Attorney General joins Lineker's team
How ironic that critics of a blatant power grab find themselves likened to Germans in the 1930s!
In the UK, pretty much everyone has heard of Gary Lineker. Until a few days ago, I don’t think one can say the same of Richard Hermer KC. Both have tested the adage that, in a extended argument, the first person to mention the Nazis loses. But whereas Gary Lineker’s citing of the Nazis attracted attention because he was already famous, Richard Hermer is now famous because of the way he cited the Nazis in an ill-fated attempt to bolster a argument from his position in the Government.
Richard Hermer KC – or Lord Hermer of Penylan in the City of Cardiff, to give him his full title – is the Attorney General. Gary Lineker, once of Filbert Street in the City of Leicester, is a footballer, podcaster and TV presenter.1 Hermer really ought to know better how to construct an argument. Not because he is in politics – he is a recent recruit to that world – but because, as one of His Majesty’s Counsel learned in the law, he ought to be capable of more sophisticated analysis than someone who spent his career playing, watching and talking about football.
The comment that got Lineker into trouble is instructive because it teaches us a useful lesson. Lineker’s comment formed part of a post in 2023 in which he expressed his anger at the then Home Secretary’s policy to prevent illegal immigration. He accused the Home Secretary of the day of using:
“language that is not dissimilar to that used by Germany in the 30s”.
Lineker was in hot water primarily because of his duties and obligations to the BBC – an issue that has been much discussed already (including by me), so I won’t revisit that aspect here. But Lineker has always maintained, even in recent weeks, that he was right in what he said. That seems unlikely: Nazi Germany isn’t famous for being a safe haven that foreigners were keen to escape into by foul means (or fair).
But, even if Lineker has got evidence of Germans in the 1930s expressing concerns about people trying to get into their country without permission, that doesn’t win the argument for him. Those Germans and their comments – if they exist – were not advocating the atrocities which have made the Nazis so uniquely reviled. You can’t sensibly compare (to take a random example) a teashop waitress to 1930s Germany just because there were National Socialists who may have uttered the words “Would you like a cup of tea?” A comparison with the Nazis carries very specific connotations. It doesn’t matter how distasteful Lineker found the previous Government’s policy on illegal immigration, it was absurd for him to imply that wanting to deport those who entered without permission was comparable to sending Jews, Roma and countless others into gas chambers.
And so to Lord Hermer. His offending remark was a criticism of those politicians who want the UK to withdraw from the European Convention on Human Rights (ECHR):
“The claim that international law … 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.”
To be fair to Lord Hermer, he did at least identify a specific German who had expressed an idea comparable to the one he is now criticising. So Hermer was at least citing an idea that had actually found expression in 1930s Germany. But most people hearing Hermer’s remark would have understood it to mean that he was criticising an idea that is inherently immoral.
Given that Hermer’s own view is that the ECHR needs to be amended, the feature that distinguishes him from those he decried is simply one of tactics. Should the UK argue, from the inside, for changes in a treaty that is troubling or withdraw from it until the treaty is changed (at which point the UK might seek to rejoin)?
International law is not like national law. It has no central legislative body. Often, when we speak of international law, we are speaking of treaties agreed between states. So long as the treaty has an exit clause, a proposal to withdraw is not a breach of the law (or the rule of law).
It is in the nature of a treaty that the states which are parties to it can negotiate the content before signing-up. That is what gives a treaty its democratic legitimacy in the countries where it is to apply. There would plainly be no democratic legitimacy to a treaty that – no matter how excellent its provisions – had somehow been imposed upon states without first giving their elected governments (or the electorate themselves) an opportunity to decide whether or not to sign up.
I have written before about the European Convention on Human Rights. It was, of course, willingly entered into by the British Government in the 1950s. Indeed, the UK had taken a lead role in drafting the Convention. But, in 1978, the European Court of Human Rights decided that it was not required to interpret the treaty in the way the original signatories intended.
If departure from the signatories’ intentions isn’t bad enough in terms of democratic underpinning for the operation of the treaty, the Court decided that, in addition to applying the treaty in ways that the signatories might not have intended, the Court is permitted to reach decisions which are “what the drafters definitely did not intend” – see the first paragraph of the Conclusion to this speech by Baroness Hale, a former President of the UK Supreme Court.
I do not doubt that there can be clear societal advantages to the Court going off-piste in this way. It can save years of debate when judges make a decision which takes the law to a place which national legislatures might have argued over for years. But that’s not how democracy works. Especially not if the Court arrives, as it has sometimes done, at a decision that national legislatures do not agree with and, because of the Convention, cannot override.
How ironic it is that the European Court awarded itself these undemocratic powers and yet now it is critics of this power grab who find themselves accused of speaking like someone from 1930s Germany!
Filbert Street was the home of Leicester City FC, where Gary Lineker began his football-playing career.