To state my pretentions in the manner of everyone’s favourite gladiator, Maximus Decimus Meridius, I am a family barrister of over 20 years’ experience, I am (perhaps) a descendant of those who dwelt in the green woods of medieval England, I am an admirer of James Lovelock, an adherent of the international human rights frameworks, I am a lover of nature and, I am a despondent citizen of planet earth. I am not, however, an environmental lawyer and I am certainly not an administrative or constitutional law expert. I do, however, fondly remember studying the rules of legislative interpretation at university and much later, as a student in the United States of America, being (and continuing to be) gripped by the debate there between originalism or textualism and the view that the US Constitution should be treated as a ‘living document’. In my view, both that Constitution and human rights treaties such as Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or ECHR) are inevitably and must be treated as ‘living’ documents.

However, as our societies have become politically polarised, interpretation of such seminal framework documents has become something of a battleground. The battle in the US rages on as landmark decisions about the right to carry firearms and have an abortion continue to occupy the Supreme Court and public discourse. This situation is increasingly taking hold in this country and just as ‘beauty is in the eye of the beholder’ so the view of one man on the Clapham omnibus of a judgment as the necessary and legitimate, if sometimes creative, development or evolution of the law it is to another passenger an example of judicial overreach or judicial activism. Increasingly it seems that which view the individual adopts is influenced by their political views just as much or more than their views about the separation of powers and the legitimacy of the courts’ ‘supervisory jurisdiction over the lawfulness of acts of the UK government’. The Brexit process and responses to the courts’ decisions in the Miller case and the prorogation ruling starkly illustrated this.

The term ‘judicial activism’ is said to have first been coined in the US by Arthur Schlesinger Jr when writing about the country’s Supreme Court in an article published in 1947. It is now commonplace and has become a pejorative invariably used as a slur. Black’s Law Dictionary defines it as a ‘philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decision’. However, until fairly recently the term has not had the same resonance in England and Wales. Arguably this might have been because it has been the tradition of our superior courts to avoid straying into the political realm whenever possible and leaving the development of the law on key social issues to be addressed more properly by the Legislature. An example is the court’s repeated refusal to ‘legislate’ for assisted dying stating instead that any such rights, or exceptions to the criminal law, should be decided by the Legislature. As long ago as 1985 in Council of Civil Service Unions v Minister for Civil Service Lord Roskill observed: ‘Today it is perhaps commonplace to observe that as a result of a series of judicial decisions since about 1950… there has been a dramatic and indeed a radical change… That change has been described – by no means critically – as an upsurge of judicial activism.’ Since the implementation of the Human Rights Act 1998 there has been an increase in criticism both of the Supreme Court as becoming increasingly involved in matters of policy and politics and as having the power to interfere with the sovereignty of parliament as well as of the UK’s membership of the ECHR. Indeed, the government’s plans to reform the Supreme Court leaked to The Telegraph newspaper in November 2020 were said to be fuelled by the government’s perception that the court was increasingly ‘activist’ and by calls from politicians to withdraw from the ECHR driven by a narrative that the sovereignty of Parliament has been usurped.

The latest calls to withdraw from the ECHR are in response to the landmark decision of the European Court of Human Rights (ECtHR) in Verein Klimaseniorinnen Schweiz and Others v Switzerland. In this judgment of 9 April 2024 the court ruled that states owe a duty to citizens to take adequate measures to mitigate the effects of climate change. As Professor Stefan Theil notes, this decision is a classic example of one that will be derided by its critics as judicial overreach and described as an innovative and ground-breaking decision by its supporters. Several leading Conservative politicians immediately voiced their concerns that the decision reflected a usurpation of democratically elected governments with former immigration minister, Robert Jenrick, complaining: ‘This is the latest example of the expansionist doctrine practised by the justices of the Strasbourg court. By viewing the ECHR as a “living document” they continually stretch its reach in ways no signatory ever agreed to. It’s profoundly undemocratic.’

Informed critics of the decision undoubtedly rely upon the scathing dissenting opinion issued by the UK judge, Tim Eicke KC, who accused the court of judicial overreach. He said: ‘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.’ Judge Eicke argued that the court had created a new right which has no basis in the ECHR and that the court’s decision to find that the applicant campaign organisation had locus by developing a new test for standing is an improper manipulation of Article 34.

The principle that the ECHR is a ‘living document’ is, however, well established. While some consider this principle and the resultant adoption by the court of evolutive (or dynamic and purposive) interpretation as the manifestation of ‘activism’ surely this approach is vital if the rights and freedoms enshrined in the Convention are to continue to having meaning and effect in a changing world. If that makes the court judicially activist, then so be it.

The existential and looming threat to human beings resulting from the impacts of climate change could not be more pressing and real. As the G-7 countries prepare to meet and countries around the world prepare to submit their plans to limit global warming to 1.5 degree celsius as per the Paris Agreement, the Wall Street Journal carried the salutary warning, ‘World’s Leading Nations Failing to Deliver on Climate Goals.’ Last year we experienced record global heat as temperatures surpassed the 1.5 degree celsius warming mark.

Politicians, governments, corporate entities arguably have only themselves to blame for both the increasing reliance upon litigation and the ‘activist’ approach of the court. While climate litigation represents a strategy used by climate activists it also represents the logical and inevitable outcome of the multiple and sustained failures of politicians, governments and global corporations. Politicians and governments have failed to rein-in the excesses of global corporations engaged in fossil fuel extraction, they have failed to respond positively and responsibly to the protests and calls for action of civil society groups and individuals, they have failed to invest adequately in alternative energy production, they have failed to implement policies that support and encourage individuals to make the requisite behavioural changes and, they fail to make or fulfil urgent commitments to respond to the increasingly real impacts of climate change.

Would it not make a mockery of having a court to protect our rights if that court could not act to do so when action is most needed? Perhaps we should be applauding the ‘activist’ European Court of Human Rights.