Godwin’s Law states that, as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 100 per cent. A corollary to the law is that the first person to mention the Nazis loses the argument. So it is surprising that Richard Hermer, the attorney general, should make that mistake.
He said in a lecture on Thursday: “The claim that international law is fine as far as it goes, but can be put aside when the conditions change, is a claim that was made in the early 1930s by ‘realist’ jurists in Germany – most notably Carl Schmitt, whose central thesis was in essence the claim that state power is all that counts.”
Schmitt supported Hitler’s rule by decree in 1933, bypassing the German constitution. Hermer went on: “Our approach is a rejection of the siren song, that can sadly now be heard in the Palace of Westminster, not to mention the press, that Britain abandon the constraints of international law in favour of raw power.” Oops.
He referred in his lecture to Kemi Badenoch’s plan to “disengage” from the European Court of Human Rights if necessary to protect British interests, and made it clear that this was part of the “pick and mix” approach that he was condemning.
The backpedalling was almost immediate. Sources “close to” Lord Hermer insisted that he was not likening Badenoch or Nigel Farage to Nazis, and pointed out that he also said in the lecture that those who advocated repudiating treaties were “patriots” who were doing so in “good faith”. A spokesperson for Lord Hermer has now also issued a statement, apologising for his “clumsy” choice of words.
Too late. Another corollary of Godwin’s Law – named in 1990 after Mike Godwin, an American lawyer who took part in Usenet newsgroup discussions in the early days of the internet – is that, once made, a comparison to the Nazis is difficult to unmake.
The significance of Hermer’s blooper is twofold. One is that he is like the Ghost of Starmer Past, a reminder that the prime minister was a human rights barrister too, before he was captured by Morgan McSweeney, his chief of staff, who reprogrammed him according to the overriding need to win votes.
The other is that Hermer, as the government’s chief legal adviser, in effect holds a veto on the home secretary’s review of the application of human rights law. Yvette Cooper said in March that the government was reviewing the way the European Convention on Human Rights – including Article 8, the right to family life – is applied, “to make sure that the immigration and asylum system works effectively in the way that parliament intended it to and make sure that there is a proper sense of control in the system”.
This review is part of the emerging consensus around Europe that human rights law needs to be reformed. Indeed, Hermer is part of that consensus, saying in his lecture that Britain “must be ready to reform” international agreements such as the European Convention on Human Rights so that they retain “democratic legitimacy”.
Nine EU leaders, led by the prime ministers of Italy and Denmark, published an open letter last week, protesting that the court’s interpretation of the convention “has, in some cases, limited our ability to make political decisions in our own democracies”.
They said: “We have seen, for example, cases concerning the expulsion of criminal foreign nationals where the interpretation of the convention has resulted in the protection of the wrong people and posed too many limitations on the states’ ability to decide whom to expel from their territories.”
So Badenoch and Farage may be pushing at a door that is already opening. Farage advocates withdrawing from the European Court regardless, while Badenoch says that she would be prepared to withdraw from the European Court if it, and the application of convention rights by British courts, cannot be reformed. Rishi Sunak said the same.
Even Jack Straw, the former Labour home secretary, asked in a letter to The Times two months ago: “What utility is there in the UK being bound any more into the Strasbourg court? Not much, is my answer.” He said convention rights are “safe enough” being enforced by British courts.
This is an argument that the reformers are winning. It seems not only legitimate to keep open the option of withdrawing from the European Court, but to make good tactical sense, bringing pressure to bear on the Council of Europe that oversees it.
The case for sensible reform risks being destroyed by Hermer’s hyperbole about 1930s Germany. And the political argument against Farage is weakened by comparing his policy, however indirectly, to that of the Nazis. The prime minister should exorcise the unhelpful ghost of his past.
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