Of all Keir Starmer’s appointments to government, none have been so personal or politically significant as his choice of Attorney General. The Prime Minister’s politics have been shaped, refined and hardened by his time as a human-rights barrister. The role of Attorney General – the government’s chief legal adviser and the minister responsible for the Crown Prosecution Service, which Starmer ran as director of public prosecutions – is of critical importance to him.
While the PM may or may not take a close interest in who is minister for planning, veterans or food security, he will have thought very carefully about who should be his AG. The choice of Richard Hermer is deeply revealing – and should be profoundly worrying. Hermer’s approach to politics marks a sharp departure from Britain’s traditional political constitution and the approach taken by his recent predecessors in this ancient office.
Hermer’s relationship with Starmer is more than personal: it is also intellectual, even ideological
Lord Hermer, as he is now, is the first incumbent since 1922 not to have served in parliament before his appointment and the fact that he was chosen over the heads of other progressive lawyers reinforces how very personal Starmer’s choice is.
The two men have long been friends, ever since Hermer joined the progressive Doughty Street Chambers, of which Starmer was a founding member, in 1993. As a young barrister, Hermer appeared in several cases as Starmer’s junior. When he took silk in 2009, Starmer gave the toast at the celebration, and when Sir Keir ran for the Labour party leadership in 2020, Hermer, who by then had moved to the equally progressive Matrix Chambers, donated £5,000 to his campaign. But Hermer’s relationship with Starmer is more than personal: it is also intellectual, even ideological.
At the bar, both men were among the first generation of barristers to specialise in human-rights law, to which Hermer added international law as a specialism, making him highly unusual among his recent predecessors. Among Hermer’s clients have been Kenyan Mau Mau detainees suing the British government and Gerry Adams, who was defending himself against lawsuits brought by victims of Provisional IRA bombings.
What Hermer and Starmer share above all else is an uncompromising commitment to a particular version of the rule of law, which Hermer has described as ‘the lodestar for this government’, a point he has emphasised in his public remarks, not least by amending his ancient oath of office to add a reference to it.
Hermer’s conception of the rule of law is a particular one. To most people, the rule of law means a society in which no one, including the state, is above the law, properly enacted, and in which disputes about what the law requires are settled by independent courts. But Hermer has argued that this ‘thin’ account of the rule of law is inadequate, nothing more than a device which ‘populists and authoritarians’ use as a ‘cloak of legitimacy’. By contrast, both Hermer and Starmer are proponents of the ‘thick’ conception of the rule of law. As he expounded in his recent Bingham lecture, this ‘thick’ conception of the rule of law stands for an expansive set of liberal political values, practical limits on parliament’s legislative powers and a judicially enforced human-rights framework like the European Convention on Human Rights.
The impact of Hermer’s approach to the rule of law has already been seen across the government, especially in foreign policy, not the traditional preserve of the Attorney General’s Office. One of his first official acts was to withdraw Britain’s objections to the issuing of arrest warrants against Israeli officials by the International Criminal Court.
Likewise, it was Hermer who announced the government’s support for the expansion of the UN Security Council in order to give a veto to more countries, an unusual brief for a law officer to take on, but a sign of Hermer’s evident influence on British foreign policy.
When the government decided to suspend export permits for weapons to Israel, Hermer was at the centre of the decision-making process and last year, he signed a letter which suggested that Israel’s policies in the West Bank might amount to apartheid. Similarly, when the government decided to hand over the Chagos Islands to Mauritius on the basis of what Policy Exchange’s Judicial Power Project has shown to be a legally dubious and non-binding advisory opinion by the International Court of Justice (an opinion secured for Mauritius by Philippe Sands KC, a former colleague of Hermer and a friend of Starmer’s), Hermer defended it as ‘honouring our obligations under international law’.
The same impulse led to the government’s acceptance of the European Court of Human Rights’s interim measures blocking the removal of asylum seekers to Rwanda as legally binding even though the Strasbourg court lacked the legal authority to do so.
Hermer’s influence within government is growing. He recently issued new guidance to government lawyers ‘to raise the standards for calibrating legality’ across government and allow them to ‘give their full and frank advice to me and others in government and to stand up for the rule of law’. In other words, the Attorney General’s Office becomes the arbiter of whether individual policies can be pursued by ministers, and government lawyers direct elected politicians rather than the other way around.
Four months into his time in office, Hermer has shown himself to be one of the most prominent law officers in recent decades. His vision of a government whose decisions are driven by civil service lawyers at home and international courts abroad, a vision that runs counter to the daily realities and responsibilities of democratic governance, is a worrying sign of things to come.
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