affiliated to the International Association of Constitutional Law
Much has been written about the recent changes to the United Kingdom’s Ministerial Code. Until October of this year, the code referred to the “overarching duty on Ministers to comply with the law including international law and treaty obligations”. In October, however, the code was changed to refer more simply to “the overarching duty on Ministers to comply with the law” without any reference to international law or treaty obligations. This post responds to just one of the pieces that have been written in support of the change. We argue that the position set out in the piece by our colleagues, Richard Ekins and Guglielmo Verdirame (and in a twin piece by the same authors) misconceives the role of the reference to international law in the previous version of the Ministerial Code; misunderstands the relevance of international law to the rule of law; and goes too far in drawing a distinction between the binding force of international law on the state and on state officials.
Conflicts between domestic and international law
Ekins and Verdirame in their piece set up a straw man by suggesting that the previous version of the Ministerial Code had something to say, not only about whether international law was binding on Ministers, but also about its place in the hierarchy of rules that Ministers have to observe. Or, at any rate, they confuse the question “is international law binding on Ministers?” with the question “what should Ministers do if faced with conflicting obligations imposed by international law and domestic law?”. In seeking to rebut the argument that the principle of the rule of law requires Ministers comply with international law, they say that the rule of law “does not settle whether international law or domestic law should prevail in the event of a conflict between the two. To know where the rule of law takes us, we must first decide which body of law should rule.” To the extent that international law obligations are binding on domestic actors, it is, of course, important to resolve questions of where international law stands in the hierarchy of laws that these actors are called upon to apply. However, nothing in the Ministerial Code, as previously drafted, purported to resolve that question. To say that the “old Code’s formulation risked constitutional confusion” or had “momentous constitutional consequences” is pure hyperbole. Nothing in that formulation “[undercuts] the supremacy of Parliament over the executive”. Ministers were (and still are) instructed simply to abide by the law. The only effect of the reference to international law was that Ministers were told that the “law” binding on them includes international law and treaty obligations. The old formulation did not require Ministers to put international law above any other rule of law. It would be quite ridiculous to say that because Ministers have an obligation to obey the common law, spelling this out risks constitutional confusion and/or threatens the supremacy of Parliament. In making assessments of what the law requires, the usual judgments have to be made as to the sources of applicable principles and how they stand in relation to other potentially applicable principles. This is basic legal reasoning that is ordinarily implied in calls to apply the law; it does not need spelling out.
In those rare cases where there is a conflict between international law and domestic law, it is indeed clear that UK law requires Ministers to follow UK law, just as international law requires the UK (and by extension, as discussed below, its officials) to follow international law. In such cases, it would hardly be inappropriate for government legal advisers to continue to point out to Ministers that, despite conflicting domestic law, the legal obligation to abide by such rules of international law remains. This is not constitutional confusion, or subversive of the rule of law; it is rather a reminder that, ideally, efforts ought to be made to bring that situation to an end.
The concept of rule of law and fidelity to international law
It is highly misleading to suggest, as Ekins and Verdirame appear to do, that the idea of rule of law cannot, or does not, include the conception that the state and its officials ought to abide by international law. They argue that “[t]he principle of the rule of law is intimately connected to the institution of the state” and suggest that this can be inferred from the fact that in the equivalent expression used in other languages—“Rechtstaat, Etat de droit, Stato di diritto, etc”—the term “state” is central to the expression. It should, however, be fairly obvious that all the term “state” in these expressions indicates is that the state is governed by law. There is absolutely nothing in these expressions that indicates that the law by which the state is governed is domestic law. Article 20 of the German Constitution is regarded as incorporating rule of law principles, and provides in para. 3 that “[t]he legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice”. The Federal Constitutional Court has, in a recent case, interpreted this provision as including an obligation to comply with international law.
