8 ms·

>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mec

by M2Ys4U 3y ago

>While a ruling on a specific case (and law), the Court seems quite skeptical towards any "requirement that providers of such services weaken the encryption mechanism for all users". If I were the UK government, I would be quite worried that the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling. It's worth noting that UK courts can't overturn Acts of Parliament. The best they can do is issue a declaration of incompatibility, which enables ministers to use secondary legislation to correct any defect rather than having to go through the process of passing another act (if they have the political will to do so...). Having said that, a lot of how the Online Safety Act tries to get things done is through secondary legislation and statutory codes and guidelines; these all can be quashed by the courts (unless the Act constrains the way the other instruments are made in such a way that it'd be illegal not to make an infringing instrument) so it'll be interesting to see how that plays out.

seanw444 3y ago
> It's worth noting that UK courts can't overturn Acts of Parliament. Interesting. I didn't know this, and as an American, it seems quite odd. Decisions by the parliament are treated as immutable there? Here, if a bill passed by Congress is deemed unconstitutional, it can be struck down by the Supreme Court.
- arethuza 3y ago
  They aren't immutable, but they can only be changed by Parliament: "the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution" https://www.parliament.uk/about/how/role/sovereignty/ https://www.parliament.uk/about/how/role/sovereignty/
- denton-scratch 3y ago
  The only constitution that the UK has consists of Acts of Parliament. So I don't know why it should seem odd; the US courts can't strike clauses of the US Constitution, and the UK courts can't strike Acts. Amusingly, the UK government is currently trying to pass an Act to the effect that black is equivalent to white, i.e. that Rwanda is a safe country to which asylum seekers can be sent. This is analogous to the State of Indiana trying to legislate that the value of Pi shall be 3.2. You can't legislate a fact.
  - aftbit 3y ago
    In the US, it's quite hard to change the constitution. It requires agreement from 2/3rds of Congress followed by ratification by the individual legislatures of 3/4ths of the states. Such a thing has not been done since 1992, and not on a politically charged question since 1971.
    - bluGill 3y ago
      There is also a convention of the states that can change the constitution. It has been talked about by various groups from time to time, but has never happened.
      - etothepii 3y ago
        Are you sure? Isn't that how the ban on alcohol was lifted?
        bluGill 3y ago
        good question. I'm not clear after reading Wikipedia how that happened. US congress called for this which is how amendments are normally handled, but then it seems to have done something weird. I'm not interested enough in the question to dig deeper to figure out what is what. I'll leave this as a "I stand corrected" but if you care do dig deeper.
        matthewowen 3y ago
        There are two types of constitutional convention. State ratifying conventions, which you are correct is the way that the 21st amendment was ratified by the states after having received a two thirds majority in congress: https://en.wikipedia.org/wiki/State_ratifying_conventions https://en.wikipedia.org/wiki/State_ratifying_conventions Article V conventions, which replace the legislature stage but then need to be ratified by the states either by the legislatures or by a state ratifying convention: https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Convention_to_propose_amendmen... the latter has never happened and the constitution is very vague about what they would entail, and I think is what the earlier poster was referencing (there has been some recent noise around them) this graphic is quite helpful: https://en.wikipedia.org/wiki/State_ratifying_conventions#/media/File:Constitutional_amendment_process_(USA).png https://en.wikipedia.org/wiki/State_ratifying_conventions#/m...
- pjc50 3y ago
  Yeah, I don't think it's quite as simple as commentators are making out, because ECJ rulings have roughly constitutional-level effects in disapplying Acts.
  - blibble 3y ago
    only because Parliament allowed it to be so by passing the European Communities Act 1972 this power was removed by one line in the European Union (Withdrawal) Act 2018: > The European Communities Act 1972 is repealed on exit day. https://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpga_20180016_en.pdf https://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpga_2018...
- TillE 3y ago
  Judicial review isn't necessarily an obvious or completely desirable concept. It's not in the US Constitution either, and Marbury v. Madison is still somewhat controversial.
  - Gormo 3y ago
