It’s time to finish the work of Brexit, and finally bring control back to our sovereign Parliament
Britain cannot now remain under the European Court of Human Rights. In their partisan fervour, the blue-robed judges have forced our hand. Their demand that Switzerland adopt more aggressive net zero policies is so partial, so at odds with any sensible reading of the text of the European Convention and so incompatible with representative government that it leaves us (and every other self-respecting democracy) with no option but to leave.
Quitting will not be straightforward. Our legal bigwigs, supported by legions of quangocrats, academics and civil servants, will launch the same attritional war that they did against Brexit. As then, they will be able to point to genuine procedural complications – for example, references to the ECHR are built into the Northern Ireland settlement and into our EU withdrawal agreement. And, as with Brexit, they will claim that these represent insuperable obstacles. On some level, they might even believe it themselves.
So, you can quite understand why Rishi Sunak and, if reports are to be believed, a dozen of his Cabinet ministers have been reluctant to take such a step. They have had enough on their plates with a 20-point opinion poll deficit, an economy still recovering from lockdown and the prospect of a global war. A fresh government might have had the mandate and momentum to face down the barristocracy; a fag-end administration is in a weaker position.
But the Strasbourg court has not given us any choice. If it thinks there is a human right to specific climate mitigation policies, it might just as easily declare that there is a human right to be given a particular type of housing, a certain level of healthcare, a given number of years in education – you name it. At which point, there is no purpose in holding elections.
It is perhaps significant that the target of this judicial activism was non-EU Switzerland, as if the ECHR were determined to ensure the compliance of countries outside the EU’s legal system. Swiss voters have persistently rejected Brussels jurisdiction, partly because they appear to believe that EU rules are incompatible with their tradition of referendums.
I say “Swiss voters” because, if it were up to Swiss politicians, the Helvetic Confederation might well have surrendered its independence decades ago. But direct democracy has a powerful defender, namely itself. Although Swiss voters have accepted a number of sectoral deals with Brussels – most significantly the Schengen agreement on free movement – the sheer difficulty of approving a closer institutional relationship has led their MPs to drop the idea.
Those who fought this case – on paper, some old ladies claiming to have been personally affected by climate change, supported by Big Green – have made no secret of where they stand. One of the advocates representing them was a British KC called Jessica Simor, a lawyer who sometimes appears to talk more like a student activist than a barrister.
Responding to the verdict on German television, she gave the game away: “In Switzerland it’s particularly problematic because they have referendums. And one of the defences run by the government was, ‘We had a referendum on this, and the people decided they didn’t want it.’”
And there, ladies and gentlemen, is what is really going on. Votes are “problematic”. Leftist elites fear that, left to themselves, electorates might vote for all sorts of alarming things.
They might want to control their borders. They might want prisons to be punitive. They might want climate change to be addressed in an affordable and proportionate way. These things will never do!
Simor was unusual in saying the quiet bit out loud. Supporters of the ECHR tend, more usually, to talk about “fundamental rights”, meaning that certain freedoms should be guaranteed regardless of what politicians want.
In itself, this idea is uncontroversial. Every liberal democracy recognises that there are some constraints on majoritarianism. We do not generally allow a simple parliamentary majority to expropriate people without compensation, for example, or lock them up without trial through medieval-style bills of attainder.
But here’s the thing. Britain had such protections in place for decades, centuries, before the entry into force of the European Convention in 1953.
We were not “given” our rights by Europe. Rather, we empowered a different set of people to adjudicate our rights and, at the same time, expressed them in more general language, making it easier for judges to legislate from the bench. As the then British ECHR judge Paul Mahoney put it in 2015: “The open-textured language and the structure of the Convention leave the Court significant opportunities for choice in interpretation.
“In exercising that choice, particularly when faced with changed circumstances and attitudes in society, the Court makes new law.”
These new laws seem always to come from the same political direction. The ECHR does not intervene to enforce deportation against illegal immigrants or insist that free contract trumps gender equality.
This new ruling, though, takes judicial activism to a different level.
Because most people care little for process when they favour a particular outcome, reactions have largely been determined by where they stand on climate change. But, viewed simply as a matter of law, the judgment is outrageous. The Convention does not mention climate change.
Ninety per cent of worldwide temperature-related deaths are caused by cold, and that proportion is higher in wealthy countries with cold winters, such as Switzerland. A study published in The Lancet in 2022 found that, since the turn of the century, there had indeed been a rise in the number of deaths attributed to warmer temperatures, but that that rise had been more than outweighed by a fall in deaths from cold, leading to a net global saving of 650,000 lives.
Viewed purely as a right-to-life issue, then, should Switzerland be encouraging global warming, perhaps offering subsidies for carbon emissions? Obviously not. The point is simply that there is a balance to be struck. Democracy is a mechanism to arbitrate competing interests. Human rights law is not.
As recently as two years ago, I was of the view that leaving the ECHR would be more trouble than it was worth. Yes, we might be obliged to withdraw if the court continued, in defiance of any sensible reading of the Convention, to block deportations to Rwanda. But I hoped – as I’m pretty sure Rishi Sunak did – that it would not come to that. If the judges allowed flights to Kigali, we could go back to moaning about the ECHR without actually quitting.
Well, not now. It is clear that accepting the ECHR means living in a controlled democracy, where
A ludicrous decision in Strasbourg proves that we must leave the ECHR or be governed by the whims of judges
It is perhaps significant that the European Court of Human Rights’ target is non-EU Switzerland
This new ruling takes judicial activism to a new level – viewed as a matter of law it is outrageous
important questions are lifted out of voters’ hands.
Defenders of the ECHR almost never try to identify specific benefits that accrue to Britain as a result of our adherence. They know that, in the decades prior to 1953, we were not in the business of persecuting religious minorities or sending whole populations to labour camps.
Instead, they argue that the European Convention was our gift to less enlightened lands, a charter designed by British lawyers to help others to leave totalitarianism behind. Our continued membership, they argue, is necessary, not for our sake, but pour encourager les autres.
Yet that argument cuts both ways. Europe does not have a human rights deficit, but it does have a democracy deficit. Questions that matter to people, from immigration to taxation, are decided by quangos, European Commissioners and judges.
By remaining under the ECHR, we signal to every other member that democracy is secondary, and that the gentlemen in Brussels and Strasbourg and Davos know best. We should instead lead a walkout, as a first step to replacing the European Convention with something more compatible with representative government.