Our two-tier Attorney General, Lord Richard Hermer, is in the news again. The controversial lawyer and ‘old friend’ of the Prime Minister, has issued new instructions to government lawyers which give him an ‘effective veto’ over all government policy and which also create a network of legal spies within government departments. The Hermer doctrine revealed by these instructions relies on an extreme view of international law, which seeks to limit the power of ministers to govern and parliament to legislate. The Attorney General wrote 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.
What makes all this particularly odd is that ‘international law’ is very different to English law
In case that wasn’t clear enough, the guidance also says that allowing ministers to breach international law could ‘incur significant consequences, be they legal, political, diplomatic and/or reputational’.
Framed in legal language, what is this saying? That the ‘rule of law’ requires the government to comply with international law, insists that ministers change British law to comply with international law, and that the government may not even seek to legislate to limit how an international treaty is imposed. This is wrong.
A basic principle of our constitution is that we have a dualist system, where domestic law can diverge from international law. Our parliament is sovereign, and that international law has no effect on our domestic law unless parliament legislates to that effect. This is an important protection against ministers being able to create law by signing international treaties.
Hermer’s guidance also makes it very clear that he does not trust his ministerial colleagues, as it creates an obligation for government lawyers to report on ministers:
If it is proposed to proceed with a course of action despite advice that it would be unlawful to do so because it is not supported at least by a tenable legal argument, law officer advice must be sought immediately.
This means that if a minister listens to a government lawyer’s advice and decides to act, or to govern anyway, then that lawyer should report them to the Attorney General’s office. No doubt the Attorney General would then visit the minister concerned to explain why international law is supreme, and they are not allowed to govern.
When I put this to the Attorney General’s office, they issued a statement saying, ‘this government is committed to upholding its obligations under international law’ and went on to add that ‘we are clear that while government lawyers advise ministers, it is always ministers that make decisions on policy as has been the case under successive governments’. It is not clear how Hermer reconciles this with his legal snoops and insistence that ministers must change domestic law to mirror international law.
The Attorney General has made it clear how much he values international law. At the Bingham Lecture in November 2024, Hermer said:
International law is not simply some kind of optional add-on, with which states can pick or choose whether to comply. It is central to ensuring our prosperity and security, and that of all global citizens. As will develop later, our reputation as a country that can be trusted to comply with its international law obligations, and has a robust adherence to the rule of law, is essential to our ability to grow the economy.
What makes all this particularly odd is that ‘international law’ is very different to English law. There isn’t an international parliament creating laws, nor an international government, nor a world court issuing binding judgments. ‘International law’ is the term given to describe the aggregated treaties, international agreements and agreed-upon ways in which states act. Yuan Yi Zhu, Senior Research Fellow at Policy Exchange’s Judicial Power Project, assistant professor at Leiden University and international law expert, told me that while:
International law is ‘law’…it is very different to domestic laws. Many domestic lawyers make the mistake of assuming the two are equivalent. International law is primarily between states, almost always voluntary and more like contract law. The United Nations charter recognises this and provides a whole raft of non-court dispute resolution mechanisms.
International law is not backed by a population, resources or military power, and nation states quite rightly choose to ignore or ‘break’ these rules when it suits their interests.
Hermer’s guidance does, grudgingly, acknowledge this, saying, ‘International law principally applies between states. It may not give rise to legally enforceable rights or duties in UK domestic law’. Given this, why is the Attorney General instructing government legal staff to behave as though such rights and duties exist? Yuan Yi Zhu says that:
Hermer is wrong in two ways. Firstly, because he misunderstands international law. He is not an international law specialist. He’s an English barrister who has practised English law with international elements in England. Secondly, he oversteps his constitutional role. It is not the role of the AG to control other departments nor parliament, which he comes dangerously close to.
Hermer’s fanatical devotion to international law is driving his power grab. Far from protecting the rule of law, he is a threat to it. He has acted to deliver two-tier justice, he believes that criticism of the judiciary is wrong and now he seeks to prevent ministers of the Crown executing their duties. This lawyer seeks rule by lawyers and would make this country ungovernable if he had his way.
There are people within government who recognise the threat Hermer’s fanaticism poses. It is clear he does not trust his colleagues. They should make their feelings known to the Prime Minister, who must decide between rule by a friendly lawyer and the rule of law.
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