    From the outset, officials in all branches of government have sworn an oath to uphold the constitution in the conduct of their duties, and the constitution explicitly states that it is the supreme federal law, so it seems that Marbury vs. Madison would follow logically from the justices' obligation to only issue rulings consistent with the constitution as they understand it. One could regard the legislature as having an equivalent duty to refrain from enacting statutes incompatible with the constitution, and the executive as having an equivalent duty to refrain from enforcement actions inconsistent with the constitution, but historically, the judiciary seems to have been the only branch to take its duty seriously.
- glitchc 3y ago
  Yup, that's because the UK doesn't have a constitution.
  - arethuza 3y ago
    It doesn't have a codified constitution in the US sense but it does have a constitution: https://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom https://en.wikipedia.org/wiki/Constitution_of_the_United_Kin... Edit: I would certainly agree that having constitution in this form isn't a great idea...
    - bemusedthrow75 3y ago
      A written constitution doesn't really seem to work out better, though, does it?
    - simonh 3y ago
      Frankly, the US system isn't exactly a resounding vindication of written constitutions either. Arguably the UK system has displayed considerably greater flexibility. For example the US president is still basically an elected George III.
      - deleted 3y ago
        [deleted]
  - dfawcus 3y ago
    Well it does, in written bits in various places, and some as precedent. However it is a bit more complex. England has a constitution (that collection above), Scotland has a different (and somewhat incompatible) constitution. The incompatibility being where the seat of Sovereignty lies. In Scotland with the people, in England with the Monarch (but wrested away by Parliament). So when the two countries formed the new state of Great Britain, and dissolved their prior states, they granted it a minimal constitution. However they couldn't grant more than they had, and the Scottish grantors did not hold sovereignty. Hence claiming that UK Parliament is sovereign is to presume that England annexed Scotland. That continuing incompatibility is (IMO) why we've never had a single written GB/UK constitution, and probably never will. It will require addressing the fact that we're acting as if Scotland was annexed, and to put that in writing will cause its own problems.
- bemusedthrow75 3y ago
  > Decisions by the parliament are treated as immutable there? Yes, and no. Parliament is sovereign -- it is the supreme legal authority. But it cannot bind its successors. So any law parliament creates, any decision can be overturned by a subsequent parliament.
  - sorokod 3y ago
    Is that not similar to how the US constitution is managed? It was amended and latter un-amended in the case of prohibition (18th and 21st amendments)
    - bemusedthrow75 3y ago
      The "parliament cannot bind its successors" principle was absolutely (and deliberately) imported into US law, yes. It's more general -- no branch of government can bind its own successors. (With the exception of e.g. presidential pardons which cannot be undone)
      - Aeolun 3y ago
        I think this is generally true? It’d be weird if there were some laws from 30 years ago that nobody wanted, but were not legally allowed to be changed. You’d just change them anyway and nobody would care.
        bemusedthrow75 3y ago
        It's generally true precisely because British parliamentary democracy formalised the concept, mind you. Before that, yes, rulers made laws that would perpetually benefit them and their successors.
- dukeyukey 3y ago
  Parliament is sovereign. Basically, as long as Parliament says so, it can do what it wants, although it can be slowed down by institutions like the Supreme Court or the royal family. There is no real separation powers. Which _sounds_ bad, but the UK has an extremely long history of relative stability compared to basically anywhere else on the planet, so something must be going right.
  - sorokod 3y ago
    This stability presupposes a presence of adults in the room.
    - pmyteh 3y ago
      It's sometimes described as the 'good chap' theory of governance. Everyone is expected to be a gentleman, so flexibility is possible with an absence of formal guardrails. It obviously handles capture by bad faith actors fairly poorly; the hope is that such people or movements can be stopped before they get that far. Johnson was pretty marginal as a PM from this point of view.
      - sorokod 3y ago
        Thanks, haven't heard of the 'good chap' theory of governance before. Lovely name that emphasizes how inadequate such system is in the 21st century. Or perhaps it was never adequate: https://www.prospectmagazine.co.uk/politics/37844/has-the-good-chaps-theory-of-government-always-been-a-myth https://www.prospectmagazine.co.uk/politics/37844/has-the-go...
  - ben_w 3y ago
    > Which _sounds_ bad, but the UK has an extremely long history of relative stability compared to basically anywhere else on the planet, so something must be going right. The more I learn about British history, the more I think this reputation for stability is merely due to how well all the civil wars (and parliament inviting in a new royal family) were brushed over.
