Oliver Cooper advises on international law for a City law firm and is Leader of the Conservatives on Three Rivers District Council.
“Who governs Britain?” was the Conservatives’ famous ask at the February 1974 election. Unfortunately for Ted Heath, the answer was: “Not you.”
But should Labour form the next government, the answer to the whole country will be “Not you” – as they’ve committed to make international law supreme to British law.
Both David Lammy and Ed Davey have said their parties would hold international law to be sacrosanct. Most specifically, they’d restore the requirement – rightly scrapped by the Conservatives – for British ministers and civil servants to comply with it.
This would make it impossible to resolve myriad problems facing our country, not least, stopping the boats. That already makes it one of the most dangerous dividing lines this election.
But it also fundamentally misunderstands international law and the British constitution.
Unlike domestic law, international law is like the Pirate’s Code in Pirates of the Caribbean: “More what you’d call guidelines than actual rules”. And to see that, you need only look at the party platforms of the supposed defenders of international law.
Let’s start with politics’ chief hypocrites: the Liberal Democrats. As unlikely as Lib Dem policies are to be implemented, do any of them breach international law?
They have called for an extra tax on digital services. That would breach the National Treatment Standard required in Article XVII of 1994 General Agreement on Trade in Services (GATS), the ongoing OECD “Two Pillar” agreement on tax reform, and a slew of bilateral treaties.
The Lib Dems also want to legalise cannabis. That’s a policy several countries have adopted, most recently Germany. But it unambiguously breaches Article 4 of the Narcotics Convention 1961, which requires countries to limit cannabis use to medical and scientific purposes.
It’s Lib Dem policy to ban all goods from Xinjiang, where Beijing is conducting a genocide against the Uyghurs. But such a total ban – rather than one targeted at persons committing crimes – would breach GATT (the treaty that underpins the WTO).
And it’s not just the Lib Dems. Labour too have an enviable track record of ignoring international law when it suits them.
Labour have said they would nationalise train companies without compensation. That would breach bilateral investment treaties that contain Fair & Equitable Treatment clauses – which many of the UK’s do. (Or it would, if that bold rhetoric didn’t really mean simply letting franchise contracts expire and not renewing them.)
And while Labour’s demand for VAT to be applied to private education doesn’t break international law now, it did when it was first announced in 2017 – breaching Article 13(A)(1)(i) of the EU VAT Directive we were then held to.
Whatever the merits or demerits of the above policies, they are Labour or Lib Dem policies – and they all break or would have broken international law. Those parties are, quite rightly, perfectly happy to break it when they think the country needs to.
At the core of the UK constitution is a ‘dualist’ approach to international law. Parliament chooses which parts of international law to make enforceable in domestic law. In the absence of Parliament acting, international law holds no sway.
This reflects the fact that most international law was never intended to be as binding as a domestic law. That is a perfectly normal approach – adopted by about half of European countries – and doesn’t make the UK unusual or a pariah, as Labour claim.
Indeed, when it comes to the most reaching areas of international law, Britain is far more compliant than other countries.
Take the ECHR. In the last decade, the UK has implemented 79 per cent of the leading judgments of the European Court of Human Rights – i.e. judgments that require changes in law or policy. That’s compared to just 67 per cent in Germany, 49 per cent in Spain, and 35 per cent in Italy.
You’ll be unsurprised to hear that Russia has implemented just five per cent. But you may be surprised that Denmark and Ireland have implemented just 50 per cent. How could they – countries with reputations for internationalism – fail to abide by half the judgments against them?
The answer is: implementation of international law – guidelines that all countries breach – is not the definition of a good policy, a good government, or a good society.
Indeed, the Rwanda policy is based – with some differences – on an agreement that Denmark’s centre-left government signed with Rwanda in April 2021, a year before the UK.
Denmark’s agreement with Rwanda would have unambiguously breached international law. But then so too do all countries, and the policy platforms of all our national political parties.
Far from kow-towing to those who want to make international law paramount, we should be reflecting how it really works and rid domestic law of its vestiges altogether. That means making it explicit that the Ministerial Code and Civil Service Code require adherence only to domestic law.
Labour and the Lib Dems’ desire to do the exact opposite shows they don’t understand that international law are guidelines not actual rules – and that it’s normal for the UK to put its national interest first.
