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The High Court has ruled it is unconstitutional[0]. It cannot simply be overruled by an act of parliament. [0]Edit: There seem to be objections to my use of th

The High Court has ruled it is unconstitutional[0]. It cannot simply be overruled by an act of parliament. [0]Edit: There seem to be objections to my use of the term "unconstitutional." They have ruled it as against common law: “The aversion to general warrants is one of the basic principles on which the law of the United Kingdom is founded. As such, it may not be overridden by statute unless the wording of the statute makes clear that Parliament intended to do so.” These sort of "basic principles" are often referred to as the British constitution or constitutional principles, so I believe my choice of term is correct even if there is no single written document called the "constitution." As to the question of whether parliament can overrule it, perhaps, technically, yes, but I find it very difficult to come up with a scenario that would successfully meet the objections in the ruling.

Veen 6y ago
> It cannot simply be overruled by an act of parliament Yes it can. Parliament is sovereign: it can overrule anything it likes with legislation. There is no higher authority than parliament in the UK, not even the Supreme Court. Also, the High Court didn't rule it unconsitutional, it ruled it contrary to common law. The UK is not the US. The executive (Cabinet etc) cannot simply ignore the ruling, but they might be able to get legislation through Parliament to explicitly allow general warrants. https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html > That principle means that the courts will, when interpreting the provisions of a statute, presume that Parliament did not intend to legislate in a manner which overrides fundamental common law rights. The common law has an aversion to general warrants that leave significant matters of judgment and discretion to the person executing the warrant rather than to the person legally or constitutionally responsible for issuing it. > In view of the importance of the constitutional principle that there can be no interference with property without clear and specific legal authorisation, the words of an enactment must be unambiguous before the court may interpret Parliament as intending to override rights. There are no such unambiguous words in section 5. The national security context makes no difference as otherwise the courts would sanction wide powers to override fundamental rights.
- pmyteh 6y ago
  This is absolutely true in theory, but in practice Parliament can find it... a little difficult to legislate so as to overrule some exercises of judicial power. This case touches on one of them: the Act establishing the Investigatory Powers Tribunal contains an ouster clause which is expressed as preventing any of its decisions being appealed or questioned in another court (subject to exceptions which don't apply here). And yet, here is the High Court hearing a judicial review of one of the IPT's decisions. The courts don't like these jurisdiction-stripping ouster clauses, for good reasons - if someone can't be reviewed, what is to stop then committing abuses under colour of law? In Anisminic (1969) the House of Lords ruled that an ouster clause didn't actually apply in a given case, and that decision has been followed and expanded in various cases to this day. Including in this case - today's judgment was given after the Supreme Court ruled the IPT ouster was ineffective for similar reasons. I'm not aware of any copper-bottomed legislative wording that has been accepted to show that Parliament really does intend to oust jurisdiction, so in practice the courts can and do rule 'they can't really have meant this' even against the express intentions of Parliament.
  - simonh 6y ago
    Ansiminic (1969) is really interesting. Section 4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law” However the House of Lords determined that the ouster clause exempting the determination from legal review did not apply, as there was no valid determination in the first place. So essentially if the tribunal were to make a determination consistent with the law then yes that wouldn't be subject to judicial review, but if they make an error of law then their determination is not valid and therefore is subject to review. Take that, parliamentary overreach!
    - pmyteh 6y ago
      Yes! When I see US jurisprudence getting tied up in knots about whether given rules 'are jurisdictional' or 'are merely mandatory' I can really see the benefit of the decision the HoL took in Anisminic. And it does permanently prevent flagrant abuse of judicial power by lower court judges. But the legal fiction of parliamentary sovereignty does feel a little more fictional when you read that case. (Of course, they were careful to make clear that Parliament was, in fact, still sovereign, and given a sufficiently expressed will, etc. etc. But in practice...)
jsmith99 6y ago
Britain doesn't have a constitution. As the article alludes to, when Acts of Parliament clash with semi-constitutional items like international treaties, human rights laws, or ancient traditions, the courts will attempt to construe the law as Parliament not deliberately intending to override the standard. However, if Parliament explicitly states their intention, they can override anything. E.g. Lord Hoffmann in ex parte Simms [2000] 2 AC 115, at p.131: "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
- goodcanadian 6y ago
  Britain doesn't have a constitution. Yes, it does. It is unwritten and fuzzy, but Britain definitely has a constitution or at least "constitutional principles" as mentioned in the quote you provided: " . . . In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document." While it may technically be possible under certain circumstances, I find it very hard to image how a piece of legislation could be crafted that would successfully override the arguments made here.
  - beojan 6y ago
    > While it may technically be possible under certain circumstances, I find it very hard to image how a piece of legislation could be crafted that would successfully override the arguments made here. Something along the lines of "The issuance of general warrants is expressly permitted," perhaps? The principles of constitutionality may be similar, but the amendment process isn't, it simply requires an Act of Parliament.
jojobas 6y ago
It's right there in your quote, if the parliament spells it out in a law they can have it.
- goodcanadian 6y ago
  They did spell it out in a law: the one that was just overturned. I expect it will be very difficult to come up with a wording that will stand up to the scrutiny of the court.
  - jojobas 6y ago
    No law was overturned, a practice of the government was found to be against the law.