- pyuser583 3y ago
  The idea is once the Crown issues letters patent, it’s the law. In the recent past, legislation was reviewed for constitutionality by a committee in the House of Lords, called Law Lords. In the 2000s, the Law Lords were rebranded as the “UK Supreme Court”. But the idea is still that once the legislative process is done, the result is a law.
pjc50 3y ago
> It's worth noting that UK courts can't overturn Acts of Parliament Eh. I think that grossly understates https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary_of_State_for_Transport https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary... ; while it does not remove the law from the books, incompatibility with ECJ rulings does effectively disapply the law. This is why there's such a fight over the Rwanda bill: https://www.bbc.co.uk/news/uk-politics-68283703 https://www.bbc.co.uk/news/uk-politics-68283703 . ECHR is effectively constitutional law in the UK, not an ordinary Act of Parliament. Courts have ruled that deporting people to dangerous countries breaches ECHR. The government is trying to legislate the ""fact"" that Rwanda is ""safe"" in order to circumvent that, because they're not quite yet ready to throw out ECHR entirely and haven't had decades to pack the courts.
- M2Ys4U 3y ago
  Well, yes, there's some nuance here. Where there's an Act of Parliament that says courts can dis-apply other Acts of Parliament then the courts can do so. But the Human Rights Act does not do this, even though it has quasi-constitutional status, and as far as I know now that the European Communities Act has been repealed no Act of Parliament does this. A better case to cite than Factortame would be R (Jackson) v Attorney General, where the House of Lords (in its judicial function before that was removed to the Supreme Court) entertained the idea that in extremis parliamentary sovereignty was not absolute. If the government continues its showdown over Rwanda the Supreme Court might be forced to re-visit that idea. But the law as it is applied right now means that courts cannot overturn actsof Parliament.
chippiewill 3y ago
The best isn't necessarily a declaration of incompatibility, that's mostly specific to ECHR. In general if parliament passes legislation that contradicts earlier legislation that wasn't repealed and it wasn't deliberate then a judge can determine that parliament didn't intend to override that earlier legislation and that the new legislation doesn't apply in a given context. Parliamentary supremacy exists, but only where parliament takes a deliberate action.
- skissane 3y ago
  > Parliamentary supremacy exists, but only where parliament takes a deliberate action. Well, it exists under English law, it is an open question whether it exists to the same extent under Scottish law. As Lord Cooper said in the 1953 case of MacCormick v Lord Advocate, "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law". Lord Cooper suggested that, at least in theory, an Act of the UK Parliament could be ultra vires under Scottish law if it were contrary to the Treaty of Union. In the 1975 case of Gibson v Lord Advocate, Lord Keith suggested that possible examples of such invalid Acts might be a hypothetical Act to abolish Scottish law and replace it with English law, or a hypothetical Act to establish the Church of England (or the Scottish Episcopal Church) as the state church in Scotland, usurping the traditional role of the Church of Scotland; although he refrained from definitively ruling on those questions (since the outcome of the case at hand did not depend on them).
JNRowe 3y ago
I wholeheartedly recommend How Parliament Works¹ for people who want a deep dive on these points. It is nowhere near as dry as you'd imagine for a five hundred page book about parliament. While used copies are super cheap I'd also recommend picking up a current revision. Recent years have seen far more use(or attempts to use) some of the more obscure tools of both houses. The updates include more explanation of those topics, along with descriptions of recent cases before the courts. ¹ https://www.amazon.co.uk/dp/1032015012 https://www.amazon.co.uk/dp/1032015012
turquoisevar 3y ago
Prefacing this with the fact that I never had a good feel for UK law due, in part due to it being a common law system vs. the common law system I’m more familiar with on mainland Europe. Plus, I’ve not kept up with what, if anything, the UK maintained concerning supranational jurisdiction after Brexit. That said, what you describe is similar to that of some EU countries. Take the Netherlands for example. In the Netherlands, courts can’t test laws passed by the Dutch parliament to the Dutch constitution. Even the Dutch Supreme Court doesn’t have that power (and Dutch legal scholars will therefore deny that the Dutch Supreme Court is a so-called “constitutional court” like the Germans have, for example). Still, in practice, this is a non-issue because the legal hierarchy places international and EU law above Dutch law, making it the supreme law of the land. Subsequently, this allows Dutch courts to test against international and EU law, which, for the most part anyway, have similar provisions to that of the Dutch constitution when it comes to (human) rights. I suppose the question I’m asking is if in practice, the situation is the same or similar in the UK?
