[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.

[bawolff]

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

Umm section 52(2) of the constitution act? I mean,i guess that is not exhaustive, but its most of it.

> There are endless debates about exactly which documents should be considered.

I think you are significantly overstating that. There is some debate, but its mostly theoretical and rarely comes up in practise.

> Since the amending formula has made changes impossible

Its not easy but its not that hard, just nobody agrees on anything. The process for ammending the canadian constitution is roughly the hard as the american one (except for stuff to do with the monarch). Americans need 75% of states, we need 70% of provinces which must contain 50% of the population. Basically the same.

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

What about it? I might personally not like it, but i don't see how it confuses anything in the constitution.

[nucleardog]

For those that aren't up on their Canadian law and wondering what the "notwithstanding clause" is--

The notwithstanding clause allows a government to make a law "notwithstanding" parts of our Charter of Rights and Freedoms.

The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms. That law now does not violate the Charter, however it is time limited to 5 years, which is the maximum length that parliament can remain in power without an election at which point it would need to be renewed.

The main things that cannot be overridden this way are our right to vote, that legislative assemblies must be re-elected at most every five years, that legislatures must sit every year, and that we have the right to move within or enter and leave Canada.

The original idea was that this provided a balance against the judiciary. Even if the court were to declare something violated our rights, the legislature could just say "okay, we acknowledge that and pass it anyway". The primary balance against this being abused is simply that it would be unprecedented and everyone's scared to touch the "nuclear" button. The federal government has never invoked this clause.

The only reason I can see to "not mention the notwithstanding clause" is because it directly contradicts the idea of the Canadian Supreme Court being the most powerful in the world. Except in a handful of very specific situations, their power is to declare something unconstitutional or against our rights at which point the legislature can simply shout "NO U" and it's in force anyway.

[bawolff]

> The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms

IANAL and not sure how the implied bill of rights works in the modern context, but historically laws restricting the freedom of the press have been struck down even without the charter

E.g. https://en.wikipedia.org/wiki/Reference_Re_Alberta_Statutes

However, The main thing i was trying to say though was simply that the rules around the notwithstanding clause are really clear. I think the original poster was trying to say is that what is constitutional can be ambigious, but the notwithstanding clause doesn't really contribute to that as it is pretty unambigious in how it works.

[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)

[tpm]

When they are being removed from the UK to Rwanda (which is the aim of UK government), "the place they came from" is the UK.

[logifail]

Q: Is France "safe" compared to the UK?

[tpm]

What does this have to do with anything?

The reason people are trying to get to the UK from France (and other countries) is they are trying to apply for asylum in the UK. Not in France, in the UK. And the reason they have to do that in the UK is the fact the UK cancelled the possibility to apply for asylum at its embassies. So if you don't want people coming from France to ask for asylum, enable the option to apply at the embassy and you are done. Simple, and you will save many lives.

Now of course the same applies to all western countries. There are lots of people trying to come here, some for legitimate reasons, some not, and also we need some of them because of shortage of workers, even if we don't say it loud, because even more would try to come. All western countries allow to apply for asylum only on their soil, thus creating a humanitarian catastrophe, because while the right to asylum is enshrined in the Universal Declaration of Human Rights, it does not say how hard can it be to apply.

But all of this is to say it does not matter whether France is or is not a safe country. We could arrange for international cooperation where asylum seekers could ask for asylum and while their application is processed they would stay in some safe country, but next to no safe country will do this because of internal political reasons, so what remains is treating asylum seekers like hot potatoes and not people. It's a sad state of affairs, but there are too many factors and no easy way to direct the blame.

[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.

[Andrex]

The Constitution is a divining rod to cut through hundreds of years of patchwork caselaw and legislation. Its true use is in a psychological "what would God/The Constitution want?" sense.

Does it make rational sense? Not really, but my reading of history shows a stronger national identity if tied to something "beyond." Whether that be God, Pharaoh, the Founding Fathers, what have you.

[krapp]

>Its true use is in a psychological "what would God/The Constitution want?" sense.

That's its purpose as the holy writ of the civil religion of the United States. And indeed, the Supreme Court derives their authority to judge the Constitutionality of matters from, in essence, divining the will of the Prophets (Founding Fathers) in interpreting this divine scripture. And as with the Pope, they remain infallible even when they contradict themselves, as well as unaccountable.

However, my reading of history has shown that strong national identities built around the worship of state and national myths tend towards dark and bloody ends.

In reality, The Constitution is what it is. A 200 year old legal fiction. A compromise between flawed, mortal men written to serve the needs of an agrarian society far closer to medieval than modern, created with the expectation that times and needs can change.

[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?

[matthewowen]

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

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_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#/m...

[pyuser583]

Ban on alcohol was lifted by 2/3 of each house approving. Instead of going to the state legislators, it went to state conventions convened specifically for that purpose.

[bluGill]

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.

[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.