Comment by lucozade | Hacker News Reader

Comment by lucozade | Hacker News Reader

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> Yet again a UK court has ruled the government’s extreme mass surveillance regime unlawful

Except that's not what happened. Not legally anyway. What happened is that the Court of Appeal ruled that a Parliamentary Act did not contain sufficient safeguards to be compliant with the Human Rights Act.

So there's, at least, 2 problems you've got. One is that it's not, technically, government legislation. It's the Crown's legislation as enacted by Parliament. Secondly, and slightly less importantly, the Court of Appeal isn't the final arbiter here. One can either argue that it's the European Court of Justice or, and this is where it gets fun, Parliament.

Now, you can of course make a case for banging the Queen away. It's not like that hasn't been tried in the past with some of her predecessors. Or you could make a cases for locking up some or all of both Houses of Parliament. Or they could enact an amendment to correct the problem.

Of course, if it turns out that anyone was actually affected by the legislation as it stands then that should be dealt with as a matter of urgency. While the internet happily chunters on.

> Of course, if it turns out that anyone was actually affected by the legislation as it stands then that should be dealt with as a matter of urgency.

How do you decide whether "anyone was actually affected" by ISPs storing as much browsing data as they can? Doesn't that affect either everyone or noone depending on whether you think it matters? And if it matters, does it not affect everyone? What can you possibly do about that retroactively?

If Shirley lost £1,000,000 and a body part as a result of the ISP’s actions, she’s affected more than somebody who’s merely annoyed and feels their human rights have been breached.

The point about surveilance is it doesn't effect anyone, until it does - and then everybody gets arrested in the night. We're just a couple of decades out of the twentieth century - and if the more bloody-handed of the last century's regimes had today's databases, they would have been far worse.

They could give everyone a year of free credit monitoring.

Is this perhaps where the monarchy having no real power falls down - Parliament is Her Majesty's, if her Parliament fails to abide by her laws then she should act, she didn't even need to use the courts, she should really just have the relevant persons held "at Her Majesty's pleasure" ... the only problem there is the complete breakdown of democracy and the rule of law ...

The MPs have failed to dutifully carry out her wishes, assuming she wanted the HR laws to be followed, Parliament makes the laws but it is Her Maj that - in our pseudo-democracy actually decides to implement them.

Heads on spikes.

ECJ already ruled against the UK on this issue and because they did Tom Watson was able to apply to the UK courts (CoA) for a review of the legislation.

The ECJ has ruled less awful laws than this to be invalid under the fundamental charter of rights. I wouldn't be worried about them. It's the UK courts you have to worry about when deciding such cases, especially when the UK doesn't even have a constitution and they kind of play it by ear.

Not sure a constitution necessarily helps. In this case, the Human Rights legislation is acting like a constitution in the sense that it's a benchmark that laws are being held to.

A constitution can sometimes be a fairly negative thing. You regularly see US decisions being made against the Constitution where it blatantly isn't applicable. You rarely (ever?) see SCOTUS saying that the Constitution doesn't apply so it needs to go back to Congress for a more applicable law. In other words a Constitution starts to resemble a religious document that has the answer to every conceivable problem if only a priest can interpret it.

The french constitutional court does exactly that. Send the law back to parliament.

What would it mean for the US Constitution not to apply to a law within the US?

For a federal law, either it's within Congress's specifically enumerated and limited powers (as interpreted by SCOTUS) and therefore valid, or else the law is invalid.

For a state law, the US Supreme Court will only base their ruling on the US Constitution if anything legally binding at the federal level (including but not limited to the Constitution) forbids or allows that state law.

Otherwise, SCOTUS and every other court will defer on state law to the state Constitution as interpreted by state courts, but from a federal constitutional perspective, states can pass whatever laws aren't federally forbidden.

As an obvious example, the 5th Amendment blatantly didn't have anything to do with passwords. The whole idea is a bit silly. The sensible thing to do would be to say that the Constitution has nothing much to say on many issues relating to modern technology and deal with it accordingly.

Same goes with guns. If you want everyone to be armed then fine. That's your prerogative. But the Constitution clearly didn't mean for everyone and their mom to be tooled up with semi-automatic weaponry. I mean, just how legal are militias in the US? Because they're the reason you should be carrying.

It was clearly a document of its time. And one of international importance. But the religious zeal to which it is adhered to is highly questionable.

Now, it's not like we're perfect in the UK or anything. But if someone tried to justify something to do with smartphones or terrorism by referencing Magna Carta or the Bill of Rights, we'd probably take a step back and give them a napkin for the mouth frothing.

> especially when the UK doesn't even have a constitution

Yeah we do. British Constitution is ace. https://en.wikipedia.org/wiki/British_Constitution_(solitair...

Oh, if you meant the government thingy no, we kinda accept that stuff changes... which I think is more useful than holding any one thing as particularly holy and untouchable. The US has got its knickers in a proper twist with all that "money is speech" "what the framers intended was" stuff. It's fetishised. Your 21st amendment even repeals the 18th amendment, what's the point?

By your own admission, the UK is driven by expediency. The state can do essentially whatever they want, as long as they have a Really Important Reason. Get rid of jury trials for northern Ireland for a few years, because it's cheaper than properly protecting juries? No problem!

The American constitution exists to say that there are some things the government ought not do, even if it makes their job harder, and that if you truly must do those things, you have to convince more than 51% of the country that it's okay. Californian cities can take their own people's guns away, but it is not their place to take them away from rural Kansas, where a cop is an hour away at best. You have to have at least minimal evidence that somebody did something before you can ransack their house.