- Aeolun 3y ago
  > In the Netherlands, courts can’t test laws passed by the Dutch parliament to the Dutch constitution. What does that mean in practice? That the constitution always overrides any law passed by parliament?
  - Gormo 3y ago
    It sounds like it means the exact opposite, i.e. that in the Netherlands, there is no judicial mechanism for overturning unconstitutional legislation.
  - turquoisevar 3y ago
    It's the other way around, actually… sort of. It means that a Dutch court can't test the constitutionality of laws made by the Dutch government in concert with parliament. In legal parlance translated from Dutch, these would be called "laws in the formal sense." The way it works is that the Dutch government (i.e., the Dutch ministers and the King, albeit the latter only in a ceremonious role) proposes a bill, and the two Dutch legislative houses (House of Representatives and Senate) vote to pass it. A law that is a product of this process is deemed a "formal law" or "law in the formal sense." Courts cannot test these against the Dutch constitution (i.e., look to see if they're constitutional). Other forms of legislation can be tested against the constitution by courts. These are called "material laws" or "laws in the material senses" because, materially, they function as a law in the sense that they prescribe something and are generally binding. Still, they haven't been established in a "formal" manner through the process I described above that involves the government and parliament. Examples of such material laws are municipal ordinances and royal decrees issued by the Dutch government (akin to the American executive orders by the US president). Some laws that have been materialized through the process described above are also considered material laws instead of formal laws, but that's more a matter of exception when they don't have a generally binding character for all citizens (e.g., a permission law for the marriage of a specific member of the royal family). A judge can't look at these formal laws and rule that they're unconstitutional. Ironically, the Dutch constitution itself (art. 120) prohibits this test. The logic at the time was that they wanted to prevent the judicial branch from second-guessing the legislative branch and that if it misbehaved, the voters could punish them during the next election round. Additionally, they wanted to enshrine that the government, in concert with the two legislative houses, should be the unimpeachable sole authority to create laws. However, this means that the Dutch constitution functions more as a set of guidelines for the highest level of legislators than a strict set of rules to abide by. That said, nowadays, there is some political will here and there every couple of legislative sessions to reform it so that the courts are allowed to test against the constitution, with some ideas even going as far as establishing a formal constitutional court for this purpose. As someone who used to practice there, I think it's more a matter of trivia that raises eyebrows in your first year of law school than something with many practical consequences. As stated before, international and EU treaties have taken over the Dutch constitution's role in keeping the legislator in check. So far, legislators haven't sought to cross the lines in remarkable ways. Nevertheless, I'd welcome testing constitutionality as an extra layer in the legal firewall, provided it's designed in a way that leads to results seen in the German, French, and Scandinavian models, as opposed to the results and effects caused by the SCOTUS in the US.
thaumasiotes 3y ago
> It's worth noting that UK courts can't overturn Acts of Parliament. Is that true? I thought the UK had semi-recently (2009) introduced a Supreme Court for this purpose. https://www.unz.com/jderbyshire/lessons-from-britains-national-extinction-its-deep-state-is-as-bad-as-ours/ https://www.unz.com/jderbyshire/lessons-from-britains-nation... says this, just a couple of months ago: > Just this week, on Wednesday, Britain’s Supreme Court struck down the latest attempt to implement the Rwanda plan. (Having a “Supreme Court” that strikes down Acts of Parliament is a fairly recent development in Britain.)
- pmyteh 3y ago
  We have a Supreme Court. It's the old House of Lords judicial committee with new robes, though: the powers are nearly identical and the legal business of the HoL has been done by the most senior judges since the 19th Century. The nuance here is that many Acts do not set out a whole scheme: they allow government to make subordinate regulations with the force of law. The Acts are (essentially, kinda) immune from judicial review, but the implementing statutory instruments aren't. (They haven't had full parliamentary scrutiny and are in practice just executive instruments - so can be struck down without parliamentary sovereignty problems as ultra vires the government).

