I have been reading the judgment of the European Court of human rights in Verein Klimaseniorinnen Schweiz and Others v Switzerland. It is grim reading. You might be shocked by it – unless of course you already know just how incompetent and dangerous that Court is.
The background may be briefly stated. In 2021 the Swiss government adopted some proposed legislation to reduce carbon dioxide emissions, but that proposal was rejected by the Swiss people in a referendum. The first applicant in this case (whose name may roughly be translated as “Old Swiss Women Bothered by the Climate”) evidently did not like the way the referendum vote went, and brought this case to force the Swiss Government to override it. They lost at first instance, and then again in the Federal Administrative Court, but have now won on the 3rd and final appeal to the Grand Chamber.
The decision is based on junk science, is bad in law and is even worse as a matter of politics. It will add a good deal of fuel to the fire of those who think the UK should leave the European Convention on Human Rights (ECHR) pretty sharpish, ideally before its court (the ECtHR) purports to prevent the UK from dealing effectively with its illegal immigration problem.
As to the science, the judgment collects together the most alarmist pronouncements from all the doomsayers that they could find, particularly from the IPCC, and uncritically treated it all as established fact, saying:
432. The findings of the IPCC reports noted in paragraphs 107 to 120 above have not been challenged or called into doubt by the respondent or intervening States. It should also be noted that the clear indications as regards the adverse effects of climate change, both existing and those associated with an overshoot of 1.5oC global temperature rise, noted by the IPCC, have been shared by many environmental experts and scientists intervening as third parties in the present proceedings before the Court
So who were these interveners? There were two lots of them. First, a number of other states intervened. They all piously declared that they would just as keen as anyone else to fight climate change, but would the court please not make any finding which would be binding on them. The second lot of interveners were a bunch of some 16 pressure groups and quangos each anxious to burnish their green credentials. There were no interveners like the GWPF, who might have pointed out that the public announcements of the IPCC are not in fact supported by the detail of the IPCC reports, that every single prediction of the IPCC has turned out to be false, and that the most eminent scientists in the world have repeatedly pointed out that there is no climate emergency, that recent warming has not been caused by carbon dioxide, and that the increases in levels of carbon dioxide, and indeed the modest warming that we have seen have been beneficial, not harmful. In other words, in the absence of any dissenting voice, this aspect of the case was a Turkey shoot. It bears about the same intellectual weight as a finding by an ecclesiastical court in the Vatican that Jesus’s mother was a virgin, and that having been killed by the Romans, he then rose from the dead. Some people believe that stuff, of course.
But then the court strayed onto even thinner ice. One of the big claims of the alarmists, of course, that all the ice in Greenland and the Antarctic is going to melt causing catastrophic sea level rise. But this was not going to do for a case against the Swiss government. Switzerland has no coastline. It is quite high up. The little old ladies of Switzerland are not going to drown, or even get their feet wet, even if you believe the alarmist narrative. So the court had to find another shtick. It went for death and injuries caused by heatwaves. The judgment mentions heatwaves no less than 70 times. The individual applicants were very anxious about that. One had adapted her habits to the heat by going to the shops earlier and getting fresh air at night. Another said during heatwaves, she suffered because she had to reduce her activities and she felt isolated. Yet another complained that the heatwaves had the effect of taking away all her energy. During summer she could not face leaving her home and going for a swim. The court found as a matter of fact that that anthropogenic climate change posed a serious current and future threat to the human rights of the little old Swiss ladies.
But here is the thing. If it does get warmer, it is going to get less cold. And far, far more people die from cold than die from heat. If feeling that it is all a bit too hot impinges on human rights, then surely suffering from it being too cold is likewise an infringement of our human rights? Personally, I am quite sure that one’s preference in terms of temperature is not a human right at all, but even if I am wrong about that, it is probably absurd to treat too much heat (which kills few) as offensive, but not too much cold (which kills many).
Anyway, go back half step. If it does get warmer, it is going to get less cold. How much regard did the court have for this consideration? Surprise, surprise: absolutely none. In the judgment of 121,160 words, there is not a single mention of cold-related deaths; the court paid absolutely no regard at all to the consideration that its desideratum would cause more temperature-related deaths, not less.
Which brings us to another point. Causation. Having read the science, it seems clear to me that carbon dioxide has no impact on global temperatures, not least because its impact is a greenhouse gas is almost entirely saturated and a good deal less than its present levels of around 400 ppm. Even if I am wrong about that, it is abundantly clear that whatever Switzerland does or does not do in terms of its carbon dioxide emissions can have no material effect whatsoever on the amount of carbon dioxide in the atmosphere, because the Swiss emissions are an infinitesimally small fraction of the emissions caused by industry in China and India, let alone natural emissions. I searched through the 121,160 words of the judgment to see what the court said about the emissions of China and India. Again, not a whisper.
So, once it be accepted that there is no causative link between what the Swiss government does or does not do in terms of legislation about carbon dioxide emissions can have no material impact on climatic temperatures in Switzerland (or anywhere else) the legal basis for the claim falls away. It is basic first-year law stuff.
That is not the only crass legal error. The court also made a serious error in disregarding the boundaries to its jurisdiction. Its jurisdiction is set by Article 32 of the Convention:
Article 32 – Jurisdiction of the Court
- The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47.
