Tuesday’s decision of the European Court of Human Rights on climate change is the court’s boldest invasion to date of the domain of democratic politics. The constitutional implications deserve careful attention, for the judgment is a direct challenge to the right of democratic electorates to have their say on one of the major issues of our time.
In 2020 the Swiss parliament passed an act requiring a 30 per cent reduction in emissions from 1990 levels by 2030. The act was rejected in a referendum as too extreme. So in 2022 it was replaced by a more moderate one providing for a staged reduction to net zero by 2050 (the same as the current statutory target in the UK). The Swiss approved the new act in a referendum in the following year.
Article 8 of the Human Rights Convention protects “private and family life”. This was originally intended to deal with the Gestapo-style surveillance state. But over the past half century, the notion of private and family life has undergone a remarkable expansion in the hands of the Strasbourg court. They have interpreted it as potentially extending to anything that intrudes upon a person’s wellbeing or personal autonomy — in other words almost anything at all.
On Tuesday the court held that it includes a right to require one’s government to take “effective measures” against climate change.
By “effective measures” the court means measures consistent with the views of the UN Intergovernmental Panel on Climate Change. By that standard the latest Swiss statute was found wanting. The intermediate targets were not ambitious enough. Too much flexibility was allowed to the government to decide what measures were needed and when. There were objectionable qualifications like “so far as possible”.
Advertisement
Not only did Switzerland have a duty to adopt fiercer policies regardless of its citizens’ wishes,
but it had to confer a right to enforce them in the domestic courts. As the British judge pointed out in his solitary dissent, the court has invented a new right for which there is no warrant in the convention. It has effectively assumed a power to legislate for climate change in place of the national parliaments of the 46 states of the Council of Europe, including the UK. The effect is to transfer responsibility for climate change policy from national legislatures to the IPCC and domestic and international courts. Where does democracy come into all this? The answer comes at paragraph 412.
“Democracy cannot be reduced to the will of the majority of the electorate and elected representatives,” the court intoned, “in disregard of the requirements of the rule of law.” What the court meant by the rule of law was the court’s own decisions. In other words, the Strasbourg court’s expansive view of Article 8 must prevail over democratic decision-making throughout Europe.
Climate change is a classic polycentric issue. There is an urgent need for measures to address it. But governments have to take a far wider range of factors into account. They have to consider the impact on whole populations which have built their lives on past assumptions about the availability of energy. People need to heat their homes, get to work, run businesses and so on. Many live on very tight budgets. There is a trade-off between these competing policy imperatives. Difficult compromises may be required.
This is why courts are entirely unsuitable to act as legislators in a complex field like this one. Climate activists will be delighted by the decision, but they are only interested climate change. The Strasbourg court considered nothing but climate change. Yet that is just one of many relevant factors. Responsible states cannot make major decisions affecting peoples’ lives on such a blinkered basis.
By moving in on this area, the Strasbourg court has become an avowed enemy not just of democratic decision-making but of good government. We need to give serious consideration to withdrawing from the Human Rights Convention and replacing it with an equivalent domestic regime enforced by courts which respect the limits of their constitutional role. Otherwise we will find ever more controversial issues of social policy removed from the democratic arena and determined by crude decisions like this one, made without any regard to their wider implications.
Advertisement
Lord Sumption is a former Supreme Court justice