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> Yet again a UK court has ruled the government’s extreme mass surveillance regime unlawful Except that's not what happened. Not legally anyway. What happened

> Yet again a UK court has ruled the government’s extreme mass surveillance regime unlawful Except that's not what happened. Not legally anyway. What happened is that the Court of Appeal ruled that a Parliamentary Act did not contain sufficient safeguards to be compliant with the Human Rights Act. So there's, at least, 2 problems you've got. One is that it's not, technically, government legislation. It's the Crown's legislation as enacted by Parliament. Secondly, and slightly less importantly, the Court of Appeal isn't the final arbiter here. One can either argue that it's the European Court of Justice or, and this is where it gets fun, Parliament. Now, you can of course make a case for banging the Queen away. It's not like that hasn't been tried in the past with some of her predecessors. Or you could make a cases for locking up some or all of both Houses of Parliament. Or they could enact an amendment to correct the problem. Of course, if it turns out that anyone was actually affected by the legislation as it stands then that should be dealt with as a matter of urgency. While the internet happily chunters on.

mtgx 9y ago
The ECJ has ruled less awful laws than this to be invalid under the fundamental charter of rights. I wouldn't be worried about them. It's the UK courts you have to worry about when deciding such cases, especially when the UK doesn't even have a constitution and they kind of play it by ear.
- lucozade 9y ago
  Not sure a constitution necessarily helps. In this case, the Human Rights legislation is acting like a constitution in the sense that it's a benchmark that laws are being held to. A constitution can sometimes be a fairly negative thing. You regularly see US decisions being made against the Constitution where it blatantly isn't applicable. You rarely (ever?) see SCOTUS saying that the Constitution doesn't apply so it needs to go back to Congress for a more applicable law. In other words a Constitution starts to resemble a religious document that has the answer to every conceivable problem if only a priest can interpret it.
  - di4na 9y ago
    The french constitutional court does exactly that. Send the law back to parliament.
  - jkaplowitz 9y ago
    What would it mean for the US Constitution not to apply to a law within the US? For a federal law, either it's within Congress's specifically enumerated and limited powers (as interpreted by SCOTUS) and therefore valid, or else the law is invalid. For a state law, the US Supreme Court will only base their ruling on the US Constitution if anything legally binding at the federal level (including but not limited to the Constitution) forbids or allows that state law. Otherwise, SCOTUS and every other court will defer on state law to the state Constitution as interpreted by state courts, but from a federal constitutional perspective, states can pass whatever laws aren't federally forbidden.
    - lucozade 9y ago
      As an obvious example, the 5th Amendment blatantly didn't have anything to do with passwords. The whole idea is a bit silly. The sensible thing to do would be to say that the Constitution has nothing much to say on many issues relating to modern technology and deal with it accordingly. Same goes with guns. If you want everyone to be armed then fine. That's your prerogative. But the Constitution clearly didn't mean for everyone and their mom to be tooled up with semi-automatic weaponry. I mean, just how legal are militias in the US? Because they're the reason you should be carrying. It was clearly a document of its time. And one of international importance. But the religious zeal to which it is adhered to is highly questionable. Now, it's not like we're perfect in the UK or anything. But if someone tried to justify something to do with smartphones or terrorism by referencing Magna Carta or the Bill of Rights, we'd probably take a step back and give them a napkin for the mouth frothing.
- richmarr 9y ago
  > especially when the UK doesn't even have a constitution Yeah we do. British Constitution is ace. https://en.wikipedia.org/wiki/British_Constitution_(solitaire) https://en.wikipedia.org/wiki/British_Constitution_(solitair... Oh, if you meant the government thingy no, we kinda accept that stuff changes... which I think is more useful than holding any one thing as particularly holy and untouchable. The US has got its knickers in a proper twist with all that "money is speech" "what the framers intended was" stuff. It's fetishised. Your 21st amendment even repeals the 18th amendment, what's the point?
  - koenigdavidmj 9y ago
