The event will include a Q&A with the audience.
The Rule of Law: at home, abroad – and in Westminster
It is a pleasure and honour to have been invited here today by Policy Exchange to speak about the Rule of Law.
For over a decade, Policy Exchange’s Judicial Power Project, headed up by Professor Richard Ekins, has been leading the debate about the proper scope of judicial power within our constitution. I want to record my special thanks to Lord Godson and Julia Mizen for their leadership of Policy Exchange and its important work, and their invitation to address you today.
I should also explain my unusually unkempt appearance. My father passed away a few weeks ago, and I am observing Jewish mourning traditions for the first 30 days after the death. I would only add that my father was learned in both Jewish and English law, and would certainly have been interested in this lecture – and might even have agreed with some of it.
I. The Rule of Law – domestic
The rule of law is not a law. It is a constitutional principle – and an ancient one. It appears not only in the work of Dicey in the nineteenth century, but in the writings of Aristotle, who wrote that “It is more proper that law should govern, than any one of the citizens”.[1]
What do we mean by the rule of law?
At its heart, the rule of law means that the state is governed by laws, and that everyone in the state, and indeed the state itself and its government, is subject to the rule of law.
A common boast amongst jurists in this country over the centuries was that the realm of England, and later the United Kingdom, was that of a free people governed by law and not by the unpredictable and changing whims of those with power over us.
We learn from Bracton writing in the 13th century that in the laws of England the King himself was bound to the Law, whose content he could not change save with the consent of the Lords and Commons.[2]
In the 15th Century, Sir John Fortescue the famed jurist and one time Chief Justice of the King’s Bench, similarly affirmed that in this Kingdom all persons are governed by law, and that the law of the land bound even the authority of the Crown.[3]
In other words, it is a deep-rooted constitutional principle of our political community that everybody is subject to the same laws: wealth, power, status or privilege provide no special protection. Governments and public officials are subject to the law and must exercise their powers lawfully.
Defining exactly what the rule of law entails has led to interesting, and also interminable, debate amongst lawyers, judges, and scholars in many jurisdictions. The most well-known debate in this country is whether the concept of the rule of law should be “thin” or “thick”.
My own view is that the rule of law in our constitution reflects a moral ideal in which our political community is, to quote Professor Richard Ekins, “ordered by law, law which is in a fit state to settle how we should act and thus how we may confidently expect others, including officials, to act”.[4]
Over the centuries, great legal minds like Thomas Aquinas[5], Lon Fuller[6], and John Finnis[7] – where other than Policy Exchange can you find those three names in a single sentence – have argued that for law to be in a fit state to settle and guide how we all should act, the rules governing us must be prospective, clear, general and possible to obey. Moreover, these legal rules need to be upheld in practice by officials holding state power over us, including the police, ministers, judges, and civil servants.
For the rule of law to be effective, there must also be an effective court system with independent judges to settle disputes fairly and impartially. The rule of law therefore requires judges to be robustly independent, free to decide cases on the law and evidence and to resist pressure from any and all powerful actors – including each judge’s own colleagues.[8] This is in fact a feature of judicial independence which is often over-looked. Just as judges must be kept independent from the executive, we must also ensure that judges retain independence from each other: judicial group-think is also a challenge to the rule of law.
While this might be dismissed by some as a “thin”, and thus “empty”, conception of the rule of law, the importance of these principles to our political life cannot be overestimated. Without the rule of law, underpinned by independent courts, much else would fail to prosper. The rule of law is one of the foundations of a settled and decent society.
I therefore agree entirely with Lord Sales, one of our current Supreme Court justices, that it is wrong to take these principles for granted or to downplay what he called the “significant substantive benefits in the economic, political and moral domains” that they provide.[9]
The sobering fact is that many states around the world simply do not live up to such principles; and their citizens cannot feel at all confident that the rules will be upheld and impartially applied without fear or favour, or regard to status and power. We do live in a country governed by the rule of law, and we should never take that for granted.
The alternative to the view of the rule of law I have outlined thus far is to make it “thicker”, by starting with my ingredients, but then baking in other concepts like respect for democracy, the protection of fundamental rights, and compliance with international legal obligations.
This is a view that in this country has become associated with Lord Bingham and his highly influential book on the subject – indeed, it sometimes seems that because Lord Bingham’s book is called The Rule of Law, some people think that whatever that book says is part of the rule of law, must be. And of course this expansive approach to the rule of law is also the one favoured by the current Attorney General, Lord Hermer.
Lord Bingham’s expansive view of the rule of law, as Professor John Gardner of Oxford wrote in a trenchant review in the London Review of Books, includes:
“the full range of human rights: not just those ensuring due process of law for all, but also those concerned with … life, privacy, association, property and assembly”.
And Professor Gardner sardonically concluded that on this approach, it is hard to see how any country could be said to enjoy the rule of law if it would not also qualify for membership of the Council of Europe.
