Introduction

We now have a government under law, except in a limited, specific way. The Advocate General, Lord Keen, and the Head of the Government Legal Department, Jonathan Jones, have resigned in protest. Their reasons were revealed in an illuminating article about the dispute between the Attorney General, Solicitor General and Advocate General published in The Guardian on the 10^th of September.

It is a constitutional convention not to reveal the content of government legal advice. It is therefore significant that the by-line of the article is co-credited to the Guardian’s Head of Investigations. This detail, and the content of the article itself, suggests a close familiarity with the advice, and this post proceeds on that assumption. It argues that the advice, as reported, was not correct. It begins with the dispute set out in the article. It then considers the significance of the Ministerial Code. Finally, it challenges the conclusion that it would be lawful, let alone constitutional, for a minister to breach Britain’s duty to act in good faith.

In essence, this is a dispute about the constitutional rules that receive international law. That ought to be familiar territory for readers of this blog. Miller 1 was a case about the reception of EU law: a singular sort of international law incorporated by a singular statute. There, the Supreme Court thought EU law entered Britain through a simple bit of constitutional plumbing.

The reception of public international law is more complicated than this. Eirik Björge and I have tried to make sense of the complex rules that receive and reject international law here, and this post draws on aspects of that article. The essence of the argument is that the government cannot evade the law by labelling it “international,” As such, the AG’s approach misunderstands not just international law but UK law. It amounts to a call for “British Laws for British Ministers.”

What the Advice Said

The Guardian reports that the law officers agree that it would be lawful for ministers to break the UK’s international obligations, but disagree about whether it would be constitutional.

The law officers agree that the Withdrawal Agreement binds the United Kingdom “acting through its executive government” and that legislation “to remove the possibility of challenge before the domestic courts, or prevent the government from complying with the rulings of EU courts… would be a clear breach of the Withdrawal Agreement and of the UK’s international law duty to act in good faith with respect to its treaty obligations.” They also agreed that it would be lawful for the government to sponsor legislation that would breach the UK’s international obligations, but disagreed about whether it would be “proper” (which is to say constitutional) to do so.

Lord Keen thought sponsoring legislation that broke a treaty in bad faith would break the Ministerial Code. Ms Braverman and Mr Ellis thought it would not, or in that alternative, that it did, but it did not matter. By their account, the code was a policy document that expressed the political view of the government of the day, and in any event it did not require ministers to obey international law. Lord Keen “[agreed] that the Code… does not carry the force of law, is not enforceable in the courts, and does not pose a legal bar to action.” However, he argued that “the terms of the Ministerial Code expressly reflect a constitutional convention that ministers shall act in accordance with the rule of law” which, in his view, includes international law.

Two things stand out from this approach to the rule of law. First, it carefully distinguishes between legal duties and non-legal constitutional duties. It is, of course, possible to act unconstitutionally without also acting unlawfully. If the monarch capriciously refused to sign legislation, that would be a breach of a constitutional duty but not a legal one. Second, it divides legal obligations into those that sound in UK law and those that sound only in international law. The next two sections approach two points of dispute in turn: the importance of the Ministerial Code; and the conception of international and domestic law as separate spheres.

The Ministerial Code

The first dispute is about whether ministers have a constitutional duty (as distinct from a legal duty) to act in accordance with international law. It turns on the meaning and impact of the Ministerial Code. This section begins with purely constitutional duties, and the next section turns to the overlap between constitutional and legal duties.

The Ministerial Code codifies non-legal constitutional duties. It memorialises constitutional conventions established and recognised over many decades; duties reaffirmed by each new administration. It is not a statement of the current view of the political part of the executive about rules it happens to recognise. It reflects substantial input from the impartial Civil Service and especially from the Cabinet Office.

We can deal with the argument that it would be constitutional for ministers to break the United Kingdom’s international obligations relatively briefly. Lord Keen is correct: it would not. The Code does not purport to be an exhaustive summary of constitutional duty. The 2019 version of the Code is thirty-six pages long. For reference, the 1991 version of the Precedent Book, the civil service compendium of convention that predates the Code, is about 700 pages long in its redacted form. There are numerous constitutional conventions that require Ministers to uphold international obligations. A topical example is the longstanding government practice not to ratify treaties until necessary implementing legislation is already in place, which I discuss here with Eirik Björge and Arabella Lang.

Why, then, was so much weight put on the precise wording of the introduction to a thirty-six-page summary? The 2015 version of the Code had omitted an explicit reference to the duty to obey international law. This led to speculation that the UK government no longer considered itself constitutionally bound to uphold its international obligations. In 2018 the Gulf Centre for Human Rights sought to review the change in wording, drawing on “contextual materials which suggest that the Government and the Conservative Party were dissatisfied with the reference in the Code to ‘international law.’” (at [16].)

