This recent piece by John Gray for @unherd on the Human Rights Act is shoddy. I hate to say that, as I have a lot of respect for him as a political philosopher. But he makes basic mistakes about the law and the HRA which invalidate his thesis. unherd.com/2020/03/lets-s…
First, he is simply - and laughably- wrong to claim that "20 years ago ... the judiciary did not assert the authority to overturn acts of government". What about the "Fare's Fair" case in 1982 (overturning the GLC's reduction in tube and bus ticket prices)?
What about Hoffmann La Roche in 1975 (the court had power to strike down a statutory instrument made on the basis of a Monopolies and Merger Commission report that infringed natural justice)?
What indeed about the Case of Proclamations (1610): the King had no power to suspend statute?
Next, he asserts that the court should not take "political decisions". But the question of whether the executive has legal power to take a particular decision is always political: and both the answer "yes it does" and the answer "no it doesn't" have political consequences.
But in a society governed by the rule of law, it is for the courts, and not for the executive, to decide whether the executive has exceeded the powers given to it by Parliament or common law.
If the courts decide that the government has not got the power it thinks it had, then the government can go back to Parliament and get that power (if Parliament agrees). That is our system working as it should.
I haven't yet got to the HRA. But though Gray's article claims to be about the HRA, the initial swipes - about "political decisions" and Miller 2 - are nothing to do with the HRA.
And as for Miller 2, the critical point to bear in mind that the court had to answer a fundemental question bout whether the PM's power to prorogue Parliament was completely unrestrained or whether it had legal limits.
It was ultimately not a question of an "elite" deciding anything: it was about whether the executive had power to prorogue Parliament for a long time without giving any reasons for the length of time. It was a classic legal issue: who had power to do what?
As to the HRA: Gray completely fails to note or take into account basic aspects of the HRA.
First, the main role of the HRA is as a guide to interpretation. The courts assume that Parliament wants all legislation to be interpreted consistently with the ECHR, unless it is absolutely clear that Parliament did not want that.
And this principle does not subvert democracy. Take an example. In an early case, the Court looked at an old rule under the Rent Act that gave rights to a person who had lived "as husband or wife" with another person who had a statutory tenancy could inherit that tenancy.
The Court was faced with a case where the gay partner of someone who had dies claimed the tenancy. The court bent the wording - as it can under the HRA - to avoid discrimination and protect family life. It said he could inherit.
Had Parliament disapproved, it could have reinstated the old law. But it didn't. The reality was - and this is the reality that underlies many HRA cases - that Parliament (always short of time) had just not addressed the issue.
In other cases, the courts can strike down secondary legislation that contravenes the HRA. But secondary legislation is (in effect) an act of the executive. It is not debated or decided by Parliament, through the wide-ranging political debate postulated by Gray.
And if it is struck down, Parliament can always pass legislation to the same effect. And if it is struck down, Parliament can always pass legislation to the same effect. If it wants to.
In other cases, all the judges can do, faced with an Act of Parliament that clearly provides for a result that is contrary to the ECHR, is declare that that is the case: and leave it up to Parliament what to do about it. Again, hard to see the democratic objection.
This is all a shame: Gray is an important political philospoher. And he makes a point of general importance that I agree with: liberals (and the left generally) should not rely on the law or the courts, or the "juridicalisation" of politics.
Rights and social advances should be argued for, and the focus should be on persuasion and re-persuasion of our fellow-citizens.
But accepting that does not mean denying that the HRA plays a useful role in drawing attention to, and correcting, wrongs missed by Parliament or ignored by the executive. It is a check and balance on the executive in a constitution that is seriously deficient in them.
PS Gray also, in a side swipe, falls into @montie's basic error in failing to read or understand what the recent Heathrow judgment was about. See . The court was not acting as "an arbiter of public policy" it was applying and interpreting a statute.
