The Ministerial Code Re-Write

Say you are an executive director of a company. That company has various contracts with other people. The decision of whether to perform those contracts is yours. What are your legal obligations?

First it is the company, not you, who is subject to the legal duty to perform those contracts. If the contracts are not performed the only claim is against the company not you (indeed, because of the duties to the company you are under you cannot be separately liable for procuring a breach).

Second your overriding duty is to act in the interests of the company. Usually that will mean that you must make the decision to perform contractual obligations the company is under. In some, albeit rare, cases you are not merely permitted but required to decide that it is not in the company’s best interests to go ahead and perform. This will, of course, have adverse consequences, such as loss of commercial reputation and legal liability for breach, but those consequences may be less severe than those of performance. Any claim that the counter-parties have will be against the company, not you, as it is the company that is the duty bearer.

Nick Cohen, one of the most able journalists in the United Kingdom, has written highlighting a recent change to the ministerial code of conduct. The May 2010 code stated

1.2 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

(Emphasis added)

The October 2015 code states

1.2 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.

This Guardian reports the following response

Philippe Sands QC, a professor of law at University College London, said the change was “shocking. Another slap to Magna Carta and the idea of the rule of law. A government that wants to ditch Europe and sever the connection with the European convention on human rights now wishes to free itself from the constraints of international law and the judgments of international courts.”
A legal challenge against the change will be lodged on Friday by Rights Watch, an organisation which works to hold the government to account. Yasmine Ahmed, its director, said: “This amendment to the ministerial code is deeply concerning. It shows a marked shift in the attitude and commitment of the UK government towards its international legal obligations.” ”

I do not think Professor Sands’ fears are well founded, nor that any legal challenge will succeed.

The party subject to the international legal obligations that it enters into, such as those under the European Convention on Human Rights, is the United Kingdom. Individual ministers and civil servant, from the Prime Minister down, are not subject to those duties. This is reflected in the fact that if an individual wishes to bring a claim before the European Court of Human Rights the counter-party is, and can only be, the United Kingdom as a signatory state, and not any individual however eminent or even a department.

Individual ministers are subject to duties which they owe to the state (“the Crown”), both legal and by convention in our domestic order. Like company directors they must also make decisions in the best interest of the United Kingdom, which is the corporate entity that they serve. In almost no case will it be in the United Kingdom’s interest to break its international legal obligations, and ministers should seek to ensure that this does not happen.

Almost none. In some rare cases, just as with human beings in any domestic legal order, the right thing to do is to break the law. The reason for this is that the law is never perfect. Law has great weight in our reasoning about how we should behave, but sometimes breaking the law is the right thing to do.

To give a contentious example, public international law provides no grounds for intervention in another state’s affairs in the case of genocide. The law’s position is one of state sovereignty. If therefore genocidal murder is taking place in a near neighbour state, say in a former constituent part of Yugoslavia, the positive law provides no grounds for military intervention and to do so would be unlawful insofar as the intervening state is concerned.

It is important in such circumstances for ministers to realise that, as with company directors, the UK’s legal obligations do not fall on them personally and that they will not be subject to any sanction for breach. Their duty is to act in the best interest of the United Kingdom. In some, albeit extremely rare, cases that may require them to place the United Kingdom in breach of its international obligations.

The confusion between the duties of the UK state and individual ministers bedevils discussion of the second Iraq War. Even if we accept that the UK violated international law in the invasion of Iraq, and I think it did, that does not answer the question of whether Blair or any other minister breached their legal duties. It certainly does not show that they committed any crime, nor, as the current leader of the opposition has ludicrously suggested, that they should be tried before the international criminal court.

The new draft of the ministerial code is better than the old. It does not confuse the party which is subject to the duty of compliance with international law, and correctly states the reasoning any minister must go through in considering how to act.

UPDATE

In this morning’s Guardian the former Treasury Solicitor has taken the very unusual step of writing to criticise the change discussed above. Adam Wagner, the most energetic, able and articulate practitioner defending the Human Rights Act, points out that the new ministerial code gives 91 words to air miles, but none to international law. The problem with the old version was that it was wrong, with the new that it is silent on international law specifically.

What would a section that accurately, and succinctly, explained the minister’s duties with regard to international law look like, if as argued above the earlier version was misleading? I would suggest the following

“The UK is under a duty to comply with international law. It is in the UK’s interest that it does so. Ministers are under a duty to act in the UK’s interests.”

