• Accessibility
• Email alerts
• RSS feeds
• Contact us

The roles of the Lord Chancellor and the Law Officers Contents

---

Chapter 2: The rule of law

31.The rule of law is a bedrock of constitutional democracy. It is essential to promote good and stable governance and to protect the citizen from an overmighty state. So central is the rule of law to the operation of the UK constitution that the first report of this Committee identified it as one of its five basic tenets.38 Indeed, the rule of law should be a central feature of Cabinet government. It is the only constitutional concept with a presence in Cabinet consideration supported by statute, courtesy of the Lord Chancellor’s duties under the CRA.

32.It became clear during our inquiry that the rule of law was the common thread that linked the distinct constitutional positions of the Lord Chancellor and the Law Officers. Those offices have a special responsibility for its maintenance, and perform complementary and overlapping roles to that end.

What is the rule of law?

33.The CRA put into statute the Lord Chancellor’s “existing constitutional role in relation to” the rule of law and required the Lord Chancellor to swear an oath to “respect” it. Those provisions, added to the Bill by amendment, were subject to extensive discussion during the Bill’s passage. The select committee to which the Bill was committed concluded that “it was desirable for the bill to make reference to the rule of law” and that the Lord Chancellor “has and should continue to have a special role in relation to the rule of law within the Cabinet.”39 What is now section 1 of the Act was added by Government amendment at third reading in the House of Lords.

34.The resulting Act does not define the principle and the level of discussion needed to arrive at a suitable wording for section 1 perhaps hints at difficulties with the concept. Lord Falconer of Thoroton, then Lord Chancellor and the minister in charge of the bill, expressed the Government’s basis for concern over certain proposed amendments:

“[T]he rule of law denotes a state of affairs in which, in the event of conflict, the law has paramount force and effect in relation to any persons, institutions, interests, values, customs, practices, and so forth. It is not a directly applicable legal principle but a description of the status that the law as a whole should be accorded within our constitutional system.”40

And:

“the content of the principle of the rule of law is controversial, with opposing views having been expressed over time by judges, academics, politicians, and practitioners.”41

35.The Lord Chancellor, Rt Hon Dominic Raab MP, thought the concept not “reducible to a simple test or to a description of a duty” and that it was understandable that it was not defined in the CRA.42

36.One short expression of the concept is that provided by Lord Denning in Gouriet: “Be you ever so high, the law is above you.”43 We asked our witnesses whether they could succinctly define the rule of law. Some described the concept as “a contested and uncertain notion”44 or a “protean”45 or “somewhat nebulous concept”.46 A selection of their suggested definitions is shown in the box below, but many of our witnesses cited the work of Lord Bingham of Cornhill as the best recent expression of the concept.47

Box 1: Suggested definitions of “the rule of law”

Rt Hon Dominic Grieve KC, Attorney General 2010–14: “the system of rules that we have in our country to ensure that the decisions we make and the way the Executive and, ultimately, individuals, organisations and institutions behave are subject to the law—both our own domestic law and international law—and that the processes by which the law can be applied work.48 Rt Hon David Gauke, Lord Chancellor 2018–19: “the … sense that the law applies equally to everyone, that no one is above the law and, in particular, that the Government must comply with the law.”49 Lord Keen of Elie KC, Advocate General for Scotland 2015–20: “that all institutions and parties should be equal before the law and subject to the law, that the law should be publicly available, and they should be capable of ascertaining what their rights and obligations are thereunder … It extends not just to domestic law but to the sphere of international law.”50 Lord Mackay of Clashfern, Lord Advocate 1979–84, Lord of Appeal in Ordinary 1985–87, Lord Chancellor 1987–97: “if an Act applies to a person, in the circumstances that prevail he or she is obliged to follow that rule, whatever it is, but if there is no such rule the person is free to do what he or she likes.”51 Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales 2013–17: “fundamental to the rule of law is the complete constitutional independence of the judiciary.”52

Lord Bingham’s definition

37.In a 2006 lecture, prompted by the reference to the rule of law in the 2005 Act, Lord Bingham sought to define the concept, while acknowledging that “the meaning of the concept has to some extent evolved over time and is no doubt likely to continue to do so.”53 His formulation was that:

“all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”54

38.Lord Bingham expanded on this definition with eight principles, which he discussed in greater length in his subsequent book, The Rule of Law.55

Box 2: Lord Bingham’s eight principles

1.The accessibility of the law: the law must be accessible and so far as possible intelligible, clear and predictable. 2.Law not discretion: questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. 3.Equality before the law: the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. 4.The exercise of power: ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. 5.Human rights: the law must afford adequate protection of fundamental human rights. 6.Dispute resolution: means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. 7.A fair trial: adjudicative procedures provided by the state should be fair. 8.The rule of law in the international legal order: the rule of law requires compliance by the state with its obligations in international law as in national law.

Source: Lord Bingham of Cornhill, Speech on the Rule of Law at the Sixth Sir David Williams Lecture, 16 November 2006: https://www.cpl.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www.cpl.law.cam.ac.uk/legacy/Media/THE%20RULE%20OF%20LAW%202006.pdf [accessed 21 December 2022].

39.Principles 3 and 5 in particular point to an important element of the rule of law: that it is not simply rule by law. The law itself must conform with a fundamental concept of justice. As Lord Bingham acknowledged, it would be difficult to regard plainly unjust actions, even in accordance with “detailed laws duly enacted and scrupulously observed”56 as within the rule of law. In his evidence to us, Lord Judge, former Lord Chief Justice and Head of the Judiciary of England and Wales (2008–13), suggested that “Apartheid South Africa was ruled by law. It was perfectly constitutional and perfectly normal. I do not think any of us would think that that was the rule of law.”57

40.Our Committee’s 2014 report concluded that “the rule of law extends beyond judicial independence and compliance with domestic and international law. It includes the tenet that the Government should seek to govern in accordance with constitutional principles, as well as the letter of the law.”58 The Government agreed.59 In our view the rule of law is fundamental to the exercise of democratic state power.

41.It is fundamental to our constitution that the Government acts according to the rule of law. While there is no concise, enduring and conclusive definition of the concept, its fundamental tenets are well understood and set out in Lord Bingham’s exposition. What is critical is that ministers are mindful of the concept, understand its key principles and act in accordance with them, and consider the rule of law to have primacy over political expediency. This is especially relevant to those with distinct rule of law functions such as the Lord Chancellor and the Law Officers.

International law

42.As discussed above, adherence to the rule of law includes compliance by the state with its international law obligations. This conception of the rule of law has been politically resonant in recent years in the context of the Government’s attempts to renegotiate the Northern Ireland Protocol.60 Part 5 of the United Kingdom Internal Market Bill in session 2019–21 sought, and the Northern Ireland Protocol Bill in session 2022–23 seeks, to change UK domestic law in order to alter the operation of the Protocol. In respect of the former bill, the then Secretary of State for Northern Ireland (and briefly Lord Chancellor in 2022), Rt Hon Brandon Lewis MP, told the House of Commons that the bill broke “international law in a very specific and limited way.”61 We reported on that bill in 2020 and criticised the Government’s approach in inviting Parliament to legislate to authorise a breach of international obligations, the constitutionality of Parliament doing so and the Government’s justification in terms of the United Kingdom’s “dualist” system of implementing international law. We concluded:

“Adherence to the rule of law is not negotiable. The Government’s assurances do not alter the fact that the Bill authorises conscious and deliberate breaches of the UK’s obligations under international law. A government that brandishes the threat of breaching its international obligations, even in ‘specific and limited’ circumstances, is one that undermines the rule of law.”62

43.The United Kingdom Internal Market Bill was significant not only because it would have allowed the Government to breach international law but because the Government acknowledged the fact. The current Northern Ireland Protocol Bill has similar aims in that it would “disapply elements of the Northern Ireland Protocol, and provide delegated powers to Ministers to make new law in connection with the Northern Ireland Protocol”63 but the Government has not in this case acknowledged any breach of international law. Instead, the Government’s legal position is that the actions envisaged in the bill are legally justified through the international law “doctrine of necessity”.64

44.We reported on the Northern Ireland Protocol Bill in October 2022. We concluded:

