Victory at the High Court against the government’s use of 'general warrants’
privacyinternational.org
privacyinternational.org
Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer." The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'"
#Cough# Civil Forfeiture #Cough#
https://www.bloomberg.com/news/articles/2018-05-14/mapping-w...
> the border zone is home to 65.3 percent of the entire U.S. population
No, they can’t stop you for no reason.
No, they can’t search you without cause or a warrant.
https://www.aclu.org/other/constitution-100-mile-border-zone
Right, except not being white or having an accent is a reason enough to be stopped.
https://www.cnn.com/2020/02/05/politics/us-citizen-dies-in-c...
And odd example to pick since it seems like he was a suspect in smuggling? That alone is enough to detain anyone.
Now that the pendulum is swinging back, hopefully we’ll take this a challenge to out-competent you as well.
That’s how you started fighting among yourselves, after all.
Britain: Brexit.
USA: Hold my beer!
Britain will never return to the normalcy of EU membership. Things have changed permanently for that country in a way that they might not have if they’d voted remain. Doors are now closed for them.
The abnormal thing is the genie of reactionary populism that the Republicans unleashed a decade ago, starting with the Tea Party, and culminating with the Trump party. Given that prominent republicans (Ted Cruz) are actively trying to marshal those forces behind them[1], I don't think that we'll be going back to normal anytime soon.
[1] He's far more likely to win the 2024 nomination than someone like Mitt Romney, who, for all his faults, is not happy with Trumpism.
The parent is rightly pointing out that it doesn't matter if those specific individuals in power are gone, that doesn't mean the broader movements around them will change.
The problems of the world are rarely due to a single person, and rarely are solved by a single person losing power. Behind that single person is a system, and a new person will take their place if the system isn't also changed.
https://www.romfordrecorder.co.uk/news/crime/british-transpo...
I met Alan when trying to get my own case even filed at the high court. His account, when he told me that he could express himself to me only because he was aware that I have personal comparable experience, reduced this articulate and eminently humane man to tears. I once had a barrister unable to attend the employment tribunal in Birmingham out of fear of arbitrary arrest by the British Transport Police.
"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water… (But) between society and society, or generation and generation there is no municipal obligation, no umpire but the law of nature. We seem not to have perceived that, by the law of nature, one generation is to another as one independant nation to another… On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right."
https://en.wikipedia.org/wiki/G._K._Chesterton#Chesterton's_...
If your forefathers were willing to die for something, better fully understand why before you try to get rid of it.
If you don't know, a amendatory convention can be achieved by having two thirds of the state legislatures vote for one. If that happens then you must get a two thirds majority of states to agree on the proposal presented and it becomes a constitutional amendment. Entirely side stepping the federal government.
This power hasn't been used in a very long time, and from my readings of Washington and Jefferson they intended us to use it. Perhaps this is a corollary to Chesterton's Fence, call it Chesterton's Button rephrased less elegantly than he or you put it: "If your forefathers were willing to die to give you the ability to do something, you should question if that ability has not used in a very long time."
The required majority to approve the output of the convention is 3/4 of the states, not the same 2/3 as to call the convention in the first place.
> Entirely side stepping the federal government.
The entity that is required to call the convention once 2/3 of the states have requested it is the federal Congress, so they are not entirely side stepped. But, it is true that they are not allowed to refuse to call the convention in this situation. There is nothing in the Constitution, any federal statute, or any court ruling that addresses what happens if Congress doess not do so.
> This power hasn't been used in a very long time
It's never been used successfully, although it's been attempted at least once by every state except Hawaii. (Some attempts were indirectly successful in achieving their goal, by spurring Congress to propose the desired amendments.)
He's not describing something that is "true" or not, but rather what ought to be. I think it's just as relevant today as when he wrote that.
It gets even worse when you look at the actual approval ratings and re-election numbers, this a system created to serve career politicians and nothing more. When you see the approval rating is in the lows 30s, abut approval rates are in the 90s, something is definitely wrong as in need of a massive correction.
Andrew Yang found this out the hard way and his lobbying efforts in Washington to help get the 2nd stimulus checks approved can be pretty much summed up as congress was oblivious that the People needed further financial assistance. That is how far detached they are from reality, I think this recent stunt pulled in the capital by blind ideologues served as a warning to how fast things can devolve.
The US experiment showed great promise and had amazing prospects for a desirable model that Human Civilization could aspire and achieve, but much like its predecessor (Rome) it too decayed into oblivion due to the inherit and predictable fact that power corrupts. Human's cannot to be trusted with such power and to believe otherwise is to fall back on to this absurd notion of a chiefton caste system, that really on serves the upper tier of Society and creates a poorly incentivized system that ensures by the time you're even a possible candidate you're already so marred by the corruption you're just as bad as you what you wanted to change.