Furthermore, the idea of the rule of law, as including fidelity to international law, or the idea of an international rule of law has been endorsed by the International Court of Justice and its predecessor, the Permanent Court of Justice. To stay with the former, the International Court has on a number of occasions made it clear that not only does international law work with the idea of the rule of law, but also that, in its conception of the principle, the rule of law includes an international dimension.
In the ELSI case, a Chamber of the Court observed, in relation to whether state action by the Italian executive had breached international law by being arbitrary, that “[a]rbitrariness is not so much something opposed to a rule of law, as something opposed to the rule of law” (ICJ Rep 1989 p 15, 76). Incidentally, the French version of the judgment spoke not of “l’Etat de droit” but “[le] règne de la loi”: “L’arbitraire n’est pas tant ce qui s’oppose à une règle de droit que ce qui s’oppose au règne de la loi.” The same point was made in the Asylum case (ICJ Reports 1950, p. 266, 284), where the Court spoke of “arbitrary action” being “substituted for the rule of law”. (Here, too, the French term was not “Etat de droit”, but “[le] règne de la loi”. Ekins and Verdirame have set some store by linguistic analysis; the fact that the state gets no mention in the wording chosen here, then, according to Ekins and Verdirame’s own argument, shows that the concept of the state must be less important to the rule of law than they contend.)
Ministers are the correct addressees of the duty to comply with international law
It is wrong to say, as Ekins and Verdirame do, that “Ministers have never been under a general legal duty to comply with international law including treaty obligations. The subject of any such duty is the UK itself.” In fact, to speak of a “general duty” on ministers to comply with international law, including treaty obligations, is a very good statement of the correct legal position.
It has long been acknowledged that customary international law is part of the common law. More recently, this view has been recalibrated to describe customary international law as a “source” of the common law. The basic position, however, remains the same: unless there is a good reason for not doing so, customary international law will be incorporated into the common law and applied by the courts. As Lord Mance put it very recently, in Keyu v Secretary of State for Foreign and Commonwealth Affairs  UKSC 69, at para. 150:
“Speaking generally, in my opinion, the presumption when considering any such policy issue is that CIL [customary international law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.”
As a part of the common law, and subject to the caveats just stated, customary international law applies to Ministers and requires them to act consistently with its requirements.
Turning to treaties, the issue of whether or not treaty obligations bind the Crown was set out in Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109, 283, where Lord Goff spoke correctly of the obligations flowing from the then unincorporated European Convention on Human Rights (ECHR) as “the obligations of the Crown under this treaty”. As, however, the treaty was unincorporated the courts would not, until the passage of the Human Rights Act, in any way rely directly on it (leaving aside the indirect ways in which they were prepared to do so). This is because, on the conventional approach (and there is no need here to question that), rules of international treaties not incorporated into municipal law confer no rights on individuals which are capable of being directly enforceable in municipal courts. In a case such as R v Lyons  1 AC 967, where the unincorporated treaty rules at issue were contradicted by “an express and applicable provision of domestic statutory law” (Lord Bingham at paras. 14–15), the court cannot even interpret domestic law in accordance with the international law rules in issue; “[i]f Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not” (Lord Hoffmann para. 28). As touched on above, we of course agree that where there is legislation that forbids a Ministers to act in a way which international law allows or, conversely, allows a Minister to act in a way which international law forbids, then the Minister must follow that which follows from statute. In order to isolate the interesting question of whether Ministers are in general bound by international law, it is useful to focus on the situation in which such a statute is absent.
The reason ministers are, as the Ministerial Code used to make clear, bound by international law is that they represent the State. As Sir Gerald Fitzmaurice once put it: “if the individuals are representing the State, they are not representing themselves—or in other words it is the State which, as a distinct entity, functions through them” ((1957) Hague Recueil p 74).
A more formalistic way of expressing the same point is to say, and this can be claimed on the highest judicial authority, that “the Crown” simply means “the government” and includes “all of the ministers and parliamentary secretaries under whose direction the administrative work of government is carried on” (Town Investment Ltd v Department of the Environment  AC 359, 380–81 (Lord Diplock)). While that judicial pronouncement could be criticized for being overly broad in terms of the immunities and capacities possessed by the Crown-as-monarch not necessarily extending to ministers, it is an accurate description in so far as it concerns the obligations of Ministers.