• the Bill clearly breached the UK’s international obligations;65
• the Government’s reliance on the doctrine of necessity was no justification for introducing legislation that disapplies those obligations;66
• “Legislation that puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments”;67 and
• enabling ministers to make secondary legislation in breach of the UK’s international obligations is even less constitutionally acceptable than doing so through primary legislation.68

45.The Government has now twice knowingly introduced legislation in Parliament which would breach the UK’s international obligations, contravening Lord Bingham’s principle that “the rule of law requires compliance by the state with its obligations in international law.” In the case of Part 5 of the United Kingdom Internal Market Bill it admitted doing so. In the case of the Northern Ireland Protocol Bill, the Government has failed to produce a credible legal justification for doing so.

46.These are not the only examples. In addition to the two bills discussed above, the bill for the Overseas Operations (Service Personnel and Veterans) Act 2021 included provision which would have created a presumption against prosecution of service veterans for offences under international law including war crimes and genocide. The bill was amended in the House of Lords and the resulting Act did not include this provision.

47.Below, we explore the relationship between domestic and international law, and the scope for states to depart from their international obligations, in order to map the meaning of “rule of law” and the Lord Chancellor’s and Law Officers’ responsibilities toward it.

Domestic v international law

48.The rule of law requires governments to comply with domestic and international law. The situation with domestic law is relatively straightforward: the legality of government actions can be tested in the courts and a government wishing to pursue policies clearly not in accordance with domestic law can introduce legislation to change it. We examine in chapter 3 the extent to which ministers can justifiably pursue legally uncertain courses of action.

49.The nature and application of international law is less clear. Lord Keen of Elie described it as “more fluid and complex than the operation of domestic law.”69 It comprises rules established by custom, treaties or other agreements, some of which are incorporated into UK domestic law and some of which are not. The manner in which international law applies to individuals, organisations, public authorities and states is therefore complicated, though, as noted by Lord Bingham, the state must comply with its international obligations.70

50.In its legal analysis of the United Kingdom Internal Market Bill, the Government argued that the dualist nature of UK law meant “treaty obligations only become binding to the extent that they are enshrined in domestic legislation” and, citing parliamentary sovereignty, stated that as a matter of domestic law there was nothing unlawful in Parliament passing legislation that was in breach of the UK’s obligations under international law.71 In our report on the Bill, we agreed that, purely as a statement of domestic law, Parliament was able to enact legislation which violated the UK’s international obligations, but disagreed that it was constitutionally desirable or appropriate to do so. We also disagreed with the Government’s contention that treaties became binding on it only when incorporated as part of domestic law.72 Whatever Parliament decides to do does not affect whether the state is in breach of international law.

51.The Supreme Court’s judgment in the first Miller case, which was cited by the Government in its legal position on the United Kingdom Internal Market Bill, considered the place of parliamentary sovereignty in the dualist system.73 The lead judgment said: “It can thus fairly be said that the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers.”74 The judgment quoted Professor Campbell McLachlan’s summary of the position:

“If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged.”75

52.Parliamentary sovereignty under the dualist system ensures that individual rights and responsibilities cannot be affected by treaties without the agreement of Parliament. The courts are bound to apply the law as it exists domestically until any treaty is incorporated into domestic law. Certain treaties, which apply solely on the international plane, require ratification following the procedures in the Constitutional Reform and Governance Act 2010 (CRAG).76

53.It is therefore possible for UK domestic law to diverge from obligations agreed by the Government under an international treaty, and ratified following the CRAG procedures. Some treaties will have been ratified but not incorporated into domestic law. And parliamentary sovereignty means that Parliament could legislate to ensure that domestic law differed from the requirements of a treaty.

