When The Spectator published the 2015 Ministerial Code story, a Rule of Law debate was a probable outcome. An instinctive consequence, perhaps. Discussion however, though we may wish that it would can not remedy all of life’s ills. Much like the law, no doubt. Nonetheless one must engage with these recourse’s. They are surely a hallmark of civil society, and I for one would be mortified to see them go. We must also respect those who make use of them for legitimate purposes. To that effect some have and continue to move beyond the spectre of academic discourse. Once more the realms of public interest litigation emerge to bring the Government to account. For those not familiar with the facts, nor the constitutional significance arising from, allow me to explain.
The Gulf Center For Human Rights counseled by Daniel Carey Associate of deighton pierce glynn currently awaits the determination regarding their CPR.54.12 permission to appeal. As the esteemed advocate has said the refusal on papers ‘is not altogether unexpected in a “political” case like this one’. Quite right he is.
The crux of the matter pertains to the re-issuing of the Code on 15th October 2015. Formally this guidance for the conduct of ministers and the discharge of their governmental duties expressly provided for compliance with international law and Her Majesty’s Government’s treaty obligations. It also embodied a duty to uphold the administration of justice. You can see where this going.
Suffice to say these responsibilities have been removed from the latest incarnation governing ministerial formality and propriety. At the very least the express wording giving effect to the above obligations ceases to be overtly enshrined. The Code ‘para’ 1.2 now requires ministers ‘to comply with the law’. Not international law, not treaty obligations and not the administration of justice – sound familiar ?
These obligations have been within the Code since its inception and beyond. To those who remember and more importantly to those who do not, please see John Majors 1992 Open Government proposals, specifically Questions of Procedure for Ministers. This was constitutional council inherited by Clement Attlee’s 1945 Labour Government – made public by Major.
Speaking to the Guardian a Cabinet Office spokesman insisted there had been no diminution of ministerial duty, ‘Comply with the law’ includes international law’. Renowned Professor of Public Law, Mark Elliott has said ‘this stretches credibility’. It is not difficult to see why this merits investigation.
Vexatious litigation, some might say. Hardly so!
A letter addressed directly to the Prime Minister dated 26/11/2015 alludes to a number of well founded concerns. It was co-authored by some of the UK’s finest Human Rights and the Rule of Law guardians. It is available on the internet, I advise all to read it. In essence and without reference to litigation the Leader was being implored to ‘re-instate’ the omitted words. Unsurprisingly the plea fell upon deaf ears. Often these things do!
Whilst the Code in strict constitutional law is of no legal force, the changes undoubtedly further the Government’s aims ‘for a new constitutional settlement’. As Nick Cohen pointed out this is consonant with the Conservatives 2014 policy document stipulating proposed Code amendments. The aim… to bolster Parliamentary Sovereignty. Understandable, yet misguided. Note that the ‘document’ itself did in the usual ambiguous fashion pander to the legal fiction of ‘binding ECtHR judgments’. An annoyance of any reader or practitioner of law. Remind me again what is that saying about law students and politicians! For a succinct explanation of this trite point of law see ‘No Employer Rights to Snoop But What Of Employee Rights at Work’ by Dr Paul Wragg. Any further inquiry on the issue should be directed to Manchester City Council v Pinnock Per Lord Neuberger ‘This Court is not bound to follow every decision of the EurCtHR’
On the matter of ‘mission creep’ referenced in the ‘document’. expressed as resent of the ‘living instrument doctrine’ see above, perhaps the case of Austin and Others v The United Kingdom has somehow slipped the author’s mind. The doctrine was and continues to be applied to in our national interest. ‘Police forces in the Contracting States face new challenges, perhaps unforeseen when the Convention was drafted’. Thus the benefit of the ECHR and its living instrument status was in absolute and direct benefit to ‘us’
A further matter of interest is that one day after the Spectator piece the Guardian reported that at the date of re-issuing the Code, Attorney General Jeremy Wright QC delivered a keynote speech to the Government Legal Service International Law Conference. To perhaps considerable embarrassment, the Attorney General was in no uncertain words specifically endorsing the omitted provisions. Something not to be overlooked however, (it mitigates), is the fact that the 2010 Code made a penicouse amendment regarding input by the Law Officers. The 1997, 2001 and 2005 Code all expressly stated that ‘The Law Officer must be consulted in good time before Government is committed to critical decisions involving legal consideration’ – particular regard was expressly indicated to potential legal claims. I will say no more but for those interested research the point with an emphasis on substantive change!