by M2Ys4U 3y ago

seanw444 3y ago

> It's worth noting that UK courts can't overturn Acts of Parliament. Interesting. I didn't know this, and as an American, it seems quite odd. Decisions by the parliament are treated as immutable there? Here, if a bill passed by Congress is deemed unconstitutional, it can be struck down by the Supreme Court.

arethuza 3y ago
They aren't immutable, but they can only be changed by Parliament: "the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution" https://www.parliament.uk/about/how/role/sovereignty/ https://www.parliament.uk/about/how/role/sovereignty/
denton-scratch 3y ago
The only constitution that the UK has consists of Acts of Parliament. So I don't know why it should seem odd; the US courts can't strike clauses of the US Constitution, and the UK courts can't strike Acts. Amusingly, the UK government is currently trying to pass an Act to the effect that black is equivalent to white, i.e. that Rwanda is a safe country to which asylum seekers can be sent. This is analogous to the State of Indiana trying to legislate that the value of Pi shall be 3.2. You can't legislate a fact.
- aftbit 3y ago
  In the US, it's quite hard to change the constitution. It requires agreement from 2/3rds of Congress followed by ratification by the individual legislatures of 3/4ths of the states. Such a thing has not been done since 1992, and not on a politically charged question since 1971.
  - bluGill 3y ago
    There is also a convention of the states that can change the constitution. It has been talked about by various groups from time to time, but has never happened.
    - etothepii 3y ago
      Are you sure? Isn't that how the ban on alcohol was lifted?
      - bluGill 3y ago
        good question. I'm not clear after reading Wikipedia how that happened. US congress called for this which is how amendments are normally handled, but then it seems to have done something weird. I'm not interested enough in the question to dig deeper to figure out what is what. I'll leave this as a "I stand corrected" but if you care do dig deeper.
      - matthewowen 3y ago
        There are two types of constitutional convention. State ratifying conventions, which you are correct is the way that the 21st amendment was ratified by the states after having received a two thirds majority in congress: https://en.wikipedia.org/wiki/State_ratifying_conventions https://en.wikipedia.org/wiki/State_ratifying_conventions Article V conventions, which replace the legislature stage but then need to be ratified by the states either by the legislatures or by a state ratifying convention: https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Convention_to_propose_amendmen... the latter has never happened and the constitution is very vague about what they would entail, and I think is what the earlier poster was referencing (there has been some recent noise around them) this graphic is quite helpful: https://en.wikipedia.org/wiki/State_ratifying_conventions#/media/File:Constitutional_amendment_process_(USA).png https://en.wikipedia.org/wiki/State_ratifying_conventions#/m...
pjc50 3y ago
Yeah, I don't think it's quite as simple as commentators are making out, because ECJ rulings have roughly constitutional-level effects in disapplying Acts.
- blibble 3y ago
  only because Parliament allowed it to be so by passing the European Communities Act 1972 this power was removed by one line in the European Union (Withdrawal) Act 2018: > The European Communities Act 1972 is repealed on exit day. https://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpga_20180016_en.pdf https://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpga_2018...
TillE 3y ago
Judicial review isn't necessarily an obvious or completely desirable concept. It's not in the US Constitution either, and Marbury v. Madison is still somewhat controversial.
- Gormo 3y ago
  From the outset, officials in all branches of government have sworn an oath to uphold the constitution in the conduct of their duties, and the constitution explicitly states that it is the supreme federal law, so it seems that Marbury vs. Madison would follow logically from the justices' obligation to only issue rulings consistent with the constitution as they understand it. One could regard the legislature as having an equivalent duty to refrain from enacting statutes incompatible with the constitution, and the executive as having an equivalent duty to refrain from enforcement actions inconsistent with the constitution, but historically, the judiciary seems to have been the only branch to take its duty seriously.
glitchc 3y ago
Yup, that's because the UK doesn't have a constitution.
- arethuza 3y ago
