliament under the royal prerogative or secondary legislation, I think the chance of it being overturned as unlawful are somewhat higher. I'm a political scientist, not a lawyer, mind.
  - nsnick 9y ago
    The commons can withdraw from the ECHR. I am not saying that Parliament is not a check on ministers. I am saying that there is no check on Parliament. A simple majority of parliament can pass anything and there is no entity that can stop it from becoming law.

by nsnick 9y ago

dtech 9y ago

The US has shown with the NSA and FISA courts that a constitution will not prevent practices like this.

rcthompson 9y ago
It's a necessary but not a sufficient condition. That doesn't make it useless.
- bitJericho 9y ago
  I think the US proves that the "constitution" as any mechanism for safety is absurd. It's ignored or abused when it's convenient.
  - ende 9y ago
    The problem is that the protections of civil liberties work for for the times and contexts under which they were formulated, but they are not adapted to evolving technology and culture as frequently as efforts to circumvent them. It's reverse hill climbing via million slippery slopes.
    - theandrewbailey 9y ago
      > The problem is that the protections of civil liberties work for for the times and contexts under which they were formulated... The people who wrote the US Constitution and its Bill of Rights survived a time when the most powerful army in the world was marching through their backyards. I have no doubt they had that in mind when they were writing freedoms into law.
      - bllguo 9y ago
        How is that relevant? The salient point in the comment you quote is "they are not adapted to evolving technology and culture." It doesn't matter how clever the founding fathers were, or how much foresight they had. They could not have anticipated the realities of today.
- nsnick 9y ago
  I wish I could give you more upvotes.

lucozade 9y ago

Right, because constitutions don't generally have a mechanism to be amended? And the judiciary in countries with constitutions don't tend to apply constitution to areas that they were clearly never intended e.g. encryption. The idea that the UK parliament would abolish courts doesn't really need addressing, it's so absurd. I take it you're also aware that we regularly (some would say too regularly) democratically elect parliament? That's usually consider a check if not a balance. The problem isn't the lack of a UK constitution or any of the other specious arguments. The problem is that a large number of people, very probably the majority, either agree with this idea or simply don't care. At the very least they don't care enough to make it an important issue in a general election and we've just had a couple.

nsnick 9y ago
Even if a large number of people want a particular restriction in the US it does not always become law even if passed by congress. This is never the case in the UK. If the commons passes something it is law. Amending a constitution is generally extremely difficult and requires a very high bar, and has to be approved by the court. It is not just the lack of a constitution that is dangerous in the UK it is the total lack of separation of powers. The courts are not really independent. Parliament passes laws that change how the courts work all the time. The constitutional reform act that created the supreme court of the UK was passed with a simple majority of Parliament, and it can be repealed with a simple majority of Parliament.

gaius 9y ago

You should check out Venezuela's constitution

anotherbrownguy 9y ago
You should check out Israel's.

ue_ 9y ago

As an anecdote related to this, there is a law that came into force in the UK in 2009 which made illegal drawings showing fictional characters who appear to be under 18 engaging in sex, or in the presence of sex. A similar law came into force in the United States (the PROTECT act), and it was stricken down by SCOTUS because a clause making illegal drawn pornography turns out (unsurprisingly) to violate the constitutional to free speech. Currently there are about 20 prosecutions per annum (and it is rising) under this law in the UK. I don't think this truly hideous law will be stricken down by a court (even the ECHR, which is May's sworn enemy) nor will it be repealed by parliament, because nobody cares about disgusting speech.

paganel 9y ago
> As an anecdote related to this, there is a law that came into force in the UK in 2009 which made illegal drawings showing fictional characters who appear to be under 18 engaging in sex So you're saying that watching most hentai is borderline illegal in the UK? That's crazy.
- ue_ 9y ago
  I wouldn't say most, but a good proportion is, even possession of it. The catch is that the character has to give the "predominant impression" of being a child, so they can have non-child like features (such as slightly larger breasts, antennae (as was mentioned during the debate) etc.) and still be counted under the law. And you think you can encrypt to get away from it? No chance! If you refuse to hand over your keys to an encrypted volume you can face a maximum of 4 years in prison.
  - DanBC 9y ago
    > If you refuse to hand over your keys to an encrypted volume you can face a maximum of 4 years in prison. The requirements for getting you to hand over your keys are a bit stricter than "they ask for them". The long and complex law is here: http://www.legislation.gov.uk/ukpga/2000/23/contents http://www.legislation.gov.uk/ukpga/2000/23/contents The RIPA sentences for failure to handover passwords is either 2 years or 5 years. It's 5 years for child indecency cases, but the relevant laws are listed in subsection 7, and it doesn't include The Coroners and Justice Act of April 2009. (And that only applied to England, Wales, and NI. It doesn't apply to Scotland.) It's not clear that most hentai is made illegal by the C&JA2009. See below. http://www.legislation.gov.uk/ukpga/2000/23/part/III http://www.legislation.gov.uk/ukpga/2000/23/part/III (7)Those provisions are— (a)section 1 of the Protection of Children Act 1978 (showing or taking etc an indecent photograph of a child: England and Wales); (b)Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (corresponding offence for Northern Ireland); (c)section 52 or 52A of the Civic Government (Scotland) Act 1982 (showing or taking etc or possessing an indecent photograph of a child: Scotland); (d)section 160 of the Criminal Justice Act 1988 (possessing an indecent photograph of a child: England and Wales); (e)Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (corresponding offence for Northern Ireland).] I don't think RIPA mentions the Coroners and Justice Act, so I don't think they can force you to reveal passwords for those images. But maybe I'm missing some changes? http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2 http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2 (2)A prohibited image is an image which— (a)is pornographic, (b)falls within subsection (6), and (c)is grossly offensive, disgusting or otherwise of an obscene character. I'd suggest it could be argued lots of hentai fails (c). (5)“Child”, subject to subsection (6), means a person under the age of 18. (6)Where an image shows a person the image is to be treated as an image of a child if— (a)the impression conveyed by the image is that the person shown is a child, or (b)the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.

marrs 9y ago

I'm really not trying to be pedantic, but that's not true. The UK has no written constitution but it does have a constitution. It's important to make the distinction because it is entirely possible that this proposal is unconstitutional (and I wonder if that's why the Home Secretary is asking for companies to voluntarily adopt it rather than passing legislation). It smells unconstitutional to me because it is an attack on individual sovereignty and the right to privacy. I would love to hear an expert or two give their opinion on the matter.

pmyteh 9y ago
There's no entrenched right to privacy in the domestic constitution. The Human Rights Act has, though, brought Article 8 of the European Convention on Human Rights into UK law: > 1. Everyone has the right to respect for his private and family life, his home and his correspondence. > 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. [Note the exceptions, which are (by design) wide enough to drive a bus through] An Act of Parliament restricting end-to-end encryption for the expressed purposes of preventing crime and preventing terrorist atrocities would fairly clearly be constitutional, I think. Even if it was ruled incompatible with the ECHR, the courts have no power to overturn primary legislation - just to punt it back to Parliament with a declaration of incompatibility. If a minister tried to do it without Parliament under the royal prerogative or secondary legislation, I think the chance of it being overturned as unlawful are somewhat higher. I'm a political scientist, not a lawyer, mind.
- nsnick 9y ago
  The commons can withdraw from the ECHR. I am not saying that Parliament is not a check on ministers. I am saying that there is no check on Parliament. A simple majority of parliament can pass anything and there is no entity that can stop it from becoming law.