Debating the Rule of Law in the UK: Hermer versus Wolfson

May 14, 2025

David Wolfson, KC, the Shadow Attorney General and former Under Secretary of State for Justice, joins for a captivating discussion on the rule of law in the UK. The conversation explores the divide between 'thin' and 'thick' interpretations of legal principle. They delve into parliamentary sovereignty, human rights debates, and the implications of international law, particularly concerning the Chagos dispute. Wolfson also addresses the impact of Brexit and Covid on the constitutional crisis, offering rare insights into the legal and political tensions shaping today's society.

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INSIGHT

Parliamentary Sovereignty's Legal Extent

Parliamentary sovereignty means Parliament can override court decisions and legislate contrary to international law.
Political costs may follow but constitutionally this does not pose a legal problem.

INSIGHT

Ouster Clauses and Judicial Role

Ouster clauses limiting courts' intervention are constitutionally acceptable despite criticism.
Applying hypotheticals to the extreme oversimplifies constitutional functioning and ignores practical exceptions.

INSIGHT

International Law vs Parliamentary Sovereignty

UK must uphold international law politically but Parliament can legally legislate contrary to it.
Executive treaty commitments should not limit Parliament's legislative sovereignty.

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The clash between David Wolfson KC’s “thin” interpretation of legal principle and Attorney General Richard Hermer’s “thick” is explained through the experienced legal eyes of Ken Macdonald KC and Tim Owen KC on this episode of Double Jeopardy.

They dig into the political implications of these contrasting views, the role of parliamentary sovereignty, how the UK navigates its obligations under international law, including the Chagos Island dispute and the role of the International Criminal Court, whether the Tories will commit to repeal of the Human Rights Act and leaving the ECHR and ask whether the role and function of the rule of law can ever be approached in a non-partisan way.

Shadow Attorney General David Wolfson KC also joins Double Jeopardy to tackle one of the most pressing questions in UK politics and law today: what does the rule of law really mean - and who gets to define it?

Covering the constitutional crisis created by Brexit/Covid, the right of Parliament to legislate in defiance of international law, the domestic law tensions generated by the expansive approach to human rights law of the European Court of Human Rights and the influence of current political events including the migration debate on attitudes to the rule of law, this episode offers rare, insider insight into the legal and philosophical tensions at the heart of the British system.

If you're looking for thoughtful legal system insights, a deeper understanding of UK politics, or an unflinching look at UK law and legal battles in Britain, this episode delivers it all. Law, politics, and justice - expertly unpacked on Double Jeopardy.

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Covering the critical intersections of law and politics in the UK with expert commentary on high-profile legal cases, political controversies, prisons and sentencing, human rights law, current political events and the shifting landscape of justice and democracy. With in-depth discussions and influential guests, Double Jeopardy is the podcast that uncovers the forces shaping Britain’s legal and political future.

What happens when law and politics collide? How do politics shape the law - and when does the law push back? What happens when judicial independence is tested, human rights come under attack, or freedom of expression is challenged? And who really holds power in Britain’s legal and political system?

Get answers to questions like these weekly on Wednesdays at 6am GMT.

Double Jeopardy is presented by Ken Macdonald KC, former Director of Public Prosecutions, and Tim Owen KC, as they break down the legal and political issues in Britain. From high-profile legal cases to the evolving state of British democracy, Double Jeopardy offers expert legal commentary on the most pressing topics in UK law, politics, and human rights.

Ken Macdonald KC served as Director of Public Prosecutions from 2003-2008, shaping modern prosecutorial policy and advocating for the rule of law. He is a former Warden of Wadham College, Oxford, a crossbench member of the House of Lords, and a leading writer, commentator and broadcaster on politics and the rule of law.

Tim Owen KC has been involved in many of the most significant public, criminal and human rights law cases over the past four decades. Both bring unparalleled experience from the frontline of Britain's legal and political landscape.

If you like The Rest Is Politics, Talking Politics, Law Pod UK and Today in Focus, you’ll love Double Jeopardy.

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