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
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.
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.