Does removing an express reference to international law from the Ministerial Code of Conduct really make a difference? And, if it does, is it unlawful to press ahead while maintaining otherwise?
These are likely to be key questions in the ongoing challenge to the Cameron Government’s controversial amendment to the Ministerial Code – a challenge which was given a fresh lease on life last month, when Lady Justice Arden granted the Claimant permission to appeal to the Court of Appeal.
The case kicked off after The Guardian highlighted what may have seemed like a fairly minor alteration to the wording of the Ministerial Code. This document, first published in 1992, essentially lays out the standards of conduct which the Prime Minister expects of Ministerial office-holders. It contains a number of “general principles” – each accompanied by more specific guidance – relating to everything from conflicts of interest to the appropriate forum for policy announcements.
The very first principle set out in the Code is that “Ministers of the Crown are expected to behave in a principled way that upholds the highest standards of propriety.” From 2010 to October 2015, the accompanying explanatory paragraph read:
“The Ministerial Code should be read [against] the background of the 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.”
Similar wording had been included in all versions of the Code produced since 1997. The paragraph then went on to set out a number of more specific principles which Ministers were expected to observe.
From October 2015 onwards, however, the paragraph said only:
“The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life.”
The key difference, of course, is that the express references to compliance with international law and upholding the administration of justice had vanished. (The May Government issued a fresh version of the Code in December 2016, after the challenge was first heard, but before permission to appeal was granted. Perhaps unsurprisingly, the deleted phrases did not make a reappearance.)
The initial controversy
Understandably, the change raised more than a few eyebrows. The Cabinet Office, however, claimed that it amounted to no more than streamlining – bringing the wording into line with the Civil Service Code without in any way altering Ministers’ underlying obligations. Compliance with the law, it was said, necessarily includes compliance with international law – so no harm, no foul (and certainly no reviewable error).
the express references to compliance with international law and upholding the administration of justice had vanished
These claims – at least insofar as they related to the Government’s underlying intentions – were publicly contradicted by a number of prominent figures, including Sir Paul Jenkins QC (Hon), the former Treasury Solicitor. In a letter to the Guardian, Sir Paul described it as “disingenuous” for the Cabinet Office to “dismiss the changes to the Ministerial Code as mere tidying up”. He continued:
“As the government’s most senior legal official I saw at close hand from 2010 onwards the intense irritation these words caused to the PM as he sought to avoid complying with our international legal obligations… 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.”
Lord Ken Macdonald QC, the former Director of Public Prosecutions, and Dominic Grieve QC, the former Attorney General, also lined up in opposition to the change.
Fuel was added to the fire by a Conservative party policy document which – in discussing plans to withdraw from the European Convention on Human Rights – recorded the party’s intention to “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.” Clearly, the view that a change to the code would make no substantive difference was very far from universally held.
The legal battle
It wasn’t too long before the Government found itself in court, defending a challenge to the rewrite brought by the London-based Gulf Centre for Human Rights (GCHR).
Of course, to make out its case for judicial review the GCHR had to go further than simply showing that the change was symbolically significant. It had to persuade the Court that it had some substantive effect on Ministers’ actions – and, of course, that the decision to make the change was flawed by a public law error.
Discerning the details of the Claimant’s case from publicly available documents is somewhat difficult. Broadly, however, two connected strands of argument seem to emerge: first, that the change in wording would undermine the UK’s compliance with international law; and secondly, that it was irrational and lacking in transparency to make such a change while denying its effect.
the Code could be relevant to a claim for judicial review in much the same way as a policy document
Mr Justice Mitting – at an oral renewal hearing in March 2016 – did not find the Claimant’s arguments persuasive (see  EWHC 1323 (Admin)). His decision rested primarily on the conclusion that the Code was incapable of affecting Ministers’ underlying legal obligations. Whether a Minister is obliged to comply with international obligations which have not been incorporated into UK domestic law was described as “a difficult, fact-specific and highly controversial question” – the answer to which (implicitly) was in no way dependent on the content of the Code. Furthermore, in the judge’s view, the relevant paragraph did not even form part of the “operational” part of the Code, and could not form the basis of a claim for judicial review of a Minister’s decision. Under these circumstances – and given that the altered wording was not intrinsically unlawful – Mitting J concluded that the claim was not “capable of amounting to a justiciable or worthwhile challenge”.
There are a few things that could said about this reasoning.
- The change does not need to directly alter Ministers’ underlying legal obligations to have an impact on their decision-making. Of course, the Code is not a statute – but it may well have a status equivalent to (for example) policy guidance issued by a Government department, which is to be followed unless there is a good reason not to do so. If so, the Code could be relevant to a claim for judicial review in much the same way as a policy document. The question of the Code’s status is surely one of the first that falls to be answered in assessing the strength of the Claimant’s case – and it does not appear to have been squarely answered in determining permission.
- The fact that the relevant paragraph is not directly “operational” does not deprive it of effect or significance: preambular paragraphs are regularly relied on in seeking to interpret obligations or recommendations contained in wider documents. The real question is whether the Government’s excision is properly understood as altering the meaning or interpretation of the Code – a question that is ultimately for the Court to answer: see e.g. R (Raissi) v Secretary of State for the Home Department  EWCA Civ 72. Perhaps unfortunately, when this question is viewed as one of proper (rather than likely, intended or hoped-for) construction, it is little to the point to say that Ministers are now in practice less likely to have regard to the UK’s international obligations in making their decisions. If a Court determined that on a proper construction of the amended policy they should be no less likely to do so, that would be sufficient to dispose of the claim.
- Finally, it is only if the amendments are found to affect the proper construction of the Code that the question of their lawfulness arises. It appears – without knowing more – that the Claimant’s focus was on the rationality of making a meaningful change while denying its significance. Given the basis of Mitting J’s decision, we have no real indication of his view on the merits of this argument (or any other arguments that the Claimant may have advanced).
The story could easily have ended there: with a potentially significant change to the Ministerial Code, but no effective avenue for challenging it.
Happily for the GCHR and its supporters, there is now likely to be another chapter. Permission to appeal was granted on 4 January 2017, with Lady Justice Arden noting that the critical challenge for the Claimant was to demonstrate that the new version of the Code “has a different meaning from that which the 2010 code had.” Without seeing more of Lady Justice Arden’s reasoning, it is difficult to know how her thinking differed from Mr Justice Mitting’s – but this brief extract chimes, at least broadly, with the three points outlined above.
In a decision less welcome to the Claimant, Lady Justice Arden also set a costs limit of £7,500 for both sides; GCHR has said that without raising this amount (which it has sought to do via crowdfunding), it will not be able to proceed with the appeal. As at the date of writing, the campaign had raised just short of £2,500. The online cut-off date is currently 25 February, though it is unclear whether this represents an absolute deadline.
In the event that the appeal does proceed, it is worth giving some though to the range of potential outcomes. Presumably, the Claimant’s hope is to have the change unwound – on one view, this would be the best-case scenario, with the worst being confirmation that the excision has no effect on the proper construction of the Code (an argument which may in fact prove useful to advocates in the future). On another view, there must be a chance (however remote) of a decision that the change is meaningful, but lawful – surely the worst of all the Claimant’s possible worlds.
The result is that, for reasons both legal and political, the case is well worth keeping an eye on – and interested readers will find further updates here in due course.