[Quanttek]

For a better understanding: The Court held (in the circumstances of this case) that a legal obligation to decrypt E2E communications is a disproportionate interference with the right to privacy. The law in question specifically obligated messengers such as Telegram to hand over communications alongside the "information necessary to decrypt electronic messages if they were encrypted".

To come to that conclusion, it referred to the wide-scale impact such a weakening of E2E through backdoors would have and referred to "calls for alternative 'solutions to decryption without weakening the protective mechanisms, both in legislation and through continuous technical evolution.'" Looking at the cited material, these include traditional policing, undercover operations, metadata analysis, international police cooperation, live forensics on seized devices, guessing or obtaining private keys held by parties to the communication, using vulnerabilities in the target’s software or sending an implant to targeted devices.

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 should be noted that, although the backdooring of E2E was considered to go beyond how the right to privacy may legitimately be restricted, the right to privacy is a so-called derogable right, i.e. a government can, upon declaration of a state of emergency, derogate from the right insofar that is necessary to address an emergency "threatening the life of the nation" (Art 15 ECHR))

Relevant paragraphs are paras 76-80 here: https://hudoc.echr.coe.int/eng/#{%22itemid%22:[%22001-230854...}

[M2Ys4U]

>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.

[JNRowe]

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

[chippiewill]

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]

> 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).

[seanw444]

> 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.

[denton-scratch]

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.

[light_hue_1]

It's definitely odd! That's not a reason for UK courts not to strike down acts, or more properly, to have judicial review.

Take Canada. Canada has a Supreme Court and no written constitution. The formal divorce between Canada and the UK was not long ago so we inherited the same legal framework (modulo Quebec but it doesn't play a role here). Yet the Canadian Supreme Court can and does strike down federal laws! Actually, provincial courts can too, and then the federal government gets to appeal to them to the Supreme Court if it wishes.

Take Israel. There's no written constitution. Just the Basic Laws. They're just laws, they can be amended at any time. Yet, the Supreme Court can and does strike down laws. It's even striking down changes to the Basic Laws. That's part of the current political strife.

There is a worldwide movement for judicial review. Usually, supreme courts start with conservative powers and then grow them. Judicial review is not explicitly called out in the US constitution either. The US Supreme Court had to assert that it can strike down unconstitutional laws. This took about 15 years and some careful wrangling. The particular argument of Marbury v. Madison doesn't apply to the UKSC of course.

But there are already law review articles spelling out other legal theories that could be used to assert that the UKSC has the power to strike down Acts. I suspect the UKSC will follow other supreme courts and free themselves of Parliament in the coming decades.

[smnrchrds]

Canada's constitution has written and unwritten parts. The Constitution Act of 1982 (which includes the Charter of Rights and Freedoms), for example, is a written part of Canada's constitution. Changing the charter would require the procedure for constitutional change, which is rather difficult. It's not something that can be amended like a normal act of the parliament.

[light_hue_1]

That's fair. I was using the term "written constitution" from the perspective of a US reader.

There's no document that says "I'm the constitution, that's it".

Canada works under the idea of an open constitution. There's a collection of documents that become entrenched and are considered part of the constitution. There are endless debates about exactly which documents should be considered.

Since the amending formula has made changes impossible, basically all we can do is hope the Court will expand the constitution in a way that serves the public.

It's unclear that we really wanted to give the Supreme Court this power. And some argue that this makes the Canadian Supreme Court the most powerful one in the world. Certainly not even the US Supreme Court can decide the contents of the Constitution, only its interpretation.

And that's before we get to Quebec and their crazy theory about what section 45 means which would make the whole idea of a constitution a mess.

And of course, we're not going to mention the notwithstanding clause.

[denton-scratch]

> or more properly, to have judicial review.

I think that in the UK, judicial review doesn't apply to Acts of Parliament. It applies to administrative decisions, so things like employment tribunals, benefits decisions, medical decisions and so on. Judges aren't supposed to be able to reverse legislation (although, in practice, they can fatally undermine it).

[bregma]

The Supreme Court of Canada does not strike down federal laws. It follows section 52 of the written constitution [0] that states the following.

  52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

All the SCC can do is rule whether or not a law (of any jurisdiction, including federal, provincial, or otherwise) is consistent with the Constitution of Canada. If a law is not consistent with the constitution, then the law has no force or effect, according to the law. That's not "striking down", since the inconsistent law or portion thereof was never valid in the first place.