I believe this goes too far. There are lots of goods: the rule of law is a good, and so are respect for democracy and the protection of fundamental rights. But we don’t need to wrap all of these together, or to say that because the rule of law is a good, it must therefore include all or many other goods. We should be wary of the siren call of conceptual overreach.
The rule of law with its traditional limits, I suggest, is enough in itself. It doesn’t need to express or encompass every conceivable legal good. As Lord Sales put it, “the concept of the rule of law does not occupy the whole field of what is valuable in political and legal life”.[10]
Specifically, the rule of law should not be confused with justice more generally. We may have laws that are wholly unobjectionable from a rule of law standpoint, but which are manifestly unjust in one or more other respects. The risk of the thick view of the rule of law is that the additional content of the “thick” dilutes respect for, and adherence to, the fundamental requirements of the thin – such as certainty and predictability – and does so in a way that produces more, rather than less, injustice.
We should not, again to quote Professor Ekins, dull the “sharpness of the ideal” of the rule of law by conflating it with other concepts that enjoy their own place within our constitution.[11]
An expansive view of the rule of law also denies the reality that different good things may in fact be in conflict with one another. And many of these goods are incommensurable: there is no right answer to how much “democracy” is worth sacrificing for how much “rule of law”. The “thick” conception’s misleading appeal is that it pretends to deny the need for any hard choices between competing values.
In fact, I worry that inflating the concept of the rule of law carries the risk of undermining the integrity of other constitutional fundamentals, including responsible government and – especially – Parliamentary sovereignty.
Two contemporary challenges
We are fortunate in being able to say that the rule of law is deeply entrenched in this country. But it is a constitutional principle that requires vigilance on all our parts to keep it that way. I want to highlight two contemporary issues touching upon the rule of law that warrant attention.
First, all people deserve legal representation.
This basic proposition is what underpins the rationale behind the famous “cab-rank rule”. Broadly stated, this rule means that barristers have to accept any brief as long as it is within their competence and reasonably remunerated. This rule helps – but is not in itself sufficient to – ensure no-one is denied legal representation in asserting or vindicating their legal rights because they might be politically or socially unpopular.
The cab-rank rule only works in the right kind of political culture, one where we don’t identify the lawyer with the client. And I say that with great respect to some of my former – and even a few of my current – clients.
And so I’ll be clear. I don’t like to see politicians – on either side – weaponise the rule of law, by conflating lawyers and their clients. I don’t like to see any lawyer criticised for taking a point which is properly open to them to take – indeed, not to do so would likely be a breach of duty to their client.
Earlier this month we saw the office of a London law firm vandalised by members of “Palestine Action” because of work it had done for companies linked to Israel. This type of bullying and harassment, if unchecked, will grow to corrode the cultural values that underpin the cab-rank rule, and the notion everyone is entitled to legal representation before an impartial tribunal.
But there is a converse point also. And I want to be as clear about this as I was with the previous point. And perhaps even clearer, because it’s a point which I think isn’t made often enough.
Of course, as lawyers we should champion our clients. But we don’t need to ally ourselves personally with them, and we generally should not. If we don’t want to be attacked for who our clients are or the causes or actions for which they’re being prosecuted or sued, we also shouldn’t say that those causes are our causes, or those actions are ones with which we personally identify. It’s a two way street.
Still less should we – by which I mean lawyers of all stripes – either attack those who act for clients or causes with which we may not agree or support, or which might be generally unattractive or unfashionable, or lionise those who act for clients or causes with which we do agree or which happen to be fashionable. So, on the one hand: you can take whatever stance you like about climate change – I pick an example not entirely at random – but attacking lawyers who act for oil companies is also an attack on the rule of law. And on the other hand: I have never quite understood why some barristers make a virtue, for example, of only acting for tenants and never acting for landlords. Or for the employee but never for the employer. Or, in the public law field, only acting for claimants and never for the Government. Some barristers seem to be driving cabs whose passengers always want to go to the same destination.
It’s really not complex. But it sometimes needs to be said, and re-said. None of this used to be controversial, and I would like to see a legal culture in which it was again not controversial.
The second point I want to mention concerns the courts.
I have already noted that the judiciary plays a central role in upholding the rule of law, by providing fair and fearless adjudication. Secure tenure, protected remuneration, judicial immunity and so forth are the key protections of judicial independence that help them perform this role.
Another way we protect judicial independence in this country is by maintaining our strong cultural norm against personalised or ad hominem attacks on judges trying to do their job. That’s why I wrote to The Times to support Sir Martin Moore-Bick when he was being attacked – especially by two people who should each have known better – as the Judge leading the Grenfell Tower Inquiry. It is important we continue to vigorously protect judicial independence.
But it is equally important to remember that the rule of law does not at all require Parliamentarians, or the public, to refrain from disagreeing with the decisions of the courts.
