A new report from Policy Exchange published today, ‘Human Rights and the Rule of Law’, challenges the common assumption that the idea of the rule of law supports European human rights law.

The report, written by Professor Richard Ekins KC (Hon) – Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford – is based on the 37th Atkin Lecture, given in London earlier this year in honour of Lord Atkin, one of the greatest common law judges of the 20th century.  It is backed by Lord Wolfson of Tredegar KC, former Minister of Justice, and Sir Patrick Elias, former Lord Justice of Appeal.

Professor Ekins argued that European human rights law is routinely incompatible with the basic requirements of the rule of law and should be condemned accordingly, and that rejecting European human rights law is entirely compatible with respect for human rights.  For centuries, the British model of rights protection, which centres on Parliament’s legislative freedom, has secured decent government and respect for the rights and freedoms of individuals.

Policy Exchange’s new report shows that the European Court of Human Rights routinely subverts the intended meaning of the European Convention on Human Rights and imposes on member states obligations which it has invented, which the member states did not undertake.  The Strasbourg Court’s climate change judgment last week is a glaring example of this lawless disposition, but it is far from an isolated example.

In its climate change judgment, the Strasbourg Court shows itself to be willing to invent new obligations and to assume new powers – in this case to supervise environmental policy, and thus social and economic policy, across Europe.  The British judge on the Court, Judge Eicke, dissented in strong terms, partly on the grounds that the member states had deliberately and repeatedly chosen not to create a right to a clean and healthy environment.