[0] https://laws-lois.justice.gc.ca/eng/Const/page-13.html#h-59

[light_hue_1]

That's what "striking down" a law is. Even in the US!

From the Opinion in Murphy v. National Collegiate Athletic Association:

> And courts do not have the power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen. 22, 22–23 (1937) (“The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute”); Harrison 82 (“[C]ourts do not make [nonseverable] provisions inoperative . . . . Invalidation by courts is a figure of speech”)

Which then goes on to cite this Virginia Law review that goes into detail about the confusion between the terminology vs the reality: https://www.supremecourt.gov/opinions/URLs_Cited/OT2017/16-4...

> But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.

That being said. You said the written constitution of Canada. From both the UK and the US perspective that's really confusing. Canada's constitution is partly written and partly unwritten and slowly expands over time as other documents are entrenched.

From the US perspective, the Canadian constitution isn't the same kind of entity as the US constitution, it's just an Act of Parliament. From the UK perspective this means that anything goes because obviously Parliament should get to change its Act as it wishes (one of the core tenants is that past Parliaments cannot bind future Parliaments).

Anyway. That's how striking down laws works.

[logifail]

> that Rwanda is a safe country to which asylum seekers can be sent

Putting aside whether the UK government's approach is a sensible one (which in my view it isn't) we should be aware that:

"the UNHCR, with financial support from the EU, has transferred refugees from Libya to Rwanda under a scheme called the Emergency Transit Mechanism (ETM) [..] The ETM offers vulnerable refugees, taken into detention by the Libyan authorities, a choice to have their application processed in Rwanda."[0]

"In 2019, the [Rwandan] Government established the Emergency Transit Mechanism (ETM) Centre that hosted 824 refugees evacuated from Libya. Currently, the transit centre hosts 371 evacuees while working on long-term solutions continues. By the end of 2021, 462 refugees had resettled to third countries so far."[1]

So Rwanda was apparently safe enough for the UNHCR to offer to process some refugees there.

[0] https://www.bbc.co.uk/news/uk-politics-67431602

[1] https://www.unhcr.org/uk/countries/rwanda

[pmyteh]

The UK courts partly relied on evidence that those asylum seekers were not always treated in accordance with the convention. The Supreme Court judgment noted cases of refoulement (expulsion to the state the asylum seeker is fleeing from) as well as structural deficiencies in the decision-making process. (https://www.bailii.org/uk/cases/UKSC/2023/42.html at paragraphs 89 and onwards).

They also suggested that the UNHCR was mostly processing applications for asylum in third countries for ETM evacuees. An obvious difference with the UK scheme is that we expect Rwanda to grant asylum themselves.

[Aeolun]

> So Rwanda was apparently safe enough for the UNHCR to offer to process some refugees there.

I think the key word here is safer. It wasn’t safe by any definition of the word, but a fair deal safer than the place they came from.

[logifail]

> It wasn’t safe by any definition of the word, but a fair deal safer than the place they came from

(Playing devil's advocate) why would this not also apply to those refugees fleeing to Europe?

Isn't Rwanda "a fair deal safer" than Afghanistan? (This is a genuine question)

[pyuser583]

US Courts can strike down clauses in the constitution.

Any amendment that deprives a state of its senators is unconstitutional.

Many states have “unconstitutional amendment clauses.”

[aftbit]

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.

[JumpCrisscross]

> Such a thing has not been done since 1992

We’re a 235-year old republic. Changing the firmware once every 10 to 15% of the time seems fine.

> and not on a politically charged question since 1971

This is a feature. If a question is charged it should be resolved first federally, through the states, and then politically, via the legislature. Only once there is consensus should it be elevated to Constitutional status. That is the only way to get a Constitution Americans believe in with intergenerational force.

[LudwigNagasena]

The problem is that in reality it gets “resolved” through the executive branch or by legalisating from the bench. That ultimately degrades all political institutions.

Can FBI arrest you for marijuana possession in a state where weed is “legal”? It should arrest you, weed is illegal, the government just decided to not enforce its own law. The government can just say “It will not be a priority to use federal resources to prosecute X”[1] and everyone is ok with that.

If even simple laws get bent so easily, what’s left of the constitution? The words inside the Commerce Clause stayed the same for hundreds of years, yet what it “means” (ie how it’s used by the Federal Government to assert its power) have changed profoundly [2].

[1] https://web.archive.org/web/20091023034358/http://www.reuter...

