Review of the Year

 

Human Rights

Human Rights ‘reform’ is still on the agenda, and will remain so for the foreseeable future. We still await the Conservative proposals for a British Bill of Rights, and there is a lively campaign in defence of the Human Rights Act.

Although I support the Human Rights Act, I am very sceptical about some of the arguments given in its support. The place to start is the following post

https://spinninghugo.wordpress.com/2015/05/15/four-bad-arguments-and-a-good-one-for-the-human-rights-act/

which should be a rough and ready guide for spotting nonsense claims.

On human rights and devolution see

https://spinninghugo.wordpress.com/2015/09/23/human-rights-and-devolution/

For a critical review of a lecture by Professor Sands in defence of the Human Rights Act (useful because it contains many of the assumptions of those who want to defend the Act as a self evident good thing)

https://spinninghugo.wordpress.com/2015/10/23/against-human-rights-part-i/

A critical review of Professor Finnis’ criticisms of the European Convention

https://spinninghugo.wordpress.com/2015/11/05/against-human-rights-part-2/

And an examination of an area where the European Court of Human Rights went too far in extending jurisdictional application

https://spinninghugo.wordpress.com/2015/11/08/the-extra-territorial-impact-of-the-human-rights-act/

Indirectly concerning the same issue is this post on gun control and gay marriage in the United States. The thesis is that judges in interpreting open textured constitutional rights constraining the legislature should do so conservatively (and that SCOTUS does not behave in that way).

https://spinninghugo.wordpress.com/2015/06/28/how-to-be-a-judge/

Military Action in Syria

It is highly newsworthy if the UK government acts contrary to international law. Less exciting is that the UK’s actions against Da’esh in Syria are lawful. See

https://spinninghugo.wordpress.com/2015/09/10/drone-strikes-in-syria/

https://spinninghugo.wordpress.com/2015/11/26/unwilling-or-unable/

https://spinninghugo.wordpress.com/2015/12/07/are-we-at-war/

The Ministerial Code

An academic storm broke out about the changes to the ministerial code to remove mention of international law. The view adopted here was that the new version is better than the old, but could still be improved.

https://spinninghugo.wordpress.com/2015/10/24/the-ministerial-code-re-write/

https://spinninghugo.wordpress.com/2015/11/02/should-international-law-be-followed/

https://spinninghugo.wordpress.com/2015/12/10/does-international-law-bind-ministers/

Constitutional Conventions

The Blog started life back in April with a series of posts on the Fixed-term Parliaments Act and the Convention that the Prime Minister must resign if unable to command majority support in the Commons.

 

https://spinninghugo.wordpress.com/2015/04/29/the-fixed-term-parliament-sic-act-and-professor-colin-talbot/

https://spinninghugo.wordpress.com/2015/04/30/the-convention-on-resignation/

https://spinninghugo.wordpress.com/2015/05/01/conventions-are-they-part-of-the-constitution/

https://spinninghugo.wordpress.com/2015/05/03/the-snp-the-queens-speech-and-budgets/

https://spinninghugo.wordpress.com/2015/05/04/the-fixed-term-parliaments-act-and-professor-adam-tomkins/

https://spinninghugo.wordpress.com/2015/05/06/1924-and-all-that/

 

As we now know, the Tories won an outright majority in the May General Election and all of these posts are of no immediate interest. If, as currently looks very unlikely, there is a hung Parliament in 2020 the issues raised will become live again.

Labour Party Rules

A couple of posts on the Labour party rulebook. The first is now of only historic interest and concerned the dog’s dinner the party made of its leadership election process.

https://spinninghugo.wordpress.com/2015/08/25/labours-uncertain-election-process/

Still of relevance is the question of whether Jeremy Corbyn would need to obtain the nominations of MPs in order to be able to stand if challenged. I do not think this issue is clear cut.

https://spinninghugo.wordpress.com/2015/11/28/the-corbyn-coup/

Politeness

Finally a couple of posts on giving offence.

