By Thomas Barrington
This op-ed reflects on the 2024 annual Bingham lecture, delivered by Attorney General Lord Hermer KC. It explores Lord Hermer’s substantive conception of the rule of law, the current challenges Lord Hermer identifies as threatening the rule of law, and the three-pronged approach he proposes for addressing these challenges. It is forwarded that Lord Hermer’s analysis aligns with an overall upturn in the UK Government’s rule of law narrative. However, as of yet, this has not been matched to the full extent by practical action or policy proposals. Without a considered policy program to bolster the rule of law, democratic backsliding will continue.
“This is precisely the time for us to reaffirm the rule of law”,
proclaimed Attorney General Lord Hermer KC, setting the scene for the 2024 Bingham Lecture. In the speech, Lord Hermer pitched a three-pronged approach to restore and bolster the resilience of the rule of law in the UK and overseas. In turn,
Lord Hermer’s proposals are to restore the UK’s position as an international rule of law leader, bolster the role of Parliament in upholding the rule of law, and build a culture of trust in the rule of law.
This op-ed will reflect upon each of these themes after discussing Lord Hermer’s analysis of the current position of the rule of law at home and abroad. An observation, that is reflective of a wider pattern apparent in the actions of the Labour government, will recur throughout:
there has been a noticeable positive turn in the UK government’s rule of law narrative; however, as of yet, there has been a lack of action or proposals to make this reality.
Lord Hermer’s vision, and the action or inaction based upon it, has become particularly relevant since Trump’s election.
The UK must now establish a foreign policy framework to meet the demands of an increasingly populist world.
Lord Hermer’s Analysis of the Rule of Law Today
Lord Hermer’s conception of the rule of law is indicative of the aims he sets to deliver. For Hermer, the rule of law goes beyond the purely procedural conception, associated most strongly with Joseph Raz, to encompass substantive issues such as human rights and democracy at its center. While potentially controversial in academic circles, this conception of the rule of law is not groundbreaking to the British judiciary and ought not to be to Parliament. In 1983, the House of Lords explicitly acknowledged that statutory powers must be interpreted in light of ‘basic rights’, while the 1990s saw the statutory intervention of the Human Rights Act grant judges substantial powers to ‘bring rights home’.
Reaffirming this definition of the rule of law marks a positive upturn in democratic dialogue.
Recent years have seen frequent attacks on a substantive conception of the rule of law by right-wing actors. The UK is not exceptional in this regard, Review of Democracy examined similar themes present in the 2024 Austrian elections.
The speech sets out a cocktail of interacting problematic phenomena providing “uncertain and challenging times, with threats to the rule of law on a number of fronts”.
Internationally, the greater prominence of conflict, the increasing presence of global issues, the diminishing strength of institutions of peace, and the rise of populism are cited. Domestically, Lord Hermer points towards a decade of crisis and instability, stretching the constitution to its limit. Both observations appear accurate, and thus, bold action is called for to bolster the rule of law and, in turn, democracy. It is on the point of action that the Labour government have unfortunately fallen short thus far.
Inaction will facilitate the furthering of the democratic backsliding and provide fertile ground for the growth of populism.
Lord Hermer’s Three-Pronged Proposal for Change
The first of Lord Hermer’s three proposals for a rule of law revival is a renewed British commitment to being a leader in the field of international law. The starting point for doing so was identified as honoring the UK’s international law obligations. This presents a stark change from the previous government. The latter half of the Conservative era saw repeated attempts to navigate around international law commitments or threats to withdraw from several of them entirely. Beyond upholding existing agreements,
Lord Hermer made clear his ambition to reframe international law for the Global South.
To do this, he stated the UK would support a restructuring of the UN Security Council to represent modern global power and an international development focus that would work with local communities to grow the rule of law organically. In addition, Lord Hermer forwarded an unwavering commitment to tackling climate change, perhaps representing the first contradiction between narrative and practice, considering the Labour Party waived their £28 billion pledge to tackling climate change before they were even in power.
