On the 14th October, Attorney General Lord Hermer KC gave his 2024 Bingham Lecture “The Rule of Law in an Age of Populism”. In it, Lord Hermer advocated for the “restoration and resilience” of the rule of law, to operate as a bulwark against populism. In his speech, the Attorney General considers three key themes:
- “rebuilding the UK’s international rule of law leadership”;
- “the role of Parliament” in upholding the rule of law; and
- “embedding a rule of law culture”, especially to build public trust in the law and its institutions.
In previous blog posts, I have considered the way that by safeguarding human rights the government – past and present – might better defend the rule of law at home and abroad. Here, I endorse Hermer’s call to restore the rule of law in a way that reinforces human rights protections and safeguards the UK’s democratic institutions. I agree that greater human rights protections have the potential to provide resistance against populism’s threat to the rule of law. However, in doing so, I argue that Hermer could go further. While he identifies key areas where the rule of law can be strengthened, there are opportunities missed to call for more significant reform which would more meaningfully embed human rights and democracy in a qualitative notion of the rule of law.
The populist challenge to the rule of law
Hermer identifies the rise of populism as a key challenge to the rule of law, which he posits threatens human rights and democracy in the UK. He argues for the restoration of the UK’s reputation “as a country that upholds the rule of law at every turn” in both international and domestic spheres. Key challenges to the rule of law he identifies as emanating from global conflict, displacement of peoples and attendant humanitarian need. As a result, he sees what he considers to be an erosion of faith in the institutions of international law which were designed to prevent the human rights violations that result from times of conflict. He sees further threats being posed by “the development of AI, the threat of climate change, growing inequality [and] increased migration”. Indeed, from a human rights perspective, there is nothing particularly controversial in his framing of the issues.
Beyond this though, Hermer identifies populism as a key force that exacerbates these challenges. Here there is strong evidence that in the UK and across Europe, populist rhetoric on both the left and especially the right has stoked division in the community to solidify “an exclusionary form of identity politics”. However, while Hermer provides examples that have manifested as a result of this rise in populist rhetoric, there are omissions in acknowledging the more pervasive policy and legislation which undermine any qualitative conception of the rule of law. Populism has come to shape policy in such a way that, at times, human rights and respect for the “dignity of all” has become an inconvenient afterthought.
Theme 1: rebuilding the UK’s international rule of law leadership
Hermer asserts that the UK must reestablish its role as a “leader in developing and promoting international law and the institutions on which its effectiveness depends”. He advocates a variety of ways that this can be achieved, including championing international courts and institutions, remaining “steadfast in our support for Ukraine, on the battlefield and in the courtroom”, and tackling climate change. These objectives, he argues, will be achieved by working in partnership with “friends and partners” around the world. In this context, Hermer’s commitment to begin to decolonise the Security Council is most welcome. However, there are key omissions in his speech which must be addressed to rebuild the UK’s reputation as an international leader in human rights.
Firstly, Hermer does not mention the role that the UK should take in facilitating peace and increasing humanitarian aid in Gaza or the Middle East. To the extent that human rights are embedded in the UK’s conception of the rule of law, making more strident efforts to ensure that humanitarian rights abusers are called to account seems fundamental to the task of being a leader in the international rule of law order. Gaza provides a pertinent example of the consequences of ignoring the erosion of the international humanitarian law framework – of which the government is well aware. Given Hermer’s known critical stance towards the behaviour of the Israeli government in the past, his failure to mention UK policy in this space is surprising.
Secondly, the UK must offer clarification as to its policy in containing the rapidly expanding global influence of China in the international rules based order. The influence of China’s “State Socialist Rule of Law” model has infiltrated an incredible array of institutions. Some examples of this include: in Germany through the creation of dependencies in economics, technology, politics and academia; by the massive expansion of the Belt and Road initiative; through to the building of a megaport in Peru; and even by Chinese Communist Party influence in British Universities through the presence of Confucius Institutes. If the UK is serious about maintaining a human rights driven model of the rule of law that will shape the international legal framework, it must be unequivocal in its approach to China. And while the Attorney-General cannot be expected to address every aspect of government policy in a short speech, it seems remiss to omit these two pressing concerns if the populist threat to the rule of law is to be meaningfully addressed.