First a post claiming that the law goes too far in criminalising online abuse.

https://spinninghugo.wordpress.com/2015/10/06/online-abuse/

Second Ken Livingstone’s “apology” to Kevan Jones is used as vehicle for looking at what constitutes an apology.

https://spinninghugo.wordpress.com/2015/11/18/apologies/

 

 

 

Does International Law bind ministers?

Since my original post on the Ministerial Code re-write a small academic storm has broken out about the status of international law in UK domestic law. Pieces broadly adopting the position I adopt have been produced by Professor John Finnis and, Dr Richard Ekins and Professor Verdirame. Pieces adopting the opposite position have been given in reply by Professor George Letsas and,  Professor Dapo Akande and Dr Eirik Bjorge. There have been other more neutral posts by Mr Conor McCormick and Professor Mark Elliott.

 

I am wholly unconvinced by the arguments given that international law as such is binding upon ministers. The three errors that I see are as follows.

 

Error 1: International Law is a source of the common law, therefore it is part of our domestic legal order, therefore it is binding on ministers

There is no sovereign or Parliament that lays down the international law that binds states. The rules that there are have three sources.

 

The first is our reason. We know that it is wrong to attack other people. If you require proof of this proposition I suggest you return to reading twitter. This entails that it is wrong for one state to attack another. We know this before there is any custom or agreement establishing it. It just is.

 

This alone would not provide us with any clear set of rules. The second source, as with any primitive set of rules, is custom. We look to past behaviour as between states to determine what the rules are. Once past practice has established when one state is permitted to act, say in pre-emptive self defence, this acts as a guide for future behaviour.

 

Custom alone is never very satisfactory as a source of law. Customs possesses no mechanism for alteration, and may not cover new circumstances. In the modern era the third, and by far the most important source of international law is agreement. The UN Charter and the various treaties the UK has entered into are now the most significant source of the UK’s international legal obligations. Pacta sunt sevunda: agreements are to be kept.

 

In a way therefore, the moral force unpinning international law is stronger than for domestic law rules. We are bound by domestic law whether we like it or not. We have the rules imposed upon us externally by a sovereign legislature, who may or may not be benevolent. International law by contrast is either the minimal set of rules required for states to co-exist, given determinatio by custom, or rules that have been freely entered into by those states.

 

Professor Akande and Dr Bjorge rely upon an obiter dictum of Lord Mance for the proposition that

unless there is a good reason for not doing so, customary international law will be incorporated into the common law and applied by the court.

In fact, Lord Mance was careful to say no such thing. Indeed, it is impossible to imagine how such a statement could be true.

 

An example. The United Kingdom is under a duty under international law not to invade France. What would be the position under United Kingdom domestic law if it did so? Could France obtain redress before the United Kingdom courts either before or after the unlawful military intervention took place?

 

Of course not. It is just wrong to think that there is a 1:1 read across of international law into the United Kingdom domestic legal order. That would be not only inappropriate but meaningless. The impact of international law is indirect. The United Kingdom courts rightly seek to ensure that the United Kingdom is in compliance with its international legal obligations. If a domestic statute can be read in two ways, one reading of which will place the UK in breach of international law, and the other not, the latter will be adopted. Similarly, if the common law can be developed in such a way as to ensure that the United Kingdom is in compliance with its international legal obligations then the courts will do so. Prior to the Human Rights Act, the courts sought to expand the domestic law of torts to give people redress so as to ensure that the United Kingdom provided litigants with an adequate remedy as required by Article 13 of the European Convention.

 

It is flat wrong however to assert that international law is directly effective in the United Kingdom domestic legal order. In this respect it is quite different from European Union law. If it were there would be no need for the Human Rights Act as the rights under the Convention would have been incorporated into UK law as soon as agreed to by the United Kingdom without more ado.

 

Error 2: International law binds the Crown, the Crown acts through ministers, therefore international law binds ministers

The mistake here is one of agency law. The United Kingdom state has no physical existence. It is a legal construct with no more real presence in the world absent the law than Royal Dutch Shell plc. It can only act through real world human agents acting on its behalf. Precisely the same is true of companies that can only act through their directors.

