I had thought that my defence of the change to the ministerial code had been robustly expressed, until I read Professor Finnis on the same topic. Finnis makes many of the same points that I do in arguing that public international law, as such, is not binding on ministers. However, in two ways he seems to go further. I shall reject both. They are controversial and related.
The first claim is that treaty obligations cannot alter the legal duties of ministers, which are entirely to be found within our domestic legal order.
It is entirely true, as I also argued, that international treaty obligations are binding upon the states entering into them, and not upon individuals within those states however eminent. It is true that such agreed rules may be incorporated by Parliament into UK domestic law, as was most (in)famously done by the Human Rights Act and the European Convention on Human Rights. However, it is vitally important to remember that that must be done before such rules can be applicable within our domestic legal order. It is ironic that those attacking the change to the ministerial code are much the same people who are loudest in calling for the retention of the Human Rights Act. The latter was necessary because the ministerial code’s assumptions about international law were wrong.
However, Finnis claims that the duty on ministers to seek to ensure that the UK complies with international law is not a legal one at all, but
“morally grounded UK policy of complying with its treaty obligations, of encouraging other states to do likewise, and of supporting the due extension of customary international law and appropriate international institutions.”
I do not think that is correct. That is because I think ministers are under a legal duty to act in the best interests of the United Kingdom. When ministers exercise the various powers that are conferred upon them because of their status they are not free to exercise them in any way that they see fit. They must exercise this power for a proper purpose, and, at a high level of generality, in the best interests of the United Kingdom.
If ministers do fail to act properly they are not necessarily subject to sanctions. However, as we shall see, the absence of a sanction for breach is not proof of the non-existence of a duty. Rather, the more usual consequence of their failure to act as they ought is that their purported exercise of power is invalid.
In Australia it has become popular to describe this duty to act in the state’s best interests as being a public ‘fiduciary duty’, by analogy with the same idea as it occurs in private law with regard to, for example the duties of a director to his company. This seems correct, and to capture the idea that the duty of ministers to act in the interests of the United Kingdom are recognised by law.
Once we accept that ministers are under a legal duty to act in the United Kingdom’s interests, and that it is in the United Kingdom’s interests to (almost always) comply with international law, then the United Kingdom’s entering into treaty obligations does alter how ministers ought to behave, as a matter of law.
Second, Finnis argues that “international law remains, like it or not, a defective example of law.” In order to understand this claim it is important to know his views (which I find persuasive) as to the nature of law. Finnis is not here claiming that international law is not law at all, nor is he claiming that signatory states are not obliged to comply with it. Rather he is arguing that international law lacks some of the features that core or central examples of law possess. In particular, and most obviously, they (often or usually) lack either any sanction or enforcement measure where the rules are broken, and it is (common) for there to be no adequate adjudication system for determining their meaning. Just as lex iniusta non est lex, is properly understood as a claim that an unjust law lacks a feature that law ought to possess, but if it does not may still be capable of being described as ‘law’, a law without adequate enforcement mechanism is still law.
This is true, but it is an argument that points to the opposite conclusion from the one Finnis seeks to draw. Without an enforcement mechanism, the only way the United Kingdom has of encouraging others to comply with their treaty obligations is for us to comply with ours. Again, ironically, the absence of a strong regime of sanctions for breach means that the United Kingdom has a stronger, not weaker, reason for compliance.
We might by analogy look at the law of gaming as it was in the United Kingdom (and still is elsewhere). Gaming contracts were unenforceable. This meant that in principle if a punter won an enormous long odds bet, there was no legal mechanism by which the bookmaker could be induced to pay out.
Why then did bookmakers routinely cough up? The answer is that it was in their interests to do so. Any bookmaker who failed to pay out would immediately have his commercial reputation destroyed, ensuring that no business was ever done with him again. This meant that bookmakers were extremely careful to (over) comply with their obligations. If we compare their trade with that of insurance companies, who are essentially in the same business but whose contracts have always been legally enforceable, we find that the absence of a legal sanction for breach gave rise to higher compliance.
If the system of international law is not to be undermined, the United Kingdom must comply with its obligations. We have to pay out, even on losing deals.
What Finnis is most obviously right about is the well-meaning intellectual sloppiness of the critics of change. He delivers similar blows in relation to human rights, and I shall seek to return to the arguments that those who wish to argue against him should be making, but largely are not.