>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.
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.
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In general if parliament passes legislation that contradicts earlier legislation that wasn't repealed and it wasn't deliberate then a judge can determine that parliament didn't intend to override that earlier legislation and that the new legislation doesn't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.
> 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).
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.
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.
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.
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.
> 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.
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.
> 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
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.
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).
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.
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”)
> 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).
> 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.
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.
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.
> 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
Why is applying for asylum in the UK more appealing to them than applying for asylum in France?
> But all of this is to say it does not matter whether France is or is not a safe country
If we accept that France is a safe country then doesn't it follow that there is no need for anyone to cross the English channel in a small boat in order to claim asylum?
Unless of course you are someone who is being persecuted by the French and are therefore seeking safety with the English, but since it's been over 200 years since those two countries were at war with each other so that sounds somewhat unlikely.
Gerald Knaus[0] observed last year that although there is a right to asylum, there is no right to migration[1].
> Why is applying for asylum in the UK more appealing to them than applying for asylum in France?
I don't really care about that. There are plenty of people applying for asylum in many countries.
> If we accept that France is a safe country then doesn't it follow that there is no need for anyone to cross the English channel in a small boat in order to claim asylum?
No, this is not how this works. You can't force them to apply in France. They are people and they have their rights. And France is a sovereign country, you can't force them either. Maybe you could try to negotiate with France and the EU, like the EU negotiated a deal with Turkey, but I understand currently UK prefers to do questionable deals with Rwanda before engaging with EU members.
I fear this attitude is partially responsible for the fall in support for what I guess we can call "centrist" parties. The harder this issue is pushed, the more the radical parties win support.
> You can't force them to apply in France.
"The Dublin Convention covering the European Union stipulates that asylum seekers are returned to the country where their entry into the union was first recorded, and where they were first fingerprinted"[0]
Well, perhaps not UK -> France thanks to Brexit, but according to the Dublin convention you certainly can return them to the first safe EU country in which they were recorded.
See "Asylum Shopping"[0] - a term for the practice by some asylum seekers of applying for asylum in several states or seeking to apply in a particular state after traveling through other states.
"In Ireland, two-thirds of asylum seekers whose applications failed were found to be already known to the British border authorities, a third of the time under a different nationality, such as Tanzanians claiming to be fleeing persecution in Somalia"[1]
I understand that, but it's not like the governments wouldn't like this issue to go away; things really don't work the way some people would like, for very fundamental reasons, like human rights.
> Well, perhaps not UK -> France thanks to Brexit
exactly.
> according to the Dublin convention you certainly can return them to the first safe EU country
Yeah, and so what does a YOLOing country like Hungary do? Exactly, it does not register them and just ignores them so they can go to the next country. So what do you do when you are next in the line like Slovakia, my home country? Exactly, you just pass them on till they get to their target country (Germany mostly in our case). This also happens in thousand-strong waves.
So again, it's not like the UK is unique in this, it's an issue in all of Europe and the US and there are no easy solutions. Even a fascist like Meloni does not have a solution.
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.
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.
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].
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.
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.
>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.
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.
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.
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.
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)
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.
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.
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.
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"
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.
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.
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.
> 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.
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.
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.
I don't really consider the Troubles to be a Civil War. Even Wikipedia is making a distinction and calling it an "irregular war" or "low-level war".
So the last time a civil war happened was 100 years ago. That seems decently stable. The war itself was quite minor as well. Wikipedia says 2300 people died with 900 of them being civilians. A two year war with less than 1,500 soldiers dying isn't exactly that unstable. It is more of a dust up (I understand it is causing all sorts of conflicts even to this day).
When it comes to Cyprus and the like I don't really call it unstable. Did Cyrpus leaving cause any issues to the UK? Would the average person have even known where Cyprus is located let alone what was happening? Calling it a civil conflict or whatever may be technically correct but feels different. English isn't even an official language of Cyprus (I assume it was back when the UK was in charge?). People in the UK probably didn't have family in Cyprus. People a thousand miles away leaving isn't that big of a deal.
As for the US Revolutionary War, there were 10s of thousands dead from the war. This was more than just a dust up. How is a few hundred years not a long history? I've seen some estimates that say the average existence of a country is 150 years.
What I'm arguing against is the claim "the UK has an extremely long history of relative stability compared to basically anywhere else on the planet".
For that, "decently stable" isn't good enough, it has to be remarkable stability.
> Did Cyrpus leaving cause any issues to the UK?
Given this happened during the collapse of the British Empire, it's difficult to say exactly what fraction of the many issues facing the UK in that era were due to any specific one of the many things that changed in rapid succession. For example, the Cyrpus conflict began before the Suez Crisis, but continued for several years after.
However, the continued presence of the air bases suggests that it was considered important by the UK government.
> English isn't even an official language of Cyprus (I assume it was back when the UK was in charge?).
English was the sole official language during British colonial rule and the lingua franca until 1960, and continued to be used in courts until 1989, and in legislation until 1996.
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.
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:
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.
It's generally true precisely because British parliamentary democracy formalised the concept, mind you. Before that, yes, rulers made laws that would perpetually benefit them and their successors.
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.
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.
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.
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?
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.
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.
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".
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.
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.
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.
> 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.)
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).
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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.