Hermer’s lecture was given prior to Donald Trump’s re-election as President of the United States. However, given Trump’s close relationship with the Israeli Prime Minister Benjamin Netanyahu, and the potential volatility of US-China relations going forward, these issues are now more pressing than ever.
Theme 2: defending and strengthening Parliament’s role in upholding the rule of law
The increased use of skeleton legislation and delegated powers by the previous government shifted power from Parliament to the Executive in a way that eroded the separation of powers, oftentimes resulting in violations of human rights. In his second theme, Hermer considers the implications of this gradual usurping of parliamentary sovereignty and judicial authority, and the way that this undermines both the separation of powers and public confidence in democratic institutions. He argues that there is “a real need to consider the balance between primary and secondary legislation”. Recently on this blog, Associate Professor Stuart Wallace considered the human rights implications of this issue, and writes that “we have ended up with the worst of both worlds”.
A key issue that Hermer raises is migration, and he references the “disgraceful scenes of violent disorder over the summer”. However those riots must be understood as merely the tip of the iceberg in manifesting the impact of ongoing populist rhetoric. Such rhetoric has become so pervasive as to shape migration policy in a way that derogates from the UK’s obligations under the European Convention on Human Rights (ECHR) and The 1951 Refugee Convention. For example, extremely broad discretion is now vested in Home Office staff to make decisions that are both inconsistent with Convention rights and where there are significant barriers to appeal. Immigration Rules provide scope for decision-makers to consider the rights guaranteed by law, but these are just some within a range of factors that may be considered in coming to a decision. This means that decision-makers may exercise their discretion in a way that ignore these rights and results in a decision that is in conflict with the UK’s international legal obligations. I myself have experienced first-hand the exercise of this discretion in a way that was arguably in conflict with the UK’s human rights obligations, including the right to private and family life and those that support the best interests of the child. My experience is not unusual, and nor is it limited to certain categories of migrants.
If the government is serious about rebuilding the rule of law in a way that enhances human rights, it cannot limit its agenda to addressing the outward manifestations of populist rhetoric – such as those of the summer riots. Rather, policy which is insidious and often applied in conflict with the UK’s obligations under the ECHR must be reviewed to reverse the shift in power towards delegated legislation and administrative decision-making.
Theme 3: promoting a rule of law culture, which builds public trust in the law and its institutions
In his final theme, Hermer is concerned to rebuild faith in the law and its institutions, which he sees as a matter not just for politicians, but also “judges, lawyers, civil society, [and] citizens.” There is nothing particularly controversial in the call for education “promoting a better understanding of our constitution and, particularly, the importance of the rule of law”. However, tackling these issues in a way that restores faith in government will likely require much more than an education campaign.
Instead, effective education must be linked to an accountable government and a system of rights that are reasonably enforceable – as was the case in South Africa, where a right to housing was held to be constitutionally entrenched and enforceable against the government. As Hermer notes, “for too long, populists have been able to frame the debate on human rights too narrowly, by reference to issues which, important as they are, can often feel disconnected from the everyday.” Meaningful human rights education goes beyond the classroom, and will require raising awareness as to how rights matter in the every day, ways that rights are enforceable, and the removal of barriers to the proper enforcement of rights. It is in these ways that children and the public can receive a proper education on the rule of law.
Conclusion
The commitments that Hermer makes in his speech are welcome. However, redressing a global erosion of the rule of law requires more than optimistic speeches. The real test will be whether, in the face of populist rhetoric, the present government will take concrete action to protect human rights. This goes beyond admonishing high-profile manifestations of populist violence and instead requires holistic policy change.
Jane Richards is a lecturer in international human rights and criminal law at the University of York. She is a fellow at the Centre for Criminology at the University of Hong Kong.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.