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30 October 2015

Why has the government taken international law out of the Ministerial Code?

The developments are sinister. 

By Andy Slaughter

First published in 1992, the ministerial code sets out the standards expected of ministers and makes them accountable to the Prime Minister for their conduct in office.

It has been updated by successive Prime Ministers, but one small change in the latest edition, published this month, has left both constitutional lawyers and senior civil servants gobsmacked.  

The preamble to the 2010 version, produced for the Coalition, placed 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 current edition merely affirms an “overarching duty on ministers to comply with the law and to protect the integrity of public life”.

The 13 words elided remove any obligation that ministers have under the Code to uphold international law.

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On Monday, the Guardian revealed that the Government was facing a legal challenge from Rights Watch UK, whose director Yasmine Ahmed described the change as “seriously concerning” and that ‘it evidences a marked shift in the attitude and commitment of the UK Government towards its international obligations.’

On the same day, Paul Jenkins, for eight years until 2014 head of the government legal service, wrote in The Guardian “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.

“There can be no doubt,” he added, that the Government “will regard the change as bolstering, in a most satisfying way, their contempt for the rule of international law.”

Labour’s deputy leader, Tom Watson, has written to David Cameron requesting he clarify the purpose of the change and pointing out that the Attorney General made a speech on the same day the new Code was published stating that compliance with international law was still included.

Did this mean, Watson asked, that the Attorney General had not been consulted on the change of which he was clearly unaware? 

It is not an error his predecessor in that role would have made.

Dominic Grieve QC, sacked as Attorney General for speaking out on human rights, told the Guardian that “It is impossible to understand why this change has been carried out. If it’s intended to try to remove the obligation to respect international law and our treaties, it doesn’t work. It sends out a very bad signal and is open to misunderstanding and they shouldn’t have done it.”

Paul Jenkins and Dominic Grieve are right, whether the change actually alters our international obligations is unclear. 

We are, for the present, still signed up to a raft of international treaties, including on the use of force. 

But it does indeed show contempt for international law, which recent developments such as the drone strikes in Syria, also the subject of proposed legal action, show have more than theoretical consequences.

Repressive regimes worldwide will watch carefully how Britain is treating international law with increasing distain.

Indeed, as we have seen in Ukraine and Kenya have already shown, perhaps they already are.  

There are other consequences of this action.

Undermining respect for human rights law internationally has severe implications for rights here in the UK. 

Within the next month Michael Gove is expected to deliver a consultation on the Bill to replace the Human Rights Act with a British Bill of Rights. 

The predominant legal view is that his proposals will create a gulf between the government’s proposed Bill and the European Convention on Human Rights, drafted by UK lawyers but only incorporated into UK law by the 1998 Act.

We cannot expect our courts to enforce two inconsistent interpretations of human rights law simultaneously.

But withdrawal from the Convention would have a disastrous effect, weakening rights for UK citizens at a time when we should be strengthening them.

Britain should be a beacon for human rights and promote them worldwide.

Ministers must be aware that our treatment of human rights, both at home and abroad, is watched around the world.

That is why changes like this from the Government, regardless of the success of the legal challenge, matter.

By severing any responsibility for upholding international law in the Ministerial Code, is the Prime Minster, whose antipathy for the European Court and Convention is barely disguised, clearing the decks for withdrawal?