In Case of Verein Klimatseniorinnen Schweiz and Others v. Switzerland deliveredon 9 April 2024, the Grand Chamber of the European Court of Human Rights, subject to the panic about climate change which for our elites justifies all things, has pushed the anti-democratic potential of human rights law to what might prove to be a limit. Four women, in their seventies or eighties when these proceedings were begun in Switzerland, complained that they had health problems caused by heatwaves that in turn had been caused by climate change. These women and a political association, Verein Klimatseniorinnen Schweiz, of which they were members, did not argue that the Swiss government lacked a commitment to mitigate climate change. No, incredibly they asked the judges to descend into the political theatre by arguing the government’s response was inadequate – so inadequate that it violated the Right to Life under Article 2 of the European Convention and the Right to Respect for Privacy and Family Life under Article 8. Staggeringly, the association succeeded under Article 8, these judges now opting to gainsay political choices around energy and environmental policies based on the above right. Whatever that is it ain’t democracy.

Legal recognition of human rights requires limits to be placed on the occasions when such recognition may prevent the discharge of public functions. If not interpreted in terms of the ‘negative liberty’ of protection against authoritarian governments that would do violence to their opponents, a Right to Life has enormous, perhaps universal, potential scope as a ‘positive right’ against harm. A Right to Private and Family Life interpreted so as to decouple ‘life’ from ‘private’ and indeed from ‘family’ has a similar if smaller potential. That national policies might be challenged because four elderly women, distressed by the weather, attributed their distress to global atmospheric changes caused by industrial civilisation might once have served as a cautionary, if satirical, hypothetical. The Articles 2 and 8 rights are therefore qualified by countervailing public interest considerations. Restrictive conditions also must be met for an Article 2 application even to be ‘admissible’, with similar if less strict conditions applying to Article 8.

To be admissible, the individual applications of the four women had to establish that the women were ‘victims’, and the Court found their arguments too vaguely remote. But the Court then regarded this as the very ground for allowing a political association to make those same arguments in a more general manner, thereby finding that the association was itself a ‘victim’! Of course, if the Swiss government suppressed the organisation, there would have been a legal issue. But this was far from the case, and the effect of the ECtHR judgment is to allow the association to enforce its policy preferences through legal proceedings. The Court did not require the association to meet the stricter Article 2 admissibility conditions but allowed it to proceed under Article 8. It then quite blatantly treated the issues as ones of a positive right to life. Of course, if one is dead, one doesn’t have a family life, but this shouldn’t mean one can make anyway tenuous Article 2 arguments under Article 8!

Climate change mitigation involves huge costs. The attempted pace of mitigation therefore must be determined by balances struck across the entire economy. The ECtHR evaluated the balances the Swiss government had struck and said in the most general terms ‘speed up’. Mitigation is an enormously complex technical matter itself beyond any court, but much more importantly it is a political matter of giving effect to the electorate’s choices about how fast it wants to go. The ECtHR allowed an Article 8 application to proceed in order to, under cover of law, politically accelerate the democratically chosen pace.

In doing all this, the Court went against important themes of Convention jurisprudence, and one of the 17 Grand Chamber Judges strongly dissented. But, albeit that they themselves were clearly hot and bothered by climate change, the majority was in line with a modern Convention jurisprudence which sees no limit whatsoever to judicial supremacy – save what is politically possible to get away with.

The separation of powers can work productively only in a constitutional ‘spirit’ of ‘comity’. Checks upon excesses must be balanced by respect for each branch of state’s proper powers. Whether the constitution is one of ‘judicial supremacy’ or of ‘parliamentary sovereignty’ has important consequences for the way balances are struck. That choice of ‘starting position’ is open to rational debate, though this writer thinks democratic decision-making is clearly preferable to rule by judges. But, whatever the starting position, comity is essential.

The meretriciousness and authoritarianism of this ECtHR judgment therefore is of grave concern. It substitutes unworthy ingenuity of professedly legal argument in pursuit of a political objective for a wise concern with comity. This disregard of the proper spirit of constitutional argument may well take the subjection of democracy to politicised human rights jurisdiction to a crisis point.The problems inherent in enforcing all ECtHR decisions will be greatly magnified in this instance. But if this decision is given effect, it will have a most damaging effect in the countries under the Court’s jurisdiction. And because it has led the world in mitigation of climate change, these effects would first be manifested in the UK.

The mitigation efforts the UK has already made have incurred enormous costs, but so far UK citizens have largely experienced these as waste funded by stealth taxation and as lost opportunities for growth. Any determined pursuit of net zero from now on will cause undeniable hardship through absolute reductions of wealth and amenity. A majority of the electorate seeking to avoid hardship by bringing democratic pressures for change will find that such change is deemed by unelected judges to be a human rights violation. There will be no constitutional mechanism for the release of these pressures. The majority will be faced with a choice between resignation to hardship or disobedience.

This writer hopes and believes that as it muddles through, the UK will withdraw from the European Convention and make corollary changes to its domestic laws. He finds it incredible to now have to write that. Yet such is the hegemony of left-wing authoritarian rule in the UK, of which anti-democratic human rights law is a central pillar, that he has little hope or belief that the UK will in fact withdraw from the Convention, with its concomitant juristocracy and rule by unelected elites. And he is very concerned about the pressures that will build.