This captures the indirect nature of the minister’s duty to ensure the UK complies with international law. It also captures what a minister’s legal duties are where international law conflicts with UK domestic law. The legal duty on her is that of UK domestic law.

Against Human Rights (Part 1)

In the last few days we have had two lectures directly relevant to the fate of the Human Rights Act. One in support by Professor Philippe Sands, and one against by Professor John Finnis (although the Finnis lecture is centrally about judicial responsibility, the latter half returns to criticisms of incorporating the European Convention that he first made thirty years ago).

Both should be read, although the latter is the more impressive (regardless of whether you agree with it or not). I shall return to Professor Finnis’ arguments in a later post, but here I wish to respond to, and largely reject, the arguments employed by Professor Sands.

Professor Sands
The lecture is divided into three parts, past, present and future.

The Past
The presented potted history of Human Rights in Europe and the United Kingdom (“Where We Have Come from”) is both selective and misleading. It is also a tale that is often told in the way he does, and so needs to be addressed.

The story presented is that the pan-European human rights model came as a reaction to help safeguard the people of Europe from the horrors of the 1930s and 40s. The principal hero is Hersch Lauterpacht (an undoubtedly great and important figure). His book An International Bill of the Rights of Man is said to have provided the intellectual underpinnings for the Convention that was to follow, under the political leadership of Winston Churchill with British draftsmen to the fore. The Convention was ratified by the UK in 1951, coming into force in 1953, from which time it is claimed the aggrieved United Kingdom citizen could bring claims under the Convention in Strasbourg where the Council of Europe has its home. Finally in 1998 Parliament passed the Human Rights Act, fulfilling the intentions of the original visionaries.

This story omits, or confuses, two things. First, the idea of rights that citizens have against the state to restrain the unfettered exercise of state power was not a new one, nor particularly European. The most significant early example of a state whose constitution adopted this approach was the United States. In the inter-war period a large majority of European states had written constitutions which similarly adopted such an approach, although the list of rights in their constitutions much more closely resembled the list in modern day human rights conventions than does the eighteenth century version of Jefferson and Madison.

The outlier in this regard was the United Kingdom with its doctrine of Parliamentary sovereignty. (Australia, with its constitution of 1900 and geographical situation is still an outlier today). A longstanding criticism by opponents of Bills of Rights is that whether a state does respect human rights is a quite separate question from whether such rights should be incorporated into constitutional rules. The United Kingdom did not descend in the 1930s into barbarity, whilst states possessing impeccable Bills of Rights, in particular the Soviet Union and the Weimar Republic (the constitution of which was technically in force until 1945) both of which had rules in place that on their face appeared beyond reproach, did.

In a less dramatic way, the lack of a necessary connection between what the law requires and the actual real world behaviour of the government and its officials can be looked at from the lack of empirical evidence for any impact on the latter as a result of the Human Rights Act. If the HRA did ensure that the UK government became more compliant with the norms set out in the HRA, one would expect the number of successful claims before the Strasbourg court to have fallen since 2000. There seems to be little or no evidence of this. (The one exception is inevitably Art 13, which requires member states to give redress before their own courts for breaches of Convention rights. It is however, hardly a powerful freestanding argument for the human rights regime that its enforcement ensures that it is enforced.)

Nor can it be claimed that incorporating such rights to restrain the sovereignty of signatory states into an international convention was a particular novel, or even European, idea. Such a regime had already not only been contemplated, but brought into being in Central America before the First World War.

The other omission concerns the history of UK human rights from 1953-2000. Professor Sands states (at pp 16-17)

The European Convention was adopted in 1950, ratified by the UK in 1951, and came into force in September 1953. It was not incorporated into our domestic law, which meant that it could not be invoked before our domestic courts. An aggrieved citizen or inhabitant of the United Kingdom would have to take claims under the Convention to Strasbourg, where the Council of Europe has its home. In 1966 the UK opted to accept the right of individual complaint to the European Commission of Human Rights.

There are two errors here.

First, from 1953-1966 individuals had no method of bringing any claim in Strasbourg. Until 1966 only other member states could assert a claim against the UK, as Greece did over Cyprus in 1956-7. The complaint Greece brought was before the European Commission of Human Rights, to which the UK was subject from 1954, and which was abolished in 1998.