I really do want things to get better, not just in the US, but on the entire Earth as we have such a limited window of opportunity to live up to our potential as Species; but so long as we abide by these whimsical make-believe popularity contests--with people we frankly couldn't or wouldn't leave our pets under even the most dire circumstance--who then in turn act as the arbiters of everything aspect in Life that matters and use the pubic purse for personal largess we will always succumb to the same result.
Software engineers at FAANG really should be working on a protocol of governance that automates all the decision making congress could and would do with it's priority on rolling out a proper beta in the next 5 years, that could actually be suitable challenge for them to redeem their squandering talents and skills instead building this horrible panopitcon.
Remember, those rabid Q-anon/conspiracy guys are just as much your fault as they are Trumps/Fox news when you look at what most of you people do everyday. And it isn't until they do something as stupid as they did this week that it becomes obvious to those who did it.
But, hey: it's just money, right?
Technocracy is much worse than even representative democracy. We could barely even imagine the horrors that would come from being subject to laws generated by rigid computers.
I never said anything about implementing, simply creating a proof of concept would be enough to show that we have tools to make them irrelevant should be enough of a deterrent effect and should in some ways ensure we don't have a repeat of 2020 again. And start to test it to the low hanging fruit: UBI and Universal medicare is is overwhelming supported by the majority of the populace, yet the regulatory capture (who themselves benefit from State issued medical care and salary even in stalemates along in with all the 'contributions' from donors and are exempt from insider trading conflicts of interest cases) refuse to even consider it on either side. Hell, even the $2000 stimulus seems to be defied yet again by this time a Democrat, Joe Manchin, despite the highly contested Republican majority in the Senate. Again, its all theater, and no one there has the best interest of the people in mind regardless of party affiliation.
There has to be some incentive here and all I'm asking is for a better stick if 'representative democracy' is to remain. Furthermore a trawler of all known conflicts of interests of every politician should appear via QR code every time they speak in the house.
We talk about how all of these jobs/Industries are going to be automated and are never coming back, but I have a very hard time understanding that the most corrupt of all (politics) is some how a given that it will remain intact. We deserve better and those in FAANG really should be self-reflective after what occurred and start asking what they could do to prevent it instead of just deplatforming, which is really the worst thing possible as it only emboldens those q-anon imbeciles into thinking they're 'being censored for telling the truth.'
Those riots we saw last year are really just waiting to happen again as we've seen that nothing has changed since then, and now the Trump factions now think they have a just cause and a martyr to back their 'cause' this really is a ticking time bomb.
Technology at this time can only be used to enact decisions that humans have taken after deliberation. We're nowhere near to creating an algorithm that could be trusted with deciding if we should go for Medicare for all or stick with the system we have (I'm absolutely in favor of the first one), to what extent speech should be censored online and how, or nay other political decision whatsoever.
We are absurdly ill equipped technically for even attempting to attack such a problem. I for one am thankful that no one is yet trying to sell such bullshit.
No machine messiah can help us - we need to get our acts together as humans and fix some of these ills.
Its impossible to expect the very cause of the issues, Humans, to solve an issue with any realistic timeline as we are drawing ever closer to our own collective demise as a Species.
We've proven that much: we knew about climate change since the early 2000s and did nothing it was seen to adversely effect the economy, we knew about the dangers of nuclear plants like Fukushima in 2011 and did nothing and now it continues to spill nuclear waste into the Pacific unabated while Japan plans for the Olympics, we knew about our over reliance on fossil fuels and pesticides but our voracious and seemingly insatiable need to consume cheap trinkets from the China and reliance on nutrient deficient and processed foods that made the CCP and Big Pharma even more powerful and did nothing.
No, I think its clear tech may not be the entire answer (Human conduct is ultimately dependent on free will and compliance) but is the only thing that scales enough to align certain incentives in such a way to actually make progress, we just need to iterate in such way that we start from low hanging fruit on to more important substantial policies.
And that in turn means phasing out the Nation State model as that seems to be the source for most of these problems.
Then why don't you sign up to be the first to sign up for that then?
For all of Humanity's flaws I think its an amazing thing and worth preserving; Humanity is in dire need for it's incentives to be properly aligned as they have gone so far beyond sane levels long ago. But I firmly believe it's worth doing and have dedicated a significant part of my adult life toward that end.
We already built an immutable ledger that relies on distributed consensus with Bitcoin, now what is neede is to build off of the layers into a self-governing system that rewards participants for playing by the rules/parameters.
