Why is Lord Hermer Trying to Politicise the Rule of Law?

Among the cliches that swamp the political lexicon the ‘rule of law’ ranks highly. It has been described as a ‘self-congratulatory rhetorical device that graces the public utterances of Anglo-American politicians’. As if to confirm this sorry state of affairs, the Government’s newly minted Attorney-General, Lord Hermer KC, recently ventured into contentious territory when, adopting the dubious view advanced in the late Lord Bingham’s popular book, The Rule of Law, he threw ‘human rights’ into the mix as part a substantive or ‘thick’ conception of the rule of law:

One of Lord Bingham’s great contributions was to promote a more substantive conception of the rule of law, including the idea that the law must afford adequate protection of fundamental human rights. I too believe that human rights – both at the level of principle, and in practice through how they are enforced – are an essential element of the rule of law and a stable democratic culture.

To import ‘human rights’ into the notion of the rule of law is misconceived. It weakens both values by loading the concept with benevolent intentions that saps its essential character as a constitutional instrument to contain the exercise of arbitrary power. And it correspondingly diminishes the powerful concept of human rights by merging it with what are fundamentally procedural devices.

And what is the point? What exactly does our senior law officer intend to do with this unwieldy augmented rule of law? What possible benefits does he believe it will serve? Is it yet another instance of an irresistible temptation to extend an agreeably liberal ideal almost to breaking point or to cram it with freight that it can barely support.

Human rights (itself a nebulous and contested concept) are most effectively protected in their own name. Moreover, a thick, substantive theory of the rule of law may actually be legally counter-productive. It could, for example, lead courts engaged in judicial review to shrink from asserting a comprehensive review of a declaration of a state of emergency.

If Lord Hermer’s goal is to instil moral values into the rule of law, they are already there. Formal requirements do have substantive foundations and normative consequences. The right to a fair trial, for example, is both grounded in principles of justice, and presumes the existence of impartial judges. There is a symbiotic relationship between procedural and substantive features of the rule of law. But this is a far cry from the misguided incorporation of fuzzy ‘human rights’ as advocated by the Attorney General.

The desire to enlarge the scope of the rule of law may be understandable in a newly appointed senior law officer seeking to display his enlightened values. But this is imprudent. Where is the line to be drawn? Will every element in our legal system be subject to a human rights MOT?

There are, of course, many elements of a democratic legal system whose deficiencies may enfeeble its effective operation and weaken the rule of law. But we should resist amplifying and encumbering the concept beyond its nucleus. The beauty of the idea of the rule of law is that it transcends the hurly-burly of ideological controversy, and provides objective standards by which to judge a legal system.

I repudiate the claim that a ‘thin’ version of the rule of law is somehow stripped of ethical or evaluative content. The proposition that, for example, the law ought to apply equally to all regardless of their social status, gender, wealth, creed, race, and so on bristles with moral force. If the rule of law means anything, it signifies a powerful check on the abuse of arbitrary power. This is not to say that it is simply a negative ideal; its strength lies in the affirmation of the values of fairness, and integrity. Hands off it, Lord Hermer!

Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of 17 books including The Rule of Law Under Fire?