In a blog for Policy Exchange’s Judicial Power project, Professor John Finnis argues, “The 2015 revision to the ministerial code has been heavily criticized, in the past fortnight, by former Ministers and government legal advisors and other weighty legal persons. These criticisms have lamentably ignored one of the fundamentals of our law, and are thus at odds with the very Rule of Law to which they appeal.
Finnis says, “International law remains, like it or not, a defective example of law. The criteria for its formation and identification remain opaque, controverted, and manipulable without redress. It is subject to serious problems of free riding and other forms of bad faith.”
Using a formula introduced in 1997, the 2010 Ministerial Code asserted an “overarching duty of Ministers to comply with the law including international law and treaty obligations”. This was an assertion at odds with the fundamentals of British constitutional law. The statement that replaces it in the October 2015 revision of the Code simply affirms the overarching duty of Ministers “to comply with the law”. That is constitutionally sound, and removes the threat that the earlier assertion posed to the Rule of Law.
The most fundamental principle of our constitutional law, and so of the Rule of Law in this country, is that Ministers can neither claim any immunity, by virtue simply of their office, from the rules of common law, nor by any decree or order impose a legal duty (or relieve anyone of a legal duty), except to the extent that an Act of Parliament authorizes them to do so.
To say that Ministers can change the legal rights or obligations of anyone in the realm simply by entering into or ratifying an international treaty is to challenge that most fundamental principle of our constitutional law, and thus challenges also the Rule of Law. To say that Ministers can by treaty change the legal rights or duties of present or future Ministers is equally, and for precisely the same reason, quite contrary to our law. But this is what the 2010 Code formula seemed to imply by asserting that the law with which Ministers have an overarching duty to comply includes international law and treaty obligations.
Our law does not “include” treaty obligations not given legal force by Parliament. So the 1997/2010 assertion was (no doubt by good faith confusion) unconstitutional and a threat to the Rule of Law.
The first responsibility of anyone who appeals to the Rule of Law is to distinguish between what is law and what is not law (but rather convention, or guidelines, or advice, or political agreement…). When Lord Bingham in his book The Rule of Law (2010) said that the Code’s assertion, as it then stood, was “binding” on Ministers, he spoke in a way that no judge or lawyer should speak. The Prime Minister’s statements about ministerial duties in the Code cannot conceivably bind Ministers in law. They set out an understanding on the basis of which he expects Her Majesty’s ministers to carry out their responsibilities. He reminds Ministers of their legal duties, and states an intention that they shall respect them. By joining his administration Ministers become morally bound to honour that intention and expectation. But that moral obligation is no part of the law of the land (by which they are legally bound quite independently of any Prime Ministerial statement or Code).
What, then, is the relevance to Ministers of the United Kingdom’s internationally binding obligations under treaties entered into and ratified by themselves or their predecessors, but not given legal force within the realm by Act of Parliament? As stated above, such obligations are no part of the law of the land. But if Ministers so conduct themselves that the UK violates a treaty, they obviously must account to their colleagues and to Parliament both for making the UK internationally liable, and for putting in question the UK’s settled policy of upholding what corresponds to the Rule of Law in the international domain. That “must” is not legal, but an important principle of responsible government of our constitutional form. And there are certainly occasions when our law, and/or some just and overriding national interest, can make it justified for Her Majesty’s ministers so to have conducted themselves.
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.
International law remains, like it or not, a defective example of law. The criteria for its formation and identification remain opaque, controverted, and manipulable without redress. It is subject to serious problems of free riding and other forms of bad faith. If we can speak of the Rule of Law in the international domain, we must accept, as Lord Bingham as good as admitted in his book, that it is only a Rule by imperfect analogy with the law of the land – if only for lack of courts with sufficient jurisdiction to identify and enforce it. (The International Court of Justice has, for that matter, shown itself capable of making a seriously unlawful and unjust decision.) Still, some rules of “customary” international law correspond to parts of our common law, some other rules have been adopted by Act of Parliament, and there is a legal presumption that Parliament intends not to defy or ignore international law or the UK’s treaty obligations. But none of this imposes on Ministers (or civil servants) anything comparable to their personal obligation as citizens and Ministers to comply with the law, that is, with the law of the land.
The 2015 revision has been heavily criticized, in the past fortnight, by former Ministers and government legal advisors and other weighty legal persons. (See examples here, here and here). These criticisms have lamentably ignored one of the fundamentals of our law, and are thus at odds with the very Rule of Law to which they appeal.
John Finnis
Oxford