Both the High Court and a strong Court of Appeal dismissed the application. The main reason why the appeal was dismissed is that the change made no difference. However, it is easy to misunderstand why it made no difference. We might think the change in language did not alter the meaning of the Code. The Court of Appeal took note that the Minister of Justice had recently reaffirmed that ministers remain bound by international law in Parliament, and concluded that the duty to obey the law was now “general and unqualified” ([22]). In other words, they reaffirmed the constitutional duty identified and exemplified above.

However, there was a deeper reason why the change made no difference. Ministers have to obey the law and the constitution regardless of whether the Ministerial Code says so. The 2015 Code might have said “Ministers must comply with the law except in limited circumstances” but this would make no difference to their actual, legal, duties and little difference to their actual, constitutional duties. As the Court of Appeal put it “the 2010 Code neither set out nor imposed any separate or free-standing duty on Ministers in relation to compliance with the law, domestic or international… Whatever the precise meaning of the reference to those obligations, they are not independent obligations but simply part of the “overarching” duty of compliance with the law” (at [19] emphasis added).

As the Court of Appeal makes clear, there is a constitutional duty to obey the law, both “domestic and international.” Some judges have described the duty to obey the law as a constitutional-conventional duty (see e.g. Campaign for Nuclear Disarmament v The Prime Minister at [43]). This gilds the lily. The government, through its ministers, has a legal duty to obey the law. The duty is amplified in majestic and well-known cases such as Entick v. Carrington (95 E.R. 807 (King’s Bench) and M v. Home Office ([1994] 1 A.C. 377 (House of Lords.) It applies regardless of the precise wording of the Ministerial Code.

Domestic and International Rule of Law

On the AG and the SG’s view, “the reference to ‘law’ in the ministerial code can only be a reference to UK law and UK constitutional principles.” As such, they view ministerial obligation under the code “as only relating to compliance with the rule of law as a matter of UK law.” To paraphrase Lord Templeman, the AG is arguing that ministers comply with UK law as a matter of necessity and with international law as a matter of grace. This is a difficult position to maintain, on account of the substantial overlap between UK law and international law.

Government ministers do not need to obey non-legal rules. They can lawfully cheat at cards and disobey the Fireworks Code. It is usually lawful to break foreign laws, because they are defined as non-legal rules by UK law. So if the Secretary of State for Foreign and Commonwealth Affairs advocates democracy for Hong Kong, that might break Hong Kong law but it would not break UK law. We might imagine that international law works like this, because it is a separate system of law and the UK is a “dualist” state. As we will see, this is a misleading simplification, not of international law, but of UK law.

There is no constitutional rule that says “Britain is dualist” because maxims such as “dualism” are not rules, they are ideas that simplify rules. At a certain level of generality, it is correct to say that the UK is “dualist” but it is also vague. Legally, it is about as illuminating as saying “conscience is the pole star of Equity.” It is certainly no substitute for a careful and precise application of the underlying rules that receive international law. These rules include, for example, the rule that the government cannot make new law without Parliament [Miller 1] and the rule that the courts have no power to create new criminal offences [Knuller, [1973] A.C. 435 (House of Lords).]  Ideas such as “dualism” are only useful so far as they explain rules like these.

If we look more carefully at those rules we quickly find that many international rules become part of UK law automatically: in a monist way rather than a dualist way. For example, there is an old common law rule, traced to Lord Talbot in Barbuit’s Case and restated in Blackstone’s Commentaries, that says international law is ‘to its fullest extent’ part of the law of England.” In the early twentieth century J. L. Brierly recast this rule in a modern form: ‘international law is not a part, but one of the sources of English law.” In 2018, the Court of Appeal concluded that “customary international law is a source of common law rules.” However, “ it will only be received into the common law if such reception is compatible with general principles of domestic constitutional law.” (Freedom and Justice at [114]). So we cannot say that the rule of law does not apply because these are international rules. We need to ask whether the rules in question are also rules of UK law.

Was there an obligation under UK law?

Duties under the Withdrawal Agreement are not merely duties owed to states on the international plain. They are mirrored in statutory and common law duties on the domestic plain.

The previous section noted that general customary international law is received directly into the common law, subject to other constitutional requirements. As Lord Goff said, in an unrelated constitutional stramash involving the AG and Guardian Newspapers, ‘I conceive that it is my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty.’ ([1990] 1 AC 109 (House of Lords) at 283.) This rule of reception applies both to statutory interpretation and to development of the common law (compare A v Secretary of State for the Home Department (No 2) at [27].)

