16 December 2015

· In English

In a thought-provoking post on the UK Constitutional Law Association Blog, Dapo Akande and Eirik Bjorge take issue with the defence offered by Richard Ekins and Guglielmo Verdirame of the recent change in the wording of the Ministerial Code. The change in question consisted in a removal of a reference to complying with ‘international law and treaty obligations’ in the description of the scope of the overarching duties of Ministers. In this short response I address only one of the points made by Akande and Bjorge, arguing that they misstate the domestic legal duty of UK officials, under UK law, to comply with international law.

Given they are international lawyers, it is understandable that Akande and Bjorge stress the international law perspective on the duties of UK officials, but there is a risk of a circularity in this approach. International law treats actions of domestic officials as actions of the state. But it does not follow that those officials have, under national law, a general duty to give effect to all international obligations of the state itself. This remains to be proven and can only be established with reference to national legal rules (at least once one accepts that a country has a dualist approach to international law, as is the case in the UK – see, for example, Lord Mance in Pham at para 80).

To have any fruitful discussion of the topic at hand one needs to be acutely attentive to several distinctions: between duties of the state and duties of individual officials, and between duties under international law and duties under national law. Here, I focus on duties of individual officials under national law.

I accept the point made by Akande and Bjorge that not all legal duties give rise to justiciable issues and hence that the problem is potentially broader than merely what can be challenged in court. However, the contrary fallacy needs to be avoided: not every duty is a legal duty. Officials have moral and political duties that are not legal duties. Just because it is accepted that officials ‘must’ or ‘should’ do something, it does not follow that they ‘legally should’.

In so far as we are concerned with UK law, Akande and Bjorge are mistaken to say that ‘to speak of a “general duty” on ministers to comply with international law, including treaty obligations, is a very good statement of the correct legal position’. There is no such general duty in UK law. There are limited legal duties to comply with some international obligations of the UK. Such duties stem from specific legal rules, both statutory and common law. However, UK law does not contain a blanket duty requiring officials to comply with international law, not even international law duly ratified and binding on the UK.

It is true that, to a limited extent, customary international law (CIL) has been acknowledged to constitute a ‘source’ for development of the common law. Lord Mance makes the limitations of such development clear both in the paragraph from Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] cited by Akande and Bjorge (para 150), and perhaps even more so in the preceding paragraph (at 149), not cited by the authors. The limitations are provided by ‘domestic constitutional principles, statutory law and common law rules’ (para 150). It is important to remember that one of those ‘constitutional principles’ is that ‘unincorporated treaties do not create rights or obligations in domestic law’ (Philip Sales and Joanne Clement (2008) 124 LQR 388, 417). CIL will not be given effect if that would undermine this principle (See Lord Oliver in International Tin Council [1990] at pages 512-513). Perhaps it may be said that UK officials have a derivative general duty to comply with CIL because of the common law rule, but to single out CIL in the way that the previous version of the Ministerial Code singled out ‘international law and treaty obligations’ would be misleading.

Regarding unincorporated treaties, Laws LJ put the matter succinctly earlier this year in Public Law Project v The Lord Chancellor [2015] responding to a claim ‘that the UNCRC [the United Nations Convention on the Rights of the Child], as an international human rights convention, should be held to be binding in domestic law without the need for legislative incorporation’:

… I think it of the first importance to give full weight to the constitutional principle that the Executive, which enters into treaty obligations, is not (save under powers delegated by Parliament, and subject to certain irrelevant exceptions) a source of law in the United Kingdom. The rule of law's strength in this jurisdiction depends at least in part on the fact that our law flows only from two principal foundations: Parliament and the judges. I do not think that the benign nature of this or that international treaty, including the UNCRC, should begin to license the government to make law (at para 27).

Just because the Crown has a legal capacity to execute an international treaty and thus to bind the United Kingdom under international law, it does not follow that any UK officials incur individual legal duties to comply with such a treaty. First, under UK constitutional law, the Crown is distinct from the United Kingdom. The UK has obligations under international law; the Crown does not. As Laws LJ noted, the Crown has no power to create legal duties under UK law by entering an international treaty. This also includes legal duties of the Crown itself. Not being an independent law-maker in this respect, the Crown cannot change its own legal duties merely by executing an international treaty. While citing _R v Lyons _[2003] 1 AC 967, Akande and Bjorge omit Lord Hoffman’s sound statement on the duties of the Crown (at 43):

In any case, if treaties form no part of domestic law, I do not see why an infringement of the treaty by the Crown should have more domestic significance than its infringement by Parliament or the courts. The fact that the Crown has the treaty-making power seems to me for this purpose irrelevant.

This is not a statement limited to what is justiciable as Akande and Bjorge may suggest – it is a correct statement of the position under UK law. I am not aware of any binding domestic authorities supporting a different position.

It is true that international law takes the opposite view. However, one cannot just say that under UK law the Crown is bound by international law simply because international law says so. Clearly, there is a missing step here, and that step – the existence of a domestic legal rule to that effect – is what is at issue. No such general legal rule exists in UK law.

The 1994 statement given in Parliament by Baroness Chalker, which Akande and Bjorge cite as their only domestic source, is not only far from being authoritative but is also ambiguous. The sense in which ‘must’ is invoked here is not clear. It may very well be that the Prime Minister at that time expected the Ministers and other officials to comply with the UK’s international obligations. It is possible that the officials at that time ‘politically must’ have had to comply. But to say that it then followed that the officials had a general legal duty to comply with unincorporated international treaties is wrong. One might as well cite the old version of the Ministerial Code as proof that such a duty existed.

To conclude, customary international law and incorporated treaties indirectly ground the legal duties of officials. Both of those types of international law have that effect exclusively because of a domestic legal norm (a general common law norm in the case of CIL and specific statutory norms in the case of treaties) and, even then, only to a limited extent. Unincorporated international treaties ground no general duties of compliance in UK law, not even duties in relation to the Crown. Hence, it is wrong to claim that under UK law there is a general legal duty on the part of UK officials to comply with international law. What is more, it is misleading to single out the limited duty to comply with international law as having any special significance in comparison with the duty to comply with domestic statutes or even with domestic delegated legislation.

Originally published on the Judicial Power Project website, 16 December 2015

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I am a Lecturer (Assistant Professor) in Public Law and Legal Theory at the University of Surrey School of Law, a member of the Surrey Centre for Law and Philosophy, a Research Associate of the University of Oxford Centre for Technology and Global Affairs, and a Research Associate of the University of Oxford Programme for the Foundations of Law and Constitutional Government.

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