Members of the Swiss association of Senior Women for Climate Protection celebrate the ECtHR ruling

The court of hot air

We do not need human rights law to protect human rights or to maintain the rule of law

This article is taken from the May 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

The ruling of the European Court of Human Rights (ECtHR) in Verein KlimaSeniorinnen Schweiz v. Switzerland is indefensible and a bald challenge against the foundations of democratic self-governance in this country.

The lawsuit in question was brought by a group of elderly Swiss women who luxuriate under the name of the Association of Swiss Senior Women for Climate Protection. The plaintiffs furnished a long list of sufferings they endured as a result of global warming: one needed to “organise her life according to the weather forecast”; another had to adjust by “going to the shops earlier and getting fresh air at night”.

It is important not to look away at this point: this is the infantile basis on which we are being ruled and overruled. Sovereign, democratic British politics are being set aside because of stuff this risible.

The implication is clear. The United Kingdom should withdraw from the European Convention on Human Rights (ECHR) and not remain subject to the Strasbourg court. Whatever problems of sovereignty were inherent in EU membership, they are as nothing to the ECtHR and its rejection of electoral legitimacy. To remain is to choose and to choose badly.

The decision is certain to unleash a flood of litigation against every government action climate activists dislike

Just look at the details of the case. As a consequence of what the weather has done to the Alpine grannies, the litigants successfully alleged that their country’s refusal to implement their preferred climate change policies (a 50 per cent cut in greenhouse gas emissions relative to 1990 levels by 2030 was rejected in a 2021 referendum) amounted to a violation of their right to life and to private and family life (on this logic, living in southern Italy must surely amount to cruel and unusual punishment).

Naturally, studies showing that as many as ten times more Europeans die from cold than from heat every year were not mentioned during the proceedings.

After losing in every Swiss court, the women took their roadshow to Strasbourg. There, they found receptive ears. In a 16-to-one decision across 260 pages of turgid Euro-English, the Grand Chamber of the ECtHR swallowed the women’s arguments hook, line and sinker, ruling that the Convention’s “right to respect for … private and family life, his home and his correspondence” somehow includes a right to require a government to take “effective measures” against climate change. For good measure, the majority declared that “democracy cannot be reduced to the will of the majority of the electorate and elected representatives”.

Only the British judge, Tim Eicke KC, dissented. Although Eicke, like his colleagues, is a believer in the “living instrument” approach, whereby courts can read into the ECHR rights which were never imagined by its signatories, the latest burst of creative energy was too much even for him. The judgment, he wrote, “has gone beyond what it is legitimate and permissible for this Court to do”.

Of one thing there can be no doubt: the decision is certain to unleash a flood of litigation across Europe against virtually every government action — or lack of action — which climate activists dislike.

Such a brazen judicial coup against the democratic process has shocked even many British progressive defenders of the Strasbourg supremacy. But inevitably it does have its supporters here. The plaintiffs’ lawyer (and former Change UK candidate, not to mention unsuccessful ECtHR candidate), Jessica Simor KC, crowed, “In Switzerland it’s particularly problematic because they have referendums … and the people decided they didn’t want it … it’s the conflict between this idea of democracy as just what the people choose, and democracy as entailing … rights which matter irrespective of what the majority decides.”

Simor’s worldview embodies the fashionable theory that democracy ought to be “thick” — meaning it should include a whole range of progressive values — rather than “thin” (referring not to the intelligence of the electorate but to an idea of democracy based on voters freely making decisions about ways in which they are governed).

A more original defence of the decision came from Stefan Theil, an environmental law academic at the University of Cambridge. Strasbourg, according to Dr Theil, broke no new ground: its most recent ukase is entirely consistent with the court’s jurisprudence over the last five decades.

Doctrinally, he seems to us to be right: this is exactly what continued British membership of the ECHR and subscription to the ECtHR amounts to.

Yet it is little comfort for a free people to be told that not only is Strasbourg usurping their democratic birthright, but that they ought to shut up about the usurpation because they didn’t notice it when it began.

Democracy aside, another key objection to the Court’s ruling must be practical. The law does not require the impossible if it hopes to retain credibility. But even if Switzerland were to return to the pre-industrial age and go to zero emissions overnight, it would not reduce the temperature in Basel by a single degree, yet the ECtHR requires it to do so in the name of human rights.

Human rights, properly understood and implemented, are a noble idea, perhaps one of the most important ones perfected by European civilisation. The ECHR, as originally written, is an impressive document devised to give continental Europeans the arguments they needed to resist the totalitarianism to which so many of them had proved prone.

But the idea of human rights has long been magicked into an open-ended licence for NGOs and busybodies who lost out in the democratic process to impose their policy preferences onto everyone else. This inevitably leads to a reflexive and entirely understandable backlash against human rights, which to many has become synonymous with the erosion of self-government.

Contra the ECHR enthusiasts, Britons did in fact enjoy human rights before the Convention

But as Richard Ekins of the University of Oxford noted in his recent Atkin Lecture, whilst human rights law has a rule-of-law problem, we do not need human rights law to protect human rights or to maintain the rule of law.

For centuries, as he notes, Britain had its own distinctive model of rights protection, based on the legislative freedom of Parliament, political competition, parliamentary deliberation and a healthy political culture.

In short, it was a model which befitted a democratic people who did not wish to outsource its moral and political governance to legal technocrats.

Contra the ECHR enthusiasts, Britons did in fact enjoy human rights before the Convention was enacted, as do the citizens of the neo-Britains across the world who still rely on the British model which the mother country has at least partly abandoned.

What next? As the late Lord Rodger of Earlsferry once mournfully remarked in a case, “Argentoratum locutum, iudicium finitum — Strasbourg has spoken, the case is closed.” As a matter of law, there is no appeal against the Grand Chamber.

The only solution, unless Britain is to surrender the functions of government to Greenpeace and its fellow travellers, is to leave the ECHR. It will not happen under the current Conservative government. Whatever remains of its vital energy can at best be used to avoid a Canada 1993-style wipeout at the polls. It has neither the intellectual energy nor the political wherewithal to extricate Britain from Strasbourg’s decrees.

The prospects of leaving under Labour are remoter still. Men are beholden to the fashionable ideas of their youth, and Sir Keir is no exception. Having grown up in the golden age of human rights law ideology, he is hardly likely to apostate himself at this juncture. Damned as a technocrat, the true stuff of his soul is to be found in Strasbourg.

But if the path is not currently visible, leaving the ECHR and repudiating the warped interpretation of human rights it represents is essential. The alternative is to allow a priestly class of narrow-minded lawyers, textbook-writers, activists, charity executives, foreigners and general busybodies to assume the power to govern us without accountability. This will end: best that it does lawfully and in good order. Thus, as unlike Strasbourg’s capricious rule as possible.


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