[2] https://en.wikipedia.org/wiki/Commerce_Clause

[jltsiren]

I believe that a constitution should get a full rewrite once every 50-60 years. That's to only way to ensure that the constitution remains legitimate and relevant.

The US does not really have a constitution. There is a set of documents that claims to be the constitution, but it's so out of date that it can't serve as one. Then there is the Supreme Court, which can change the actual constitution easily with its creative interpretations. Because there is no need for a widespread consensus for changing the constitution, its legitimacy remains questionable at best.

[PaulDavisThe1st]

You cannot use that process for constitutional questions.

Consider the dispute in the USA over the correct intepretation of the 2nd Amendment. A state (such as NY) implements legislation embodying that state's interpretation of the amendment. SCOTUS rules that the legislation in fact violates the amendment. No change is possible until the constitution is changed ... or the composition of the SCOTUS is modified, and a new court decides that stare decisis is not relevant, which leads to a different type of change to the constitution: interpretation.

The only way to change the actual text of the constitution is to change the constitution, and that does not require consensus, just a super-majority.

[Gormo]

And given that the point of a constitution is to set the bounds within policy-making takes place, rather than to enact policy on any specific issue, this is a very important thing.

Past attempts to shoehorn answers to specific policy questions into the constitution have been disasters, but even if they hadn't been, using constitutional amendment as a vehicle for policy is effectively the same as having no constitution at all.

[bluGill]

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]

Are you sure? Isn't that how the ban on alcohol was lifted?

[penteract]

> The only constitution that the UK has consists of Acts of Parliament.

That's not completely accurate. The UK has an unwritten constitution, consisting of how everybody knows things work.

[Silhouette]

Unfortunately we've seen several times recently that not everyone "knows" things work the same way. A lot of what is "known" might be accepted by Parliament and our courts today but has historical foundations that we might generously call shaky if you look more closely into their origins.

If you're claiming to be a democracy but no-one really knows exactly what your constitutional foundations and system of government are and there is no clear mechanism for the people to change them then are you really a democracy or are you just playing one on TV?

For now we have a system where we elect MPs using a deeply flawed voting method on a timetable that MPs themselves can change any time they like, those MPs then result in a Prime Minister being appointed, that Prime Minister then forms a government in largely presidential fashion, the members of that government with executive authority wield much of the real power despite being at least three degrees removed from any popular mandate, and the main check to prevent this system running wild is a second house that is unelected and increasingly consists of political cronies with no particular qualifications except being mates with a previous Prime Minister.

this_is_fine.jpg meme

[cscurmudgeon]

pi is objective.

Lets be objective here for safety:

https://www.numbeo.com/crime/compare_countries_result.jsp?co...

Rwanda is safe

[getwiththeprog]

Numbeo lists no sources, is not peer reviewed and provides statistics to questions such as "Worries home broken and things stolen".

Perhaps not a valid source then? Objectivity does not come from a website.

edit: the data comes from visitors to the website.

[Andrex]

"Safe" is a judgment call, the value of pi is not.

[arethuza]

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/

[pyuser583]

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.

[TillE]

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]

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.

[dukeyukey]

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.

[ben_w]

> 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.

[ImJamal]

When was the last time the British had a civil war or invited in a new royal family? Having issues hundreds of years ago hardly seems worthy of denying the stability of a country. Many countries have come into existence and no longer exist in that same period of time.

[ben_w]

> When was the last time the British had a civil war

1998: https://en.wikipedia.org/wiki/The_Troubles

If that's sub-threshold for you, I'd also add the 1919 to 1921 Irish War of Independence as, likewise with the Troubles, it was part of the UK at the time.

Personally, I would also argue that almost all of the independence movements in the former colonies count as examples of the governments of the UK being "not stable" even though those colonies were outside the nation itself, and that would even extend to cases like Malta where independence happened peacefully after a proposal to give them a seat in Westminster, and not just cases like Cyprus where they used guns to kick us out and yet somehow the British Sovereign Base Areas are still there.

> or invited in a new royal family?

1689, which you may feel is a while ago now, but the USA Revolutionary War was 1775, and proportionally speaking that invitation was only 34% longer ago than the formation of the USA, so I wouldn't call it an "extremely" long history relative to that… even if you don't want to count the Revolutionary War itself as an example of instability in the British government, which I would as the British was the other party in that conflict.

[pyuser583]

Britain went 10 years without a general election from 1935 to 1945.

By the time the 1945 election came around, nobody under the age of 31 had ever voted.

[sorokod]

This stability presupposes a presence of adults in the room.

