When all you have is a Hermer

Richard Hermer, the first Attorney General to be appointed from outside Parliament in a hundred years, is a close friend of the Prime Minister — and according to some, his only friend in Cabinet. Government insiders have often remarked on his remarkable influence, which extends to fields which have traditionally been seldom ploughed by Law Officers, such as foreign policy.

But his remarkable ascent has now hit its biggest bump thus far. This week, The Telegraph published documents which emanated from the al-Sweady scandal, in which British troops were falsely accused of atrocities by Iraqi litigants, some of whom turned to be insurgents and whose allegations were rejected as worthless by the former High Court judge Sir Thayne Forbes in the al-Sweady inquiry.

Hermer, who advised the solicitors involved in the case, had escaped the fallout unscathed. While Phil Shiner, the lawyer behind the case, was struck off from the roll of solicitors and convicted of fraud, Hermer rose higher and higher until he was parachuted into the House of Lords in 2024. Hermer’s role in the sorry saga was publicly known; but it had somehow passed under the radar.

No longer. Hermer’s response has always been consistent: he was bound by the cab rank rule to act for whomever asked him to act, provided that he receives adequate compensation and is qualified to so act (there is no suggestion that Hermer was guilty of any wrongdoing).

But although barristers are required to represent all sorts, they are not required to take any pleasure in their cases. Yet in 2008, Hermer wrote that “these Iraqi cases are a good reminder of why I wanted to be a lawyer”. As Lord Wolfson of Tredegar KC, the Shadow Attorney General, puts it, “There are many reasons to want to become a lawyer. To want to bring claims against UK armed forces is an unusual one. Especially for an Attorney General.”

Hermer’s defenders may plead that to hold British troops accountable for their actions is a noble endeavour for a lawyer. This defence loses some of its lustre, however, when one considers that Hermer advised Leigh Day a few months later about the importance of “giving us some wiggle room if the killings did not in fact happen”.

In context, this was a perfectly reasonable thing to say: the litigants were after all relative strangers, hailing from a war-torn land where truth could disappear in the dusty mist.

But if Hermer had the possibility of deceit on the part of the Iraqi plaintiffs in mind, the fact that he thought the case reminded him of why he “wanted to be a lawyer” looks, in the light of the day many years later, an ill-advised thing to record, as is the fact that Shiner decided to “up the ante” after receiving Hermer’s email. In that email, Hermer referred to a need to “generate sufficient interest or will the Today interview naturally bring in the punters later that morning”, seemingly giving PR advice in addition to legal opinion. 

Hermer is a member of one of the first generations of English lawyers whose practice was in large part … built upon suing the government

Taking two steps back from the details of the case, what is noteworthy is that Hermer is a member of one of the first generations of English lawyers whose practice was in large part, although not exclusively, built upon suing the government. Whilst he was subject to the cab rank rule, the fact that he was briefed by Shiner and by Leigh Day, a pioneer of big-money human rights and public law litigation, suggests that his being briefed was at least part due to his pedigree in that area, a record he would have chosen to deliberately build.

Conversely, there is scant record of Hermer acting for the Crown in any case. This, of course, is a perfectly legitimate choice; but it does suggest that to be the Crown’s chief legal officer is a strange fit for Hermer, just as Sir Keir Starmer’s own elevation as Director of Public Prosecutions, when he had apparently almost never acted for the prosecution in a criminal trial, may be described at, at the very least, peculiar.

Perhaps this explains, at least in part, why Hermer as Attorney General often seems to be more cautious than his role warrants. As Conor Casey and I have written for Policy Exchange, his guidelines for government lawyers take a very risk-averse approach to advice on legal risk, of the type which discourages otherwise tenable arguments from being put forward by the government.

Where public international law is concerned, Hermer advises lawyers that legal risk must be extremely carefully considered — even when there is no risk of litigation. Again, this seems to be a peculiar approach, coming from someone whose job is to act for His Majesty’s Government.

In truth, there is a strong sense that, instead of viewing himself as simply a lawyer bound to help his client, Hermer has taken the view that the Attorney General ought to act as the guardian of the Prime Minister’s legal conscience. If this means losing otherwise-winnable cases by (for instance) abandoning otherwise-viable arguments, this seems like a small price to pay. Nowhere is this more obvious than the sorry Chagos business, where the government seems to have given up making good legal arguments in favour of settling with Mauritius, out of a maximalist conception of international law.

Whether the latest kerfuffle will derail Lord Hermer’s remarkable career remains to be determined. But regardless of the outcome, this will reinforce the impression of Lord Hermer as one of the more unorthodox law officers in recent decades.