    By your own admission, the UK is driven by expediency. The state can do essentially whatever they want, as long as they have a Really Important Reason. Get rid of jury trials for northern Ireland for a few years, because it's cheaper than properly protecting juries? No problem! The American constitution exists to say that there are some things the government ought not do, even if it makes their job harder, and that if you truly must do those things, you have to convince more than 51% of the country that it's okay. Californian cities can take their own people's guns away, but it is not their place to take them away from rural Kansas, where a cop is an hour away at best. You have to have at least minimal evidence that somebody did something before you can ransack their house. I readily grant that our current practice is to play silly games to say that these lines aren't being crossed when they are (border phone searches, stop and frisk, you name it).
    - waqf 9y ago
      The other advantage of the UK system is that when the government comes up with some dumb new idea to abrogate human rights for people born on Tuesdays or whatever, the public debate is couched as "is this really a good idea?" In the US it gets hung up on "is this constitutional?", which sort of misses an important point.
    - Accacin 9y ago
      The fact is both types of constitution have positives and negatives. Neither the British or American system is perfect and both are open to abuse.
- Y_Y 9y ago
  It absolutely does have a constitution. It's just not explicitly written down. https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution https://www.bl.uk/magna-carta/articles/britains-unwritten-co...
  - lucozade 9y ago
    It absolutely doesn't. It's not written down because it doesn't exist. All that article is doing is listing some Acts that contain portions that Brits tend to take more seriously than, say, the Dangerous Dogs Act. But here's the important bit. Legally, it's no harder to repeal the Bill of Rights that it is to repeal the mangy mutts act. For example, Parliamentary sovereignty is considered sacrosanct in our constitution. Except we have fairly regularly given it away in Acts and are, presumably, going to get some back in another one because of Brexit. And Brexit is going to happen because we, randomly, had a referendum about it. In most countries, fundamentally restructuring almost all our treaty obligations of the last 40 years would have a higher threshold than muzzling Rottweilers. Not so in Blighty. Now, I happen to think that that's not necessarily a bad thing (OK, I think Brexit was scandalous). But we clearly don't have a constitution in any reasonable sense.
    - Y_Y 9y ago
      I can see why you'd say that, but in terms of usage you'll give yourself at odds with the uk parliament and legal system. [0] In fact the uk constitution predates most of the neat written ones. [0] www.ucl.ac.uk/constitution-unit/whatis/uk-constitution
jstanley 9y ago
> Of course, if it turns out that anyone was actually affected by the legislation as it stands then that should be dealt with as a matter of urgency. How do you decide whether "anyone was actually affected" by ISPs storing as much browsing data as they can? Doesn't that affect either everyone or noone depending on whether you think it matters? And if it matters, does it not affect everyone? What can you possibly do about that retroactively?
- blowski 9y ago
  If Shirley lost £1,000,000 and a body part as a result of the ISP’s actions, she’s affected more than somebody who’s merely annoyed and feels their human rights have been breached.
  - hoopladler 9y ago
    The point about surveilance is it doesn't effect anyone, until it does - and then everybody gets arrested in the night. We're just a couple of decades out of the twentieth century - and if the more bloody-handed of the last century's regimes had today's databases, they would have been far worse.
- 794CD01 9y ago
  They could give everyone a year of free credit monitoring.
pbhjpbhj 9y ago
Is this perhaps where the monarchy having no real power falls down - Parliament is Her Majesty's, if her Parliament fails to abide by her laws then she should act, she didn't even need to use the courts, she should really just have the relevant persons held "at Her Majesty's pleasure" ... the only problem there is the complete breakdown of democracy and the rule of law ... The MPs have failed to dutifully carry out her wishes, assuming she wanted the HR laws to be followed, Parliament makes the laws but it is Her Maj that - in our pseudo-democracy actually decides to implement them. Heads on spikes.
pwtweet 9y ago
ECJ already ruled against the UK on this issue and because they did Tom Watson was able to apply to the UK courts (CoA) for a review of the legislation.

