[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.

[pmyteh]

It's generally thought she can exercise her reserve powers precisely once, before they (or the monarchy) are removed for good. Personally ordering the armed forces not to take some antidemocratic action demanded by her ministers in a time of crisis is the most likely scenario, I think.

As with much else in the constitution, the 'on the advice of her ministers' is normally (binding) convention rather than statute.