Starmer's legal chief in Nazi jibe at anti-ECHR Tories and Reform
Lord Hermer, the attorney-general, said Britain 'must be ready to reform' international agreements such as the European Convention on Human Rights (ECHR) so that they retain 'democratic legitimacy'.
But he categorised Kemi Badenoch's policy to 'disengage' from the ECHR and other international bodies if they no longer serve British interests as a 'pick and mix' approach similar to that pursued by Nazi Germany to ensure the power of the state trumped the law. Reform's policy at the last election was to leave the ECHR and the 'foreign' court in Strasbourg.
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'.
Hermer said in a speech to the Royal United Services Institute: '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 was a German political theorist who provided ideological justification to the Nazi regime and supported Hitler's move to bypass the German constitution and rule by decree in 1933. Hermer added: '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.'
He said that while the government must respect and comply with international institutions, the law could not 'stand still and rest on its laurels'.
Hermer added: '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.'
Robert Jenrick, the shadow justice secretary, described Hermer's plan to reform the convention as 'fanciful' because it would require unanimity from all 46 signatories. He hit back at criticism of those who want to leave it, saying: 'It is appalling that Hermer would insinuate those who think we should leave the ECHR are like the Nazis. David Lammy tried that disgusting smear with Brexiteers and it didn't work for him. It won't work for Hermer either.'
deportation of foreign criminals, including sex offenders.
Hermer's speech signals a notable shift in his approach. He has previously been blamed for acting as a 'freeze on government' by taking a risk-averse approach to potential legal challenges. It also suggests that the government is prepared to go further to tweak the way in which domestic courts interpret Article 8 of the ECHR, which protects the right to a family and private life.
•
• Leaving the ECHR can become Badenoch's big cause
This month ministers said that they would change the law to prevent judges blocking deportation of foreign criminals and failed asylum seekers. The move would constrain interpretation of Article 8 and more closely define who qualifies for protection and when. Cases in which Article 8 has been invoked include an Albanian jailed for running a cannabis factory who avoided deportation when judges ruled it would deprive his daughter of a 'male role model'.
There is a growing appetite across the continent to consider changes to the convention to help tackle illegal immigration. Hermer's speech suggests the government is now willing to go further than reforms to Article 8.
He also criticised international judges for overinterpreting agreements signed decades ago in different circumstances. 'States . . . did not give an open-ended licence for international rules to be ever more expansively interpreted or for institutions to adopt a position of blindness or indifference to public sentiment,' he said. 'As progressive realists we recognise that international law cannot stand still.'
A source close to Hermer said: 'The attorney-general sees those on the other side of this debate as patriots acting in good faith — but deeply misguided because ripping up international law will only help those who want a lawless world like Vladimir Putin. He is the son of a former Conservative councillor, who sees this as nothing but a good-faith argument in the British family.'
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