The second element of the government approach laid out by Lord Hermer focused on rebuilding Parliament’s role in a functioning rule of law system. Lord Hermer began by countering the notion that modern human rights law functions in opposition to Parliamentary sovereignty and the rule of law. The critique has come to the forefront of much of the British right-wing’s agenda since the Rwanda asylum plan was denied by the courts. Labour’s change of stance on Human Rights, and particularly the ECHR, will be refreshing for many proponents of a substantive rule of law. Moving to how to forward Parliament’s role, Lord Hermer accurately identifies an emerging issue of delegated legislation being passed too regularly in the UK. Both the Constitution Unit and the Bingham Centre have identified the increased prominence of delegated legislation within the context of democratic backsliding. Unfortunately, the Labour government has not amended this in practice. Both the Product Regulation and Metrology Bill and the Employment Rights Bill were introduced as framework bills. The former faced particular criticism from the House of Lords for the wide-reaching powers it hands to ministers to make law through delegated powers. Granted, Lord Hermer never promised an end to the use of delegated powers, nor should he have, but he did call for a reset in how Government thinks about these issues and careful consideration of safeguards that could be put in place. Both must take place if the Labour government are to continue credibly defending themselves against those attacking them as anti-democratic.
The third aspect of Lord Hermer’s vision to restore the rule of law in the UK is to promote a rule of law culture. He identifies that the
law is too often seen as part of the problem, either disconnected from people’s lives or representing an illegitimate force.
This holds true in a country where, in the last decade, judges have featured on the front of newspapers as enemies of the people. To combat this, Lord Hermer speculates about the potential for education programs targeted at young people, perhaps through elevating the importance of citizenship lessons. However, here too, there has been a lack of practical action. There is no suggestion of how room will be made for these lessons in school timetables. While the Bingham Lecture was likely not the space for said proposals, there has been an absence of follow-up from the Government. The lack of thorough consideration is concerning as this third prong of Lord Hermer’s proposal requires the greatest consideration.
Regarding the difficulty of achieving this third prong, the speech failed to give adequate credence to the visible increase in xenophobia and clickbait media. To effectively educate young people into a “rule of law culture”, democratic governments must wrestle with challenging the growth of misinformation while not fueling criticism of undue censorship. This must be done in a context of increasing decentralization of technology companies and Elon Musk’s outright attacks on foreign politicians. Establishing this line has proven difficult, with young people increasingly disillusioned with many of the checks and balances associated with democratic society.
Governing social media will be the subject of substantial political attention in the coming year. Failing to do so effectively will facilitate the furthering of authoritarianism’s global rise.
Conclusion
In sum, the Bingham Lecture reflects the positive turn in the rule of law narrative in the UK under the new Labour government. Lord Hermer’s performance furthered the relatively common conception among legal circles that he was an excellent choice for Attorney General, able to accurately identify issues and willing to speak truthfully about them to those in power. Indeed, Lord Hermer’s updated guidance on legal risk appears to empower lawyers to advise government ministers on their legal commitments far more freely than the previous guidance introduced under Suella Braverman.
The ambitions of bolstering the UK’s position as a rule of law leader internationally, furthering Parliament’s role in a rule of law system, and fostering a rule of law culture are all necessary in a political climate where criticizing the rule of law, both domestically and internationally, is often capitalized upon for political gain.
However, there has been a lack of action regarding these ambitions, or even clarity as to how these may become reality. This is particularly evident regarding delegated legislation, where the Government’s frequent use of skeleton bills has been contrary to their pre-power promises. A rule of law policy agenda is probably not top of the Labour government’s agenda due to it not being a topical theme for voters; however, as Lord Hermer explained, the Government needs to do more to make it attractive to voters.
As Elon Musk’s 2025 X activity has made apparent, failing to bolster the rule of law in a way that voters can identify as beneficial to their interests will leave the door open to populist forces.
Thus, in the current political climate, the bolstering of the rule of law requires serious consideration which, unfortunately, it does not seem to be receiving.
