3 ms·

While that is true, there's a parliamentary sovereignty doctrine, which makes it just about impossible to judicially overturn primary legislation.

wizzwizz4 3y ago
Except for all the times that happened – like when the High Court ruled that this passage of the Crime and Courts Act 2013 (amending section 76 of the Criminal Justice and Immigration Act 2008: marked F3 and F4), creating a new category of “grossly disproportionate force”: > [F3 (5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.] > (6) [F4 In a case other than a householder case,] the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. does not “give householders carte blanche in the degree of force they use against intruders in self-defence” (ref: https://www.bbc.co.uk/news/uk-43652308 https://www.bbc.co.uk/news/uk-43652308) – in essence, making the legal situation basically the same as before this amendment was made. (Apparently the lawmakers didn't quite understand how a “self-defence” legal defence worked in court, when they were writing this one up.) As I understand, as of the ruling, there's no legal distinction between “disproportionate force” and “grossly disproportionate force”. Sure, the High Court didn't overturn it… except for the part where they basically did. They also “quashed with prospective effect” an amendment to primary legislation (the Copyright Designs and Patents Act 1988) made by a statutory instrument (The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014). There are many other instances of primary legislation on the books that manifestly say one thing, but that according to the High Court mean something different.
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- omnicognate 3y ago
  Yes, and I believe the authority of courts to do such things hinges on the difference between "legal sovereignty" (which parliament has) and "political sovereignty" (which it does not). Long article on that here [1] which I'm still reading. [1] https://ukconstitutionallaw.org/2021/10/18/michael-foran-parliamentary-sovereignty-and-the-politics-of-law-making/ https://ukconstitutionallaw.org/2021/10/18/michael-foran-par...
omnicognate 3y ago
Yes, that's one of the principles, but I'd strongly dispute the characterisation in the post I replied to that this is to prevent the "plebs" having something to "criticise". On the contrary, it helps ensure that elections are meaningful, as there are no constraints on what the legislature thus elected can do. They are not bound by the actions of previous parliaments. The UK could far more easily repeal its gun laws than the US could repeal the 2nd amendment, were the population to want that. Not that I'm claiming the US model is inferior in some way, of course. Constitutional questions are complex and heavily dependent on a country's history and culture. One apparent weakness of the US system is that enormous power is placed in the hands of a group of unelected officials, appointed and approved by the current executive and legislature, who then wield that power for life. I could make that point by pointing out that the law on one of the most contentious issues, abortion, has been determined for decades by the partisan composition of the supreme court rather than by public opinion. I could say something like "the US constitution is there to prevent the hoi polloi having a say" but it wouldn't make any point worth making or lead to a reasoned discussion. The issue is rather more nuanced than that.

wizzwizz4 3y ago

Except for all the times that happened – like when the High Court ruled that this passage of the Crime and Courts Act 2013 (amending section 76 of the Criminal Justice and Immigration Act 2008: marked F3 and F4), creating a new category of “grossly disproportionate force”: > [F3 (5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.] > (6) [F4 In a case other than a householder case,] the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. does not “give householders carte blanche in the degree of force they use against intruders in self-defence” (ref: https://www.bbc.co.uk/news/uk-43652308 https://www.bbc.co.uk/news/uk-43652308) – in essence, making the legal situation basically the same as before this amendment was made. (Apparently the lawmakers didn't quite understand how a “self-defence” legal defence worked in court, when they were writing this one up.) As I understand, as of the ruling, there's no legal distinction between “disproportionate force” and “grossly disproportionate force”. Sure, the High Court didn't overturn it… except for the part where they basically did. They also “quashed with prospective effect” an amendment to primary legislation (the Copyright Designs and Patents Act 1988) made by a statutory instrument (The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014). There are many other instances of primary legislation on the books that manifestly say one thing, but that according to the High Court mean something different.

deleted 3y ago
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omnicognate 3y ago
Yes, and I believe the authority of courts to do such things hinges on the difference between "legal sovereignty" (which parliament has) and "political sovereignty" (which it does not). Long article on that here [1] which I'm still reading. [1] https://ukconstitutionallaw.org/2021/10/18/michael-foran-parliamentary-sovereignty-and-the-politics-of-law-making/ https://ukconstitutionallaw.org/2021/10/18/michael-foran-par...

omnicognate 3y ago

Yes, that's one of the principles, but I'd strongly dispute the characterisation in the post I replied to that this is to prevent the "plebs" having something to "criticise". On the contrary, it helps ensure that elections are meaningful, as there are no constraints on what the legislature thus elected can do. They are not bound by the actions of previous parliaments. The UK could far more easily repeal its gun laws than the US could repeal the 2nd amendment, were the population to want that. Not that I'm claiming the US model is inferior in some way, of course. Constitutional questions are complex and heavily dependent on a country's history and culture. One apparent weakness of the US system is that enormous power is placed in the hands of a group of unelected officials, appointed and approved by the current executive and legislature, who then wield that power for life. I could make that point by pointing out that the law on one of the most contentious issues, abortion, has been determined for decades by the partisan composition of the supreme court rather than by public opinion. I could say something like "the US constitution is there to prevent the hoi polloi having a say" but it wouldn't make any point worth making or lead to a reasoned discussion. The issue is rather more nuanced than that.