Veen 6y ago

> It cannot simply be overruled by an act of parliament Yes it can. Parliament is sovereign: it can overrule anything it likes with legislation. There is no higher authority than parliament in the UK, not even the Supreme Court. Also, the High Court didn't rule it unconsitutional, it ruled it contrary to common law. The UK is not the US. The executive (Cabinet etc) cannot simply ignore the ruling, but they might be able to get legislation through Parliament to explicitly allow general warrants. https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html > That principle means that the courts will, when interpreting the provisions of a statute, presume that Parliament did not intend to legislate in a manner which overrides fundamental common law rights. The common law has an aversion to general warrants that leave significant matters of judgment and discretion to the person executing the warrant rather than to the person legally or constitutionally responsible for issuing it. > In view of the importance of the constitutional principle that there can be no interference with property without clear and specific legal authorisation, the words of an enactment must be unambiguous before the court may interpret Parliament as intending to override rights. There are no such unambiguous words in section 5. The national security context makes no difference as otherwise the courts would sanction wide powers to override fundamental rights.

pmyteh 6y ago
This is absolutely true in theory, but in practice Parliament can find it... a little difficult to legislate so as to overrule some exercises of judicial power. This case touches on one of them: the Act establishing the Investigatory Powers Tribunal contains an ouster clause which is expressed as preventing any of its decisions being appealed or questioned in another court (subject to exceptions which don't apply here). And yet, here is the High Court hearing a judicial review of one of the IPT's decisions. The courts don't like these jurisdiction-stripping ouster clauses, for good reasons - if someone can't be reviewed, what is to stop then committing abuses under colour of law? In Anisminic (1969) the House of Lords ruled that an ouster clause didn't actually apply in a given case, and that decision has been followed and expanded in various cases to this day. Including in this case - today's judgment was given after the Supreme Court ruled the IPT ouster was ineffective for similar reasons. I'm not aware of any copper-bottomed legislative wording that has been accepted to show that Parliament really does intend to oust jurisdiction, so in practice the courts can and do rule 'they can't really have meant this' even against the express intentions of Parliament.
- simonh 6y ago
  Ansiminic (1969) is really interesting. Section 4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law” However the House of Lords determined that the ouster clause exempting the determination from legal review did not apply, as there was no valid determination in the first place. So essentially if the tribunal were to make a determination consistent with the law then yes that wouldn't be subject to judicial review, but if they make an error of law then their determination is not valid and therefore is subject to review. Take that, parliamentary overreach!
  - pmyteh 6y ago
    Yes! When I see US jurisprudence getting tied up in knots about whether given rules 'are jurisdictional' or 'are merely mandatory' I can really see the benefit of the decision the HoL took in Anisminic. And it does permanently prevent flagrant abuse of judicial power by lower court judges. But the legal fiction of parliamentary sovereignty does feel a little more fictional when you read that case. (Of course, they were careful to make clear that Parliament was, in fact, still sovereign, and given a sufficiently expressed will, etc. etc. But in practice...)

jsmith99 6y ago

Britain doesn't have a constitution. As the article alludes to, when Acts of Parliament clash with semi-constitutional items like international treaties, human rights laws, or ancient traditions, the courts will attempt to construe the law as Parliament not deliberately intending to override the standard. However, if Parliament explicitly states their intention, they can override anything. E.g. Lord Hoffmann in ex parte Simms [2000] 2 AC 115, at p.131: "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

goodcanadian 6y ago
Britain doesn't have a constitution. Yes, it does. It is unwritten and fuzzy, but Britain definitely has a constitution or at least "constitutional principles" as mentioned in the quote you provided: " . . . In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document." While it may technically be possible under certain circumstances, I find it very hard to image how a piece of legislation could be crafted that would successfully override the arguments made here.
- beojan 6y ago
  > While it may technically be possible under certain circumstances, I find it very hard to image how a piece of legislation could be crafted that would successfully override the arguments made here. Something along the lines of "The issuance of general warrants is expressly permitted," perhaps? The principles of constitutionality may be similar, but the amendment process isn't, it simply requires an Act of Parliament.

jojobas 6y ago

It's right there in your quote, if the parliament spells it out in a law they can have it.

goodcanadian 6y ago
They did spell it out in a law: the one that was just overturned. I expect it will be very difficult to come up with a wording that will stand up to the scrutiny of the court.
- jojobas 6y ago
  No law was overturned, a practice of the government was found to be against the law.