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.
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?
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.
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?
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).
In the US it gets hung up on "is this constitutional?", which sort of misses an important point.
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).
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.
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.
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.
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.
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.
Handily ignoring the fact that juries are suboptimal, and that at least these people had trials, unlike eg guantanomo etc etc.
https://www.bl.uk/magna-carta/articles/britains-unwritten-co...
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.
In fact the uk constitution predates most of the neat written ones.
[0] www.ucl.ac.uk/constitution-unit/whatis/uk-constitution
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.
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.
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.
It's dangerous to criminalise political tier decisions and actions, just like it's dangerous to prosecute former politicians. It harms the ability to preserve peaceful transitions. Criminals or not.
First, it opens a door to political purging. Also incentives to use power in order to remain free is just too big.
The only real constraints on Parliament's freedom of legislation are the body of EU law, and the European Convention on Human Rights. The former is variously directly and indirectly applicable in UK law, and the latter is enforced both by UK statute (which can be overridden by Parliament) and by oversight from an external court (which has limited enforcement powers).
I agree that the surveillance law is obviously bad policy, but it wasn't obviously in breach of either EU law or the ECHR. The English court of appeal thought that it wasn't, but referred it to the Court of Justice of the European Union for a binding opinion, because they decided the question was finely balanced. CJEU ruled that it was in breach of articles 7 and 8 of the Charter of Fundamental Rights of the European Union, so the Court of Appeal made a domestic declaration that the statute was in breach of EU law.
The full judgment is at http://www.bailii.org/ew/cases/EWCA/Civ/2018/70.html, if you're interested.
And if somehow a political leader has managed to corrupt/threaten 3 court levels, then you've got bigger things to worry about, and chances are such a person would take other measures to get rid of his political opponents that are much faster.
Also, it's not like you can't ever arrest a politician. There are laws and countries that do put politicians in prison, especially in cases on corruption.
In failed rule of law states, it has often happened that former politicians were/are criminalized. This can make losing power, in practice, directly lead to losing life & freedom. This then becomes a mandate to maintain power by whatever means necessary.
It also opens the door to political purges of oponenets.
I'll take an example from the Middle East (my home). When Saddam lost power, he was hanged. Gadaffi was lynched. Mubarak was imprisoned, then released when his faction came back into power. This creative an imperative for Assad to maintain power in Syria. Losing power is a death warrant for him, and he is willing to kill even more brutally to preserve himself.
In Israel, Netanyahu is under criminal investigation. He has immunity from prosecution while in power, but not from investigation. This is very dangerous and many analysts (including US generals and spooks) are worried he will start a war in order to consolidate power. tricky stuff.
These are not rule of law states, and they do not have independant judiciaries. But the principle stand. This is why I found (for example) Trump's threats to Clinton so disturbing. If he had followed up, the entire american system would be in danger.
Realistically, the process in place is there for a reason. Small crimes (eg Clinton's emails or Trump's contact with Russia, if it doesn't turn out to be worse than reported thus far) are swept under a rug. Large crimes (Clinton's BJ?) should be investigated through some non-criminal (courts are OK, the US system is suboptimal here) system where life and freedom are not at stake, just power.
Courts cannot be subsidiaries of executive-legislative power (even in the states where it is explicitely forbidden executive & legislative are not really seperate) but the opposite also cannot be.
It is ugly the way it is. We should be doing better. But, there really are fundamental issues here with the stability of democracies at stake.
If they were "criminalized" and no one had the power to lock them up, there was no rule of law in the first place. There was a dictatorship masquerading as a democracy.
"The Democratic People's Republic of Korea"
Politicians should not be above the law.
On the contrary, the public figures are supposed to be more transparent and held accountable more readily than private citizens.
The reason I argue the opposite (OP) is for practical rather than moral reasons. Morals are a luxury. Systemic stability is at stake and is a requisite for any rule of law.
That said, prosecuting legislators and/or political executives for ilegal legislation is far too dangerous, essentially merging all branches of government.
Parliamentary immunity also exists in many countries to ensure that parliamentarians cannot be prosecuted for acts they undertook whilst in office (or other acts, so they that they cannot be compelled into anything).
You’re never going to get a body politic to pass a law that places them all at risk, and if somehow one got through, they’d pretty quickly pass another one to repeal it.
Presumably she doesn't because she rather likes the money and the palaces more than she wants to settle the question as to how you have a parliamentary democracy and monarchy with "you don't".
Besides, the scenario you depict further reinforces my argument that there’s a “trusted root” at the apex of our democracies and that this entity (whether the Queen, or Parliament, or Congress, or the President, or whatever-have-you) can pursue its own interests with abandon, and there’s nothing we buggers further down the pyramid can do to prevent it.
It's far less terrifying to me that the present Queen can do that than that any oligarch with a £100M to spare can probably "lobby" to get the changes they want.
The royal family are in a dicey position, but I trust the current Queen more than MP s in general, but perhaps less than the 2 Houses as a whole. She can probably do anything that goes with either Parliament OR with the demos but couldn't go against both.
You're also misunderstanding the argument: It's not the powerful politicians that are frightening, it's the powerless. By prosecuting (former) politicians, you're not creating disincentives against abuse of power, you're disincentivising loss of power.
