Comment
ROSS CLARK
European Court of Human Rights has become a monster. It’s moved so far from its principles UK should leave
The ECHR is effectively making up the law as it goes along
I OFTEN wonder what the highly principled lawyers who drafted the original European Convention on Human Rights in 1949, and who a decade later set up the European Court of Human Rights to enforce it, would make of the monsters which both have become.
They were working in the shadow of Nazism, and wanted to establish some kind of permanent legal infrastructure which could sit above national governments in order to try to guarantee basic human rights.
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The convention came out of the Congress of Europe, a 1948 meeting of philosophers, clerics, lawyers, academics, entrepreneurs, historians and politicians, including Winston Churchill.
Its Article 8, which guarantees the “right to respect for private and family life” was written when memories were still fresh in the minds of Jewish and other families being broken up and sent to concentration camps.
The intention was certainly not to interfere in the ordinary processes of democratically elected governments.
Making up the law
Still less would it have been envisaged that a group of elderly climate protesters would one day use the ECHR to accuse their own government of supposedly making the weather too hot by failing to reduce carbon emissions fast enough.
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Yet that is exactly what happened on Tuesday when the ECHR ruled in favour of a group of Swiss women, backed by Greenpeace, who claimed their right to a family life had been infringed because, as one of them said, she hadn’t been able to leave her home for three weeks during a spell of hot weather last summer.
The court dismissed two similar claims in what has become a co-ordinated campaign of “lawfare” by environmental campaigners, but only on technicalities.
A group of Portuguese students were told that they couldn’t use the ECHR until they had exhausted all legal remedies in their own country, while a Frenchman who claimed his government’s climate policy had put his home at risk from flooding was told he couldn’t demonstrate loss because he had moved to Brussels.
Now even left of Tory Party back reforming ECHR to stop boats in The Sun's show
Climate change is, of course, a serious issue which demands action on the part of national governments, both through trying to reduce carbon emissions and defending against rising sea levels.
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But the courts are not the place to be debating what to do.
Every government has a delicate balancing act — trying to reduce carbon emissions on the one hand while ensuring that we retain a functioning economy on the other.
It is no use cutting emissions if we are simultaneously going to throw millions of people into poverty by removing access to affordable energy and food.
Trying to resolve that conflict in a court of law is ridiculous.
What about, say, the steel workers who are being made redundant at Port Talbot because the town’s blast furnaces are closing in a bid to reduce emissions — can’t they claim that their right to a family life has been impacted too?
The way to devise sensible policies on these issues is to have open political debate, and all measures backed by proper parliamentary votes by our elected representatives — something which our own Government bypassed, by the way, when in 2019 the Commons nodded through a change in the law committing Britain to a net zero target by 2050.
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The ECHR’s intervention on climate policy is all too typical of the power grab which it has been asserting since the 1970s.
For the first two decades of its existence the ECHR generally respected the decisions of elected governments.
It didn’t, for example, force its member states (which include most European countries — it is not an institution of the European Union) to give up the death penalty, even though that could be seen as an infringement of the right to life.
During those two decades the UK government did not suffer a single defeat at the hands of the ECHR.
That changed with something technically known as “living instrument doctrine”.
In non-legal language this means the ECHR effectively making up the law as it goes along.
Not only has the human rights convention been extended with numerous protocols which were never part of the original, but ECHR judges are feeling ever more emboldened in their interpretation of the vague principles within the convention.
They are increasingly ruling that the policies of democratically elected governments are illegal.
Perverse rulings
It has led to all manner of outrages, from countries being forbidden from deporting terror suspects, to Albanian criminals being allowed to stay in Britain on the grounds that being ejected would infringe their right to a family life, to a ruling that UK prisoners should not be denied the right to vote.
The UK government has refused to enforce the last ruling — a course of action which nations signed up to the ECHR are increasingly resorting to as perverse rulings by the court make the business of governing ever more difficult.
Regretfully, although Britain was one of the founding members of the ECHR, it is time to consider doing as former UK Supreme Court Judge Jonathan Sumption has suggested and withdrawing from the ECHR altogether.
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No one is suggesting that the UK government, or any other, ride roughshod over human rights.
But the actions of the court have become so divorced from the high principles on which it was built that it is becoming no longer compatible with democratic government.
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