Last month controversy erupted after the Lady Chief Justice said she was “deeply troubled” by an exchange between the Prime Minister and the Leader of the Opposition during Prime Minister’s Questions concerning an immigration judgment of the Upper Tribunal – and that she had written to the Lord Chancellor to complain.
Both the Prime Minister and Leader of the Opposition expressed disagreement with the judgment and concern about the precedent it could set for migration policy. The Lady Chief Justice suggested:
“Both the question and the answer were unacceptable. It is for the government visibly to respect and protect the independence of the judiciary where parties, including the government, disagree with their findings.”
Any disagreement, she went to say, should be expressed “through the appellate process. And of course, MPs, just like the governing body, also have a duty to respect the rule of law.”
I have two concerns with that approach.
First, of course I agree that MPs have a duty to respect the rule of law. But you can question a judgment while maintaining respect for the rule of law – which requires you to obey the law and respect the legal system. Writers in legal journals criticise the judgments of our courts as being thoroughly misconceived and wrong, day in and day out – some do almost nothing else. We can’t have a system when you can criticise a judgment in the pages of the Law Quarterly Review, but not on the floor of the House of Commons. Provided you are playing the ball and not the player – criticising the judgment and not the judge – there is no challenge to the rule of law.
And so with respect to the Lady Chief Justice – I say that, but of course it should be taken as read – I think this intervention was unfortunate and, in my view, an example of one of the risks of inflating the concept of the rule of law. And I am comforted that both my respect for the LCJ, and my disagreement with her in this instance, were shared by a Times editorial.[12] I also note that the LCJ explained her position later in more detail to the Constitution Committee.
Responsible government and Parliamentary supremacy, two pillars of our Constitution, would be seriously hollowed out if MPs, peers, and ministers were prevented from offering measured criticism of judgments they think unsound, or debating whether to change the law. Appeals to the rule of law and judicial independence must not be used to squeeze out reasoned political criticism of judicial decisions – and that remains true even if the criticism itself is open to criticism and challenge.
The second point stems from the Lady Chief’s suggestion that the only way to challenge or criticise a judgment is through the appellate process. Again, I respectfully disagree: if all judges did was to mechanically apply the rules as already set down, she’d be right. But that – as Lord Reid explained many years ago – is a fairy tale. Judges make law. Indeed, in a system based on precedent, they can’t help themselves from doing so. And it is open to all of us to object to the rules they make.
And we do that through Parliament, which can overturn a judgment by way of legislation. To be clear: the rule of law is not undermined when Parliament chooses to legislate to overturn or correct a judgment it thinks is incorrect. It is part of our constitutional settlement, and it is honoured, not undermined, by Parliament’s usual practice of abstaining from depriving a successful litigant of what the court had awarded in a final judgment the ratio, or legal reasoning, of which Parliament is overturning or correcting.
On this point, it is vital that politicians and citizens understand that in our constitution the following types of legislative activity are entirely consistent with the rule of law:
- legislating to reverse specific judgments that misinterpret or undercut statute;
- legislating to revise the effect of a judgment to prevent the adverse effects that would otherwise flow for those who had acted on what was previously a reasonable or accepted interpretation of the law;
- legislating to repeal or amend constitutional legislation such as the Human Rights Act;
- legislating to oust judicial review in particular domains;
- declining to act upon declarations of incompatibility.[13]
Some of these actions might or might not be controversial, and others might or might not be politically wise. But my point today is that all of these kinds of action are entirely consistent with our most fundamental rule of law, which is that whatever the King in-Parliament enacts is law and British courts have no authority to question the validity of an Act of Parliament.
In the Jackson and Privacy International cases, there are suggestions – by, it must be said, a minority first of the Law Lords and then of Supreme Court justices – that the courts might be able to appeal to the constitutional principle of the rule of law in order to deny the validity of an Act of Parliament that limited or excluded judicial review proceedings.[14]
Thankfully, the orthodox position has been vigorously stated and restated repeatedly in recent years, including by Lord Reed – the current President of the Supreme Court – and Lord Sales. That orthodox position is entirely compatible with judicial independence and the rule of law.
II. Rule of Law – International
Reason for dualist constitutional position
I now turn to international law.
International law, and our domestic law in the UK, are two distinct systems of law.
In the UK legal system, international law obligations found in treaties and international conventions become part of the law of the land only so far as they are expressly incorporated into domestic law by or under an Act of Parliament. Once incorporated, that law – which has become domestic law – is just as capable of being modified as any other domestic law, and in the same way.
The longstanding constitutional practice of successive generations of governments, Parliaments, and courts has been to affirm that the content of our domestic law is not determined by international legal obligations which, though assumed by the United Kingdom through lawful actions of its Ministers, have not been given effect by statute.[15]
When domestic law and unincorporated international obligations are in conflict, the rule of law and Parliamentary sovereignty therefore require courts, Ministers, civil servants, and other actors to give effect to domestic law. As Lord Justice Diplock (as he then was) famously held, as long ago as the year of my birth, “the Crown has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party and which has come into force so recently as fifteen days before.”[16]
It has become popular amongst some lawyers and jurists to lament this constitutional state of affairs, and to argue for a position under which international obligations immediately become part of our law. The act of ratifying an international treaty would immediately incorporate it into domestic law; and customary international law would be treated as part of domestic law as well.
