Thread by @GeorgePeretzQC

Comments on a couple of Supreme Court cases out today. Those who fear/hope that the Supreme Court is dominated by activist judges looking for any excuse to impose a woke agenda under cover of the Human Rights Act will be relieved/disappointed.

First AB. Facts here.

The issue was whether that treatment violated Article 3 of the ECHR (inhuman and degrading treatment). Answer: no. Reason: the Strasbourg Court has not said that solitary confinement of a child is automatically contrary to Art 3. Following earlier cases, explained here.

Important point for discussions about the Human Rights Act: the HRA is designed (in broad terms) to track Strasbourg. So if Strasbourg has so far refused to move somewhere, that is *in itself* a basis for our courts not to develop the law in that direction.

If Art 3 had been part of a domestic written constitution, the fact that Strasbourg hadn’t (yet) ruled in a particular way wouldn’t be enough: the U.K. courts would have to reason the issue out for themselves.

Text of judgment: bailii.org/uk/cases/UKSC/…

Second case: SC and CB. Was the two child limit on child tax credit contrary to Art 8 (family life) or Art 14 (discrimination)?

Answer: no. Article 8 wasn’t engaged because the measure wasn’t intended to and didn’t affect family choices (in the light of the evidence).

As for Art 14, though the limit did discriminate in some respects, the choice to reduce welfare spending and to limit families’ entitlement to more income if they have more children was one Parliament was entitled to make notwithstanding its impact on children in large families.

Note interesting and important stuff on how the courts should assess Parliamentary materials in human rights cases raising issues of proportionality. Of general relevance in analysing questions of institutional competence (often the key to “should the court intervene” questions).

People will have different views on these cases. But they aren’t exactly evidence of activist judges supporting law as the continuation of politics by other means.

Incidentally, para 171 of SC is a general truth about democratic politics: it won’t produce - and shouldn’t be expected to produce - elegant/rational outcomes. It produces (at its best) legitimate outcomes that as many as possible can live with. That’s the most you can hope for.