[pmyteh]

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]

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-go...

[bemusedthrow75]

> 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]

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]

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]

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.

[pjc50]

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]

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_2018...

[glitchc]

Yup, that's because the UK doesn't have a constitution.

[dfawcus]

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.

[arethuza]

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_Kin...

Edit: I would certainly agree that having constitution in this form isn't a great idea...

[simonh]

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.

[bemusedthrow75]

A written constitution doesn't really seem to work out better, though, does it?

[turquoisevar]

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?

[bawolff]

As a canadian, this is interesting, because i always thought our system was a copy of the UK system, but our courts strike down laws for being unconstitutional all the time.

[sandworm101]

It is a copy. The UK has a constitution. The UK constitution just isn't a simple document one can hang on the wall. The UK constitution is a body of knowledge and traditions. Recognize and do something a particular way for a few hundred years and it can become constitutional irrespective of whether it was nicely codified in a single document.

One can even say that the US and Canadian constitutions don't actually say all that much. They survive because they are so open to interpretation by courts ... which makes the body of constitutional knowledge needed to render decisions not all that different than that needed in the UK.

[PaulDavisThe1st]

Most people understand "a constitution" to mean something written down that you can point to, that has the force of <something> behind it, that cannot be trivially elided by a government.

None of these are true of the UK "constitution", whether it is one document or 5000 precedents.

Any document written in a spoken human language will be open to interpretation - there's no getting away from that, regardless of the language, culture or country the document comes from. I still consider that a step up from the bullshit assemblage of "constitutional law" that claimed to be "the UK constitution".

[JAlexoid]

> The UK has a constitution.

Yes, it's the parliament. There are practically no limits on The Parliament and they can pretty much issue any law they want.

[Aeolun]

> 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]

It sounds like it means the exact opposite, i.e. that in the Netherlands, there is no judicial mechanism for overturning unconstitutional legislation.

[turquoisevar]

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.

[pjc50]

> 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... ; 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 . 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]

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.

[thaumasiotes]

> 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-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]

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).

[Aachen]

> The Court held that a legal obligation to decrypt E2E communications is a disproportionate interference with the right to privacy.

*when no adequate safeguards against abuse are in place

Unfortunately it is not as straightforward as that it's incompatible altogether. Per this ruling, it's only incompatible when there are no good safeguards (they use the word "adequate" in one place and "suitable" in another, neither is very specific about what it means)

[Quanttek]

Yes, that is very true. The Court generally does not oppose surveillance measures in general, as long as adequate safeguards are in place. However, I read the relevant paragraphs (paras 76-79) to be quite a strong rejection of any statutory obligation that would effectively require the installation of a backdoor undermining E2EE. The criticism of a lack of adequate safeguards and the risk of abuse is more focused on other aspects of the law.

That also becomes clear in the key paragraph 80: "The Court concludes from the foregoing that the contested legislation providing for the retention of all Internet communications of all users, the security services’ direct access to the data stored _without adequate safeguards against abuse_ and the _requirement to decrypt encrypted communications_, as applied to end-to-end encrypted communications, cannot be regarded as necessary in a democratic society"

The Court does not qualify the requirement to decrypt E2EE communications with the same safeguards requirements. That of course does not exclude the possibility of the Court finding that a more narrowly-construed law is not in violation. But the Court clearly signals its skepticism towards any "requirement that providers of such services weaken the encryption mechanism for all users" (para 79).

[bondarchuk]

Yes, this was a problem all along with arguments against surveillance (/encryption weakening) based on "it can be abused by bad actors" - it implies that one would be ok with surveillance if it could not be abused by bad actors. While it's tempting to use such arguments (it looks like they had effect in this case at least) it remains necessary to emphasize the true reasons one takes a stand against surveillance e.g. authoritarian overreach or a fundamental right to privacy.

[Karellen]

Do you think that phone taps and mail-opening warrants, issued by judges, based on evidence submitted to the court that such warrants are appropriately targetted and based on existing evidence and reasonable suspicion, are intrinsically "authoritarian overreach"?

[JoshTriplett]

Not inherently, but they become overreach when they start claiming that they should be able to apply to E2EE protocols.

If you want the data from an E2EE protocol, serve an appropriately targeted and scoped warrant to one of the endpoints. This also provides an opportunity for legal challenge (e.g. for scope overreach).