But I would encourage those who prefer this approach to international law to reflect on the serious moral reasons that underpin our constitutional position that treaty obligations do not become part of our law until Parliament incorporates them.
To say that Ministers can use their prerogative powers to enter into treaties with other nation states and thereby change the “legal rights or obligations of anyone in the realm simply by entering into or ratifying an international treaty” is a frontal challenge to the “most fundamental principle of our constitutional law” that the executive cannot change the law of the land and the rules that bind us without Parliamentary approval.[17]
Arguing that international law is on the same constitutional footing as domestic law would enable Ministers to bypass Parliament, by the “simple expedient of entering into international legal obligations via treaty, and by then insisting that international law has to be observed at all costs, even at the expense of the decisions of Parliament.”[18]
That would be anti-democratic. It would be an affront to the rule of law. It would be a naked power-grab by the executive.
UK may breach international obligations in national interest
The distinguished law professor John Finnis has said that the UK has long had a “standing, morally grounded…policy of complying with its treaty obligations, of encouraging other states to do likewise.”[19] The rationale for this standing policy is clear, which is that in most situations, it will be beneficial for the UK to ensure that its international obligations and domestic law are broadly in step, and for the international, indeed the human community at large, that bargains and undertakings are honoured and reasonable expectations fulfilled. This general, though not indefeasible, rationale helps explain, in part, the interpretative presumption that when passing legislation, Parliament intends not to defy or ignore international law or the UK’s treaty obligations.[20]
I think there is considerable merit in our orthodox constitutional approach to international law obligations, which is that while they are treated with great respect and prudence, they remain independent of domestic law and are not to be followed uncritically and without heed to the national interest.
Consider, for example, this government’s recent decision to extend the UK’s “steel safeguards”, a series of quotas and tariffs designed to protect the British steel-making industry. These safeguards “depart from our international legal obligations under the relevant WTO agreement” but were justified on the basis that the “national interest requires action to be taken”.[21]
Or consider the field of taxation, where Parliament regularly enacts taxation provisions which are incompatible with the UK’s network of double taxation and other taxation treaties, which are binding in international law.
Another context where I think we should not uncritically abide by an apparent treaty obligation, is where international tribunals misconstrue their jurisdiction, by “radically misinterpreting” the agreements and treaties that give them authority.[22]
It would be perfectly reasonable, I submit, for Parliament or government to conclude that some future judgment or order of the Strasbourg Court is impossible to reconcile with the terms that the UK agreed on entering into the ECHR and to refuse to comply for that reason, or to take the view that there are serious reasons in the national interest to decline to follow the Court’s judgment.
Let me give an example. In recent years, the Strasbourg Court has issued so-called “interim measures” against member states that are subject to challenge for an alleged breach of the Convention. These measures, which have no basis in the text, structure, or drafting history of the Convention,[23] purport to bind member states to do or to refrain from doing something until the Court has an opportunity to resolve the substance of the dispute, on the ground that their actions might at a later stage be held to have been an infringement of the Convention.
The point is not that international obligations should be departed from lightly – they should not. Nor is it that we could do so without political cost – there is likely to be a significant political and reputational cost to pay.
But it might sometimes – rarely – be the right thing to do. To give a contentious example, public international law provides no grounds for military intervention by one state in another state’s affairs in the case of genocide. The law’s position is one of state sovereignty. If therefore genocidal murder is taking place in a near neighbour state, absent a vote of the UN Security Council, the law provides no grounds for military intervention and to do so would be unlawful insofar as the intervening state is concerned.
It is important in such circumstances for the Ministerial Code to make clear to Ministers that the UK’s legal obligations do not fall on them personally and that they will not be subject to any sanction for breach. Their duty is to act in the best interests of the UK. In some, albeit extremely rare, cases that may require them to place the UK in breach of its international obligations.
My point today is that there are qualitative differences between our officials breaching domestic law, which is part of the law of the land and subject to the imperative of the rule of law and public good to uphold, and the UK departing from the requirements of international law.
Within our own domestic legal order, the UK government is in a different position from you and me when it comes to the rule of law. It is very important that those with power over us abide by the rules.
But within the international legal order the UK is in no special position compared with any of the other states that are also parties to that legal order. Not every breach of international law is of the same gravity or significance or consequence. Our breaches of international law are no more a threat to the rule of law than is someone’s breach of contract a threat to the rule of law in the UK, unless – and this is the point – such breaches threaten the entire legal order itself. Russia’s invasion of Ukraine may do so. The UK’s failure to abide by a double tax treaty doesn’t.