54.Parliament having enacted legislation that is not compliant with the UK’s international obligations, the courts are bound to apply that law. Lord Reed of Allermuir, President of the Supreme Court, told us in 2021 that, in the case of the proposed provisions in Part 5 of the United Kingdom Internal Market Bill that would have breached the protocol, “the constitutional rule is that the later statute prevails over the earlier one, so we would not be able to give effect to the Northern Ireland Protocol in breach of a statute that deprived it of effect.”77

55.He expanded on this in evidence to us in 2022, citing the Supreme Court’s July 2021 judgment on the application of the ‘two-child’ limit on tax credit.78 Part of that case concerned whether the ‘two-child’ policy breached the UK’s obligations under the United Nations Convention on the Rights of the Child, a convention that has been ratified by the UK but not incorporated by Parliament into domestic law. Lord Reed explained:

“We laid down in our judgment very clear guidance on how we apply Acts of Parliament. It is an aspect of parliamentary supremacy. It is the Government, of course, who enter into treaties; the Government make international law by agreeing with other Governments. According to parliamentary sovereignty, the Government cannot alter domestic rights and obligations at their own hand. The Government has to go through Parliament and get Parliament to legislate, and that is why the Act of Parliament is essential and the treaty does not, by itself, [with limited exceptions] alter the law at all.”79

56.Lord Thomas of Cwmgiedd agreed that the courts had a duty wholly to have regard for what Parliament has agreed in bringing a treaty into domestic law, but drew a distinction between “the obligations of the state when treaties are made, which are the responsibility of Parliament and the Executive, and the obligations of the courts.”80 Lord Mackay of Clashfern made a similar point: “a treaty that has been signed by Her Majesty’s Government and has come into force will be binding on Her Majesty’s Government. It does not follow that it will be a law in our country, unless and until it has been made a statute in some shape or form here.”81

57.The courts will apply the law that Parliament has made, but as Lord Thomas and Lord Mackay suggest, the duty created by a treaty rests on the Government, which must ensure as far as it is able that domestic law matches international obligations. Dominic Grieve expressed this pithily: “the duty is not on what Parliament does; the duty is on the Executive, and if the Executive connive to use Parliament in that way, they are breaching their international treaty obligations from the moment they publish the offensive Bill that is going to do that.”82

58.Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law. It ensures that rights and obligations in domestic law are not created or altered through Government action in agreeing a treaty without parliamentary approval.

59.A treaty, once agreed, binds the state. It is the responsibility of the Government, as the state’s international representative, to ensure that agreements entered into internationally are respected. While it is conceivable that Parliament would decline to give effect to an attempt by the executive to apply a treaty, a Government commanding the confidence of the House of Commons should normally be able to ensure that any necessary domestic legislation is passed. Nonetheless the responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the UK’s international obligations.

Is it ever permissible for states to ignore international obligations?

60.Some witnesses drew attention to earlier occasions on which the UK had breached its international obligations. Mr Yuan Yi Zhu, Associate Member, Pembroke College, University of Oxford, and DPhil candidate in International Relations, Nuffield College, University of Oxford, cited, among other examples, Prime Minister Asquith’s comments to the House of Commons in 1914 in the context of a legally dubious blockade of German shipping that “we are not going to allow our efforts to be strangled in a network of juridical niceties.”83 Others discussed the controversy over the legal advice on the Suez invasion in 1956.84 In evidence to us on the United Kingdom Internal Market Bill, Sir Stephen Laws KC, First Parliamentary Counsel 2006–12, drew attention to two occasions on which a minister had been unable to give a statement under section 19(1)(a) of the Human Rights Act 1998.85

61.The first two examples above were considered by Lord Bingham in his analysis. He considered, by comparing procedures followed in preparation for the UK’s military involvement in Iraq in 2003 and those followed at the time of Suez that “over that period the rule of law has gained ground in this country and the law of the jungle lost it.”86 When we put the Asquith quotation to Sir Jonathan Jones, former Treasury Solicitor, and Senior Consultant on Public and Constitutional Law, Linklaters LLP, he countered that “one person’s legal nicety is another person’s rule of law.”87

Section 19 of the Human Rights Act 1998

62.One of the two examples of section 19 statements cited by Sir Stephen Laws was on the House of Lords Reform Bill in 2012. Then Deputy Prime Minister, Nick Clegg MP, was unable to provide a section 19(1)(a) statement because provision in the bill on the franchise for elections to the House of Lords might have contravened the European Court of Human Rights’ (ECtHR) finding in the Hirst case.88

