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I have two central criticisms of this piece by John Gray.
1. Gray appears to agree with Sumption that there should be a “baseline [enforced by the courts] guaranteeing individual security and freedoms of expression and association”: but what is the content of that baseline and what rights fall into it?
Pro choice advocates would say (with some force) that the right to an abortion is an aspect of the right to individual security - the right to control your own body.
You may think that that claim is wrong. But once you accept that a right to individual security is a right that the courts must protect, the courts have to decide if that claim is correct.
And some of the most litigated question in human rights involve judging between rights of free expression and privacy (or “individual security”) rights. (Cases which explain much of the hostility to the HRA you get from some of the press.)
And if “individual security” includes property, which most liberals have always thought it does, then the courts find themselves reviweing the decisions of elected governments in areas such as nationalisation and planning.
So it’s entirely unclear in what way Gray thinks human rights law has become “imperial”, that is to say invented legally enforceable rights that fall outside the category he has defined as their proper domain.
2. Gray ignores the ability of a representative democracy to ignore, or pay insufficient attention to, the position of minorities - to fail, by inattention or political convenience, to protect them in accordance with the principles that elected governments claim to honour.
Two recent examples (there are many others): the position of 🏳️🌈 men and women wanting to serve in the military and fobbed off with painfully poor excuses: it was right for the courts to point out that that was inconsistent with principles of equality the Govt claimed to respect.
And the Supreme Court was right to point out that the inability of NI women to get abortions in various circumstances including rape was inconsistent with the ECHR. The NI legislature had just failed to do anything about it.
NB too that in our system Parliament remains ultimately in control. But it is right that the courts can point out its failure to live up the the human rights standards it claims to honour.
I would go further and entrench rights in a constitution amendable by referendum: leaving the ultimate say to the people.
But neither position is undemocratic: rather, they are ways of holding elected politicians to the values and rights they claim to uphold, while leaving voters as the final decision-makers. /ends
I should add that a much deeper reflection on the role judicial review, including rights review, plays in a well-functioning democracy can be found in this excellent article by @TomHickeyDCU. academia.edu/36119585/The_r…
I tried my best to summarise it here.
But the summary of the summary is that, contrary to what Gray argues, judicial review, including rights review, is not, ultimately, in tension with democracy: rather, it is an essential pillar of democracy.
And the problem with what Orban/Kaczynski are doing in 🇭🇺 / 🇵🇱 isn’t just that they are attacking human rights: they are also attacking democracy.
