The new Attorney-General’s recent lecture on the rule of law makes all the right noises. But it remains to be seen whether the Labour Government will be willing to put its money, and its actions, where its mouth is.
Earlier this week, the Attorney General, Lord Hermer, delivered the 2024 Bingham Lecture, entitled ‘The Rule of Law in an Age of Populism’. Although not a party political speech as such, he was evidently at pains to make it as clear as possible that the Labour Government’s stance on the rule of law, human rights and constitutional matters more generally is intended to be very different from that of its predecessor. Indeed, as Martin Kettle has noted in the Guardian, ‘the rule of law’ is arguably emerging as the answer to the question: ‘Does Keir Starmer believe in anything?’
Mood music
The ‘mood music’ that was conveyed via Hermer’s lecture thus formed a striking counterpoint to what had become normalised under recent Conservative administrations and stands in contrast to the debate currently going on within the Conservative Party in the context of its leadership election. Four examples stand out. First, Hermer made it clear that the new Government would have no truck with schemes, such as the previous Government’s Rwanda Policy, that would put the UK on the wrong side of international law:
[I]nternational law is the ‘Rule of Law’ writ large, and … States must comply with their international obligations, just as they must comply with domestic law. … International law is not simply some kind of optional add-on, with which States can pick or choose whether to comply. It is central to ensuring our prosperity and security, and that of all global citizens. … [O]ur reputation as a country that can trusted to comply with its international law obligations, and has a robust adherence to the rule of law, is essential to our ability to grow the economy, as grow it we shall.
Second, Hermer was unequivocal in the Government’s commitment both to the European Convention on Human Rights in particular — in contrast to one of the Conservative leadership candidates, Robert Jenrick, who has advocated ECHR-withdrawal — and to the rules-based international order more generally:
[W]e will continue to abide by and unequivocally support the European Convention on Human Rights, including by complying with requests from the Court for interim measures. Walking, or threatening to walk away, would be a total abdication of our international law responsibilities and send out precisely the wrong message at a time when the rule of law is under threat in so many places. But we will go further than simply meeting our obligations under the Convention specifically and international law generally – that we will do so should go without saying. My point is that the UK will once again be a champion for international courts and institutions, taking positive steps to promote their importance and to rebuild the respect for them that the populists have sought to destroy.
Third, the Attorney General emphasised not only the importance of the rule of law itself but the imperative of ensuring that the essential role it plays in society is understood. Thus he said that ‘the rule of law is not the preserve of arid constitutional theory’ and challenged the populist idea that the rule of law is somehow in tension with democratic principle:
Far from being at odds with democracy, as some populists would have us believe, the rule of law is the bedrock on which it rests. What good is democracy – indeed, can democracy exist – without the right to free and fair elections or freedom of speech, guaranteed by the right of access to the courts and an independent judiciary? And I would go further. Democracy, in my view, is inextricably related to the rule of law, properly understood. For what good is the rule of law without democracy, which confers essential legitimacy on the rules that govern the relationship between citizen and state?
Fourth, Hermer made some interesting remarks about parliamentary sovereignty and its relationship with the rule of law, in which he declared himself, along with Lord Bingham, a proponent of a ‘thick’ conception of the rule of law, according to which it demands adherence to substantive requirements such as fundamental human rights:
Parliamentary sovereignty is one of the fundamental features of our constitution and the ultimate legal authority of Parliament to make or unmake any law is crystal clear. However, viewing the rule of law through this distorting lens of ultimate decision-making authority alone risks mistaking it for a purely formal, and thin, conception of ‘rule by law’. As lawyers know, Parliament’s authority in our constitution is legal authority, an authority that requires that Parliament maintains in its legislation the ideals of the rule of law, of government under law, one of the contributions to the modern world of which we in the UK are justly proud. And as I (following Lord Bingham) have explained, those ideals are much thicker and more substantive that the thin gruel of a formal conception of ‘rule by law’.