Another problem in this area is that of an international court grossly misconstruing its jurisdiction, such as the recent decision of the International Criminal Court to issue an arrest warrant against Mr Benjamin Netanyahu, the prime minister of Israel. Even though, as a serving head of government, Mr Netanyahu possesses immunity at international law, the ICC has, in a series of judgments, denied that the immunity of high state officials applies against its own warrants.
The ICC has so ruled even though the Rome Statute, which created it, specifically provides that the Court cannot ask member states to execute its arrest warrants if doing so would require the state to violate international law, which is what would happen if the UK chose to execute the arrest warrant, since Israel is not a party to the Rome Statute and has never agreed to waive the immunity of its prime minister. This is also the legal position under UK law, through the International Criminal Court Act 2001, as Policy Exchange has made crystal clear in two successive papers.[24]
Yet British ministers have consistently refused to defend the position under UK law by – as they should have done – rejecting calls to arrest Mr Netanyahu and surrender him to the ICC should he visit this country. Instead, the Government has equivocated publicly about what it would do and even suggested that it would seek his arrest, in defiance of the UK’s duties under customary international law, long incorporated into our common law.
The UK Government risks breaking its own obligations under both domestic law and international law, in order to defer, blindly, to an international court – blind to the fact that it is acting beyond its proper jurisdiction.
This approach is part and parcel of the incorrect approach to international law adopted by the current government and outlined by the Attorney General in his 2024 Bingham Lecture. There he announced the Government’s commitment to “clearly, and without question, honouring our obligations under international law”.
But: our obligations – as interpreted by whom? And if there is a conflict between interpretations, who decides?
The Attorney General’s approach ultimately damages international law and weakens its legitimacy, as well as its ability to make international relations subject to clear, stable and predictable rules. It is an attempt to impose contested interpretations of international law as final and authoritative and, in effect, endow them with greater legal force than they possess.
And while in almost all cases it will be in the interests of the UK to honour its obligations under international law, the fundamental problem with the attitude of uncritical obedience to international law proposed by the Attorney General is that it surrenders constitutionally responsible political judgement about what should be done for the good of the UK and its people, including our principle of the rule of law, to the actions and decisions of other states and international tribunals.
If we are clear-eyed about some of the work of these bodies and tribunals, we will see that they are often staffed by appointees who act less like independent and impartial judges, and more like partisan politicians championing their country’s interests. One does not have to be cynical, only realistic, to say that there is no reason to think this form of uncritical obedience will rebound to our benefit.
Lord Hermer cited the agreement with Mauritius to hand over sovereignty of the Chagos Islands as an example of the government’s commitment to international law.[25]
But there is nothing conducive to the public good in surrendering a critical territory for our national security on the basis of a non-binding advisory opinion and the fear of some contingently possible future ICJ judgment.[26] There is no legal reason, no rule of law reason, indeed no reason for the UK to act as if it had already lost a future adjudication, especially one that cannot be undertaken or advanced without the UK’s consent. Moreover, unthinking obedience – or obeisance – to the ICJ’s advisory jurisdiction gives no weight to the fact that the UK has a good sound legal argument for its position which it shouldn’t just abandon because of the opinion – let alone an advisory opinion – of an international tribunal.
In respect of the European Convention of Human Rights, the Attorney General said that “we 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.”[27]
That is despite the fact that, under Article 46 of the Convention, we only have an obligation to abide by a final judgment of the Court and only then in a case to which we are party. There is no general obligation to “abide by and unequivocally support” the Court’s rulings, nor is there a specific obligation to comply with interim measures.
We should take international law and international institutions seriously, but without surrendering to it or to them either our capacity or our duty to act in and for the national interest.
III. Attorney General and Rule of Law
I will conclude by offering some thoughts on the rule of law as it relates to the Attorney General.
Previous Attorneys have often described their time in the office in colourful terms: Sir Francis Bacon called it “The painfullest taske in the realme”; Sir Patrick Hastings in his memoir described it as “my idea of hell”, while Sir Samuel Silkin QC said “if it were not so fascinating in scope, it would be oppressive in its demands”.
I think these complaints have something to do with the workload that typically rests on the Law Officers’ shoulders.
Their main constitutional function is to serve as legal advisor to the Crown via the Prime Minister and the Government. The Attorney General is not a member of Cabinet, or at least shouldn’t be, because they are there to advise as and when needed.[28]
Attorneys General provide legal advice on questions of the greatest legal complexity or political sensitivity, or where there is legal disagreement between different departments or their lawyers.
Here they have the benefit of being able to make use of the assistance of lawyers in the AGO and of Treasury Counsel, senior barristers with expertise in public law who agree to take on briefs from the government exclusively. Constitutionally speaking, however, the Law Officers – the Attorney General and the Solicitor General – are the official advisors to the Crown and their advice is authoritative within government.