  It doesn't have a codified constitution in the US sense but it does have a constitution: https://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom https://en.wikipedia.org/wiki/Constitution_of_the_United_Kin... Edit: I would certainly agree that having constitution in this form isn't a great idea...
  - bemusedthrow75 3y ago
    A written constitution doesn't really seem to work out better, though, does it?
  - simonh 3y ago
    Frankly, the US system isn't exactly a resounding vindication of written constitutions either. Arguably the UK system has displayed considerably greater flexibility. For example the US president is still basically an elected George III.
    - deleted 3y ago
      [deleted]
- dfawcus 3y ago
  Well it does, in written bits in various places, and some as precedent. However it is a bit more complex. England has a constitution (that collection above), Scotland has a different (and somewhat incompatible) constitution. The incompatibility being where the seat of Sovereignty lies. In Scotland with the people, in England with the Monarch (but wrested away by Parliament). So when the two countries formed the new state of Great Britain, and dissolved their prior states, they granted it a minimal constitution. However they couldn't grant more than they had, and the Scottish grantors did not hold sovereignty. Hence claiming that UK Parliament is sovereign is to presume that England annexed Scotland. That continuing incompatibility is (IMO) why we've never had a single written GB/UK constitution, and probably never will. It will require addressing the fact that we're acting as if Scotland was annexed, and to put that in writing will cause its own problems.
bemusedthrow75 3y ago
> Decisions by the parliament are treated as immutable there? Yes, and no. Parliament is sovereign -- it is the supreme legal authority. But it cannot bind its successors. So any law parliament creates, any decision can be overturned by a subsequent parliament.
- sorokod 3y ago
  Is that not similar to how the US constitution is managed? It was amended and latter un-amended in the case of prohibition (18th and 21st amendments)
  - bemusedthrow75 3y ago
    The "parliament cannot bind its successors" principle was absolutely (and deliberately) imported into US law, yes. It's more general -- no branch of government can bind its own successors. (With the exception of e.g. presidential pardons which cannot be undone)
    - Aeolun 3y ago
      I think this is generally true? It’d be weird if there were some laws from 30 years ago that nobody wanted, but were not legally allowed to be changed. You’d just change them anyway and nobody would care.
      - bemusedthrow75 3y ago
        It's generally true precisely because British parliamentary democracy formalised the concept, mind you. Before that, yes, rulers made laws that would perpetually benefit them and their successors.
dukeyukey 3y ago
Parliament is sovereign. Basically, as long as Parliament says so, it can do what it wants, although it can be slowed down by institutions like the Supreme Court or the royal family. There is no real separation powers. Which _sounds_ bad, but the UK has an extremely long history of relative stability compared to basically anywhere else on the planet, so something must be going right.
- sorokod 3y ago
  This stability presupposes a presence of adults in the room.
  - pmyteh 3y ago
    It's sometimes described as the 'good chap' theory of governance. Everyone is expected to be a gentleman, so flexibility is possible with an absence of formal guardrails. It obviously handles capture by bad faith actors fairly poorly; the hope is that such people or movements can be stopped before they get that far. Johnson was pretty marginal as a PM from this point of view.
    - sorokod 3y ago
      Thanks, haven't heard of the 'good chap' theory of governance before. Lovely name that emphasizes how inadequate such system is in the 21st century. Or perhaps it was never adequate: https://www.prospectmagazine.co.uk/politics/37844/has-the-good-chaps-theory-of-government-always-been-a-myth https://www.prospectmagazine.co.uk/politics/37844/has-the-go...
- ben_w 3y ago
  > Which _sounds_ bad, but the UK has an extremely long history of relative stability compared to basically anywhere else on the planet, so something must be going right. The more I learn about British history, the more I think this reputation for stability is merely due to how well all the civil wars (and parliament inviting in a new royal family) were brushed over.
pyuser583 3y ago
The idea is once the Crown issues letters patent, it’s the law. In the recent past, legislation was reviewed for constitutionality by a committee in the House of Lords, called Law Lords. In the 2000s, the Law Lords were rebranded as the “UK Supreme Court”. But the idea is still that once the legislative process is done, the result is a law.

