Thread by @GeorgePeretzQC

As @BarristerSecret has already dispatched this article in @spectator by @SBarrettBar, there is perhaps no need to plunge a further dagger into its corpse. But there is a bit more to be said.

https://twitter.com/barristersecret/status/1479378640324419589

As SB says, this passage is difficult to reconcile with how (much) law actually works. Let’s start with the case referred to (on blocking highways).

It’s DPP v Ziegler in the Supreme Court. supremecourt.uk/cases/docs/uks….

The relevant issue arises from the fact that the offence is to block highways without a lawful excuse.

Note that, already, it is obvious that Steven is wrong to assert that “you can’t block the highway” was ever a “clear rule”: there was always (rightly when you think about it for a second) room for a lawful excuse defence and thus room for argument about what a lawful excuse is.

(Think about cases where, for example, someone blocks the highway in order to unload a lorry: for two minutes ✅ /for days on end ❌/for somewhere in between?)

The question before the SC was the extent to which exercising the rights to protest and assembly under Articles 10 and 11 ECHR could be a lawful excuse for peacefully blocking the highway where there was an intention to obstruct others (those attending an arms fair).

The answer was proportionality: which you won’t go far wrong if you read as “it’s a balancing exercise, depending on the circumstances”.

And here are relevant circumstances.

All pretty sensible factors to take into account when balancing the importance of the right to protest on major political issues against the importance of people being able to get about to conduct their lawful business.

The idea that there is, here, any breach of the rule of law is unsustainable.

Indeed, the concepts of balancing and proportionality are so fundamental to any human rights jurisprudence that Steven’s complaint amounts to an assertion that human rights law is incompatible with the rule of law.

Steven protests that “I keep politics out of my articles”.

But if you read his articles, you find that there is no rule of law issue, apparently, when the current government threatens to breach treaties. But a big rule of law issue in giving courts any role in adjudicating human rights law.

Those are, on any view, highly “political” conclusions that well suit a particular sort of politics.