The great trick of modern politics has been the ability of its actors and institutions to cloak themselves in a veil of de-politicisation. Instead of self-interested networks of power, they become fundamental institutions that are the bedrock of a constitutional state. Things that are relatively young in governmental history and ideology, like the concept of human rights or the Office of Budget Responsibility, are quickly woven into a grand arc of political history which suggests they are continuations of time old traditions, stretching back to Magna Carta or the Star Chamber.
Richard Hermer, the UK’s current attorney general, expressed just this mindset in his Bingham Lecture[1]. The “rule of law” is the absolute basis of any governing strategy, despite a lack of concrete definition. As a result, it encompasses everything from judicial appointments and committee reporting to international obligations and soft power. At its centre sit the ECHR and the more recent Human Rights Act, treated as existential forms rather than specific acts borne of a particular context.
“The law must afford adequate protection of fundamental human rights”. Human rights are never defined in any meaningful sense because their definition is governed by the power establishing them at the time. The original encompassment of human rights via the ECHR never anticipated the Equality Act and its reporting requirements and obligations. The UK already ignores ECHR rulings when it comes to prisoner’s voting rights, revealing that law is superseded by sovereignty. Rule of law is expansive, capable of constantly increasing yet never being questioned, and the aim of Hermer is to make this rule a sovereign one, above public scrutiny.
Hermer demonstrates this when discussing the role of Parliament in the law. Beyond the commonsense that Parliament is the “ultimate legal authority”, Hermer insists on the need of middlemen to ensure adequate accountability, particularly the select committee system. Yet select committees have been glorified talking shops, acting more as springboards for political careers than mechanisms to achieve anything. The COVID investigation, the Privileges Committee investigation of Boris Johnson, the Post Office enquiry or the Home Affairs committees questions on migration statistics. All have done very little. The extent of accountability rests in endless recommendations and reports, most of which endorse a new set of rules and procedures on top of existing legislative/procedural instruments.
Middlemen are a mechanism for making political machines[2]. As America showed during the first half of the 20th century, these machines are unaccountable, opaque and expansive. As shocking as it is to think, politicians, the judiciary and technocrats have their own agendas and ideologies. Whether it be Tan Ikram or Harriet Harman, the decisions they make stem in part from their beliefs. Garbing them in the language of human rights or justice does nothing to change this. The rule of law in Hermer’s abstract definition is subjective.
It is also fickle, as seen during the covid pandemic. In a short space of time our fundamental rights were overturned by legislative fiat, with minimal parliamentary debate. Anyone who questioned it was vilified as a crank or denier. A vast legal quagmire was created that empowered police to arrest people for sitting on park benches or not wearing a mask. The right of protest was curtailed and right to movement ended. The only right that exists is the right of a coercive power to enforce its will.
And that coercive power will be used because there is a clear enemy identified by Hermer, the spectre of the populists. Anyone that tries to define the will of the people, or who questions the efficacy of the modern legislative system with its vast bureaucratic arrays yet a clear lack of outcome, is an enemy of the rule of law. To question judicial judgments, to suggest that ideology infects the way law is interpreted is to be castigated as a populist (another undefined term in Hermer’s bilge).
Populists are a wide, varied category. By depoliticising governmental decisions and creating insulated cultures, the friend-enemy distinction of politics can be denied while at the same time declaring an unofficial enemy to be combatted. Populists are everyone and no-one. Undefinable yet culpable as a rule of law culture targets an indeterminate mass whose rights are to be curtailed.
“Left to their own devices, ideologically motivated judges will find other ways to block the deportation of foreign criminals and the effective enforcement of our border security”[3]. Such thinking, though shown by judgments affecting immigration policy, is what a rule of law culture will attempt to stamp out. “So too must we work to combat disinformation and misinformation about law and lawyers. The disgraceful scenes of violent disorder over the summer, including threats against immigration law firms and advice centres, showed only too vividly that what is said online can have dangerous consequences in the real world”. The bounds of freedom of speech will be restricted to protect human rights. In practice, this means jailing people for memes or posting offensive (but unactionable) comments on social media[4] while freeing violent criminals (that a woman was jailed for 2 and a half years for a first time offence should tell you everything considering how much leniency is given to long-term offenders[5]). It means following John Woodcock’s daft proposals to massively curtail the right to protest in this country.
By defining populists as the enemy, anyone and everyone can become an enemy of the rule of law. As has been seen in relation to lockdown breaches, the Southport riots and two-tier policing[6], being an enemy has real-world consequences.
[1] https://www.gov.uk/government/speeches/attorney-generals-2024-bingham-lecture-on-the-rule-of-law
[2] https://www.theatlantic.com/magazine/archive/2016/07/how-american-politics-went-insane/485570/
[3] https://www.telegraph.co.uk/news/2024/10/15/theres-no-quick-fix-for-britains-mass-migration-nightmare/
[4] https://www.bbc.co.uk/news/articles/cp3wkzgpjxvo
[5] https://www.neilobrien.co.uk/p/super-prolific-criminals-new-data
[6] https://collapsepatchworks.com/2024/08/30/two-tier-rioting/
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