Oliver Cooper advises on international law for a City law firm and is Leader of the Conservatives on Three Rivers District Council.
“Who governs Britain?” was the Conservatives’ famous ask at the February 1974 election. Unfortunately for Ted Heath, the answer was: “Not you.”
But should Labour form the next government, the answer to the whole country will be “Not you” – as they’ve committed to make international law supreme to British law.
Both David Lammy and Ed Davey have said their parties would hold international law to be sacrosanct. Most specifically, they’d restore the requirement – rightly scrapped by the Conservatives – for British ministers and civil servants to comply with it.
This would make it impossible to resolve myriad problems facing our country, not least, stopping the boats. That already makes it one of the most dangerous dividing lines this election.
But it also fundamentally misunderstands international law and the British constitution.
Unlike domestic law, international law is like the Pirate’s Code in Pirates of the Caribbean: “More what you’d call guidelines than actual rules”. And to see that, you need only look at the party platforms of the supposed defenders of international law.
Let’s start with politics’ chief hypocrites: the Liberal Democrats. As unlikely as Lib Dem policies are to be implemented, do any of them breach international law?
They have called for an extra tax on digital services. That would breach the National Treatment Standard required in Article XVII of 1994 General Agreement on Trade in Services (GATS), the ongoing OECD “Two Pillar” agreement on tax reform, and a slew of bilateral treaties.
The Lib Dems also want to legalise cannabis. That’s a policy several countries have adopted, most recently Germany. But it unambiguously breaches Article 4 of the Narcotics Convention 1961, which requires countries to limit cannabis use to medical and scientific purposes.
It’s Lib Dem policy to ban all goods from Xinjiang, where Beijing is conducting a genocide against the Uyghurs. But such a total ban – rather than one targeted at persons committing crimes – would breach GATT (the treaty that underpins the WTO).
And it’s not just the Lib Dems. Labour too have an enviable track record of ignoring international law when it suits them.
Labour have said they would nationalise train companies without compensation. That would breach bilateral investment treaties that contain Fair & Equitable Treatment clauses – which many of the UK’s do. (Or it would, if that bold rhetoric didn’t really mean simply letting franchise contracts expire and not renewing them.)
And while Labour’s demand for VAT to be applied to private education doesn’t break international law now, it did when it was first announced in 2017 – breaching Article 13(A)(1)(i) of the EU VAT Directive we were then held to.
Whatever the merits or demerits of the above policies, they are Labour or Lib Dem policies – and they all break or would have broken international law. Those parties are, quite rightly, perfectly happy to break it when they think the country needs to.
At the core of the UK constitution is a ‘dualist’ approach to international law. Parliament chooses which parts of international law to make enforceable in domestic law. In the absence of Parliament acting, international law holds no sway.
This reflects the fact that most international law was never intended to be as binding as a domestic law. That is a perfectly normal approach – adopted by about half of European countries – and doesn’t make the UK unusual or a pariah, as Labour claim.
Indeed, when it comes to the most reaching areas of international law, Britain is far more compliant than other countries.
Take the ECHR. In the last decade, the UK has implemented 79 per cent of the leading judgments of the European Court of Human Rights – i.e. judgments that require changes in law or policy. That’s compared to just 67 per cent in Germany, 49 per cent in Spain, and 35 per cent in Italy.
You’ll be unsurprised to hear that Russia has implemented just five per cent. But you may be surprised that Denmark and Ireland have implemented just 50 per cent. How could they – countries with reputations for internationalism – fail to abide by half the judgments against them?
The answer is: implementation of international law – guidelines that all countries breach – is not the definition of a good policy, a good government, or a good society.
Indeed, the Rwanda policy is based – with some differences – on an agreement that Denmark’s centre-left government signed with Rwanda in April 2021, a year before the UK.
Denmark’s agreement with Rwanda would have unambiguously breached international law. But then so too do all countries, and the policy platforms of all our national political parties.
Far from kow-towing to those who want to make international law paramount, we should be reflecting how it really works and rid domestic law of its vestiges altogether. That means making it explicit that the Ministerial Code and Civil Service Code require adherence only to domestic law.
Labour and the Lib Dems’ desire to do the exact opposite shows they don’t understand that international law are guidelines not actual rules – and that it’s normal for the UK to put its national interest first.