Political speeches seem to fall like autumn leaves at this time of year. Speeches at party conferences. Speeches at leadership hustings and to the UN general assembly. And the budget speech itself is still to come. Yet even the chancellor, Rachel Reeves, may struggle to say anything more illuminating than a speech this week by a far less high-profile government member than she.
In July, Richard Hermer KC was plucked from a successful bar career by his fellow barrister Keir Starmer, given a peerage and made attorney general. It was a hand-picked appointment by Starmer, who snubbed the shadow attorney general, Emily Thornberry, to make it. As Lord Hermer, the former head of Matrix Chambers is now the Starmer government’s lawyer. He is also, we may reasonably assume, Starmer’s eminent legal proxy in the attorney’s role.
This week, Hermer gave the annual Bingham lecture at Gray’s Inn. His subject, doubtless chosen in honour of the great judge whom the event commemorated, was the rule of law and the threat posed to it by populism. Hermer unquestionably wrote his own script on Monday. But it is surely not reckless to believe that he was also saying things with which Starmer would be fully in accord and to which he himself attaches special importance.
Hermer’s lecture was an uncompromising reaffirmation of the centrality of law to government and politics, domestically and internationally. It condemned the previous government for knowingly breaching the law in some of its Brexit legislation, and for removing the role of the courts over Rwanda. By contrast, Hermer said that Labour would abide by and uphold the European convention on human rights. He then went on to discuss subjects ranging from legislative statutory instruments to the UN.
His central message, though, was that this will be a government that practises what it preaches. It would uphold the rule of law “at every turn”, said Hermer. Respect for law lay behind its immediate action in July to scrap the Rwanda deportation plan. It was again the basis of the more recent agreement reached with Mauritius over the Chagos Islands. The review of arms licensing to Israel, he added, came from the same approach. It was a decision based on “law, not politics”. International law, Hermer said, was seamlessly part of the rule of law, too. It was “not simply some kind of optional add-on, with which states can pick or choose whether to comply”.
There are three ways in which this lecture matters very much. The first is simply that Hermer is right. The rule of law applies to all of those who live in its jurisdiction. None of those who sometimes claim to be above the law – including the super-rich, the press and the military – are exempt. Nor are nation states. It is true that the rule of law is a phrase that has sometimes been misused, especially by politicians. But, as Hermer pointed out, it is emphatically not the same as rule by law, which says little more than laws must be obeyed, however they have been made.
The rule of law, though, is much more substantial and more subtle than this, but it is also more unifying and underpinning. Tom Bingham’s definition, developed at length in his 2010 book The Rule of Law, is: “That all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.” No one gets an entirely free pass from the rule of law, especially not governments.
The second takeaway is that Hermer’s lecture may mark a new chapter of British governmental deference to this interpretation. In effect, Britain has undergone a quiet constitutional revolution in the past quarter of a century. It has been marked by the passing of the Human Rights Act 1998, the separation of the judiciary from the legislature in 2005 and, not least, by Bingham’s thinking and continuing influence. But it is not yet an entirely settled matter.
The quiet revolution made some significant arguments between the courts and the executive more likely. After 2010, under Conservative governments, things duly got rocky, especially on immigration. Brexit brought this to a head, culminating in the supreme court’s prorogation ruling in 2019 and its Rwanda ruling in 2023. In sections of the Tory party and press, the legacy is populist opposition to the European convention, hostility to international law more generally and criticism of judges as part of a liberal elite.
Starmer and Hermer mark at least a temporary end to all this. Whether that endures will depend on whether Labour and the judges can promote respect for the courts. But it will also depend on Conservative party politics. For now, though, the attorney’s role will not be to fight the judges, as it was when Suella Braverman was the worst attorney general of modern times, but to support them.
The final conclusion is in some respects the most tantalising. But it is also the most important of all. The lecture obviously says a lot about Hermer’s approach to his job. But it also implies a great deal about Starmer’s own approach to his own role. Critics sometimes question what Starmer actually believes in. Some claim that he believes in very little. Like it or not, though, this lecture suggests that is wrong.
Starmer believes in the rule of law. It is his red line. He absolutely does not wish to cross it if he can avoid doing so. Moreover, the evidence so far is that he will not. It is why, we can speculate, he chose Hermer to be his attorney general in the first place – because they would think alike. The instinct shows at every turn. Unlawfulness may be as close to a resignation issue for Starmer as there could ever be.
The instinct showed in the way he scrapped the Rwanda scheme, which the courts had ruled against and on which the Tories had offered a law-denying alternative. It showed in the Chagos deal, where the government had just lost in the courts before the transfer was agreed. And it showed in his biggest domestic crisis so far, when he pushed the police and the courts to use their full legal powers to end the far-right disorder this summer, rather than turning to crowd control or the military.
Law may be the thread to explain several of Starmer’s Middle East decisions too, as well as some of his indecisions. If you seek an explanation of his stance on issues such as arms export licensing to Israel, the possible international criminal court arrest warrant for Benjamin Netanyahu, or, as yesterday, on international humanitarian obligations towards besieged Palestinians in Gaza, the clue may be there already, in that three-word phrase in Hermer’s lecture this week. Words that may tell us an entire story. “Law, not politics.”
