Government’s continued disdain for the law raises temperature of human rights debate
A number of top lawyers have voiced their outrage at the government’s amendment of the Ministerial Code — which comes as part of a pattern of Tory hostility to legal protections and process.
The Code is a key government document that sets out the rules and standards expected of ministers. If a minister fails to comply with the Code then he has failed to comply with his ministerial duties, and could face being sacked by the Prime Minister.
Last Thursday, the government quietly published the updated 2015 version of the Code — and in doing so ditched a key part relating to international law. Until then, the general principles of the Code were laid out in the opening paragraphs as follows:
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 paragraph now reads:
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.
So the explicit duty to comply with international law and treaty obligations and to uphold the administration of justice are now no more — and lawyers are furious.
Solicitor and writer David Allen Green has condemned the government for celebrating Magna Carta, a historical document with no enforceable legal rights, while simultaneously stripping down more modern rights instruments. Via his @JackofKent Twitter account, he wrote this morning:
Regard to international law
Human rights law
Legal aid
Freedom of information
Judicial review
Every check to Executive is being dismantled.
— Jack of Kent (@JackofKent) October 26, 2015
Dismissing the possibility that the amendment was a semantic tidy-up, Green stressed the importance of the Code’s amendment:
The clue to the importance of the reference to "international law" in Ministerial Code is the keenness of Cabinet Office to get rid of it.
— Jack of Kent (@JackofKent) October 26, 2015
Can the government simply alter the law like this? Writing in The Spectator, Nick Cohen reckons not. The UK has signed thousands of treaties, he notes, arguing that ministers cannot decide what treaty obligations they can and cannot follow.
As we enter a pivotal point in our human rights history, Cohen believes that the amendment is a thought-out attack on the government’s commitment to the European Convention on Human Rights. He continues:
If the Conservatives wanted to leave the European Convention on Human Rights, they should leave it. They could not, however, sign an international treaty, and then say, ‘stuff it, we won’t abide by clauses we don’t like’.
But the government is standing its ground. It has stated that the amendment is not a substantive change to the Code — and, as a result, is legal.
However, David Cameron’s cause hasn’t been helped by the former head of the government’s legal service, Paul Jenkins, who this morning wrote a letter to the Guardian in which he accused Downing Street of showing “contempt for the rule of international law” by changing the Code. Lifting the lid on his time in government, Jenkins revealed:
As the government’s most senior legal official I saw at close hand from 2010 onwards the intense irritation these words caused the PM as he sought to avoid complying with our international legal obligations, for example in relation to prisoner voting. 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.
The next step in the row will be a legal challenge, with human rights group Rights Watch UK announcing that it will take Cameron and pals to court. The group rejects the government’s position because:
[T]he amendment to the Ministerial Code was explicitly mentioned in the Conservative Party Proposals for changing Britain’s Human Rights Laws. This amendment clearly signals a marked shift in the UK Government’s commitment to complying with international law.
Rights Watch will be writing to the government shortly to ask for the previous version of the Code to be reinstated. This promises to be an interesting battle.