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PM's changes to the Ministerial Code held to be only political, not legally justiciable

21 March 2016
In October 2015, the UK Prime Minister published an updated version of the Ministerial Code, his guidance to government ministers on how they should conduct themselves in public office. Prior to the revision, paragraph 1.2 read:

The Ministerial Code should be read alongside the Coalition agreement and 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.

Following the Prime Minister's amendment, paragraph 1.2 now states:

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 amendment caused much controversy and debate in the media and legal circles.  The culmination of that debate, the Administrative Court's decision, in R (on the application of Gulf Center for Human Rights) v Prime Minister, to refuse permission for a judicial review challenge to the Prime Minister's amendment, is explored below.

At the time of the amendment, some were concerned that the removal of a reference to "international law and treaty obligations" indicated a "contempt for the rule of international law" on the part of the UK Government. Tom Watson MP, the deputy leader of the Labour Party, commented that the revised wording "fundamentally changes the standards to which ministers are held accountable", and described the change as "far-reaching" and potentially representing a "significant departure from responsibilities".

Others argued that, in fact, the previous wording had been misleading because it is the UK, rather than individual ministers, that is subject to a legal duty to comply with international law. They argued that ministers should, of course, generally avoid breaching the UK's international legal obligations, but they should not treat international law as having "equal standing" to national law. To do otherwise would be to ignore the primacy of the domestic constitutional principles, including parliamentary sovereignty.

The Government, meanwhile, dismissed the change merely as a "tidying up" of the Ministerial Code. A spokesman from the Cabinet Office said, at the time, that "the code is very clear on the duty that it places on ministers to comply with the law" and that "the law", in this context, included international law.

It is in this context that a collection of human rights charities brought a judicial review claim against the Prime Minister asking the Court to review the amendment. The applicants wanted the Government to explain the reasons for the new wording.

On 17 March 2016, the Administrative Court (in R (on the application of Gulf Center for Human Rights) v Prime Minister) refused permission, ruling that the claim was not amenable to judicial review on the basis that the relevant paragraph did not form part of the operative code.  The Court reasoned that paragraph 1.2 of the Ministerial Code does not contain binding principles of ministerial conduct, but rather formed the background against which ministerial obligations had to be read.  Therefore, it did not, and could not, affect ministers' legal duty. In addition, the Court held that the claim was incapable of amounting to a justiciable challenge of the decision to amend the Ministerial Code because new wording was plainly lawful. There was no realistic prospect of success where the change in the wording was from one lawful wording to another lawful wording and it did not matter that the change itself had not been explained.

The Court's reasoning appears to differ from the statement by the Cabinet Office spokesperson highlighted above, which suggests, at least on its face, that the Government considers that the relevant paragraph of the Ministerial Code imparts legal duties on government ministers.  Rather, the Court appears to have agreed with the position of Frank Berman QC, the former legal adviser to the Foreign & Commonwealth Office, who stated at the time of the amendment that, "instead of rushing to the courts", those opposed to the Prime Minister's amendment to the Ministerial Code should seek political, rather than legal, redress.  It is the role of the UK parliament, and not the Courts, to provide accountability for what was, essentially, a political gesture.

Therefore, one is left to consider the political implications of the amendment.  Much has been said of the on-going political debate over the UK's status as a member of the EU and as a signatory of the European Convention on Human Rights, particularly calls from some affiliated with the Conservative Party for the UK to leave both the EU and Council of Europe because of restrictions they impose on the sovereignty of the UK Parliament.

The Court's ruling in Gulf Center for Human Rights puts to bed any argument that the Government can alter its legal obligations to abide by international law by amending the Ministerial Code.  However, it will not do much to assuage those who fear that some close to the Government would like nothing more than to do just that in the near future, and who no doubt consider the Prime Minister's amendment to the Ministerial Code to be foreboding mood music.

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