[burkaman]

From paragraph 64:

> For a detailed description of safeguards that should be set out in law for it to meet the “quality of law” requirements and to ensure that secret surveillance measures are applied only when “necessary in a democratic society”, see Roman Zakharov, §§ 231-34, and Big Brother Watch and Others, §§ 335-39

I am not a lawyer and not motivated enough to go read those decisions, but if anyone is curious that is probably the place to start to figure out what might count as "adequate safeguards".

[iamthirsty]

> the UK Online Safety Bill will be overturned by domestic courts (or the European Court) on the basis of this ruling.

The UK wants to leave the ECHR[0], so they might be able to get around it — unfortunately.

—

[0]: https://www.chathamhouse.org/2023/03/uk-must-not-sleepwalk-l...

[stranded22]

The UK DOES NOT WANT TO LEAVE THE ECHR.

Select people in the government want to, not the whole of UK.

[noir_lord]

To tack onto this I don't think most people in the UK understand what the ECHR does and why leaving the EU didn't alter our obligations under the ECHR.

The media carries a lot of responsibility for that but not all of it - nearly every person in the UK carries a little box with access to a huge chunk of the sum total of all human knowledge, they just choose to not to use it.

If that sounds elitist or arrogant it's because I've about reached my limit with ignorant people refusing to understand the world is messy and complex.

[robertlagrant]

It doesn't sound elitist or arrogant - quite the opposite. It just assumes that people know what's true and what's not up front, and know when the media is telling them the truth. Their little box doesn't only tell them true things.

[tailspin2019]

Good clarification.

Personally I just hope we can remove those “select people” from office before they can actually carry out their plan.

[ein0p]

You can’t remove the administrative state. It’ll be happy to sustain the illusion of “democracy” for you by throwing a few of its representatives under the bus every now and again, but in the end all of the candidates you get to vote for are 100% acceptable to the administrative state and are anointed by it.

[willmadden]

The coverage I heard on the BBC and NPR in the States about Brexit and UK public sentiment was a complete inversion of reality. I'm reluctant to believe anyone telling me what the UK wants.

[mobiuscog]

Nobody really knows what public sentiment is in the UK, because nobody is asking. They're all just telling the people what they 'want'.

The sample sizes for any polls are tiny, and the areas/people that are sampled are not comprehensive.

It's fairly likely that the people (or a majority of) want the Tories out, as all sides are suggesting that and it's about the only consensus we see.

Brexit was such a mess of misinformation and rushed voting, on something that the majority of people had no idea 'what' they were really voting for, that it should never have been taken as binding - and it probably wouldn't have been if the remain vote won.

At this point, it's unclear if the UK will start to even recover in the next 5 years, or just keep getting worse.

[zajio1am]

I think it is more correct to use 'UK' (or any other country) just for government and its institutions than for the body of its citizens.

[JoshTriplett]

I think the post you're replying to is rightfully observing that that semantic ambiguity creates harm, by equating the position of a country's government to the position of a country's people. Being more specific and saying "a faction within the UK government wants to..." seems like a better framing for any discussion.

[dfawcus]

A minor quibble. The UK is a 'state', not a 'country'.

It comprises of countries: Scotland, England, Wales, and a small chunk of Ireland.

[iamthirsty]

As recognized by the rest of the world, the United Kingdom actually is a country.

Internally may be different, but technically it is a country.

A political union of four member countries — but still recognized as a country.

[dambi0]

International football being one exception to this.

[rsynnott]

The UK leaving the ECHR, at this point, seems incredibly far-fetched; even amongst the Tories it's hardly a consensus position, and they realistically only have a few month of working time left before the next election.

[sandworm101]

>> information necessary to decrypt electronic messages if they were encrypted

That reminds me of Lavabit, which I once used as my primary email. In response to demands for decryption information, Lavabit handed over their private keys. On paper. Typed out. Possibly with a typo somewhere on page 6, or 12.

https://thenextweb.com/news/you-wont-believe-what-email-prov...

[TheRealPomax]

Perhaps a dumb question, but why would the EU courts be able to overturn laws in the UK now that the UK is not part of the EU anymore?

[AAAAaccountAAAA]

ECHR is not an EU court, but a separate entity, having for long had many non-EU member states.

[shortsunblack]

ECtHR is not an EU court. UK is part of Council of Europe, which also includes Russia. Being member of Council of Europe entails mandatory treaty law of ECHR.

[martingxx]

The UK government almost seem to be deliberately passing multiple pieces of legislation that they know will be overturned due to ECHR, because they believe such rulings would strengthen their argument for withdrawing from the convention.