The Court of Appeal has dismissed an appeal brought by the Gulf Centre for Human Rights (“GCHR”), refusing to grant permission to apply for judicial review in relation to a decision by the Cameron Government to amend the Ministerial Code of Conduct (“the Code”).
The background to this case is set out in an earlier post by Eleanor Mitchell. In October 2015, thirteen words were deleted from paragraph 1.2 of the Code (the deleted words are underlined below):
“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.”
The deletion was carried out without consultation, and no explanation was given as to why this change was made.
The legal challenge
GCHR sought permission to apply for judicial review on three grounds:
- The deletion was unlawful because it was done in secret and without consultation;
- The deletion was carried out for an improper purposes and/or in an improper manner; and
- The decision to make the deletion was irrational.
Permission was refused on the papers by Cranston J on 11 February 2016, and refused again at an oral renewal hearing by Mitting J on 17 March 2016. As described in the earlier post, Mitting J concluded the deletion could not be “capable of amounting to a justiciable or worthwhile challenge to a decision”. Mitting J’s refusal was based primarily on two findings: (i) the Code “does not and cannot in any way affect the legal duties of ministers” and (ii) the deletion pertains merely to the introductory wording, and not the “operative Code”. Mitting J concluded that the amended version of the Code is “plainly lawful” and that a change “from one lawful wording to another lawful wording, even if unexplained” cannot give rise to a judicial review claim with any realistic prospect of success (see  EWHC 1323 (Admin)).
The appeal: a change in substance?
On 28 December 2016, Arden LJ granted GCHR permission to appeal against Mitting J’s the decision. However, permission to appeal was limited so that GCHR would need to establish that the deletion resulted in a change of substance in the new version of the Code.
GCHR’s primary contention was that the amendment amounted to a substantive change in that the deleted words imposed an obligation on ministers to comply with international law and treaty obligations above and beyond those incorporated into domestic law. The Court of Appeal (made up of Lord Burnett LCJ, Sir Terence Etherton MR and Hamblen LJ) rejected this argument and dismissed the appeal (see  EWCA Civ 1855).
The Court held that paragraph 1.2 of the Code does not impose separate or freestanding duties and simply refers to existing legal duties outside the Code. It was held that the words “international law and treaty obligations” are subsumed with the general and unqualified duty “to comply with the law”. The Court concluded that the deletion did not involve a change in substance in view of the “the language used and the referential status of paragraph 1.2”. The Court also relied on assurances in the House of Lords by the Minister of State at the Ministry of Justice (Lord Faulks) to the effect that legal obligations on ministers remain unchanged, and that this includes an obligation on members of the Executive to follow international law.
Three observations can be made on the Court of Appeal’s approach in this case.
First, the Court construed the Code as an instrument devoid of “separate or free-standing” domestic or international legal duties. Whereas the Code is not a statutory instrument and does not directly impose legally enforceable obligations on ministers, breach of the Code can result in the Prime Minister referring the matter to an Independent Adviser on Ministers’ interests for further investigation (see para. 1.4 of the Code). Removing the express reference to “international law and treaty obligations” could conceivably result in international legal obligations falling outside the scope of such an investigation. While the Court of Appeal interpreted the words “in accordance with the law” to include international law, it cannot be assumed that an Independent Advisor would adopt the same approach.
Second, the Court’s finding that the now-deleted reference to “international law and treaty obligations” is subsumed within ministers’ duty to “comply with the law” fails to recognise the effects of dualism. Shortly after the deletion was made, the then Parliamentary Under-Secretary of State for Justice (Dominic Raab) stated in the House of Commons that while there had been “no change in obligations on Ministers”, the UK has “long had a dualist approach to international law and it is also important that that is upheld.” It is well established that obligations of international law not incorporated into UK law confer no rights on individuals enforceable in domestic courts. In Belhaj v Straw and others, the Supreme Court noted that judges are in principle “not at liberty to create, abrogate or modify municipal law rights or obligations in accordance with unincorporated norms derived from international law, whether customary or Treaty-based” ( UKSC 3, at para. 252). This is not to say that unincorporated international obligations can never have an impact on domestic law. It has been recognised that international law can affect the interpretation of ambiguous statutory provisions, or guide the exercise of judicial and executive discretion (see R v Lyons  1 AC 978, at para. 13). Taking this one step further, Lord Kerr has reasoned that treaty obligations could be used in aid of developing the common law or as a basis for legitimate expectation (see R (SG) v Secretary of State for Work and Pensions  UKSC 16, at para. 238). Whereas an act of State can give rise to international responsibility irrespective of the position in domestic law, the extent to which a British Government minister is bound by unincorporated rules of international law is complicated and context-specific. It is arguably an over-simplification to conclude that a minister’s duty to “comply with the law” invariably incorporates international law and treaty obligations.
Third, it is noteworthy that while the Court placed some reliance on the Government’s assurances that the deletion does not amount to a substantive change, it did not derive much assistance from the broader context in which the deletion was carried out. During the proceedings GCHR made reference to a letter to the Guardian from the late Sir Paul Jenkins, a former Treasury Solicitor and head of the Government Legal Service, in which he rejected the notion that the deletion was merely “tidying up” and noted the “the intense irritation these words caused the PM as he sought to avoid complying with our international legal obligations”. It is noteworthy that the deletion was carried out against the background of a Conservative Manifesto pledge to “scrap the Human Rights Act and curtail the role of the European Court of Human Rights”. Even if one accepts that the deletion does not amount to a substantive change and does not alter ministers’ legal duties, there is some force in the view expressed by the director of Rights Watch UK that the change to the Code “evidences a marked shift in the attitude and commitment of the UK government towards its international legal obligations.”