63.The Hirst situation was an example of incompatibility between domestic UK law and the state’s international obligation to enforce a finding of the ECtHR—one which was unresolved through successive Labour, coalition and Conservative administrations between 2005 and 2017. Parliament has never voted on legislation to bring the UK into compliance with the Hirst ruling,89 but in 2011 the House of Commons agreed a resolution that:

“this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.”90

64.The motion was agreed by 234 votes to 22. Dominic Grieve, Attorney General at the time, told us “I took the view that [the resolution] was actually rather helpful, because the European Court of Human Rights kept insisting that the UK Parliament had never considered this”. In light of the outstanding judgment against the UK, he advised the Prime Minister that the Government “could not be seen to be supporting that Motion, and indeed they abstained on it.”91 Government backbenchers were also not subject to a whip.92

65.This highlights the interrelation between international obligations on the state, the sovereignty of Parliament and the role of the executive. The House of Commons had expressed opposition to fulfilling the UK’s obligations (to an extent asserting Parliament’s sovereignty on the matter) but the Government had not, formally,93 taken any position in breach of its obligations. In debate on the 2011 resolution, Dominic Grieve summarised the Government’s then understanding of its position:

“The Queen in Parliament is sovereign, and that includes the ability of both Chambers to legislate and to enact primary legislation. We are dealing with an international treaty. That international treaty was signed by the United Kingdom Government under the royal prerogative and was laid before both Houses of Parliament for their consideration. The rule that has been long established in this country is that once a treaty has been ratified by the United Kingdom Government through that process, the Government and their Ministers consider themselves to be bound by its terms … the ministerial code specifically says that that is the case”.94

66.It was never tested but, conceivably, Parliament could have asserted its sovereignty further by rejecting any proposed legislation to rectify the divergence on prisoner voting. In such a situation the Government would have done its best to fulfil the state’s obligations, but the UK would nonetheless have remained in breach. The situation was uncomfortable for successive Governments. Rt Hon Jack Straw, Lord Chancellor 2007–2010, told us of the “difficulty that all of us who were Minister in charge of the prison service faced in respect of the Hirst decision” and suggested that the duty under the Ministerial Code to comply with international law should be tempered where there were “serious practical obstacles to following a specific obligation.”95 Asked if there were any circumstances that justified a breach of obligations, Lord Clarke of Nottingham KC, former Lord Chancellor and Secretary of State for Justice (2010–12), replied:

“No, there are not, really, but prisoner voting was a particular political issue. When we talk about the European Union and the European court, at any given time you will find that there are quite a number of member states that have not got round to trying to produce, back home, an extremely unpopular statute that they are not likely to get passed”.96

67.In the event, Rt Hon David Lidington MP, as Lord Chancellor in 2017, was able to resolve the issue administratively, without requiring a vote in Parliament.97

68.In our report on the United Kingdom Internal Market Bill we rejected the arguments that past breaches of the UK’s international obligations justified current or future ones, or that “a ministerial refusal, due to legal uncertainty” to issue a statement under section 19(a) of the Human Rights Act 1998 was analogous to the acknowledged breach in the case of Part 5 of the United Kingdom Internal Market Bill.98

69.The wording of section 19 crystallises the constitutional principle that Parliament can legislate in contravention of international law, but that theoretical position is not in doubt. While Jack Straw, who as Home Secretary took the Human Rights Bill through the House of Commons, told us that “we were very clear in agreeing that we should not say every piece of legislation has to be compliant in advance,”99 the Government’s Guide to Making Legislation explains that making a statement under section 19(1)(b) does not constitute “a positive statement that the bill is incompatible.”100 During debate on the Human Rights Bill both Jack Straw and Lord Williams of Mostyn, the minister in the Lords, described the process under section 19 as intended to enhance scrutiny of the human rights implications of a bill.101

70.The Human Rights Act 1998 balances adherence to the European Convention on Human Rights and parliamentary freedom to legislate (or not). While accommodating parliamentary sovereignty, the Act includes remedies for potential breaches. Section 3 of the Act requires the courts to interpret legislation compatibly with Convention rights so far as it is possible to do so. Section 4 enables the courts to make a declaration of incompatibility in cases where it is unable to interpret legislation as being compatible. Section 10 provides a procedure for a minister to make, and Parliament if it so wishes to approve, a remedial order rectifying the incompatibility. The Act does not justify the wilful introduction of legislation known to be in breach of international law.

