Hermer denounces attempts to “pick and choose” international law – but that’s exactly what democracy is

“Sir Keir Starmer’s chief legal officer has likened attempts by the Tories and Reform to pull Britain out of international courts to 1930s Nazi Germany.” Imagine that.

Amusingly, the Times goes on: “Sources close to Hermer insisted he was not likening right-wing politicians to Nazis, pointing out that he said they were acting in “good faith” and were “patriots”.” Not much less speciously, it quotes him as saying:

“International law cannot and must not replace politics. As we have shown time and again as a nation, from a position of respect and compliance . . . reform is possible and institutions can be reformed. We must be ready to reform where necessary.”

It is very much the object of Lord Hermer’s species of international lawyer to replace politics – or, at the very least, to muzzle and leash it. That is precisely what the ECHR and its like are intended to do. Yet there is a crucial difference between the ECHR and the German constitution, or indeed any national constitution: there is no nation or state that correlates to it.

Why is this a problem? Because even a deeply-entrenched national constitution (such as that of the United States) is ultimately subordinate to the political institutions of the nation it governs. Even if securing change to the constitution through political organisation is difficult, it can be done and it has been done.

The ECHR is quite different. It sits above the mechanisms of political government in the nations that subscribe to it, like a modern reimagining of the medieval Church. If you profoundly disagree with the rulings of the court in Strasbourg, you could reach the very limit of what political organisation can achieve – becoming prime minister or president – and be unable to do anything about it.

At least, anything Hermer would approve of. Because you could, of course, start taking a “pick and choose” approach towards international law. This is not only perfectly constitutional in Britain (it’s what we did on prisoner votes) but democratically necessary too.

As I have argued previously, decades of mission-creep by the European Court of Human Rights et al have made the Hermerist view of the sanctity of international law – and its parity with domestic law – democratically unsupportable, because its democratic character is grossly deficient.

We have for the formation of domestic law evolved all manner of safeguards. Governments must submit to an election every five years, no Parliament can bind its successors, later law triumphs where it conflicts with previous law (‘implied repeal’ – this one our courts have placed under attack by inventing a special category of ‘constitutional statute’).

Britain ratified the ECHR, on the other hand, in 1951, and hasn’t made any positive decision on it since. This despite the extraordinary breadth of the change the Convention has undergone since then: the creation of the Strasbourg court, the endless expansion of the interpretation of the rights, and the consequentialist extension of states’ obligations (i.e. if something bad happens to someone you deport, that’s on you) to pick just a few examples.

Under the Hermerist concept, international law is essentially superior law, negotiated by the executive without the extensive scrutiny we apply to the passage of domestic legislation, which allows one parliament to bind its successors. If a government signs a treaty without exit provisions, to a certain species of international lawyer that is just that. Within the self-referential framework of international law, our hands are tied.

Of course we can still leave such a treaty, that being the right and preserve of sovereign governments. But Hermer and co. would be deeply unhappy about it.

There are two coherent but incompatible defences of this situation. One is that we are meant to live in a liberal democracy which protects “fundamental rights” from the will of the majority. The other is that we give the ECHR tacit endorsement every time we choose a government which chooses not to leave it; for as long as they don’t, this argument runs, it cannot be argued that the Strasbourg court impinges on democratic legitimacy.

These argument are, in my experience, often deployed in tandem. But they contradict each other: one maintains that quitting the Convention would be illegitimate, whereas the other (perhaps inadvertantly) has to normalise the idea of leaving to draw cover for Strasbourg’s ever-widening reach from the fact that we haven’t. If you actually tried to put them together, you get something like this:

Lawyer: “It’s absurd to say the Convention doesn’t have democratic legitimacy, it is endorsed and subscribed to by elected governments who choose to remain part of it.”

Politician: “I want to choose differently.”

Lawyer: “But that would be Fascism!”

Lord Hermer’s new talk of reconciling international law with democracy is a useful sign of the times, but ultimately specious, because when the two comes into conflict he in his innermost heart almost certainly thinks international law should win. As such, all the mechanisms we actually have for subjecting international law to democratic consent – i.e. our ability to legislate contrary to it – will remain, to him, beyond the pale.

What he offers instead is an absurd illusion of it. Even if the 46 signatories of the Convention could get to together and actually agree to amend it, such an amendment would surely be couched in the same broad terms as its current provisions, and so realistically would not impose any new restrictions on the judges’ power. (Remember, when we signed the ECHR both capital and corporal punishment were Convention-compliant.)

Real democracy is the regular and granular power to respond to judgements by updating the body of law to which the judges refer on an ongoing basis. Happily, we have that in Parliament.

As for international law, which has neither that safeguard nor any of the others we have over centuries built into our democratic and political constitution? The ability to “pick and choose” is the only thing making its relentless expansion into the internal affairs of nations democratically defensible.