The most important point in this connection, and one which Ekins and Verdirame seem to neglect, is the following. The fact that certain obligations of international law are not enforceable in the courts does not in any way detract from the fact that the Crown is bound by them. Much of the discussion of the relationship between international law and domestic law has focused on the extent to which international law may be applied by the courts. The unfortunate side effect of this concentration on judicial application of international law is that one may lose sight of the point that obligations may still be legal obligations binding on parties, although they are not enforceable before domestic courts. Only the most ill advised court-centric view would hold that simply because an obligation is not justiciable before the domestic courts that obligation is not a legal one. An example drawn from international and domestic law should suffice. Diplomats are obliged to obey the criminal law of the host state, though they are immune from prosecution in those states. If that immunity were to be waived and they were prosecuted, it is not that the law suddenly applies, retrospectively, to that conduct. Rather, all that has happened is that the reason preventing judicial application of the law has been removed, and the legal obligation which existed throughout may now be enforced.
It was entirely correct, therefore, for the government to make the point, in 1994 by way of statements in the House of Lords by Baroness Chalker of Wallasey in connection with the ECHR (and the, then as now unincorporated, International Covenant on Civil and Political Rights), to the effect that:
“International treaties are binding on states not individuals. The United Kingdom is party to both treaties and must comply with its obligations under them. In so far as acts of Ministers and civil servants in the discharge of their public functions constitute acts which engage the responsibility of the United Kingdom, they must comply with the terms of the treaties” (Hansard 7 December 1994, HL Col. 84).
The three logical steps of this no doubt carefully crafted statement merit careful study. First, it is plain that the point of the discussion is not whether Ministers as “individuals” are bound by international treaties (and general international law). Second, logically following from the first point, it is the United Kingdom as a State that is bound by international law and which must comply with international law. Third, and in conclusion, given that Ministers (and civil servants) are agents of the State, “[i]n so far as” their acts “in the discharge of their public functions constitute acts which engage the responsibility of the United Kingdom”, it is for Ministers (and civil servants) to “comply” with the international law obligations in issue.
Is the change to the ministerial code substantive?
In closing, it is worth noting that the Cabinet Office has denied that the changes to the Code are substantive, with a spokesman noting that the expression “‘comply with the law’ includes international law” and that “[t]he obligations remain unchanged by the simplified wording” (see here). Although some have dismissed this claim that no change in substance was intended or effected, Ministers have confirmed this claim. When, the Minister of State for Justice, Lord Faulks QC was asked recently about the duties incumbent on Ministers, he confirmed the main thrust of the position set out by Baroness Chalker: ‘Ministers must abide by the law. The obligations on Ministers under the law, including international law, remain unchanged’ (Hansard 3 November 2015, HL Col. 1522). Similarly, the Foreign Secretary stated late last month, in response to a parliamentary question, that he was of the view that despite the changes to the Ministerial code, ministers, and members of the civil and diplomatic services remain bound by the UK’s international treaty obligations (Hansard 24 November 2015, HC Col. 1188). The debate will continue about the role that international law should play in the law of the United Kingdom, but we should take seriously the claim of those who changed the Ministerial Code that nothing has changed as a result of the revision to that document. Any other reading would amount to a serious legal solecism.
Dapo Akande is Professor of Public International Law, Yamani Fellow at St. Peter’s College and Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC) and the Oxford Martin Programme on Human Rights for Future Generations.
Eirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, Oxford.
(Suggested citation: D. Akande and E. Bjorge, ‘The United Kingdom Ministerial Code and International Law: A Response to Richard Ekins and Guglielmo Verdirame’ U.K. Const. L. Blog (10th Dec 2015) (available at https://ukconstitutionallaw.org/))