Amid talk of a summer reshuffle, I recently asked a senior member of the Labour party if he thought the Attorney-General was likely for the chop. He paused and reflected. ‘No’, he eventually replied. ‘But he’s going the right way about it.’ Similar sentiments will no doubt be expressed in Downing Street today as they pore over the morning papers. ‘Law chief in Nazi jibe at Tories and Reform’, screams the splash headline of today’s Times: Richard Hermer KC has done it again.
Hermer showed a naivety of how his remarks would be interpreted
The cause of the headline is a speech which Hermer made to the RUSI think tank yesterday on the government’s commitment to international law. The Labour peer made a thoughtful, lucid speech critiquing Bismarckian notions of realpolitik and offering a reasoned defence of the rules-based order – including Britain’s commitment to the European Court of Human Rights. But one section of the speech leaps out from the page:
Our approach is a rejection of the siren song, that can sadly, now be heard in the Palace of Westminster, and in some spectrums of the media, that Britain abandons the constraints of international law in favour of raw power… The claim that international law is fine as far as it goes, but can be put aside when 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, not law. Because of the experience of what followed in 1933, far-sighted individuals rebuilt and transformed the institutions of international law, as well as internal constitutional law.
Schmitt’s work was used to provide ideological justification to the Nazi regime, as Hitler unwound the protections of the Weimar regime. Hermer did go on to say that ‘I do not for one moment question the good faith, let alone patriotism, of the pseudo-realists.’ But the choice of Schmitt – when other theorists were available – was both clumsy and unhelpful to his colleagues. Robert Jenrick is among those queuing up to criticise the speech, telling the Times that is ‘appalling that Hermer would insinuate those who think we should leave the ECHR are like the Nazis.’
Hermer showed a naivety of how his remarks would be interpreted. He is no longer a lawyer or academic, able to make such remarks to a like-minded audience. Hermer is now a politician who ought to be keenly aware of the sensitivities around the ECHR, answerable to parliament, the public and, yes, the ‘spectrums of the media’ that he so disdains.
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