Ministerial Code and international law

71.The Ministerial Code places a duty on ministers to comply with the law.102 As we noted in our 2020 report, pre-2015 versions of the Ministerial Code explicitly included an “overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice.”103 We also noted a statement by Lord Faulks KC, then Minister of State in the Ministry of Justice, that despite the omission of explicit reference to international law, ministers were obliged to follow it104 and a subsequent case in 2018 in which the Court of Appeal found that the new wording “involved no change in substance” to the requirement for ministers to comply with international law and treaty obligations.105

72.In our report on the United Kingdom Internal Market Bill, we concluded that the use of the proposed ministerial powers under that bill to modify or disapply the Northern Ireland Protocol would “represent a breach by Ministers of their duty to comply with the law, as set out in the Cabinet Manual and the Ministerial Code.”106 We also concluded:

“The Government should set out how, if at all, it plans to amend the Ministerial Code to clarify ministers’ duties regarding the rule of law and adherence to international law and treaty obligations.”107

73.We made similar conclusions in our report on the Northern Ireland Protocol Bill:

“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments. The Government’s reliance on the doctrine of necessity does not justify introducing this Bill. This raises the question of whether ministers might be thought to have contravened their obligation under the Ministerial Code to comply with the law, including international law.”108

And:

“the exercise of a regulation-making power, such as that in clause 15(2), which empowers the minister to use delegated legislation to disapply international law, risks placing ministers in breach of their obligation under the Ministerial Code to comply with the law, including international law.”109

74.The conclusions cover three separate scenarios:

• the ministerial use of a power in a way that the Government had acknowledged would breach international law;
• the introduction of a bill where either its introduction or its enactment potentially breached international law (but this had not been acknowledged); and
• the use of ministerial powers in a way that potentially breached international law (also unacknowledged by the Government).

75.We thought it was important to explore the wider context of the duties under the Code and how ministers might be held accountable for them.

76.The Government’s response to our 2020 report stated that the Ministerial Code “sets guidance for Ministers about how the Prime Minister expects them to conduct themselves. It does not itself create legal obligations but refers to the overarching duty on Ministers to comply with the law.” 110 This reflects the Court of Appeal’s finding in the GHRC case:

“the 2010 Code neither set out nor imposed any separate or free-standing duty on Ministers in relation to compliance with the law, domestic or international. It referred to the ‘overarching duty’ which Ministers already owed, against which the Code is to be read. The Code did not create new or different duties; it simply referenced existing duties outside the Code.”111

77.The Code is therefore not itself a source of law, nor is it the source of the duty on ministers to comply with the law. But it is an important constitutional document expressing the sitting Prime Minister’s requirements of his or her ministers. The Court of Appeal’s judgment affirmed that the overarching duty on ministers—having its source beyond the Code—persisted irrespective of the change in wording in the 2015 version. The Code itself states that it is to be read not just against the duty to comply with the law but with a duty to “protect the integrity of public life” and an expectation to observe the Nolan principles.112

78.The Code is issued in the name of the Prime Minister, who is solely responsible for its enforcement.113 Nonetheless, as the foreword to the 2022 Code states, the Prime Minister’s “accountability is to Parliament and, via the ballot box, to the British people”114—the Code is therefore a distillation of the duties of ministers, including the Prime Minister, against which parliamentarians and the general public are able to judge their conduct, independently of any formal adjudication from the Prime Minister.

79.The Code clearly applies to the personal conduct of ministers, including the Prime Minister. As the then Independent Adviser on Ministerial Interests, Lord Geidt, told the House of Commons Public Administration and Constitutional Affairs Committee: “it’s reasonable to say that, perhaps a fixed penalty notice and a prime minister paying for it, may have constituted not meeting the overarching duty under the ministerial code, of complying with the law.”115 Likewise, the Code applies to irregularities in the general conduct of ministers in performing their official functions, as was exemplified by the departure of Suella Braverman from the office of Home Secretary on 19 October 2022.116 What is less clear is how it should apply to the formulation and agreement of policy, including proposed legislation, where the content of the policy itself is at issue.