pjc50 3y ago

> It's worth noting that UK courts can't overturn Acts of Parliament Eh. I think that grossly understates https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary_of_State_for_Transport https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary... ; while it does not remove the law from the books, incompatibility with ECJ rulings does effectively disapply the law. This is why there's such a fight over the Rwanda bill: https://www.bbc.co.uk/news/uk-politics-68283703 https://www.bbc.co.uk/news/uk-politics-68283703 . ECHR is effectively constitutional law in the UK, not an ordinary Act of Parliament. Courts have ruled that deporting people to dangerous countries breaches ECHR. The government is trying to legislate the ""fact"" that Rwanda is ""safe"" in order to circumvent that, because they're not quite yet ready to throw out ECHR entirely and haven't had decades to pack the courts.

M2Ys4U 3y ago
Well, yes, there's some nuance here. Where there's an Act of Parliament that says courts can dis-apply other Acts of Parliament then the courts can do so. But the Human Rights Act does not do this, even though it has quasi-constitutional status, and as far as I know now that the European Communities Act has been repealed no Act of Parliament does this. A better case to cite than Factortame would be R (Jackson) v Attorney General, where the House of Lords (in its judicial function before that was removed to the Supreme Court) entertained the idea that in extremis parliamentary sovereignty was not absolute. If the government continues its showdown over Rwanda the Supreme Court might be forced to re-visit that idea. But the law as it is applied right now means that courts cannot overturn actsof Parliament.

chippiewill 3y ago

The best isn't necessarily a declaration of incompatibility, that's mostly specific to ECHR. In general if parliament passes legislation that contradicts earlier legislation that wasn't repealed and it wasn't deliberate then a judge can determine that parliament didn't intend to override that earlier legislation and that the new legislation doesn't apply in a given context. Parliamentary supremacy exists, but only where parliament takes a deliberate action.

skissane 3y ago
> Parliamentary supremacy exists, but only where parliament takes a deliberate action. Well, it exists under English law, it is an open question whether it exists to the same extent under Scottish law. As Lord Cooper said in the 1953 case of MacCormick v Lord Advocate, "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law". Lord Cooper suggested that, at least in theory, an Act of the UK Parliament could be ultra vires under Scottish law if it were contrary to the Treaty of Union. In the 1975 case of Gibson v Lord Advocate, Lord Keith suggested that possible examples of such invalid Acts might be a hypothetical Act to abolish Scottish law and replace it with English law, or a hypothetical Act to establish the Church of England (or the Scottish Episcopal Church) as the state church in Scotland, usurping the traditional role of the Church of Scotland; although he refrained from definitively ruling on those questions (since the outcome of the case at hand did not depend on them).

JNRowe 3y ago

I wholeheartedly recommend How Parliament Works¹ for people who want a deep dive on these points. It is nowhere near as dry as you'd imagine for a five hundred page book about parliament. While used copies are super cheap I'd also recommend picking up a current revision. Recent years have seen far more use(or attempts to use) some of the more obscure tools of both houses. The updates include more explanation of those topics, along with descriptions of recent cases before the courts. ¹ https://www.amazon.co.uk/dp/1032015012 https://www.amazon.co.uk/dp/1032015012

turquoisevar 3y ago

Prefacing this with the fact that I never had a good feel for UK law due, in part due to it being a common law system vs. the common law system I’m more familiar with on mainland Europe. Plus, I’ve not kept up with what, if anything, the UK maintained concerning supranational jurisdiction after Brexit. That said, what you describe is similar to that of some EU countries. Take the Netherlands for example. In the Netherlands, courts can’t test laws passed by the Dutch parliament to the Dutch constitution. Even the Dutch Supreme Court doesn’t have that power (and Dutch legal scholars will therefore deny that the Dutch Supreme Court is a so-called “constitutional court” like the Germans have, for example). Still, in practice, this is a non-issue because the legal hierarchy places international and EU law above Dutch law, making it the supreme law of the land. Subsequently, this allows Dutch courts to test against international and EU law, which, for the most part anyway, have similar provisions to that of the Dutch constitution when it comes to (human) rights. I suppose the question I’m asking is if in practice, the situation is the same or similar in the UK?