Comment
Given the events of recent years, when Ministers could not reliably be expected to stand up for such constitutional basics as the independence of the judiciary, Hermer’s remarks are refreshing to the point of being almost disorientating. Of course, the proof of the pudding will be in the eating, and these are very early days for the new Government. It is also the case that while Hermer’s commitment, on behalf of the Government, to such matters as respect for the rule of law, international law and human rights is to be welcomed, much of the fruit he acquired in the course of his lecture was distinctly low-hanging; there was, for instance, absolutely no prospect of the new Government withdrawing from the ECHR. The real test of the Government’s commitment to the rule of law will therefore come in other forms, including the following.
First, like virtually every new government, Starmer’s has declared a war on regulation, or ‘red tape’. In the course of doing so, he has cited a two-year delay to the approval of a wind farm, to which judicial review proceedings significantly contributed. Going back to the days of the coalition, previous governments’ irritation with judicial review resulted in a seemingly never-ending series of initiatives and consultations aimed at drawing the courts’ teeth. Yet, to use the Attorney General’s language, judicial review is essential to the rule-of-law requirement of ‘government under law’. Indeed, Hermer explicitly said that:
When Government invites Parliament to breach international law, or oust the jurisdiction of the courts, it not only undermines the rule of law, but also the mutual respect that historically has been one of the great strengths of our constitution. It risks pitting one institution against another in ways that damage our reputation both inside and outside our borders as a law-abiding nation.
It is to be hoped, then, that the Labour Government’s war on red tape will not extend to a war on judicial review.
Second, if, as Hermer said, the rule of law is not merely a matter of ‘arid constitutional theory’, it is surely nowhere more practically relevant than in the existence of a well-functioning justice system. Yet that system, in the UK, is on its knees. At the end of April 2024, there were 68,125 outstanding cases in the Crown Courts and 387,042 in the magistrates’ courts — figures that had risen sharply year-on-year, and which represented a 78 per cent increase in the outstanding Crown Court caseload since the end of 2019. The National Audit Office has reported that by the end of 2023, it took an average of 683 days from the alleged commission of a criminal offence to the conclusion of the Crown Court process. Meanwhile, in 2023, 1,436 trials were cancelled on the hearing day — compared to 71 in 2019 — because not all the necessary legal professionals were available, a phenomenon largely attributable to falling numbers of such professionals thanks to criminal legal aid fees dropping by a third in real terms between 2008 and 2021. The willingness of the new Government to fund the criminal justice system properly will thus be an acid test of whether the rule of law really is to be regarded as more than a matter of ‘arid theory’.
Third, Hermer highlighted the excessive reliance of successive governments on secondary legislation — that is, legislation made by the government under powers delegated by Parliament, rather than by Parliament itself:
[T]here is in my view a real need to consider the balance between primary and secondary legislation, which in recent years has weighed too heavily in favour of delegated powers … Secondary legislation has an indispensable role to play in a modern, regulated society. There is no suggestion that the Government should not take or exercise delegated powers. However, excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation, upsets the proper balance between Parliament and the executive. This not only strikes at the rule of law values I have already outlined, but also at the cardinal principles of accessibility and legal certainty. In my view, the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means, in particular, a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards.
This issue is one that has concerned constitutional lawyers and others for a very long time. The House of Lords Constitution Committee published an extremely critical report in 2018, calling for reform in this area, and the Hansard Society is currently undertaking a major piece of work on secondary legislation, having identified significant problems with existing practices. As well as raising concerns about the balance of power between Government and Parliament, Hermer is right to acknowledge that rule-of-law concerns also attend the delegation of excessive legislative powers to the Government, particularly if, as is often the case, that is done in broad, vague terms that make effective control difficult. Notwithstanding these concerns, previous governments have found it impossible to resist the temptation of getting Parliament to give them such powers. Whether this Government will be any different remains to be seen.
It is clear, then, that beyond low-hanging fruit such as committing to remaining a party to the ECHR and not legislating to require courts to close their eyes to international law, there are plenty of matters engaging the rule of law that will clamour for the Government’s attention in the months and years to come. The initial mood music is undoubtedly promising. But the real tests lie ahead.
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