Good thread. Defending human rights and judicial review can’t be left to (or even led by) lawyers: civil society (journalists, unions, environmental NGOs, think tanks etc) all need to take this on. It will also be an important task for the next Leader of the Opposition.
I also think (and the two approaches are complementary rather than contradictory) there is a lot in this.
A lot of JR cases that amount to challenges to policy (eg challenges to secondary legislation) are actually about stopping government abusing broad powers given to it by Parliament for purposes that go beyond what Parliament is likely to have had in mind.
When the courts strike down such secondary legislation, they are often saying: “if you want to do this, you can’t rely on a broad power: go back to Parliament, be up front to MPs and the public about what you want to do, and get a clear power to do it.”
In HRA cases there is often the additional ingredient that the use of the power is contrary to broad principles laid down by Parliament and which the Government claims to respect.
The courts are really saying there: “if you want to breach these principles, be honest that that is what you are doing and get Parliament to agree.”
It’s about defending our Parliamentary democracy, not subverting it.
That seems to me to be a good way to try to frame the argument, and to take the sting out of the “rule by judges” complaint.