Aeolun 3y ago
> In the Netherlands, courts can’t test laws passed by the Dutch parliament to the Dutch constitution. What does that mean in practice? That the constitution always overrides any law passed by parliament?
- Gormo 3y ago
  It sounds like it means the exact opposite, i.e. that in the Netherlands, there is no judicial mechanism for overturning unconstitutional legislation.
- turquoisevar 3y ago
  It's the other way around, actually… sort of. It means that a Dutch court can't test the constitutionality of laws made by the Dutch government in concert with parliament. In legal parlance translated from Dutch, these would be called "laws in the formal sense." The way it works is that the Dutch government (i.e., the Dutch ministers and the King, albeit the latter only in a ceremonious role) proposes a bill, and the two Dutch legislative houses (House of Representatives and Senate) vote to pass it. A law that is a product of this process is deemed a "formal law" or "law in the formal sense." Courts cannot test these against the Dutch constitution (i.e., look to see if they're constitutional). Other forms of legislation can be tested against the constitution by courts. These are called "material laws" or "laws in the material senses" because, materially, they function as a law in the sense that they prescribe something and are generally binding. Still, they haven't been established in a "formal" manner through the process I described above that involves the government and parliament. Examples of such material laws are municipal ordinances and royal decrees issued by the Dutch government (akin to the American executive orders by the US president). Some laws that have been materialized through the process described above are also considered material laws instead of formal laws, but that's more a matter of exception when they don't have a generally binding character for all citizens (e.g., a permission law for the marriage of a specific member of the royal family). A judge can't look at these formal laws and rule that they're unconstitutional. Ironically, the Dutch constitution itself (art. 120) prohibits this test. The logic at the time was that they wanted to prevent the judicial branch from second-guessing the legislative branch and that if it misbehaved, the voters could punish them during the next election round. Additionally, they wanted to enshrine that the government, in concert with the two legislative houses, should be the unimpeachable sole authority to create laws. However, this means that the Dutch constitution functions more as a set of guidelines for the highest level of legislators than a strict set of rules to abide by. That said, nowadays, there is some political will here and there every couple of legislative sessions to reform it so that the courts are allowed to test against the constitution, with some ideas even going as far as establishing a formal constitutional court for this purpose. As someone who used to practice there, I think it's more a matter of trivia that raises eyebrows in your first year of law school than something with many practical consequences. As stated before, international and EU treaties have taken over the Dutch constitution's role in keeping the legislator in check. So far, legislators haven't sought to cross the lines in remarkable ways. Nevertheless, I'd welcome testing constitutionality as an extra layer in the legal firewall, provided it's designed in a way that leads to results seen in the German, French, and Scandinavian models, as opposed to the results and effects caused by the SCOTUS in the US.

thaumasiotes 3y ago

> It's worth noting that UK courts can't overturn Acts of Parliament. Is that true? I thought the UK had semi-recently (2009) introduced a Supreme Court for this purpose. https://www.unz.com/jderbyshire/lessons-from-britains-national-extinction-its-deep-state-is-as-bad-as-ours/ https://www.unz.com/jderbyshire/lessons-from-britains-nation... says this, just a couple of months ago: > Just this week, on Wednesday, Britain’s Supreme Court struck down the latest attempt to implement the Rwanda plan. (Having a “Supreme Court” that strikes down Acts of Parliament is a fairly recent development in Britain.)

pmyteh 3y ago
We have a Supreme Court. It's the old House of Lords judicial committee with new robes, though: the powers are nearly identical and the legal business of the HoL has been done by the most senior judges since the 19th Century. The nuance here is that many Acts do not set out a whole scheme: they allow government to make subordinate regulations with the force of law. The Acts are (essentially, kinda) immune from judicial review, but the implementing statutory instruments aren't. (They haven't had full parliamentary scrutiny and are in practice just executive instruments - so can be struck down without parliamentary sovereignty problems as ultra vires the government).