Amendments to the Code however, are not unknown. After all it is convention for it to be re-issued whenever a new administration takes Parliament after winning the heart of the electorate. Ergo with an outright majority in the last general election, it was reasonable to presume the Conservative Government would follow suit. Indeed it did. What ensued however does not quite fit within rational expectation. Although perhaps it does, ultimately it rests on one’s perspective. I certainly remember when the Prime Minister said ‘Britannia didn’t rule the waves with arm-bands on’.
The academic arguments thus far seem to be centered on the binding (or not) nature of international law on ministers and its incorporation into domestic law. Though interesting, this is misleading to the present case. Council for the legal challenge said, ‘The case isn’t really concerned with that though, it’s concerned with whether the change makes a substantive difference (substantive doesn’t just mean legal) and whether the way the decision was made was lawful’.
If the permission to proceed is granted, disclosure of the background facts regarding the Codes amendments will be sought.
Daniel and the Gulf Center For Human Rights are not alone in thinking that the changes make no difference at all. Formerly the case was pursued by Rights Watch UK, a well established organization that has been involved as third party intervenors to a number of important cases. The relevant point is Charities like this do not engage or commence action for any reason other than the protection of decencies which uphold the Rule of Law. For power to be legitimate, it must be challengeable. Were these (what I term defenders of rights) gone or no longer free to conduct their important work, then needless to say the law and indeed the world would be in a graver position than it already is, indeed would we all. Everyone needs help at some point and that’s what the law is for!
On the issue of refusal on papers and aforementioned ‘help at some point’ perhaps we should all be reminded of a few things. Many truly worthy public review applications often fail on paper, unfortunately and increasingly this occurs when assistance is the needed most. Notable recent examples include the 2013 Independent Living Fund case Hunt v North Somerset Council, ruled upon again last year at UKCS – Lady Hale (Deputy President). Or how about
- (on the application of Hottak) v Secretary of State for Foreign and Commonwealth Affairs, where Afghan interpreters who had assisted our Armed Forces where quite literally being left to the mercy of what was left after departure. The horrors of both of these cases needs no explaining. It is a question of political morality. Again those familiar with the facts will understand my assertions at the beginning of this piece regarding the law not solving all problems.
Some will of course assert that as the Ministerial Code and its contents hold no statutory or common law weight, the implications of such amendments are overstated. I would argue the contrary and concur with Professor Elliott when he states that ‘it is an important tone-setting document’. It is also recommended that we pay attention to what Sir Paul Jenkins former head of the Government Legal Service has said ‘It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up’.
Stephen Bouwhuis Senior Counsel to the Australian Government (Attorney-General’s Department) writing in the International & Comparative Law Quarterly said ‘It is a truism to say that the question whether or not to comply with what international law requires is always a question of policy’. I agree.
I would argue further that if these are (as many will attest to) merely political considerations, then those who hold dear our political constitution (of which I am one) should be cautious of anything prone to opening further the gates to Judicial oversight. Hitherto we have (with the assistance of constitutional statutes) successfully evaded a full assimilation to a ‘we the people’ matra. It is prudent not to forget the Clerk of the House Baroness Scotland’s memorandum concerning the Arrest of Members and Searching of Offices in the Parliamentary Precincts. As can be seen the gates are and have been open for some time. It is entirely right that they are in this respect but there is always a tipping point from where one can not return. Its a matter of degree, timing and proximity. The process would of course have been hastened had the motion calling for Tony Blair’s impeachment been heard.
Daniel and the GCHR are currently being faced with the Government’s refusal of a protective cost order, hardly surprising but a great shame. I will say nothing of the financial restrictions of late placed upon those seeking relief – be it in public law or any other field!
And I quote, the Prime Minister’s forward to the latest Ministerial Code.
‘People didn’t just tell us what to do, but how to go about it. They want their politicians to uphold the highest standards of propriety. That means being transparent in all we do’.
The litigants, in light of the above, are ‘crowdfunding’ in order to bring the action – oh how times have changed. With my heart I would implore anyone who can, to help or support these proceedings.
Hal Brinton is an academic lawyer studying at the University of Leeds. He is the co-author of the International Law Magazine New Jurist and is a contributor to the WestLaw Legal Insight Encyclopedia. Hal Began his legal career at Ruskin College Oxford which is a model for labour colleges around the world. Coming from a political background and influenced by Ruskin’s long and varied history he committed himself to social justice and equality policy. His current research interests are, Human Rights, Feminist Jurisprudence, Legal Aid Reform, Anti Discrimination Law, Environmental Law and the Law of Obligations. He can be contacted at firstname.lastname@example.org