That's the hard-to-accept logic behind the mostly deferential treatment the Nixons and Mugabes of the world today get after they lost power.
>By prosecuting (former) politicians, you're not creating disincentives against abuse of power
Do you think prosecuting people who committed crimes creates a disincentive against crime?
>you're disincentivising loss of power.
The same could be said for (former) leaders of drug cartels and mafia bosses, but we still go after them (as well as the current ones), don't we?
Loss of power is already by default highly disincentivized, which is why people want to hold on to it for as long as they can. It's also why we enforce term limits and have checks and balances. However those checks and balances are quite toothless when you elevate politicians above the law.
"We hang the petty thieves and appoint the great ones to public office." -Aesop
Troops on the streets?
https://www.nytimes.com/2017/06/14/us/flint-water-crisis-man...
https://www.freep.com/story/news/local/michigan/flint-water-...
http://michiganradio.org/post/3-years-later-flint-water-cris...
Surely the point is that You could go to jail for this.
I know this "Snooper's Charter" evokes strong feelings, which makes it a bad example.
The courts also have enough power already to make their judgements stick. Roe v. Wade made abortion legal in the US, and it didn't take any jail sentences to make that right a reality, even though roughly 40% of the population are vehemently opposed.
To see a particularly crass example that comes close to your fantasy, see Joe Arpaio, one of the very few politicians to actually defy a court long enough to be convicted of criminal charges.
Also, the UK's first-past-the-post system has given us a two-party system (Labour and Conservative), which makes elections mostly useless for any issues those two parties agree on, such as surveillance (AFAICT the trajectory of the current surveillance state was set in motion under Blair, and later Brown).
When the Liberal Democrats entered a much-maligned coalition with the Conservatives in 2010, they at least managed to prevent the "Snoopers Charter" getting passed. At the next election, the Conservatives got a majority and passed it as the "Investigatory Powers Act 2016".
But otherwise I agree with holding politicians accountable, as this has no doubt already broken at least a few peoples rights.
It actually does not mean that. The courts cannot ignore an Act of Parliament even if it conflicts with the Human Rigths Act but can o ly give an declaration of incombability which they have done.
The Human Rights Act is designed as a way to allow courts to push back on certain kinds of legislation - this ruling is a normal part of the legislative process not any indication of criminal wrong doing by anyone.
I think you are making the water murkier by trying to imagine what you think the process is/should be. The fact remains that the law has been violated on a mass scale, by government, and this has now been adjudicated in a court of law.
In the UK system, when this happens the courts can order Parliament to review law X to make amendments so the laws are consistent. The Government can choose to appeal this to a higher court or they can choose to amend the law. (Incidentally this differs from the US system in that the court doesn't say what the new law should be - but rather says that a section of the law is invalid in a certain way and must be changed - a job then left to the politicians).
No law has been disobeyed at all here - rather two perfectly valid laws have been created that are in disagreement, and the court is ordering that the disagreement be resolved in favour of one.
In my opinion, people drafting illegal laws is to be expected. It is the responsibility of parliament and the house of lords to keep illegal laws from being enacted. So if we were to cuff anyone, it seems to me it ought to be parliament. For parliament we have a different measure than the courts though. That would be elections! It seems less that wise for the public prosecutor to be able to target members of parliament for how they voted. The solution should be sought in a better democracy.
An underlying issue here might be that a majority of voter would actually like to see the constitutional basis for this ruling changed. The Brexit vote could be seen as supporting this. If indeed the electorate wants to get rid of this, there is very little to be done. And that is how a democracy is kind of supposed to work. Sometimes, this makes democracies suck. But like Churchill said, democracy is the worst form of government except for all the other forms we've tried.
There are arguments to be made in their defense, sure. Most likely regarding intent and what a reasonable person could/should have known. And that's what a court is for. But they should absolutely at least be charged so a case can be made. If the people of the UK accept that they were acting in good faith, then fine. But to me, all of this stuff looks like an intentional screw job that they tried to make legal after the fact, which has now failed. And the fact remains that we know for sure now that they have been violating the law. If we know this with certainty, cases should be brought.
Yes. Those that signed related orders. It doesn't even matter if they get them all, just some high enough would be enough to deter others.
It sounds like this kind of thing is very common, but because there's no challenge to these crimes the government just carry on as normal.
I know no more about the law than the average person, but surely a large-enough group of people, backed by someone with legal/political pull, could challenge the government?
Government is unique entity - it is a entity 'too big to fail'. And we all know how entities that can not die act.
So the question then remains...where are the handcuffs?! I ask this question constantly when it comes to government wrongdoing and there is almost never anyone charged with anything. If the government has been acting in a manner that has been found in a court of law to violate human rights, then multiple people should be going to jail.
Before you drop the "well now we know for sure - we shouldn't be punitive and punish people who thought they were doing their job properly" crap, think about this. Whenever the government applies a law in a new and untested way against a civilian the case is watched very closely and if that civilian is found guilty they never get the benefit of the "well it's been settled and now we know" argument and get let off lightly. So I argue the same should apply here. The government has grossly violated the rights of citizens on a mass scale and everyone at the top of the food chain involved in these programs should be rotting in a jail cell.