Having arbitrators for certain truths alleviates a massive amount of the burden for other mechanisms to solve the more sticky issues in Society, but their is good reason for hope and I feel deep sorrow for anyone who cannot see that despite all the horrible things that have occurred as of late: it's an amazing time to be alive and I don't think I would want to be born in any other!
If you don't mind me asking: what do you do in tech, and why are you on YC if you are so averse to it?
I am not averse to tech, I just don't think that it currently has a place in (or instead of) politics.
I work for a company on network testing software (packet generators), as a principal software engineer on the middleware of one such product. Nothing world-changing, B2B, far away from any kind of societal shaping effects like ads or social networks.
I am mostly on YC because of my interest in tech itself, and because I am interested in the political and social views of the tech community, not because I think we tech people have some special insight, but simply because I am part of this community.
For the rest of your post, I will reiterate my position: we can't outsource governance or politics (what ought to be) to technology, until we have something close to AGI. We don't have the required knowledge to create software that can arbitrate social or economical truths, we would need a working formal mathematical model of society or the economy before we could even start to write software for that. Any attempts would probably end up more like 'predictive policing' (racism with a technical veneer) than any positive outcomes.
Bitcoin is a failed experiment at creating a digital currency, it is just a speculative asset with some appeal to black and gray markets.
The Court of Appeal would be the next step.
I know in general about what came out after Snowden of course, I'm just interested to learn more about specifics relating to these warrants.
That basically makes general warrants worthless, because it seems like you'd have to anticipate the specific details needed in the warrant and put that in the law authorising the warrant. In practice that probably means specific details like the names of the people, places and property subject to the warrant. Clearly that's not practical to put in law, but how else do you ensure that a general warrant applies in any specific case? It's a subtle but beautiful Judicial FU.
In the EU country I live in, judgments regularly get thrown out after guilt has been established because of technicalities like these. And, yes, this applies to high-profile corruption cases, and, yes, the politicians (and similar stars) proceed to play the ultralegalist card ("everything's OK and we're blameless because we're not in prison") and ignore the fact that the guilt has already been established.
It sometimes even happens that a journalist records a call with some scum like that, gets a boast/confession out of them, and almost nobody cares because the call recording is not admissible as evidence without the consent of the guilty party.
I mean, sure, part of the blame lies with the possibly incompetent and/or malicious law enforcement, prosecutors and the judiciary; but the justification for the rules of excluding otherwise valid evidence obtained illegaly just don't make a lot of sense to me, especially as they tip the scales against a fair society and towards corruption.
But I think I have an even stronger argument, which is that in a system where the state can get evidence any way, is a system where everyone can be made a criminal and prosecuted at the absolute discretion of power.
Whether evidence is illegally obtained is independent from whether it is planted. Or am I missing something?
Similarly with your second point.
On the second one: you might be surprised but it is likely the vast majority of people are breaking the law. Might depend on country, but there are more laws that can even be counted in the United states: very likely you are breaking some!
Perhaps we will see some changes now that we are getting stories of Hard Working Families (TM) having to spend large sums of money to buy Cannabis based medications for their children.
[0]Edit: There seem to be objections to my use of the term "unconstitutional." They have ruled it as against common law:
“The aversion to general warrants is one of the basic principles on which the law of the United Kingdom is founded. As such, it may not be overridden by statute unless the wording of the statute makes clear that Parliament intended to do so.”
These sort of "basic principles" are often referred to as the British constitution or constitutional principles, so I believe my choice of term is correct even if there is no single written document called the "constitution." As to the question of whether parliament can overrule it, perhaps, technically, yes, but I find it very difficult to come up with a scenario that would successfully meet the objections in the ruling.
Yes it can. Parliament is sovereign: it can overrule anything it likes with legislation. There is no higher authority than parliament in the UK, not even the Supreme Court.
Also, the High Court didn't rule it unconsitutional, it ruled it contrary to common law. The UK is not the US.
The executive (Cabinet etc) cannot simply ignore the ruling, but they might be able to get legislation through Parliament to explicitly allow general warrants.
https://www.bailii.org/ew/cases/EWHC/Admin/2021/27.html
> That principle means that the courts will, when interpreting the provisions of a statute, presume that Parliament did not intend to legislate in a manner which overrides fundamental common law rights. The common law has an aversion to general warrants that leave significant matters of judgment and discretion to the person executing the warrant rather than to the person legally or constitutionally responsible for issuing it.
> In view of the importance of the constitutional principle that there can be no interference with property without clear and specific legal authorisation, the words of an enactment must be unambiguous before the court may interpret Parliament as intending to override rights. There are no such unambiguous words in section 5. The national security context makes no difference as otherwise the courts would sanction wide powers to override fundamental rights.
