Friday 23 October 2015

Concern over amended Ministerial Code

Updated 6th November 2015:

In a new Ministerial Code three vital Ministerial duties appear to have been removed - Ministerial Code October 2015.

They are the duties to uphold:

1.  International law

2.  Treaty obligations

3.  The Administration of Justice.

What remains is a duty to comply with the law and to protect the integrity of public life.

It may be that compliance with the law is to be taken to include international law and treaty obligations but the matter is no longer as clear as it was.  Protecting the integrity of public life might include the administration of justice but that is also far from clear.

It is important to note that whatever "duties" the Ministerial Code imposes, they are not necessarily legal duties enforceable in British courts.  The Code is essentially a political code setting out principles to be adhered to by the government.  

International Law binds the State (i.e. the UK).  Treaty obligations
are binding on the UK as a State in international law but, due to the UK's dualist approach, they are not automatically part of English law.  Legislation is necessary to translate those obligations into duties imposed on the government and enforceable in British courts.  If Parliament enacts such legislation then it could impose legal duties on Ministers and make such duties enforceable in our courts.

What would be the position if Parliament has NOT enacted such legislation?   In that situation, a breach of international law by the UK would entail international political / diplomatic consequences for the UK but it seems that there would usually be no legal liability on individual Ministers though they might well have to face political consequences in Parliament.

Turning back to the document, it is hard to believe that these phrases were removed simply to shorten the document.  It was already succinct.  The lawyer naturally examines the wording of legal documents and, where a change such as this has taken place, it inevitably raises the question of what was intended by omitting the words previously there.  Given the stated plans of government regarding human rights protection, it is little wonder that some lawyers are seeing in this a willingness on the part of government to step back from its tradition as an upholder of international law and of the Rule of Law more generally. 

Rule of Law is a phrase that has never truly been defined but perhaps the best attempt is that of the late Lord Bingham - undoubtedly one of the brightest legal minds of his time.  In his eminently readable book - The Rule of Law - (Allen Lane, London, 2010) - he expressed the rule of law in 8 propositions.  

Number 8 was - The Rule of Law in the International Legal Order: The rule of law requires compliance by the state with its obligations in international law as in national law. 

It is to be hoped that this vital obligation remains as strongly as ever.  Philipe Sands QC  (Professor of Law at University College London) has described the change as "shocking" - The Guardian 22nd October   He is not alone in his concern.  It is reported that Rights Watch are commencing a legal challenge to this change.

It is certainly interesting to note that the government passed off the change as a textual amendment and did not put forward any arguments based on whether the new wording more accurately reflected the constitutional position of Ministers.  Various commentators have offered such arguments - see below for a selection.

Ministerial Code October 2015

Lord Bingham of Cornhill's eight principles of the rule of law

1.  The Accessibility of the Law: The law must be accessible and so far as possible intelligible, clear and predictable.
2.  Law not Discretion: Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
3.  Equality before the Law: The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4.  The Exercise of Power: Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
5.  Human Rights: The law must afford adequate protection of fundamental human rights.
6.  Dispute Resolution: Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
7.  A Fair Trial: Adjudicative procedures provided by the state should be fair.
8.  The Rule of Law in the International Legal Order: The rule of law requires compliance by the state with its obligations in international law as in national law.
Source: Tom Bingham, The Rule of Law (Allen Lane, London, 2010)

This topic has produced a considerable amount of debate on the various blogs.

For a view favouring the alterations to the Code see Spinning Hugo  and, on the same blog, Should international law be followed?

Judicial Power Project - Professor John Finnis - Ministers, international law and the rule of law
where it is said that - "The best explanation of the constitutionally mistaken 1997/2010 formula is that it was a confusingly compressed reminder to Ministers of the standing, morally grounded UK policy of complying with its treaty obligations, of encouraging other states to do likewise, and of supporting the due extension of customary international law and appropriate international institutions."

Public Law for Everyone - The Ministerial Code and International Law - where Professor Elliot states - " ..... in a constitutional democracy founded upon the rule of law, it is appropriate that constitutional actors with the capacity to place the State in breach of international law should be expected — and, as far as possible, required — to conduct themselves so as to avoid such breaches."

UK Constitutional Law blog - The Ministerial Code and the Rule of Law - arguing that the alteration to the Code is a more accurate reflection of the correct constitutional position.

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