Thread by @GeorgePeretzQC

Quite some leap from saying that there’s an “ideological” element in the ECJ’s case-law (of which Supreme Court is that not true? Canada? UK? US?) to the (if I may so, highly political and IMO false) claim that it is so ideologically compromised as not to be a court at all.

https://twitter.com/sbarrettbar/status/1452268735411236873

One problem is, I think, that Steven sets up an ultimately incoherent divide between legal propositions and ideological/political ones.

But when courts decide constitutional questions - ranging from rights questions to eg questions about the powers of devolved parliaments - the answer is inevitably inflected by views about the content and importance of rights or how the balance of powers should work.

And when courts come to answer such questions, each possible answer reflects views of that kind.

To take an early case of the ECJ as an example: if you are asked to decide whether someone can rely on an unimplemented directive giving her rights against a state that has failed to implement it, *either* answer can be said to be “ideological”.

*Either* answer reflects a certain conception - not spelt out in the original treaties - as to the relationship between member states and EEC law.

So - though you can describe the ECJ’s approach as ideological if you like - you also have to accept that whatever it did on cases such as that would also be “ideological”.

So *criticising* the court for being “ideological” - and certainly doing so to the very political extent of denying that it is a court at all - is ultimately incoherent.

PS none of the above is original: it was very clearly spelt out in an article by Sir David Edward, former judge of the ECJ. From law.du.edu/documents/judg…