I readily grant that our current practice is to play silly games to say that these lines aren't being crossed when they are (border phone searches, stop and frisk, you name it).

The other advantage of the UK system is that when the government comes up with some dumb new idea to abrogate human rights for people born on Tuesdays or whatever, the public debate is couched as "is this really a good idea?"

In the US it gets hung up on "is this constitutional?", which sort of misses an important point.

The fact is both types of constitution have positives and negatives. Neither the British or American system is perfect and both are open to abuse.

>Get rid of jury trials for northern Ireland for a few years, because it's cheaper than properly protecting juries? No problem!

Handily ignoring the fact that juries are suboptimal, and that at least these people had trials, unlike eg guantanomo etc etc.

> Get rid of jury trials for northern Ireland for a few years

I believe we still have Diplock courts. They were actually put in place because internment without trial was considered too draconian. The kind of thing that would never occur with a constitution (give me a G...)

> Californian cities can take their own people's guns away

How does that work? Is California accepting that the 2nd amendment put in the bit about a militia for a reason or something else? I mean, the US Constitution isn't meant to be a state by state menu is it?

> You have to have at least minimal evidence that somebody did something before you can ransack their house.

I believe you have to have reasonable cause. You don't actually need any evidence. And, as you point out, you've all had a few years to drum up some excuses when it becomes inconvenient.

I'm sure having a constitution is comforting and all but, in reality, you're in exactly the same boat as the UK and for exactly the same reasons. We have checks and balances too.

And when the state, in its infinite wisdom, chooses to bend them, we sometimes get quite annoyed (the UK version of angry).

Quite annoyed is a bit extreme. I'm miffed but annoyed? Rocking the boat mate.

Not having a written constitution isn't as bad as it seems. The government can't do what they want. The courts do rule against them.

We have quite a deep history of law that sets things out. Thousands of years. Sometimes we get silly things, like until recently pregnant women having the right to piss in a bobby's helmet, but it's very much a case of a complex set of rights wrestled from the ruling classes over those thousand years or so.

The government is in a precarious situation at the moment. They are extremely weak. It wouldn't take a whole lot to get this legislation outright neutered. If Tom Watson is working on it, I imagine Labour are doing just that.

America has plenty rules which aren't written down, too. You just lack a good word for them, having decided to use constitution to mean a particular bit of paper, which is periodically found to contain rights unknown to its authors.

A nice example is the slowly shifting norms around executive orders.

A bigger example: didn't both Liberia and Mexico basically xerox the US constitution? The bit of paper, I mean. For clearly the unwritten "ways we do things" in everyones heads were very different.

The problem the US has is that the constitution has two roles. Firstly it specifies the relationship between the federal government and the states (a kind of treaty). Secondly it specifies the rights of individuals.

While the treaty between the states and the federal government has very little reason for change, the rights of individuals need to change as society changes.

But the US constitution does not lend itself to easy modification, so in practice the Supreme Court is used to "interpret" further individual rights into existence.

Three roles — it gives individuals rights versus the federal government, which on the one hand is a fairly logical extension of a treaty between the states and the federal government but which on the other hand has the problems you describe — and it also gives individuals rights versus the states, which is a totally different and very weird kettle of ball games.

On the plain meaning of the text, an amendment like "Congress shall make no law …" wouldn't even bind the states in the first place, but apparently it does.

Yes and when the rights of states clash with the rights of individuals, there are often nonsensical consequences.

For instance, in 2005 the US was one of the last countries to abolish the death penalty for children, not by passing a law, but on the action of the judiciary interpreting a new individual right into the constitution (i.e. to not be executed for crimes committed under the age of 18). Quite how they managed to get the age 18 out of the words "cruel and unusual punishments" is something to ponder.

Prior to that, the states had an inviolable constitutional right to execute children.

So the US was prevented from ratifying the UN Convention of the Rights of the Child because Congress couldn't make a law violating the right of states to execute children, yet the US states could not individually ratify the UNCRC themselves because that would be violating the right of Congress to make treaties.

The outcome of this battle of rights between governmental bodies, is that children in the US are to this day denied individual rights that they would otherwise have under international law, or even national law, and rely on 12 judges to extract their rights from thin air.

It absolutely does have a constitution. It's just not explicitly written down.

https://www.bl.uk/magna-carta/articles/britains-unwritten-co...

It absolutely doesn't. It's not written down because it doesn't exist.

All that article is doing is listing some Acts that contain portions that Brits tend to take more seriously than, say, the Dangerous Dogs Act.

But here's the important bit. Legally, it's no harder to repeal the Bill of Rights that it is to repeal the mangy mutts act.

For example, Parliamentary sovereignty is considered sacrosanct in our constitution. Except we have fairly regularly given it away in Acts and are, presumably, going to get some back in another one because of Brexit.

And Brexit is going to happen because we, randomly, had a referendum about it. In most countries, fundamentally restructuring almost all our treaty obligations of the last 40 years would have a higher threshold than muzzling Rottweilers. Not so in Blighty.

Now, I happen to think that that's not necessarily a bad thing (OK, I think Brexit was scandalous). But we clearly don't have a constitution in any reasonable sense.

I can see why you'd say that, but in terms of usage you'll give yourself at odds with the uk parliament and legal system. [0]

In fact the uk constitution predates most of the neat written ones.

[0] www.ucl.ac.uk/constitution-unit/whatis/uk-constitution

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