Policy Exchange was the thinktank of choice for the Cameroons. Michael Gove was a founder. This alone may make it less attractive to Theresa May. Nevertheless, attention to its concerns gives an indication of what is clearly being talked about in high Conservative circles. Its latest publication is Global Governance: the challenge to the UK’s liberal democracy. It is a diatribe against the intrusion of global governance on our liberal democracy.
Western liberalism, say the authors, is based on three principles: democratic self-government; the moral equality of citizens; and the law as servant of the people. These are threatened by the emergence of international norms which amount to unaccountable global governance and lead to our very own Supreme Court arguing that UN conventions may restrict our government’s implementation of its own legislation.
A particular bugbear is the UN Convention on the Rights of the Child. Its assertion of the ‘best interests of the child’ has, the authors say, ‘been treated as a licence to micro-manage the details of British law and policies, including ones that have widespread support’. But this is only one example taken from a list headed by the UN Declaration on Human Rights and including the conventions against torture and enforced disappearance. These ‘increasingly curtail a nation’s self-government in ways that were neither anticipated nor desired at the time they were established’.
In one way, the authors’ argument is curiously circumscribed. The biggest land-grab by the forces of regional governance, if not global, is the European Convention on Human Rights. Presumably, the authors have been warned off this topic because of a previous and somewhat unsatisfactory Policy Exchange publication, Bringing Rights Back Home. The convention gets only a passing mention on the familiar topic of prisoners’ rights by way of objection to UN comment on the topic. But there are larger silences in the document. What better example of global governance could there be than the various agreements on climate change? Surely, they are, as president Trump so cogently argues, a restraint on national sovereignty? And while we are at it, should we not be equally exercised by economic agreements like those negotiated by the World Trade Organization? There are, after all, dozens of papers on the WTO’s role in global governance.
The core of the authors’ argument is, however, not so much about global governance as a selective attack on what they see as the insidious mission creep of human rights and, as part of that, constitutional restrictions on the power of government. In their final chapter, the authors address ‘what is to be done’ – a reference, conscious or not, to a tough set of demands once drawn up by Lenin. The logic of their position would surely be similarly striking and include, for example, in order of magnitude of response: pull out of the United Nations; repudiate all UN treaties and conventions; repudiate all UN and other treaties that make mention, express or implied, of human rights; enact domestic legislation that would limit the impact of any international considerations (entirely possible under our constitution for all matters not covered by the European Convention); prohibit UN appointees and institutions from criticising states like the UK.
Instead, all the authors want is a bit more education: ‘The likelihood is that judges, members of parliament and other public officials would throw off the shackles of global governance if they could see where it is taking the UK’s liberal democracy’. Where is the red meat? The authors criticise the recent amendment to the ministerial code which deleted any reference to ministers following ‘international law and treaty obligations’ as without substance. Oh dear, if made more specific, does the argument begin to look a bit unrealistic?
An alternative approach is that the key issue in any constitution is the accountability of power. That is surely what has fundamentally driven English history from Magna Carta through the civil war to the struggle for the vote and on to judicial review. On top of that, we learnt from Germany before the second world war that democracy is a necessary but not sufficient mechanism of accountability. A world facing mass destruction by nuclear war and climate change, mass migration, mass violations of human rights and mass terrorism needs to develop some degree of global governance just to survive. Admittedly, British judges should be restrained; some of their decisions may be questionable; they should be prepared to conduct dialogue with other institutions, both international courts and national governments; and they should ruthlessly apply tests of proportionality (the minimum necessary incursion on rights) that are not the same as second-guessing reasonableness or desirability. Policy Exchange, like any other successful pressure group, should be good at sniffing the breeze. If this is what is coming off the wave of Nigel Farage, Brexit, Marine Le Pen and Donald Trump then we certainly should examine these ideas before they go too far.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice