Lord Hermer’s defence of the ECHR is dishonest and desperate

Lord Hermer just doesn’t get it. The problems created by the European Convention on Human Rights have become blindingly obvious even to some Labour ministers. Yet the attorney-general is still doubling down on his insistence that we need to remain signed up to the ECHR at all costs.

Last week, desperate for ammunition against Reform UK leader Nigel Farage and his Tory counterpart Kemi Badenoch (both committed to withdrawal), Hermer insisted on BBC Radio 4’s Political Thinking that ECHR membership is crucial to immigration control – that is, it aids co-operation with France to stop the boats and led to recent German legislation criminalising the provision of help to people smugglers, including those targeting Britain. Hermer then added that Reform, and likely the Tories too, would be happy to have people drown in the Channel.

That this is baloney is the easy bit. The ECHR makes a mockery of our immigration system. We read almost every week of an irregular migrant or foreign criminal who a UK court decides can’t be deported for human-rights reasons. Think of the terrorist who wanted to blow up the London Stock Exchange but couldn’t be returned to Bangladesh because his government isn’t kind to Islamist fanatics. Or the Albanian criminal who defeated deportation because his son dislikes foreign chicken nuggets. Or the Jamaican murderer who couldn’t be sent back to Kingston because a rival gang might kill him. And that’s just a few cases from the past year.

As for Hermer’s claim that ECHR membership has helped stop the boats, that’s risible. Everyone knows that Labour’s ‘one in, one out’ agreement with France, even if it did depend on the ECHR, is window-dressing on a grand scale and has done almost nothing to stem the flow of illegal immigration from French shores. As for the German law against people smuggling, while this was admittedly passed partly as a result of pressure from Britain, it applies to trafficking aimed at all third countries. In any case, it has nothing to do with the ECHR.

There are, however, deeper reasons for Hermer’s advocacy of the ECHR. He isn’t stupid – he almost certainly knows that our ECHR membership does almost nothing to promote, and a good deal to hinder, proper immigration control and a good many other things British voters think strongly about. But for him, and the self-appointed ‘progressives’ who have taken over Labour, that isn’t the issue. The ECHR represents a last-ditch defence against two ideas that existentially threaten the power of the ruling and lanyard classes he represents – namely, national sovereignty and democracy.

The first is the idea that final decisions on matters of social policy are best left to national electorates. This is actually one of the best protections against authoritarianism and top-down uniformity, not to mention the imposition willy-nilly of lunacies like Net Zero or transgender fanaticism. But it spooks progressives big-time. They vastly prefer to link across borders with like-minded people from UN bodies, NGOs, the EU and, of course, the Council of Europe, which drafted the ECHR. That way, they can ensure that as many big decisions on social policy as possible are taken by people like them. And there are few better embodiments of this than the ECHR itself, overseen by transnational judges with no particular national or cultural affiliation, and informed by an international blob of academic human-rights theorists who wouldn’t be where they are if they seriously questioned the human-rights system that feeds them.

The other idea that terrifies ‘progressives’ is that of letting ultimate decisions lie with ‘uneducated’ voters, especially ones who don’t share their intellectual worldview and who can’t be easily manipulated if they threaten to fall out of line. The Starmer-Hermer types, patrician and distrustful, regard it as axiomatic that major decisions must not be left up to the public. And this is where the ECHR comes in very useful. For all the references in the convention to a ‘democratic society’, the Strasbourg court that interprets it warns over and over again about the supposed evils of populism and what voters can get up to if unrestrained. And of course, once the court has pronounced its judgements, these are expected to be applied, whatever electorates may think.

Reverential wonder at the ECHR may currently represent established thinking. But voters increasingly see through the human-rights façade. They rightly detest a party that puts human rights before the economy, the society they live in and their right to make a decent living. Whatever happens in the Makerfield by-election later this month, a General Election looms in 2029. And by then, voters’ rejection of the human-rights stitch-up might very well help cook the lanyard classes’ goose to a cinder. Anti-populists and patricians, you have been warned.

Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.