What the hell is wrong with our democratic values to begin with? Why do we need high court decisions for these insane ideas of making a better world. Are these people infected by some corporate lobby or what is it why they cannot think in favour of human kind. I cannot phantom this.
European Court of Human Rights bans weakening of secure end-to-end encryption
181–190 of 273 posts
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#182Earlier quoted context omitted.
Errr, that's not exactly what they did, as well as you know :-) In any case I hope we can agree that it's good that they said that restricting our constitutional right to free movement was illegal, even if it had no consequences for those who violated our basic rights so blatantly.
If I'm wrong about the constitutional court sentencing Catalan nationalist politicians to prison, that's not something I know; feel free to correct me. I don't know what that has to do with free movement, nor how that's related to the imprisoned politicians. FWIW, I don't accept the notion of "human rights" - there are in reality only those privileges that are actually granted. I would like it if there were some kind…
They did more than just "calling for independence". Use your search engine of choice to find out what they did.
And this was not a case of a violation of "human rights", in which I also do not believe. During the pandemic, there was a flagrant violation of our constitutional rights, among them, the right to free movement (which very roughly means, as a Spanish citizen, I can go anywhere in Spain, whenever I want) and free assembly. The constitutional court makes sure that the constitution has teeth, or so they should.
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#183Earlier quoted context omitted.
This stability presupposes a presence of adults in the room.
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:
https://www.prospectmagazine.co.uk/politics/37844/has-the-go...
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#184Earlier quoted context omitted.
>the EU itself is legally bound to follow the ECHR rulings You'd think so, but it actually isn't. All of the EU's member states are, but the EU and its institutions aren't. The EU is legally bound to join the Council of Europe (and thus come under the jurisdiction of the ECHR), except the EU's Court of Justice threw a spanner in the works quite a while ago and this is on hold, pretty much indefinitely. The conflict i…
> this is on hold, pretty much indefinitely It's not, negotiations started again in 2020. https://www.coe.int/en/web/human-rights-intergovernmental-co... }
oh! I had totally missed that, thanks
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#185For a better understanding: The Court held (in the circumstances of this case) that a legal obligation to decrypt E2E communications is a disproportionate interference with the right to privacy. The law in question specifically obligated messengers such as Telegram to hand over communications alongside the "information necessary to decrypt electronic messages if they were encrypted". To come to that conclusion, it re…
Perhaps a dumb question, but why would the EU courts be able to overturn laws in the UK now that the UK is not part of the EU anymore?
ECHR is not an EU court, but a separate entity, having for long had many non-EU member states.
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#186Earlier quoted context omitted.
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! Actual…
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, includ…
That's what "striking down" a law is. Even in the US!
From the Opinion in Murphy v. National Collegiate Athletic Association:
> And courts do not have the power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen. 22, 22–23 (1937) (“The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute”); Harrison 82 (“[C]ourts do not make [nonseverable] provisions inoperative . . . . Invalidation by courts is a figure of speech”)
Which then goes on to cite this Virginia Law review that goes into detail about the confusion between the terminology vs the reality: https://www.supremecourt.gov/opinions/URLs_Cited/OT2017/16-4...
> But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.
That being said. You said the written constitution of Canada. From both the UK and the US perspective that's really confusing. Canada's constitution is partly written and partly unwritten and slowly expands over time as other documents are entrenched.
From the US perspective, the Canadian constitution isn't the same kind of entity as the US constitution, it's just an Act of Parliament. From the UK perspective this means that anything goes because obviously Parliament should get to change its Act as it wishes (one of the core tenants is that past Parliaments cannot bind future Parliaments).
Anyway. That's how striking down laws works.
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#187It's nice to know this also applies to the UK even after Brexit (still a member of the ECHR).
The Tories have been talking about leaving the ECHR for years now.
They should've left, obviously, not sure what they've been doing with an 80 seat majority. But a silver lining is Cameron/May's "Snoopers' Charter" is utterly dead now.
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#188Weakening of secure end-to-end encryption means the encryption is worthless.
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#189Earlier quoted context omitted.
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 Nethe…
> In the Netherlands, courts can’t test laws passed by the Dutch parliament to the Dutch constitution. What does that mean in practice? That the constitution always overrides any law passed by parliament?
It sounds like it means the exact opposite, i.e. that in the Netherlands, there is no judicial mechanism for overturning unconstitutional legislation.
Re: European Court of Human Rights bans weakening of secure end-to-end encryption
#190Earlier quoted context omitted.
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! Actual…
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.