[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.