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“Interesting” here means “hopeless”. Why hopeless?
As far as the right to political expression is concerned, there is, first, a general principle that the government does not itself have rights under the European Convention on Human Rights (or, I think, the Charter). These are rights of citizens, not states.
Ah, you may say, but what about Johnson. He is s citizen. What about his Article 10 ECHR rights not to have to write something he doesn’t believe in?
No joy, I fear. There is a run of ECHR cases that explain (for obvious reasons when you think about it) that civil servants can’t invoke Article 10 when told to write something they don’t believe in (or not to write something they do believe in).
If you hold government office, your rights of free expression are curtailed by the duties of that office. If you don’t like those duties, resign.
What about the disturbing the equilibrium of the U.K. constitution argument?
It’s impossible to see how that can be an argument that raises issues of EU law (the Charter) or the ECHR. So you can put aside the cases on supremacy of EU law. They don’t bite here.
Apart from EU law, the rule that what Parliament enacts in an Act of Parliament is law is the most fundamental principle of our constitution. There is virtually no scope for arguing that an Act is invalid on some higher constitutional basis.
“Virtually” because it has been mooted (but as a minority view) by senior judges that an Act of Parliament that destroyed the rule of law might be held to be invalid. But it is hard to see how you can attack the Benn Bill on those grounds.
So there is no legal basis for that argument.
And “disturbing the equilibrium of our constitution” is a legal test fraught with danger, anyway. Would it apply to the devolution settlement? The Fixed Term Parliament Act? The Act that allowed the 2016 referendum? A good case could be made on all of those.
PS one irony here is that some of the voices complaining about Parliamentary overreach and wondering about trying to set aside this legislation in court also deplore “judicial power”.
Or, at least, they do so pending a Corbyn government, at which point their objections to “judicial power” would mysteriously melt away like snow in April.
