Concerns have been raised by lawyers and legal experts that Conservative ministers have quietly abandoned the longstanding principle that members of the government should be bound by international law.
The rewritten ministerial code, which was updated on October 15 without any announcement, sets out the standard of conduct expected of ministers, has been quietly edited. The latest version of the code is missing a key element regarding complicity with international law.
The previous code, issued in 2010, said there was an “overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”.
The new version of the code has been edited to say only that there is an “overarching duty on ministers to comply with the law and to protect the integrity of public life”.
Legal experts say key issues affected by the change could include decisions about “whether to go to war or use military force, such as the use of drones in Syria, any decision made by an international court about the UK and any laws not incorporated into English law, such as human rights legislation and the Geneva conventions.”
Ministerial code changes between 2010 and 2015.
Photograph: Government handout – courtesy of the Guardian
This comes as the UK government is facing another United Nations inquiry regarding widespread allegations that the Conservative welfare reforms breach the Human Rights of disabled people. It also comes following the government announcement this week that there are plans to scrap the Human Rights Act by next summer, to replace it with a controversial “British Bill of Rights.”
Raquel Rolnik, the UN’s special rapporteur for housing, found the bedroom tax to contravene human rights and in 2013, she called for the Tory “spare room subsidy” to be suspended immediately. In a wide-ranging report she also calls for the extension of grants to provide more social housing, the release of public land, build-or-lose measures to target landbanks and increased private rented sector regulation. None of these are recommendations which the Conservatives have been remotely willing to entertain, instead they have directed hostility towards the United Nations.
The Conservatives have already taken away access to legal aid from the poorest and most vulnerable citizens, in a move branded contrary to the very principle of equality under the law. Last year, Grayling, then the Justice Secretary, was accused of turning legal aid into an instrument of discrimination by a court, because of his attempt to introduce a residency test to legal aid access, a move which exceeded his statutory powers when he devised it.
He has also tried to dismantle a vital legal protection available to the citizen – judicial review – which has been used to stop him abusing his powers again and again. Judicial review is the mechanism by which citizens can hold the government to its own laws. With the Criminal Justice and Courts Bill, the justice secretary tried to put it out of reach.
Grayling, suffered a defeat in the House of Lords vote on his plans to curtail access to judicial review, which would have made it much harder to challenge government decisions in court.
Peers voted by 247 to 181, a majority of 66, to ensure that the judges keep their discretion over whether they can hear judicial review applications after a warning from a former lord chief justice, Lord Woolf, that the alternative amounted to an “elective dictatorship”.
He has tried to restrict legal aid for domestic abuse victims, welfare claimants seeking redress for wrongful state decisions, victims of medical negligence, for example.
It’s very worrying that this is a government that wants to leave Europe behind and sever the connection with the European Convention on Human Rights. It’s a government that wants to do as it pleases, free from international scrutiny and what it clearly sees as the constraints of international law and the judgments of international courts.
The Conservatives have demonstrated an eagerness to take away citizens’ rights to take their case to the European court, with many of their actions clearly based on an intent on tearing up British legal protections for citizens and massively bolstering the powers of the state.
The Guardian reports that a legal challenge against the change will be lodged on Friday by Rights Watch, an organisation which works to hold the government to account. Yasmine Ahmed, its director, said:
“This amendment to the ministerial code is deeply concerning. It shows a marked shift in the attitude and commitment of the UK government towards its international legal obligations.”
In his preamble to the new ministerial code, David Cameron says: “People want their politicians to uphold the highest standards of propriety. That means being transparent in all we do.”
However, I reported last year that in terms of international standards of conduct, the Conservatives are not doing well. Transparency International flagged up many areas of concern in their report: A mid-term assessment of the UK Coalition Government’s record on tackling corruption.
The Cabinet Office has of course denied there was any intention to weaken international law and the administration of justice by omitting the phrases from the new code.
A spokesman said:
“The code is very clear on the duty that it places on ministers to comply with the law. ‘Comply with the law’ includes international law.
The wording was amended to bring the code more in line with the civil service code. The obligations remain unchanged by the simplified wording. The ministerial code is the prime minister’s guidance to his ministers on how they should conduct themselves in public office.”
However, a Conservative party policy document promises that the ministerial code will be rewritten in the context of the UK withdrawing from the European convention on human rights. In order to help achieve these aims the document says:
“We will amend the ministerial code to remove any ambiguity in the current rules about the duty of ministers to follow the will of Parliament in the UK.”
Lord Falconer, Labour’s shadow lord chancellor, said:
“If this is what ministers are planning to do it is shocking. We are a country that prides itself on operating in accordance with the rule of law. That has always meant both domestic and international law.
This is a message we have sent out both internally and externally. If we are now regarding compliance with international law for ministers as optional that is staggering. If ministers breach international law it will no longer be misconduct.”
The Guardian cites Ken Macdonald QC, the former director of public prosecutions, who said:
“It is difficult to believe that this change is inadvertent. If it’s deliberate, it appears to advocate a conscious loosening of ministerial respect for the rule of law and the UK’s international treaty obligations, including weakening responsibility for the quality of justice here at home.
In a dangerous world, the government should be strengthening its support for the rule of law, not airbrushing it out of the ministerial code. On every level, this sends out a terrible signal.”
Ironically, on the same day that the new code was quietly released, the attorney general, Jeremy Wright, gave a keynote address about the importance of international law to an audience of government lawyers at the Government Legal Service International Law Conference.
“The constitutional principle to respect the rule of law and comply with our international obligations is reflected in the ministerial code – which applies to me as much as to any other minister. The code states that there is an overarching duty on ministers to comply with the law, including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life.”
It is not clear whether or not the attorney general was informed about the changes to the ministerial code at the time of his speech. Both the Cabinet Office and the attorney general’s office have declined to answer this question.
Tory ministers are a major source of national embarrassment when they denounce the European Court of Human Rights whilst instructing the rest of the world, including other European states, to respect our collective international human rights obligations and “the rule of law.” Human Rights legislation exists throughout the free world. Free speech, the right to a fair trial, respect for private life and the prohibition on torture are values which distinguish democratic societies from despotic states.
There is no justification for editing obligations to upholding international laws, human rights or for repealing the Human Rights Act: that would make Britain the first European country to regress in the level and degree of our human rights protection. It is through times of recession and times of affluence alike that our rights ought to be the foundation of our society, upon which the Magna Carta, the Equality Act and the Human Rights Act were built – protecting the vulnerable from the powerful and ensuring those who govern are accountable to the rule of law.
Update: Former head of government’s legal service says obligation that ministers must comply with international law – dropped from revised ministerial code – had irritated PM: No 10 ‘showing contempt for international law’