[nsnick]

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.

[marrs]

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]

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.

[marrs]

I broadly agree with what you're saying. I think both cases could be argued as constitutional because they both protect sovereignty in different ways: the right to privacy protects you in your own home, the right to gather intelligence protects you in public (or so the argument goes).

I think the larger problem is that the British people either don't care about - or don't understand the implications of - losing encryption. Either they don't believe their privacy will be affected or they don't imagine that they have anything to hide from the 3rd parties, be it the authorities, corporations, or criminals.

I suppose one could argue that the British constitution is working correctly as it is malleable enough to flex with attitudes, but we also know that the attitudes of politicians are diverging quite substantially from the people they claim to represent.

I also wonder if the constitution itself has become increasingly weak and irrelevant, and if it has, is that because the Monarchy, whose sole purpose is to live and breath the constitution, have become increasingly weak and irrelevant.

[nsnick]

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.

[alistairSH]

The Queen.

A withholding of assent could bring a constitutional crisis, but it's possible [1].

1 - https://en.wikipedia.org/wiki/Scottish_Militia_Bill

[nsnick]

"on the advice of her ministers"

[alistairSH]

Sure, but couldn't a single cabinet member advise the Queen to withhold assent? As long as they made a compelling argument, the Queen could do so. I'm not claiming this is likely or desirable, only possible in the most extreme situation.

[ue_]

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]

> 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_]

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]

> 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

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

  (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

   (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.

[ue_]

Thank you for your clarification as to the law on key disclosure. I was sloppy when I said "UK" and I did not exclude Scotland. NI also has a separate law of their own for this, too.

> I'd suggest it could be argued lots of hentai fails (c).

I'm not so sure. Perhaps images that don't display any act of sex taking place, and just nudity or even swimsuit (e.g ecchi) would qualify, but most hentai does display acts of sex taking place. Either way, might the subject, being a "child" hold sway on whether it is considered "disgusting" or not? I'd think it would.

>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.

Yes, this is the part that I was talking about when I talked about breast size and antennae.

Either way I am wholly opposed to such a law, and I think the arguments used to support it are weak.

[Freak_NL]

People may care about (what others may consider) disgusting speech, or they may find it disgusting themselves but they care because of the principle of free speech, but the problem lies in coming out and saying so. Defending drawn porn of minors is harmful to your career at best — for some it can mean the end of relationships, getting ostracised by friends and family, and being persecuted, slandered, and stalked online by people who feel very strongly about such topics.

Even for the most battle-hardened politician near the end of their career, this issue is a minefield.

[ue_]

I was about to mention this, but I thought it seemed too obvious. Nobody wants to come out and say that they are in favour of such material, especially to decriminalise it, except maybe a fringe party such as the Pirate Party. I have heard it may be similar to the law in Japan mandating that genitals be censored - no politician, Japanese or otherwise, wants to be "the one" to stand up and argue against it, I think anyway.

So perhaps "people don't care" isn't sufficient and a mistake on my part, though I have spoken to people who say that they are "not concerned" about the topic, despite being rather liberal in terms of freedom of expression otherwise.

[dtech]

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

[rcthompson]

It's a necessary but not a sufficient condition. That doesn't make it useless.

[bitJericho]

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]

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]

> 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]

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]

I wish I could give you more upvotes.

[lucozade]

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]

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]

You should check out Venezuela's constitution

[anotherbrownguy]

You should check out Israel's.