Government Ministers Should Comply with International Law!

by Melanie Gingell (GCHR)

Government Ministers Should Comply with International Law!

by Melanie Gingell (GCHR)
Melanie Gingell (GCHR)
Case Owner
The Gulf Center for Human Rights is a non-profit NGO supporting human rights defenders in the Gulf region. Its work in the UK relies on ministers upholding international law.
on 25th February 2017
pledged of £7,500 target from 35 pledges
Melanie Gingell (GCHR)
Case Owner
The Gulf Center for Human Rights is a non-profit NGO supporting human rights defenders in the Gulf region. Its work in the UK relies on ministers upholding international law.

Help Needed

The Gulf Center for Human Rights  is a small NGO taking on a big task: taking the UK government to court over its decision to remove from the Ministerial Code the obligation on government ministers to comply with international law. On 15 October 2015, the government quietly deleted this requirement from the Ministerial Code. When the government claimed that the changes made no difference we took them to court. We knew if the UK government could get away with backtracking on its international law obligations then others would follow, and we were right. 

The obligation to respect international law underpins the government's respect for human rights and international treaties on everything from torture, respect for women's and children's rights to fighting corruption and bribery. 

Since October 2015 we have witnessed the government's refusal to consult parliament before withdrawing from the EU treaty; the victory of Donald Trump; clear signals that the UK government will sideline human rights to get trade deals with Gulf states; further rejection of European Court of Human Rights rulings by the Russian authorities and others; and another Queen's speech in which the government, yet again, said it was going to limit the influence of the European Convention on Human Rights.  We also witnessed Theresa May reissue the Ministerial Code in December 2016 without restoring these all important words regarding international law.

The Ministerial Code

Changing the Ministerial Code won't stop these things from happening, but leaving it as it is creates a dangerous precedent.  The code is important. It is the instruction manual for ministers; the rules and standards for how the government of the United Kingdom conducts itself. It has been in use since around the Second World War and has been published since 1992. Breaching the code leads to investigation by the Independent Adviser on Ministers Interests and, even more importantly, scrutiny by Parliament. It is how we ensure the accountability of government ministers. 

But don't just believe us, just ask the Attorney General who, somewhat embarrassingly, gave a keynote speech on the very same day the words were deleted, extolling the importance of the ministerial obligation to follow international law.  

"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. That duty is mirrored in the Civil Service Code and so applies to all of us in government, whether ministers, lawyers or officials."

The very same day, the government deleted those words from the Ministerial Code. 

More embarrassment followed, when the former Treasury Solicitor (the head of the government legal department) took the unprecedented step of criticising the change and the government’s explanation, as follows:

 “It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up. As the government’s most senior legal official I saw at close hand from 2010 onwards the intense irritation these words caused the PM as he sought to avoid complying with our international legal obligations, for example in relation to prisoner voting. Whether the new wording alters the legal obligations of ministers or not, there can be no doubt that they will regard the change as bolstering, in a most satisfying way, their contempt for the rule of international law.”

More criticisms by the former Attorney General  and the former Lord Chancellor and Director of Public Prosecutions ensued.

And the UK government’s response? It claims that the changes make no difference, and were a mere tidying up exercise. But this is belied by the accounts of ex-government lawyers and by the governments’ own human rights pre-election manifesto, “Changing Britain’s’ Human Rights Laws”, which stated that the Ministerial Code would be changed to pave the way for watering down the UK's human rights commitments. 

Why it Matters

Since 2001, the Ministerial Code has consistently directed ministers as part of the most important “overarching duty” in the document to comply with international law. This is important because ministers often act on the international plane as well as the domestic one - for example, in authorising the use of military force overseas - and because international human rights and humanitarian law - which are heavily relied on to protect the vulnerable - are largely based on international law. 

GCHR as an organisation relies on international law and the courts. It works throughout the Middle East on protecting human rights defenders from authoritarian governments. We cannot call these governments to account if at the same time western governments are diminishing their commitments to international law and the separation of powers. These oppressive regimes often rely on support from western governments, and when this happens we also rely on international law and the courts in holding the UK government to account, just as we did when the Ministry of Justice sold prisons and probation services to the Saudi Arabian government. Our judicial review of that decision helped to stop it in its tracks. But if the UK government is allowed to dismantle this important instruction to ministers then our work, and the lives of people that we work to protect, will get harder.

But surely the government can do what it likes, you say? Well, to a point. The wording in the ministerial code has long been pointed to by international lawyers as ensuring the smooth running of the international legal order. The foremost judge of recent times, Lord Bingham, drew attention to it  in his work on the rule of law.  In any system of government, the Ministerial Code would be an important document, but in the UK's unwritten constitution, built on convention and custom, it matters even more. Even so, the government may be entitled to change the code, but - and this is important - it cannot lawfully do so by pretending that the changes make no difference. That is neither transparent nor rational. Clearly, the changes make a difference. And it is this duplicity which GCHR are challenging.

Progress So Far

Our challenge had a rocky start when we were refused permission for judicial review at a hearing in the High Court on 17 March 2016.  Mr Justice Mitting acknowledged that the case was "interesting" and "brought for good motives" but he held that changing the code could not be judicially reviewed.  However, we appealed, and many months later...on 4 January 2017 the Court of Appeal gave us permission to appeal. A full hearing in the Court of Appeal will now follow to decide whether our appeal succeeds and also, most probably, whether permission for judicial review will be granted.

But we need your help. The Court of Appeal has set a costs limit of £7,500 to each side's costs. That means that we cannot proceed unless we can fundraise £7,500 to cover the government's costs in the event that we lose.  If we cannot fundraise this amount we will have to withdraw.  Please help us to get there by contributing what you can. Anything extra will go towards our own excellent legal team’s costs, who are acting without payment and have already put in a lot of work to get us this far: Jason Coppel QC; Hannah Slarks and Zac Sammour of 11KBW and Adam Hundt and Dan Carey of Deighton Pierce Glynn solicitors. 

This is something we all have a stake in. Please contribute what you can to ensure a Court reviews it properly.

Further reading:

- The Ministerial Code;

- The Attorney General's keynote speech on the importance of the deleted words;

- Concerns raised by former Treasury Solicitor; the former Attorney General; and the former Lord Chancellor and Director of Public Prosecutions;

- Conservative Party pre-election manifesto, “Changing Britain’s’ Human Rights Laws”;

- Lord Bingham speech relating to the Ministerial Code; 

- The Independent, Theresa May says human rights abuses shouldn't affect Gulf trade policy, 4 December 2016

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