Dinner at the Ritz hotel, and Gordon Brown was in an unusually good mood. The prime minister had just seen off Eurosceptics who were demanding a referendum on the Lisbon treaty. His policy of refusing to engage had worked and the treaty — further deepening EU integration — passed parliament in 2008 without British voters being asked to approve it.
My former editor put me on the spot to answer when Brown asked us which issues we thought would now dominate the forthcoming general election instead. Brown smiled. What was next on the agenda for Eurosceptics, he asked me, now “your campaign” for a referendum on Lisbon is “winding down”? We all laughed.
Eight years later, Britain voted to leave the European Union.
Looking at the latest rather mad judgment of the European Court of Human Rights this week, I wonder if forces similar to Brexit are being unleashed and history will repeat itself, this time on the question of leaving the ECHR, the European Convention on Human Rights? The court ruled in favour of 2,400 women who said their human rights had been violated by the Swiss government’s insufficiently tough policies on climate change.
Lawyers for the mostly elderly women successfully argued that their clients were being denied the right to a family life as older people are more likely to die in heatwaves. With the planet getting hotter, the government in Bern should do more to reduce emissions, said the judges. There is no appeal.
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This is spectacular judicial overreach. The court is involving itself directly in democratic politics, adjudicating on policy questions that are properly left to governments and leaders accountable to electorates. Today, climate change. Tomorrow … where next might the court expand its remit? Perhaps those of us who think we are entering a war era should take a case to Strasbourg seeking judicial support to compel governments to spend much more on defence and deter Russia from threatening our right to life.
True, two of three climate change cases before the court were ruled inadmissible, but the eco warrior Greta Thunberg hailed victory in the Swiss case as “only the beginning”. Sadly, she is right. There will be a wave of further cases seeking to build on the precedent.
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An ambitious eco-lawyer in Rome might fancy his chances of trying to force the Italian government to do more on air pollution, citing the court ruling. A litigious fan of St Greta may try to take on Sweden’s government for favouring new nuclear power over wind farms. Some of it will be vexatious and some attempts will fail, but this judgment points the way for those wanting to try. And there are enough green-leaning judges who will play along.
For those of us instinctively worried about calls to leave the ECHR, who would rather remain and reform it, this is all uncomfortable.
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It is not what the court was set up to do, when the Council of Europe drafted the ECHR to ensure that a force like the Gestapo could never again knock on the door and detain citizens without trial. In 1959 the court was established to interpret the convention. There are now 46 judges, one for each Council of Europe member state.
Contrary to some of the criticism, it is not a “foreign” court. Britain was central to its creation. The judge who offered the only dissenting opinion in the Swiss case was the UK’s Tim Eicke. He said that the court had gone beyond what is legitimate.
What is odd, as a UK minister tells me, is that governments are not making any co-ordinated effort to reform it. Voters across the continent are furious about being bossed about on migration and climate change by bodies such as the court.
And from Germany to the Netherlands, Sweden to Spain, they are taking it out on governments. Earlier this year, farmers’ protests rocked Brussels and forced the European Commission to U-turn over net zero curbs on agriculture. So why hasn’t the activist court been reformed?
There have been attempts. Under the Interlaken Process, official conferences held since 2010 have tried to cut the backlog of cases, improve the quality of judges and keep the court out of national affairs. It clearly hasn’t worked. Indeed, the considered conclusion of Richard Ekins, the head of Policy Exchange’s Judicial Power Project and professor of law and constitutional government at the University of Oxford, is that meaningful reform is impossible. Lord Sumption came to a similar conclusion in his Reith lectures.
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Ekins says there are only two routes to potential reform and neither looks plausible. One is voluntary: “The court mends its ways and winds back. But that needs enough judges to agree.” The other is constitutional: member states agree new protocols or a new treaty reining in the court. “That would need every member state, every minister and their officials and government lawyers to agree,” he said. Do not hold your breath.
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To those of us who advocated reforming Britain’s relationship with the EU and then later voted for Brexit when change was unforthcoming, this is starting to feel like familiar territory. Many of those who ended up voting for Brexit didn’t set out to do so. Nigel Farage and Ukip advocated leaving the EU in 2008, yet many Eurosceptics, like me, assumed that until 2016 it could be avoided by reform.
Sir Keir Starmer, the lawyer’s lawyer, is not going to lead Britain out of the ECHR. It is not difficult to imagine what happens, though, in a few years when under a Labour government public anger rises. When the court makes illegal migration easier and deportations harder, pressure will grow and the Conservatives, seeking to rebuild, will find a new campaign cry.
