An attorney general should never fall foul of the law. But last week it appears that the current postholder did. The law in question is Godwin’s famous law, originating in discussions on the internet, which says that the longer a debate goes on, the more likely it is that someone will invoke a Nazi or Hitler comparison.
The attorney general unwisely said that those who want to abandon international law when it suits them hold ideas similar to a German legal scholar in the 1930s who supported the Nazis. This was unwise because it appeared to compare to Nazis those UK politicians who want to withdraw from parts or all of the European Convention on Human Rights (ECHR). Sections of the press fell on him – resign! Be sacked! So the attorney general let it be known that his choice of words was clumsy and that he regretted having used the reference.
It is a shame that Godwin’s law was not in his mind, because the proposal he made in the speech supported an argument that I had proposed that very week in the Gazette, but which was overlooked in the row. (Of course, I am not so conceited to think that there was any link between my article and his speech.) I had said that lawyers should make more of a fuss about the collapse of the international rules-based order.
And he said (using a tiny and maybe unfair sample of his argument, which will have to stand in for the rest of his complex speech) that he would channel Reg, the leader of the People’s Front of Judea from the film ‘Life of Brian’ - yes, really - and ask rhetorically what international law has ever done for us? He answered by saying that it has helped give us peace, security and prosperity. I agree.
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Over the last week or two, the debate on this issue has shown that it is a hot topic all over Europe, focusing at the moment on the ECHR.
A few days before his speech, the heads of state of 9 European countries, representing a mix of political colours, and including Denmark Italy, Poland, Austria and the Baltics, wrote an open letter about the ECHR. It said that the signatory countries:
‘believe that there is a need to look at how the European Court of Human Rights has developed its interpretation of the European Convention on Human Rights. Whether the Court, in some cases, has extended the scope of the Convention too far as compared with the original intentions behind the Convention, thus shifting the balance between the interests which should be protected.
We believe that the development in the Court’s interpretation has, in some cases, limited our ability to make political decisions in our own democracies. And thereby affected how we as leaders can protect our democratic societies and our populations against the challenges facing us in the world today.’
Sound familiar?
The examples given in the letter focused exclusively on the application of the ECHR to migrants.
The leaders ended the letter by saying that they wanted to use their democratic mandate ‘to launch a new and open minded conversation about the interpretation of the European Convention on Human Rights. We have to restore the right balance.’
This resonates with another article in the Gazette just days before the publication of the letter which had as its heading: 'ECHR withdrawal 'no longer just the headbanger’s view' – although the letter from the 9 countries absolutely did not advocate withdrawal from the ECHR, just reinterpretation of clauses protecting certain migrants.
The Secretary General of the Council of Europe, which is responsible for the European Court of Human Rights, issued a statement in response to the countries’ letter, which said, among other things:
‘Debate is healthy, but politicizing the Court is not … The Court must not be weaponized — neither against governments, nor by them.’
The arguments raised are profound and challenging.
On the one hand, there is the attorney general and his support for the rules-based international order. On his side are legal and constitutional points which lawyers should welcome, including the separation of powers between an independent court and an elected government (now also playing out in the US), not denying rights to certain people whom governments consider unworthy, the universality of rights, and the need to respect judicial decision-making.
On the other side, we are doubtless all aware of the wave of support among part of the voting public in many countries for policies which oppose further immigration, and which attempt to reduce the level of immigrants now present. Refusing to recognise this political reality, and refusing to make changes to accommodate it, might lead to a worse outcome in the long term.
I am not going to fall foul of Godwin’s law and draw historic parallels. Only the future, unfortunately, will tell us what is the right course.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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