Further, during the early period of its life the Convention was an essentially political or aspirational document so far as the UK was concerned, which is one reason why it was so uncontroversial. In 1966 Wilson’s Labour government acceded to the jurisdiction of the European Court of Human Rights, not as Professor Sands puzzling states the Commission. At the time it was thought that the potential for large numbers of claims before that court was remote. Indeed the first claim against the UK was only brought in 1975, and before 1981 there were only five cases.

The Convention has only proved a significant inconvenience for the UK state over the last thirty years, and as time has passed the number of claims has ballooned. The idea that the legalistic world we now live in was that originally contemplated in 1953 by Churchill or Maxwell-Fyfe (the only British lawyer of significance involved in drafting the Convention) is simply untrue.

The Present
Professor Sands argues that there are three complaints made about the Strasbourg Court’s approach to the European Convention. Unfortunately, he doesn’t attribute these complaints to anyone. They do not bear a close relation to the complaints made by, for example, either Professor Finnis or other prominent critics such as Justice Dyson Heydon.

The first complaint that he seeks to address is that the court has given the Convention a greater scope than the drafters ever intended, and this is indeed one of the criticisms that Professor Finnis makes.

Professor Sands argues that rights must be interpreted according to the background conventional morality of society. As society’s values change, so must the interpretation of Convention rights. Just as what constituted ‘cruel and unusual punishment’ for the framers of the Eighth Amendment to the United States may not be the same as we today would accept, so the meaning of the rights in the Convention may also change overtime.

This argument does not work. The primary reason for its failure is that it is inconsistent with Professor Sands’ major premise, implicit in the name ‘human rights’, that the justification for them is “the idea that every human being has basic, irreducible human rights.”[11] This is a claim about true, not conventional, morality. It is a claim that all persons are the possessors of such rights in all times and places. If we accept this claim, then they are unvarying. If people have a human right to be free to marry people of the same sex, then that cannot be dependent upon the conventional morality of where they happen to be at any particular time.

This leads to a further problem with the Convention as interpreted by the Court, well captured by the decision in Dudgeon v United Kingdom that Professor Sands seeks to rely upon. Mr Dudgeon was gay, and legislation in Northern Ireland made certain sexual acts between consenting men a criminal offence. Although these offences had been repealed in the rest of the United Kingdom, they still applied in Northern Ireland.

Dudgeon relied upon Article 8, which provides:

Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The United Kingdom relied upon the highlighted words to argue that morality in Northern Ireland required the maintenance of the legislation Dudgeon complained of there. “Morals” in article 8 (and other articles) has been interpreted by the ECtHR to mean conventional morals, and not true morality independent of any community. A majority concluded that conventional morality no longer required any such offences, with a dissent from the Irish Judge Walsh.

The difficulty with this is how any of the judges were in a position to assess this question. Conventional morality is a matter of fact. What evidence could the majority point to to convince themselves that they, and not the United Kingdom legislature, were in a better position to assess this fact? If conventional European morality swung back away from the liberal position (which I share) that it is monstrous barbarity to criminalise homosexual acts between consenting adults, would it be ok to then re-criminalise this behaviour? Why was conventional morality in, say, Belgium thought relevant to conventional morality in Northern Ireland?

The second ‘common complaint’ that Professor Sands identifies is that the United Kingdom courts have a subordinate relation to the Strasbourg court. As Professor Sands notes however, this is just wrong. The United Kingdom courts are not compelled by the Human Rights Act to follow the European Court of Human Rights in the interpretation of Convention Rights and have on occasion flatly refused to do so.

It is not however correct to say that “[b]efore [2000] the Convention was an unincorporated treaty that produced no legal effects, as such, in the UK law, and courts could not take into account judgments of the Strasbourg Court” [3]. The United Kingdom courts have always sought to give judgments in a way that ensures that the United Kingdom is not placed in breach of international law. Before the coming into force of the Human Rights Act this entailed that they attempted to ensure that the United Kingdom did not violate the European Convention on Human Rights, and that our law was compatible with decisions of the European Court of Human Rights. Murray Hunt wrote a book (which was almost immediately obsolete) on how the United Kingdom courts had taken into account the Strasbourg court’s judgments prior to the Human Rights Act.

The third criticism Professor Sands identifies as having been made by someone is that human rights law is an “an alien species that taints the purity of the common law.” The most obvious riposte to this kind of argument would be that it is high-sounding nationalist nonsense that nobody should take seriously. Why on earth should anyone worry about the purity of the common law?