80.In our reports on the United Kingdom Internal Market Bill and the Northern Ireland Protocol Bill we noted the argument that merely making117 each of those bills could itself be a breach of article 5 of the Withdrawal Agreement. In the former, we concluded that it was “an open question of public international law” whether that was the case.118 Nonetheless, the potential that making a bill could constitute a breach raises a question about how ministerial duties under the Code are to apply in such a situation.

81.Collective Cabinet responsibility requires that much policy, including the form of proposed legislation, is agreed by the Government as a whole. The Government’s Guide to Making Legislation states:

“Collective agreement for legislation must be obtained from the [Parliamentary Business and Legislation] Committee and other relevant Cabinet committees. Agreement is needed to announce the intention to legislate to a certain timescale or in a specific vehicle, for the detailed legislative proposals and bills before introduction and for government tabled or supported amendments during parliamentary passage.”119

82.A system of “triage” exists by which a sub-group of the Parliamentary Business and Legislation Committee clears statutory instruments to be laid before Parliament.120

83.The introduction of a bill, or the laying of a statutory instrument, can therefore be seen as a collective action of the Government as a whole. It is difficult to envisage how, in strict terms, an individual minister can be held accountable by the Prime Minister under the terms of the Code for such an action. In its response to our 2020 report, the Government argued: “The Ministerial Code does not prevent Ministers from introducing legislation for MPs and Peers to debate.”121

84.Nonetheless, many witnesses thought the duty under the Code was significant.

85.Dr Conor Casey thought that the Ministerial Code “provides that the Government has an ‘overarching duty … to comply with the law and to protect the integrity of public life’ when pursuing their policy goals and exercising their powers.”122 Dr Conor McCormick, Lecturer and Director of the Human Rights Centre, School of law, Queen’s University Belfast, held a similar view: the United Kingdom Internal Market Bill should not have been introduced “under any respectable law officer’s watch because I think it is a problem to be indifferent to your international obligations as a member of the Executive. That view stems from the Ministerial Code … which sets out the Government’s acceptance of its obligations under international law.”123

86.In discussing the introduction of the United Kingdom Internal Market Bill, Sir Jonathan Jones described it as “about the relevance of international law as part of the rule of law.” He added:

“There had always been a specific reference to international law in the Ministerial Code, for example, so it was clear that the duty of Ministers to comply with the law included international law … That has always been the position and it was said not to have changed.

But it then changed in 2020 with the Internal Market Bill, when the Government took the position that they were free to promote legislation and Parliament was free to enact legislation that contravened the UK’s international law obligations under the withdrawal agreement.”124

87.Lord Keen of Elie thought that “before the Government can deliberately implement legislative policy, they have to have at least a respectable argument that it will be consistent with the rule of law … [including] international law.” Departure from this would require “a rewriting of the Ministerial Code and the Civil Service Code.”125

88.The Ministerial Code elides the duties of individual ministers with the duties of the Government as a whole. In most cases it would seem that the original (and implicitly current) duty to comply with “international law and treaty obligations” must apply collectively. Even so, the Government’s contention that the Code “does not prevent Ministers from introducing legislation for MPs and Peers to debate” appears to be shifting responsibility for any potential breach of international obligations to Parliament. While Parliament is ultimately responsible for the form of any legislation passed, the preparation and introduction of government legislation is an executive action for which ministers, collectively, are accountable. Parliamentarians and others can hold a Government to account for such action, under the terms of a Ministerial Code which distils, rather than prescribes, the duties of ministers under the rule of law.

89.The proper exercise by a minister of a power granted by Parliament would be lawful under domestic law. But where domestic and international law diverge, the duty reflected in the Ministerial Code to comply with international law still applies. This presents ministers with a dilemma which they should not be expected to face, and this uncomfortable situation reaffirms our previously expressed disquiet about the constitutional desirability of Parliament legislating in violation of the UK’s international obligations.126

---

• A-Z index
• Glossary
• Contact us
• Freedom of Information
• Jobs
• Using this website
• Copyright