The Attorney General is also a member of the government – though not a minister – and a member of one or other House of Parliament in the party supporting the Government. As such, part of their workload will be to help advance the policy goals of the government for which they share collective responsibility.
Law Officers have quite a lot to juggle, and it is their ability to strike a successful balance between the legal and political aspects of their role, as well as recognising the synergies between them, that sets apart a successful Law Officer.
Lawyer-Politician Balance
In his classic work on the Law Officers, JLJ Edwards said that the distinguishing feature of a successful Law Officer is their ability to successfully walk a constitutional tightrope[29], because they must act as a competent and independent-minded legal advisor on the one hand,[30] while also being a political animal and member of government on the other.
One of the cornerstones of the rule of law in this country is that successive Law Officers have been committed to using their legal expertise and judgment to provide objective and impartial legal advice to Government. The dual legal and political nature of the Law Officers only works if they do not allow “partisan bias, party political concerns, or pressure from colleagues” to prevent their good faith attempt to offer proper and rigorous legal advice.[31]
Regardless of how unpopular it might make them; an Attorney General must never say a policy or course of action is lawful unless they can advise the government that there is a respectable argument for it. Where there is no respectable argument for a policy, by which I mean one that could legitimately be put before a court – even if the court is going to disagree – the Attorney General has a duty to tell his colleagues it is unlawful.[32]
Should a government choose to ignore that advice and pursue a course of action the Attorney has advised is a breach of domestic law, the Law Officers would be well-justified in tendering their resignation.
Happily, it’s a sign of the respect afforded to the Law Officers’ advice within government that there are, to my knowledge, no reported incidents of this happening.[33]
But it is important to emphasise that a good Attorney General is not a legal technocrat. Nor is the Attorney General or any other legal adviser to Government relieved of the professional obligation of any other lawyer to act in the best interests of their client, the Government, in so far as domestic law and professional ethics allow them to.
That includes being proactive in providing practical legal solutions to the problems and policy challenges with which Government is confronted and, as in the case of any other public servant, ensuring that Government conducts its affairs in a way that provides good value for money and does not waste or otherwise misuse public funds.
Dr Conor Casey, of the University of Surrey Law School and also of Policy Exchange, put it well when he said the Law Officers must “combine their professional expertise as trained lawyers” with a strong drive to do what they can to “assist their ministerial colleagues in a common goal of implementing the Government’s policy agenda”.[34] A good Attorney is therefore capable of combining competence in the technical aspects of legal analysis and reasoning, with also having a political antenna.
The impartiality that the Attorney General should adopt, therefore, is not that of a separate court, inside Government but immune and aloof from politics and policy – there only to tell their Ministerial colleagues about the legal constraints they face. The Attorney must serve the best interests of their client. That means finding solutions as well as identifying problems.
Having good political intelligence is also important because it helps the Attorney provide constructive legal advice, that is, advice that doesn’t just point out the obstacles a policy faces, but which tries very hard to offer legally possible routes to getting it over the line, including considering the options for legislative change.
To paraphrase Sir Gerald Fitzmaurice, the former legal adviser to the Foreign and Commonwealth Office and Judge of the International Court of Justice and of the European Court of Human Rights, the Attorney General must be prepared to find a “solution for every difficulty rather than … a difficulty for every solution”.[35]
Legal Risk Guidelines
In order to provide some coherence and structure to the work of the hundreds of lawyers in the Government Legal Department, the Attorney General’s Office now issues “Legal Risk guidelines” instructing government lawyers how they should assess and present legal risk to Ministers.
Their title makes them sound very dry and technical, but their importance should not be understated. They are invaluable aids for helping government lawyers assist the Law Officers in their task of making law and politics work together at the heart of government.
The legal risk guidelines from 2015[36] and 2022[37] set out in an admirably clear way the correct constitutional relationship between government lawyers and ministers: the job of the former is to clearly set out the legal risks the Minister faces and to offer solutions to help minimize them, but the decision on whether it is ethically and politically proper to proceed with a legally risky option belongs to the Minister alone.
Lord Hermer’s New Guidelines
Last year we saw a new government and a new Attorney General assume office. One of the Attorney General’s most significant acts has been to replace the guidelines I have just discussed with a new set;[38] a set that I regret to say has some radical and, I think, questionable content.
Time does not permit a full assessment, but I will give an overview of their most troubling parts.
First, the new guidelines imagine a larger role for government lawyers in advising Ministers. They say government lawyers should feel confident telling Ministers that, even if a policy has a respectable legal argument, it still “may not be appropriate”[39] to proceed in some cases. It goes on to give as an example a situation “where the fundamental rights of individuals are significantly undermined”.[40]
The guidance however is very unclear about what any of the operative words in that clause actually mean. The phrases “fundamental rights of individuals”, and “significantly undermined”,[41] are nowhere defined and nor is how they are expected to apply to legislative and administrative decision making, respectively.
This part of the new guidelines is bound to generate serious confusion amongst Ministers and government lawyers about the proper boundaries of the lawyers’ role.