Unfortunately, Professor Sands does not take this option, but instead engages in some romanticism about the common law of his own. So, we are told that the common law has “long proved to be a bountiful source of fundamental rights.” This is not very persuasive. The common law has no fundamental restrictions on Parliamentary sovereignty. The common law cannot prevent Parliament from abolishing, say, marriage or freedom of assembly. Those who wish to defend the Human Rights Act should have the courage of their convictions, and not seek to argue that it is all to be found hidden in the common law or (even worse) Magna Carta.

The Future
Professor Sands presents three reasons for retaining the Human Rights Act and against its replacement by a ‘British Bill of Rights’. None are compelling.

First it is said that there is popular support in favour of the status quo. It must be very doubtful indeed however whether the vast majority of people have even the vaguest idea of what the Human Rights Act does.

Second it is said that the devolution settlement bars the way to any change. I have written about my doubts regarding this claim elsewhere.

Third, it is said that the abolition of the Human Rights Act would bring to an end the dialogue between the UK courts and the ECtHR, and thereby end the influence we have over that court, whose judgments would still be binding on the United Kingdom as a matter of international law. Although I would not accept that the repeal of the Human Rights Act would end the necessity of UK courts to consider ECtHR decisions, no doubt the need to do so would be much diminished. As a matter of brute politics however, it may be doubted whether this is much of a concern. The number of occasions on which the United Kingdom courts have through dialogue changed the opinion of the ECtHR seems to be confined to an example of one.

The first reason for the Act, if it is defensible, must be that it is substantively a good thing in furthering justice. This is an issue to which I shall return in my next post, and the answer is not self evident. If we are going to persuade the doubters as to the benefits of the Human Rights Act it is this, and the actual arguments of those who disagree, with which we must engage.

Online Abuse

Today we have the latest of a long line of cases brought under section 127 Communications Act 2003. Bahar Mustafa, a student union diversity officer at Goldsmiths, University of London, has been charged following tweeting the hashtag #killallwhitemen. This follows earlier cases, enlighteningly discussed here, of homophobic tweets about the Olympic diver Tom Daley, ill considered terrorism jokes tweeted from Heathrow, and a facebook page apparently glorifying the death of a policeman. This post is not about any specific case, but about the offence as framed and whether it should exist at all.

Anyone who has spent any time on twitter will have come across appalling misogyny, anti-semitism, and racism. For me, it has been an eye-opening experience as to how many inadequate people there are. In such an atmosphere it is hard to cling to liberal principles, but we must.

If something I say or do offends or upsets you I do not thereby wrong you in a way that merits criminalisation. Your ability to lead your life is not in any way set back. All of us sometimes make other people upset in our daily interactions. The line meriting state sanction is not thereby crossed. That I have made you miserable is not a good enough reason to punish me.

That does not mean that no criminalisation of speech is ever justified. If I threaten to kill you, or say I am going to punch you, if you believe me you suffer a direct and immediate inhibition of your freedom of action. Some conduct may, if taken in isolation, not necessarily have such an impact, but if repeated overtime may do so. Stalking someone, lying in wait for them so that you are there everyday they leave their home so that they feel inhibited from going about their life, is an example, and is now a crime under the Protection from Harassment Act.

In some case, we criminalise words not because of the offence they may thereby cause to the person addressed, but because of the damage to the public good they can cause. The racial hatred offence contained in the Public Order Act is our most important example of this. We can imagine a different society than ours where such an offence would not be necessary.

The offence in the Communications Act 2003 seems to have no such basis in either the wrong to the victim or a fragile public good that requires protection:

(1)A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

If I shout disgusting grossly offensive abuse at you in a crowded meeting, I do not thereby commit any offence. Why should it be any different on twitter or facebook? Why should what applies offline not apply online? Yes, we should ask twitter to remove offensive posts, and block offensive posters. We should not, however, use the state’s power of criminal sanction to punish those who upset us. It does not matter that we know beyond peradventure that their words are as valueless as any possibly could be. Our reluctance to criminalise does not rest upon utilitarian concerns. We should not punish such words even if we thought it would result in a politer and more considerate world. On its own, that is not a strong enough reason to use the state to punish people.

We should not fetishize freedom of speech, as arguably the United States Supreme Court  has done. We should also not let our disgust at the offensive things others say online, or anywhere else, to lead us to conclude that that is sufficient justification for state sanction.