There is an international law requirement to act in good faith, expressed in the maxim pacta sunt servanda. It binds the UK through its executive government. It is a principle of customary international law and as such it is a direct source of common law duties that bind ministers (Freedom and Justice; R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs; R v. Jones (Margaret). If we agree with all three law officers that the present policy “would be a clear breach of the Withdrawal Agreement and of the UK’s international law duty to act in good faith” we can therefore argue that Ministers would be breaking the law, both “domestic and international.”

The fact that UK ministers owe domestic legal duties in respect of this action does not mean it would be easy to enforce those duties in UK courts. Such a claim would face at least three formidable obstacles. First, a claimant would need to frame the government’s action in a triable form. If the government is pursuing an unlawful policy, then that might be challenged on the same basis as in Miller 1. But this is a complicated cause of action, simplified, in Miller, by the government’s decision not to take the point. Second, it can be difficult to enforce legal duties against UK ministers in the foreign policy sphere, because the rules are hedged with antiquated immunities. I address these immunities in more detail here. Third, tabling legislation is potentially a “proceeding in parliament” for the purposes of Article 9 of the Bill of Rights. Parliamentary privilege might therefore partially block a challenge to the legislative aspect of of this policy.

I cannot ventilate these obstacles fully in this post, partly for reasons of concision but mainly because they are beside the point. In a state under law we expect the government to obey the law even when it does not think it is going to be sued. For good reasons, as well as bad, citizens cannot readily supervise the legality of foreign policy in UK courts. Law officers are supposed to present robust advice on the legality of foreign policy precisely because those policies are insulated from legal challenge. Even “high policy” decisions, such as the deployment of the armed forces, are made subject to robust legal advice. If we expect our foreign policy to be lawful, this is a constitutional safeguard of fundamental importance.

Parliamentary Supremacy?

The Court of Appeal in Freedom and Justice and Lord Goff in Spycatcher observe that rules of public international law are received subject to general principles of constitutional law.” One reason why the AG and SG thought the government’s actions were lawful was because the “established principle of international law is subordinate to the much more fundamental principle of parliamentary sovereignty.”

The claim is echoed in a recent argument by John Finnis and John Larkin in The Spectator. Professors Finnis and Larkin argue that the

freedom to promote any measure [Parliamentarians] judge in good faith to be in the interests of the country (or indeed of the international community as a whole)… is an integral part of the sovereignty of Parliament.” They conclude that Parliamentary supremacy “is incompatible some members of Parliament are disqualified by their ministerial office from proposing the unmaking of previously enacted law.

Professors Finnis and Larkin claim that the argument set out here would make statutes “giving effect to international treaties were unrepealable or unamendable.” It would not. First, so far as they apply, the legal and constitutional duties above apply to Ministers. The number of ministers sitting in the House of Commons is limited to ninety-five by s.2(1) of the House of Commons Disqualification Act 1975. Second, as they note, it is possible to break international treaties in good faith, without violating international or common law duties. We should recall that the law officers were unanimous that the present course of action would break the duty of good faith.

If the Internal Market Bill were enacted then that Act would pre-empt other legal and constitutional duties.  But the problem, for now, is not the notional supremacy of an as-yet-unenacted bill. It is the current legality of government policy and conduct. There is no question of “subordination” because Parliamentary supremacy does not shield the unlawful activities of Parliamentarians (R v Chaytor). We might add that Parliamentary Supremacy is a rule about the legal limits on Parliament’s law-making power. It says nothing of the constitutional limits.

From a broader point of view, we may wonder why the defence was argued on grounds of Parliamentary supremacy rather than Parliamentary privilege. Why rely on a vague and amorphous reading of one rule, when there is a limited, specific rule that protects the legislative process? But perhaps the point of the defence is not to head off litigation, but to wave away the arguments of people like Richard Keen and Jonathan Jones. Better to say something vague like “Parliament reigns supreme” than to say something specific like “Ministers have broken the law and the constitution, but that is fine, because citizens cannot sue them.”

Adopting a policy that breaks an incorporated treaty in bad faith is unconstitutional. It is also a breach of the principle of the rule of law. It also breaches constitutional convention. But this is prologue: it breaks the law. It is a limited brand of despotism, sheltered by law officers who ought to know better.

Ewan Smith, Fixed Term Fellow, Christ Church

I am grateful to Alison Young, Mike Gordon, Jude Bunting, Arabella Lang, Zhu Yuanyi, Eirik Björge, Miles Jackson and Nick Barber for comments on drafts of this post.

(Suggested citation: E. Smith, ‘“British Laws for British Ministers!”’, U.K. Const. L. Blog (5th Oct. 2020) (available at https://ukconstitutionallaw.org/))