Second, perhaps the most troubling part of the new guidelines is how they treat international law issues.
The 2024 guidelines assert what Policy Exchange’s Judicial Power Project correctly dub a “new and radical constitutional principle”[42] in relation to international law. The guidelines state that:
the rule of law requires compliance by the state with its obligations in international law as in national law, even though they operate on different planes: the government and Ministers must act in good faith to comply with the law and in a way that seeks to align the UK’s domestic law and international obligations, and fulfil the international obligations binding on the UK. To honour the UK’s international obligations, the government should not invite Parliament to legislate contrary to those international obligations.[43]
I will not repeat the points I have already made about our international law obligations. I want to focus on the significance of the fact the guidelines are meant as a document for government lawyers.
The Law Officers are free – wearing their political hats – to tell their colleagues that they think there are good ethical or political reasons not to legislate incompatibly with international law. But it is another thing entirely for government lawyers acting under the apparent legal authority of the Attorney General to tell Ministers that they “should not” – in other words, “cannot” – invite Parliament to legislate in a way that is or might be contrary to the UK’s international obligations.
When the Government was drafting what would become the Safety of Rwanda (Asylum and Immigration) Act 2024, it was reported in The Times that government lawyers involved with the legislation were said to be “very, very reluctant” to “approve” legislation giving effect to a policy that would involve suspension of the ECHR’s terms and risk breaching international law.[44] The Judicial Power Project swiftly published a report on this debate, to which I was pleased to contribute a foreword. In that report they stated correctly that “there is no constitutional or legal basis for any government lawyer, even the Attorney General, to refuse to approve the introduction of legislation to Parliament seeking to change domestic law, even if this comes at the risk of creating tension with the UK’s international law obligations.”[45]
In my Foreword I said that “A civil servant who believes that a government policy, lawful in domestic law, contravenes, or arguably contravenes, international law and for that reason should not be implemented, cannot decide to stay in post but yet not implement the policy. That would usurp the function of the civil service.”[46]
Most Ministers are not lawyers, and these guidelines may make some think that their power to introduce legislation is somehow subject to the consent of Civil Service lawyers: it is not.
Drs Casey and Zhu are right in saying that this is “an idea which is entirely at odds with the foundational principles of the British constitution, in which civil servants, including government lawyers, advise but in which decisions are ultimately taken by democratically accountable ministers.”[47]
At best, the guidelines are apt to confuse Ministers about the propriety of centuries of constitutional practice, whereby “Parliament could and did regularly legislate contrary to international law, in accordance with the basic principle of Parliamentary sovereignty, and justified its doing so on grounds of national interest.”[48]
For these reasons, I hope that these parts of the guidelines will be altered so that they better reflect the core principles of our constitution.
Conclusion
The rule of law is an important part of what makes the UK a free, decent, and civilized country. We don’t notice it most of the time because we take its presence for granted. But we would all miss it if it was undermined or ceased to exist.
This is why I think that reasonable people of all political stripes will agree that the rule of law should not become a partisan issue.
The rule of law is too important to become a political football.
We all have a responsibility to defend it and its core components that we can all agree upon – the idea that in this country we are a free people subject only to clear and predictable law democratically made; that we are not governed at the whim of officials or the otherwise unaccountable; that the law will be respected by all the agents of the state and applied diligently without regard to status, power, or privilege; and that disputes will be peacefully resolved according to the law by impartial, independent, courts.
If we fail to defend this venerable constitutional principle, we will find that we have lost one of the critical – if often invisible – elements holding our society together.
[1] Aristotle’s Politics: A Treatise on Government, trans. William Ellis (G. Routledge: 1895)
[2] Ernst Kantorowicz, The King’s Two Bodies (Princeton University Press, 1957) 143-155.
[3] Lockwood, Sir John Fortescue, On the Laws and Governance of England, 28-29.
[4] Richard Ekins, Human Rights and the Rule of Law (Policy Exchange, 2024) 11.
[5] Thomas Aquinas, Summa Theologiae, q. 90 a. 4, q. 95 a.3, q. 96 a. 1, q. 97 a. 2, q. 95 a. 3.
[6] Lon Fuller, The Morality of Law, New Haven: Yale University Press (1964).
[7] John Finnis, Natural Law and Natural Rights, (Oxford: Clarendon Press, 1980) 270–1.
[8] John Finnis, “Judicial Power: Past, Present and Future” in R. Ekins (ed.), Judicial Power and the Balance of Our Constitution (Policy Exchange, 2018), 26, 53
[9] Lord Sales, “What is the rule of law and why does it matter?” The Robin Cooke Lecture, 12 December 2024
[10] Ibid.