The courts don't like these jurisdiction-stripping ouster clauses, for good reasons - if someone can't be reviewed, what is to stop then committing abuses under colour of law? In Anisminic (1969) the House of Lords ruled that an ouster clause didn't actually apply in a given case, and that decision has been followed and expanded in various cases to this day. Including in this case - today's judgment was given after the Supreme Court ruled the IPT ouster was ineffective for similar reasons.
I'm not aware of any copper-bottomed legislative wording that has been accepted to show that Parliament really does intend to oust jurisdiction, so in practice the courts can and do rule 'they can't really have meant this' even against the express intentions of Parliament.
Section 4(4) of the Foreign Compensation Act 1950 stated: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law”
However the House of Lords determined that the ouster clause exempting the determination from legal review did not apply, as there was no valid determination in the first place.
So essentially if the tribunal were to make a determination consistent with the law then yes that wouldn't be subject to judicial review, but if they make an error of law then their determination is not valid and therefore is subject to review. Take that, parliamentary overreach!
This is a recent attempt (subsequently dropped I think as the politics moved on): https://ukhumanrightsblog.com/2020/10/15/the-uk-internal-mar...
When I see US jurisprudence getting tied up in knots about whether given rules 'are jurisdictional' or 'are merely mandatory' I can really see the benefit of the decision the HoL took in Anisminic. And it does permanently prevent flagrant abuse of judicial power by lower court judges. But the legal fiction of parliamentary sovereignty does feel a little more fictional when you read that case.
(Of course, they were careful to make clear that Parliament was, in fact, still sovereign, and given a sufficiently expressed will, etc. etc. But in practice...)
For example the UK's Supreme Court is I would argue in most practical ways far more independent than the more famous Supreme Court of the United States, its judges are not appointed based on partisan loyalty or selected to achieve some naked political goal bypassing the legislature, they're just independent judges from roughly the same process that creates other judges in the UK's courts. But - in this one way they're far less independent than the SCOTUS, the Congress cannot abolish SCOTUS, but Parliament created and could in principle destroy the UK Supreme Court.
Would they have the guts to do that? Realistically no. Their constituents would I think be pretty unhappy about that. But in principle it is technically possible.
Is it so unrealistic? It's only existed in its modern form since 2009, and we've removed the supremacy of ECJ rulings since then, which once seemed similarly unthinkable. Given the rage of the government against the 2019 SC ruling on prorogation it wouldn't seem surprising to me if it turned its sights on it at some point.
All that said, the scope for the Supreme Court disregarding the express will of Parliament is incredibly narrow, and that scope seems only to really be "access to justice".
E.g. Lord Hoffmann in ex parte Simms [2000] 2 AC 115, at p.131:
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."Yes, it does. It is unwritten and fuzzy, but Britain definitely has a constitution or at least "constitutional principles" as mentioned in the quote you provided:
" . . . In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
While it may technically be possible under certain circumstances, I find it very hard to image how a piece of legislation could be crafted that would successfully override the arguments made here.
Something along the lines of "The issuance of general warrants is expressly permitted," perhaps? The principles of constitutionality may be similar, but the amendment process isn't, it simply requires an Act of Parliament.
The clause attempting to oust the jurisdiction of the courts, on the other hand, would require something a lot more vigorous. I don't know whether a clause like yours would be sufficient, but if judges can find a way around it they probably will.
The dicta in R (Jackson) v Attorney General would be instructive here.[0] The judges in that case put forth opinions suggesting that the Supreme Court may, if it came to it, disregard parliamentary sovereignty if there were limits placed on, for example, access to justice.
[0] https://en.wikipedia.org/wiki/R_(Jackson)_v_Attorney_General...
https://en.wikipedia.org/wiki/Constitution_of_the_United_Kin...
Also try reading 'The British Constitution: A Very Short Introduction' by Martin Loughlin.
обманывать ;]
is it a standing Russian joke or something?
(the EU does requires members to be CoE members, and so there were some people suggesting that after leaving the EU the UK might also leave the CoE - possibly including theresa may, I haven't checked - but that doesn't currently seem likely to happen)
The EU Charter of Fundamental Rights is definitely a thing - basically a copy of the ECHR into EU law - but it's only applicable (1) to actions of EU institutions, (2) as a restriction on EU legistation, and (3) as an obligation on member states _when interpreting / implementing EU law_. It has no relevance to UK law other than that. (And what little relevance it would have had to the UK was further weakened since they had a partial opt-out to it that tried to get rid of the last of those for the UK!).
The cases about UK surveillance legislation (eg [0]) were all ECtHR, not CJEU.
[0] https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&...