Does judicial activism mean that it is time to leave the ECHR?

Much ink has been spilt over the meaning of the Brexit Referendum and the subsequent 2019 General Election; how it was about migration, about ‘levelling  up’ poorer parts of the country, or a last cry from Empire nostalgics for non-decimal measurements and blue passports.

However, one thing that most reasonable commentators – those who don’t ascribe it to the stupidity of the electorate or shady conspiracy theories – accept is that it was a demand for control. That the people of Britain, at least those voting to Leave, wanted the big decisions to be made by our elected representatives.

Instead, the last eight years have seen our elected politicians appear content to let their own power dwindle as more and more decisions are taken ‘out of politics’ and made instead the preserve of bureaucrats and judges. This week’s decision from the European Court of Human Rights to uphold a complaint against the Swiss Government for being insufficiently robust in fighting climate change is just the most recent legal overreach.

On one level, I can understand the delight from climate campaigners. The Net Zero by 2050 target incentivises the current government to only implement popular policies (eg more subsidies for renewable energy) or low-hanging fruit (such as encouraging smart meters and insulation) that will have only a limited impact on the journey to net zero. The more difficult, politically damaging and brutally effective policies to cut emissions, such as bans on new non-electric cars, gas boilers and mothballing the power stations that help us avoid blackouts when the wind isn’t blowing and the sun not shining, can be left for a future government. Preferably a Labour one. Decisions aren’t taken with the health of the planet in mind, they’d argue, but instead based on making the government of the day appear to be working towards the long-term goal. For them, this decision is a vindication that governments across the world are not doing enough to actually reach their net zero goals.

Let’s leave aside the problems with a net zero approach; That the government is attempting to pick the technological winners for 2050 – imagine the Attlee government in 1945 trying to plan the economy by picking what they thought the technology would be like in 1980! That we will immiserate the poorest, both at home and abroad, with higher prices for energy, food and the other necessities of life. Or that the switch to many of the net zero technologies that the government is betting on will require us to at least double (and in some cases increase by a factor of fifty) the worldwide extraction of minerals such as zinc, copper, lithium and nickel.

Even if you accept net zero is the approach that needs to be taken, the ECHR decision is outrageous overreach. Whatever the issue, the court has handed down a judgement that will be binding on British courts on a matter that is clearly within the realm of electoral politics. This cannot coexist with a parliamentary democracy. While there may be a case for a supranational court that rules on narrow rights issues across different nation states, expanding their power to encompass saying that a lack of ‘acceptable’ legislative action on something goes well beyond what anyone would expect. And once the precedent is made, what other areas of policy may be open to similar complaints?

Is the level of housebuilding too little to ensure all Britons have access to housing and the life and family benefits it brings? Yes. Might a similar case be that council house building (and the central government funding to provide it) has been insufficient and therefore the government can be found in breach of a complainant’s human rights? You’d be bold to assume it was impossible now. And it is not just conservatives who should be concerned about the overreach of the court leading to decisions they don’t like. After all, why shouldn’t a group made up of those who have lost a family member to recidivist criminals not make a case that overly lenient sentencing breached the rights of their loved ones to life?

Some might argue that the difference is that net zero is legislated for. In that case, net zero should be repealed and replaced with (if the government is so inclined) with shorter-term emission reduction targets – as recently introduced in New Zealand – that allow the electorate to properly judge the government’s performance.

But regardless of what we do with net zero, the direction of the ECHR is now clearly set. They are intruding further and further into the political sphere, making decisions that impact energy policy, national security and a range of other areas in which governments have to weigh trade offs based on the will of the people. Prior to this decision I believed there was a case for remaining inside the ECHR. No longer. We must leave.