 

The error Professor Dapo Akande and Dr Eirik Bjorge make is to suppose that because the acts of an agent (here a minister) are attributed to her principal, that this entails that the duties of the principal attach to the agent. The latter proposition does not follow from the former.

 

If a principal, such as a company or a state, is subject to a legal duty, does that entail that the agent who acts for it is bound by the same duty? It does not. The duty is on the principal, not the agent. Just as companies are bound by the contracts they enter into, and not their directors, so the United Kingdom is bound by the agreements it enters into, and its ministers are not.

 

The parties bound by agreements are the parties to those agreements. The United Kingdom is bound by the agreements it enters into, but third parties, however eminent they may be, are not.

 

Error 3: Where domestic law is inconsistent with international law the minister must follow the former, therefore domestic law has hierarchical superiority.

Commentators agree that in a case of direct conflict, a minister must follow UK domestic law and not international law. For those who think international law is somehow automatically incorporated tout court into UK domestic law this can only be explained by some kind of trumping one by the other.

 

This is wrong. International law binds states, not individuals. Individuals are bound by the law within their own domestic legal order. There is no hierarchy, anymore than there is a hierarchy between the laws of Germany and France. The legal persons bound by these rules differs.

Are we at war?

Today we make war on many things. Obesity. Drugs. Want. Terror. In none of these cases is it an abuse of language to talk of a state making “war” upon an abstract thing.

 

In international law, however, “war” has a particular meaning.  It is “a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.” Are we (and other States) at war with Da’esh?

 

No, we are not. Da’esh, ISIS, ISIL or IS is not a State, and so we cannot be in a state of war with it. (That Da’esh self styles itself a ‘State’ does not make it one. Actual States have enough self-confidence not to label themselves as such. Jamaica is just Jamaica, Portugal is just Portugal, and so on.)

 

Today, the UN Charter prohibits all use of force in another state that is not in self defence, carried out with Security Council authorisation, or with that other state’s consent. The operative phrase here is ‘use of force’ not ‘war’. In the modern era ‘war’itself has diminished legal significance.

 

When President Hollande declared that France is ‘at war’ with Da’esh, and President Obama stated that the United States is ‘at war’  with terrorists, they are not abusing language. However, they may be criticised for conferring a legitimacy upon Da’esh that they do not possess, by implying that they are a State. It is to the United Kingdom government’s credit that the motion in favour of military action in Syria, and the Prime Minister’s speech in support of it, did not refer to ‘war’.

 

Whether we are at war is legally significant within the United States. Article I, Section 8, Clause 11 of the United States Constitution states

The Congress shall have power…

To declare war.

The President, by contrast, is given the power to direct the military under Article II, section 2 as Commander in Chief of the armed forces.

 

It is at least arguable that although Congress has been given the power to declare war, that does not require Congressional authorisation for all uses of force by the military, either within the United States or abroad. If a friendly state seeks United States military support in suppressing criminals, that does not require any declaration of war. Congress has been given a particular power in international affairs. The choice over the momentous decision of whether to go to war with another State. Luckily we are not. Although Congress passed the War Powers Resolution in 1973, which requires that the President communicate to Congress the committal of troops within 48 hours, and the removal of all troops after 60 days if Congress has not granted an extension, on its own this cannot have altered the Constitutional division of power between legislature and executive.

 

That Congress’ has the exclusive power to declare war, but not the exclusive power to use force, should be obvious from the history of the United States. When Japan attacked the United States at Pearl Harbor the use of force in defence did not require Congressional approval. If President Roosevelt had sought to declare war on Japan or Germany in advance of attack he could not unilaterally have done so.

 

Regardless of the above, it would be politically appropriate if Congress debated the military action in Syria and Iraq as the UK Parliament has done. That it has not, because of the  fears of the divisions this would reveal, is not to its credit.