- In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.
This 2nd part – the kompetenz-kompetenz provision – is of itself unremarkable. Who else can decide if the court has jurisdiction in any particular case? But the power to make that decision should not be confused with a power to extend that jurisdiction. Which is what this court has repeatedly done, via its weaselly doctrine that the Convention is a “living instrument”. But which they mean, something that the court can distort and abuse as it wishes. And here we see it again, in his case:
422. Because of these fundamental differences, it would be neither adequate nor appropriate to follow an approach consisting in directly transposing the existing environmental case‑law to the context of climate change. The Court considers it appropriate to adopt an approach which both acknowledges and takes into account the particularities of climate change and is tailored to addressing its specific characteristics. In the present case, therefore, while drawing some inspiration from the principles set out in the Court’s existing case‑law, the Court will seek to develop a more appropriate and tailored approach as regards the various Convention issues which may arise in the context of climate change.
…
434. The Court cannot ignore the above‑noted developments and considerations. On the contrary, it should be recalled that the Convention is a living instrument which must be interpreted in the light of present‑day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies
Worse than that, the court thinks that it is perfectly OK to expand its reach so as to quash democracy, as that word is traditionally understood. In the newspeak of the court, “democracy” now means whatever the court thinks best, with the will of the majority trailing behind as a poor second:
412. Judicial intervention, including by this Court, cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government. However, democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes. The task of the judiciary is to ensure the necessary oversight of compliance with legal requirements.
You may think that does not sound too bad. The expression “legal requirements” has got a nice solid ring to it. But what does the ECtHR mean by it? It turns out to include pretty much everything on which it has an opinion. As Jonathan Sumption pointed out recently in his article in the Spectator Judgment call: the case for leaving the ECHR:
Who is to judge what countervailing public interests are sufficiently important or what is necessary in a democratic society? Balancing competing public interests is the essence of democratic government and participatory politics. How much privacy are we prepared to sacrifice in the interests of efficient policing? How much liberty are we prepared to sacrifice in the interests of preventing the spread of disease? How much freedom of speech are we prepared to sacrifice in the interests of ethnic harmony or the protection of personal reputation? These are intensely political questions. Not every society will answer them in the same way. But the ECHR has classified them as questions of law for judges. It has arrogated to itself the right to decide between competing public interests, and to determine what is necessary in a democratic society, irrespective of the views of democratic electorates.
Lord Sumption gives some further examples of areas in which the court has thought it proper to overturn laws made by democratically elected governments:
Thus, the notorious Article 8, which ostensibly protects private and family life against the intrusions of the surveillance state, has been interpreted by the ECHR as extending to anything that intrudes upon an individual’s personal autonomy. Since most laws do that, the result is to give the court the power to review the whole range of domestic law. Examples over the past half-century have included immigration and deportation, extradition, criminal sentencing, the recording of crime, abortion, artificial insemination, same-sex relationships, child abduction, the policing of public demonstrations, employment and social security rights, legal aid, planning and environmental law, noise abatement, eviction for non-payment of rent and much else besides.
In other words, in pretty much any area of governance, the ECtHR can and does form an opinion of how things should be, and simply declares that any contrary approach is illegal.
The judgment was not quite unanimous. It was 16 to 1. The one was the British judge, Tim Eicke (well, he is German by birth, but now has British nationality). He showed no Galilean bravery as to the science, but was sound on the law:
20(c)… in relation to questions of social and economic policy requiring the careful weighing up of competing rights and interests (frequently, if not invariably in this context, including the rights and interests of parties not before the court), in a functioning democracy as envisaged 2020 (Third) CO2 Act, though adopted by Parliament, was expressly rejected by a popular vote in the course of a referendum in June 2021 (see e.g. §§ 92 and 94 of the judgment). It seems to me that great care is required in such a context not to be perceived to be relying (at least in part) on this very expression of the democratic will of the people of Switzerland as a basis for finding a violation of Article 8…
70. Consequently, while I understand and share the very real sense of and need for urgency in relation to the fight against anthropogenic climate change, I fear that in this judgment the majority has gone beyond what it is legitimate and permissible for this Court to do and, unfortunately, in doing so, may well have achieved exactly the opposite effect to what was intended.
In Lord Sumption’s opinion, the ECtHR is now unfixable. There is not much wrong with the ECHR itself, but it is now so infested by the rot of the ECtHR as to render it more harmful than beneficial. The UK does not need to be lectured on human rights any more than, say, Australia (where I now live, and which is all the better from being free from this stuff).
EU-remainers said that leaving the EU would be catastrophic for the UK. They were wrong about that – it has made but modest difference either way. Likewise, ECHR-remainers say it would be bad – very bad – for the UK to leave the ECHR. But I say it would make precious little difference, save to have some modestly beneficial effect on freeing the country from at least some judicial overreach.
Will this government make the break? I doubt it. But it should, for both noble and selfish reasons. The noble reason is that the ECHR does more harm than good, at least in the case of the UK. The selfish reason is that competing with the Labour Party, the Liberal Party and the Greens for woke votes is never going to work: its only prospect for avoiding electoral disaster is to put some “clear blue water” (as it used to be called) between itself and the other parties.
phenell 