The attorney general, the government and the rule of law: what happens next?

The attorney general, Lord (Richard) Hermer KC, gave the Bingham Lecture on the rule of law – “The Rule of Law in an Age of Populism” – on 15 October. The fact that Lord Hermer chose to give such a major lecture on this topic so early in his tenure is telling in itself. Hosted by the Bingham Centre for the Rule of Law at Gray’s Inn, and introduced by Baroness (Helena) Kennedy KC, the lecture was a significant event, well attended by the judiciary (from the Supreme Court down), parliamentarians, the legal profession and the civil service.

The attorney general signalled a reset after a testing time for the rule of law

There is always a risk, when talking about the rule of law, of sounding pious or anodyne, or both. But this lecture contained things which needed saying – after years which saw the Internal Market Bill, the Safety of Rwanda (Asylum and Immigration) Act, a government deliberately choosing to breach international law and ousting the role of the courts, judges branded as “enemies of the people” with no meaningful defence from the then Lord Chancellor, “lefty woke lawyers” and all that. Although not overtly party political in tone, the lecture was clearly intended as a rebuke and a corrective to those times. There was also an explicit attack on the “divisive and disruptive force of populism”.

Hermer stressed the importance of respect for the rule of law, not least international law, in tackling global challenges including “the development of AI, the threat of climate change, growing inequality, or increased migration”. He underlined how the rule of law matters for stability, investment, growth, jobs and people’s livelihoods. One of Britain’s greatest commercial advantages, he said, was the trust that businesses can have in our courts and legal system. There was unequivocal support for the European Convention on Human Rights. He was complimentary about the work of “brilliant” government lawyers.

Lord Hermer set out proposals for a new approach – and some concrete reforms

Hermer talked about the need to strengthen parliament’s role in upholding the rule of law, in particular in scrutinising legislation. He also wants to promote a “rule of law” culture and build a consensus around how it “provides the stable and predictable environment in which people can plan their lives, do business and get ahead; in which businesses can invest, the economy can grow; people can resolve disputes fairly and peacefully, and express and enjoy their basic rights and freedoms”.

There were some specifics. Hermer said the government would be advocating for reform of the UN Security Council, to secure permanent representation from Africa, Brazil, India, Japan and Germany. He will be issuing amended guidance for assessing legal risk across government that will seek to “raise the standards for calibrating legality”. He envisaged a “reset” in the way government approaches the balance between the use of primary and secondary legislation.

Three ways to test the government’s approach to the rule of law

So there was much to welcome in Lord Hermer’s lecture. As he himself recognised, the government will be judged by what they do, not by what they say (or have done in the past). Even the highest of principles have to cope with the reality of politics and “events”, so how soon will we see measurable improvement?

First, as Hermer acknowledged, there is a lack of funding for the justice system which cannot be cured overnight – but which cannot be ignored.

The government also needs to wean itself off the convenience of secondary legislation. This will not be easy when the pressure is on to keep the legislative programme moving. 

And more generally, after a bumpy first few months, the prime minister is still to issue a ministerial code or take concrete measures to ensure the highest ethical standards in government. Will the new code restore a commitment to complying with international law, consistent with Lord Hermer’s speech?

Lord Hermer’s lecture is a powerful place to start. It represents a very distinct change of tone and intent from the previous government. I have no doubt that he means it. We will soon be able to judge whether these are more than good intentions.