mtgx 9y ago

The ECJ has ruled less awful laws than this to be invalid under the fundamental charter of rights. I wouldn't be worried about them. It's the UK courts you have to worry about when deciding such cases, especially when the UK doesn't even have a constitution and they kind of play it by ear.

lucozade 9y ago
Not sure a constitution necessarily helps. In this case, the Human Rights legislation is acting like a constitution in the sense that it's a benchmark that laws are being held to. A constitution can sometimes be a fairly negative thing. You regularly see US decisions being made against the Constitution where it blatantly isn't applicable. You rarely (ever?) see SCOTUS saying that the Constitution doesn't apply so it needs to go back to Congress for a more applicable law. In other words a Constitution starts to resemble a religious document that has the answer to every conceivable problem if only a priest can interpret it.
- di4na 9y ago
  The french constitutional court does exactly that. Send the law back to parliament.
- jkaplowitz 9y ago
  What would it mean for the US Constitution not to apply to a law within the US? For a federal law, either it's within Congress's specifically enumerated and limited powers (as interpreted by SCOTUS) and therefore valid, or else the law is invalid. For a state law, the US Supreme Court will only base their ruling on the US Constitution if anything legally binding at the federal level (including but not limited to the Constitution) forbids or allows that state law. Otherwise, SCOTUS and every other court will defer on state law to the state Constitution as interpreted by state courts, but from a federal constitutional perspective, states can pass whatever laws aren't federally forbidden.
  - lucozade 9y ago
    As an obvious example, the 5th Amendment blatantly didn't have anything to do with passwords. The whole idea is a bit silly. The sensible thing to do would be to say that the Constitution has nothing much to say on many issues relating to modern technology and deal with it accordingly. Same goes with guns. If you want everyone to be armed then fine. That's your prerogative. But the Constitution clearly didn't mean for everyone and their mom to be tooled up with semi-automatic weaponry. I mean, just how legal are militias in the US? Because they're the reason you should be carrying. It was clearly a document of its time. And one of international importance. But the religious zeal to which it is adhered to is highly questionable. Now, it's not like we're perfect in the UK or anything. But if someone tried to justify something to do with smartphones or terrorism by referencing Magna Carta or the Bill of Rights, we'd probably take a step back and give them a napkin for the mouth frothing.
richmarr 9y ago
> especially when the UK doesn't even have a constitution Yeah we do. British Constitution is ace. https://en.wikipedia.org/wiki/British_Constitution_(solitaire) https://en.wikipedia.org/wiki/British_Constitution_(solitair... Oh, if you meant the government thingy no, we kinda accept that stuff changes... which I think is more useful than holding any one thing as particularly holy and untouchable. The US has got its knickers in a proper twist with all that "money is speech" "what the framers intended was" stuff. It's fetishised. Your 21st amendment even repeals the 18th amendment, what's the point?
- koenigdavidmj 9y ago
  By your own admission, the UK is driven by expediency. The state can do essentially whatever they want, as long as they have a Really Important Reason. Get rid of jury trials for northern Ireland for a few years, because it's cheaper than properly protecting juries? No problem! The American constitution exists to say that there are some things the government ought not do, even if it makes their job harder, and that if you truly must do those things, you have to convince more than 51% of the country that it's okay. Californian cities can take their own people's guns away, but it is not their place to take them away from rural Kansas, where a cop is an hour away at best. You have to have at least minimal evidence that somebody did something before you can ransack their house. I readily grant that our current practice is to play silly games to say that these lines aren't being crossed when they are (border phone searches, stop and frisk, you name it).
  - waqf 9y ago
    The other advantage of the UK system is that when the government comes up with some dumb new idea to abrogate human rights for people born on Tuesdays or whatever, the public debate is couched as "is this really a good idea?" In the US it gets hung up on "is this constitutional?", which sort of misses an important point.
  - Accacin 9y ago
    The fact is both types of constitution have positives and negatives. Neither the British or American system is perfect and both are open to abuse.
Y_Y 9y ago
It absolutely does have a constitution. It's just not explicitly written down. https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution https://www.bl.uk/magna-carta/articles/britains-unwritten-co...
- lucozade 9y ago
  It absolutely doesn't. It's not written down because it doesn't exist. All that article is doing is listing some Acts that contain portions that Brits tend to take more seriously than, say, the Dangerous Dogs Act. But here's the important bit. Legally, it's no harder to repeal the Bill of Rights that it is to repeal the mangy mutts act. For example, Parliamentary sovereignty is considered sacrosanct in our constitution. Except we have fairly regularly given it away in Acts and are, presumably, going to get some back in another one because of Brexit. And Brexit is going to happen because we, randomly, had a referendum about it. In most countries, fundamentally restructuring almost all our treaty obligations of the last 40 years would have a higher threshold than muzzling Rottweilers. Not so in Blighty. Now, I happen to think that that's not necessarily a bad thing (OK, I think Brexit was scandalous). But we clearly don't have a constitution in any reasonable sense.
  - Y_Y 9y ago
    I can see why you'd say that, but in terms of usage you'll give yourself at odds with the uk parliament and legal system. [0] In fact the uk constitution predates most of the neat written ones. [0] www.ucl.ac.uk/constitution-unit/whatis/uk-constitution

jstanley 9y ago

> Of course, if it turns out that anyone was actually affected by the legislation as it stands then that should be dealt with as a matter of urgency. How do you decide whether "anyone was actually affected" by ISPs storing as much browsing data as they can? Doesn't that affect either everyone or noone depending on whether you think it matters? And if it matters, does it not affect everyone? What can you possibly do about that retroactively?

blowski 9y ago
If Shirley lost £1,000,000 and a body part as a result of the ISP’s actions, she’s affected more than somebody who’s merely annoyed and feels their human rights have been breached.
- hoopladler 9y ago
  The point about surveilance is it doesn't effect anyone, until it does - and then everybody gets arrested in the night. We're just a couple of decades out of the twentieth century - and if the more bloody-handed of the last century's regimes had today's databases, they would have been far worse.
794CD01 9y ago
They could give everyone a year of free credit monitoring.

pbhjpbhj 9y ago

Is this perhaps where the monarchy having no real power falls down - Parliament is Her Majesty's, if her Parliament fails to abide by her laws then she should act, she didn't even need to use the courts, she should really just have the relevant persons held "at Her Majesty's pleasure" ... the only problem there is the complete breakdown of democracy and the rule of law ... The MPs have failed to dutifully carry out her wishes, assuming she wanted the HR laws to be followed, Parliament makes the laws but it is Her Maj that - in our pseudo-democracy actually decides to implement them. Heads on spikes.

pwtweet 9y ago

ECJ already ruled against the UK on this issue and because they did Tom Watson was able to apply to the UK courts (CoA) for a review of the legislation.