[11] Richard Ekins, Human Rights and the Rule of Law, 12
[12] The Times view, “The lady chief justice is wrong, politicians can criticise court rulings”, The Times, 19 February 2025, quoting Richard Ekins, “The Lady Chief Justice has no right to condemn Starmer”, Spectator, 18 February 2025
[13] AET0036 – Evidence on Enforcing Human Rights
[14] For academic criticism, see Richard Ekins, “Legislative Freedom in the United Kingdom” (2017) 133 Law Quarterly Review 582-605 and Richard Ekins and Graham Gee, “Ten Myths about Parliamentary Sovereignty” in A. Horne, L. Thompson and B. Yong (eds.), Parliament and the Law (Hart Publishing, 2022), 299-322
[15] JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 499; R (Miller) v Secretary of State for Exiting the European Union (Birnie intervening) [2017] UKSC 5; [2018] AC 61, paras 56, 167 and 244; para 78; In R (AAA) v Secretary for the Home Department [2023] UKSC 42 paras 140-144.
[16] Post Office v Estuary Radio Ltd. [1968] 2 Q.B. 740.
[17] John Finnis, “Ministers, International Law, and the Rule of Law” (Policy Exchange, 2015)
[18] Casey and Yuan, 19.
[19] Ibid.
[20] Ibid.
[21] CBP-9596.pdf
[22] Richard Ekins, Human Rights and the Rule of Law (Policy Exchange, 2024) 19.
[23] Richard Ekins, Rule 39 and the Rule of Law (Policy Exchange, 2023)
[24] https://policyexchange.org.uk/wp-content/uploads/The-International-Criminal-Court-Act-2001-and-State-or-Diplomatic-Immunity_.pdf and https://policyexchange.org.uk/wp-content/uploads/State-or-Diplomatic-Immunity-and-the-Limits-of-International-Criminal-Law.pdf
[25] Attorney General’s 2024 Bingham Lecture on the rule of law – GOV.UK
[26] THE-CHAGOS-DEBACLE-A-CRITIQUE-OF-THE-BRITISH-GOVERNMENTS-SHIFTING-RATIONALES_.pdf
[27] Attorney General’s 2024 Bingham Lecture on the rule of law – GOV.UK
[28] Conor Casey, ‘A Defence of the Dual Legal-Political Nature of the Attorney-General for England and Wales’ in (eds.) Richard Johnson and Yuan Yi Zhu, Sceptical Perspectives on the Changing Constitution of the United Kingdom(Hart, 2023) 228.
[29] JLJ Edwards, The Law Officers of the Crown (Sweet & Maxwell, 1964) ix.
[30] Conor Casey, ‘The Law Officers: The Relationship between Executive Lawyers and Executive Power in Ireland and the United Kingdom’, in Oran Doyle, Aileen McHarg and Jo Murkens eds., The Brexit Challenge for Ireland and the United Kingdom: Constitutions Under Pressure (Cambridge University Press 2021) 296.
[31] Conor Casey, ‘Between Law and Politics: The Future of the Law Officers in England & Wales’ (Policy Exchange, 2023) 15.
[32] Casey, A Defence of the Dual Legal-Political Nature of the Attorney-General, 235-236.
[33] Casey, ‘Between Law and Politics‘, 18.
[34] Ibid, 16.
[35] Gerald Fitzmaurice, ‘Legal Advisers and Foreign Affairs‘, (1965) 59 The American Journal of International Law, 72, 73-74.
[36] Government Legal Department, ‘Guidance Note on Legal Risk’, (July 2015), Legal_Risk_Guidance_-_Amended_July_2015.pdf
[37] Suella Braverman KC MP, ‘Attorney General’s Guidance on Legal Risk’ (2022).
[38] Attorney General Hermer KC, ‘Attorney General’s Legal Risk Guidance’ (November, 2024), Guidance: Attorney General’s Guidance on Legal Risk – GOV.UK
[39] Ibid.
[40] Ibid.
[41] Ibid.
[42] Conor Casey and Yuan Yi Zhu, ’From the Rule of Law to the Rule of Lawyers?’ (Policy Exchange, 2024), From-the-Rule-of-Law-to-the-Rule-of-Lawyers.pdf, 15.
[43] Attorney General Hermer KC, ‘Attorney General’s Legal Risk Guidance’ (November, 2024), Guidance: Attorney General’s Guidance on Legal Risk – GOV.UK
[44] Matt Dathan and Christ Smyth, ’Rwanda plan is ‘political gimmick that won’t work’, The Times (4th December, 2023).
[45] Government-Lawyers-the-Civil-Service-Code-and-the-Rule-of-Law.pdf
[46] Ibid.
[47] Casey and Zhu, ’From the Rule of Law to the Rule of Lawyers?’, 17.
[48] Ibid, 17.
I would like to thank Dr Conor Casey, Professor Richard Ekins KC (Hon), Professor John Finnis KC (Hon), Harry Gillow, Sir Stephen Laws KC (Hon), Lord Verdirame KC, and Dr Yuan Yi Zhu for helpful thoughts and comments, though any errors remain mine.
