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Ministerial Code

Volume 765: debated on Tuesday 3 November 2015


Asked by

My Lords, the Ministerial Code is normally updated and reissued after a general election. The updated code makes it clear that Ministers must abide by the law. The obligations on Ministers under the law, including international law, remain unchanged.

My Lords, it is somewhat puzzling for the Government to make quite a significant change in the code and for the Minister to say that it makes no difference. Some of us wonder why the change has been made at all—if it had not, the Minister would not have had to answer this Question and others on this. As an annexe to the Ministerial Code, there are seven principles of public life, one of which is openness. If Ministers have to show openness, why can the Government not show openness on this?

The Government are showing openness. The Ministerial Code is available for all to see. It is normal for there to be a variation of the Ministerial Code, just as there is with the Civil Service Code from time to time. For example, the noble Lord may be aware that the Civil Service Code changed from 1999 to 2006. In 1999 it included,

“the duty to comply with the law, including international law and treaty obligations, and to uphold the administration of justice … together with the duty to familiarise themselves with the contents of this Code”.

That became much shorter in 2009. The updated code says:

“You must … comply with the law and uphold the administration of justice”.

My Lords, the Minister may recall that Justice Scalia of the US Supreme Court has argued on a number of occasions that the United States should not pay attention to the conventions and constraints of international law because of the exceptional perfection of the US constitution. Is there a similar degree of exceptionalism in the British Government’s approach to international law, or do we expect others to pay perhaps a little less attention to the constraints of international law than previously?

Justice Scalia is an originalist on the American Supreme Court and has a particular view of America’s position. Our position is that all Ministers are obliged to abide by the law, including, in so far as it is ascertainable, international law in this country.

Why can the Government not transfer responsibility for carrying out investigations into the conduct of Ministers to the Parliamentary Commissioner for Standards in the House of Commons and the House of Lords Commissioner for Standards in the case of Lords Ministers? Surely that would restore some confidence in the system, which has been discredited by recent cases.

The Ministerial Code sets out clearly what the Prime Minister expects of his Ministers. If they depart from that code, it is evident that they have departed from it and there are modes of dealing with that. I take the noble Lord’s suggestion, but at the moment the situation seems to be satisfactorily dealt with.

Am I right in supposing that this amendment is really a prelude to the introduction of a British Bill of Rights in place of the existing Human Rights Act, and is intended principally to clarify the fact that our own domestic primary legislation trumps unincorporated treaty law?

The noble and learned Lord is quite right. He points to the difference between the dualist system, which we have, and the monist system whereby unless law is incorporated in an Act of Parliament, it does not become automatically a part of the law. The question of the amendments to the Bill of Rights, when or if it comes before Parliament, is somewhat separate but he accurately states the necessary constitutional principles.

My Lords, if the former AG, journalists, campaigners, senior lawyers, ex-Ministers, ex-civil servants and academics think this change is wrong, is it possible that they are right and that the Government are not? Can the Government explain why they sneaked this change through, along with a change to the code for special advisers, rather than make a proper Statement in the House?

There is no question of sneaking it through. It has been available since 15 October 2015 and this is the second time in a week that I have answered questions at the Dispatch Box on the Ministerial Code. It has also been the subject of much debate, as the noble Baroness points out, in the newspapers and elsewhere. Those authors she cites are entitled to their view, but it is not a view that I agree with.

I indicated that from time to time the Prime Minister may clarify duties, just as the Civil Service Code does. That is his prerogative. The duty on the part of Ministers is to obey the law.

My Lords, I am not clear whether I heard an answer to either my noble friend Lord Dubs’s Question or the question from our Front Bench. Why exactly did the Government change the wording?

I fear that I will be repeating myself but they have changed the wording because it is a simple summary of what is plainly the position, which is that Ministers have an obligation to obey the law. The code does not change the obligation that comes from the law; it is simply a summary for Ministers.

My Lords, the Minister, who I listened to with care, referred to clarification. Clarification often implies that something was missing before that was not clear. What exactly is this change of wording for?

Clarification is very much in the eye of the beholder. A Minister reading the Ministerial Code might feel better or less well informed by the subsequent iteration of this code but, as I said in relation to the Civil Service Code, from time to time Prime Ministers feel that the matter might be expressed in one way rather than another. What it does not do is alter the nature of the obligation.

Can the Minister assure the House that the change has absolutely nothing to do with government concern about judgments of the European Court of Human Rights with which they do not agree?

The noble Lord knows only too well the Government’s obligation in relation to judgments of the European Court of Human Rights. There is an obligation under Article 46 of the European convention, whereby parties to a judgment undertake to abide by the final judgment of that court, but those judgments are declaratory. We and previous Governments have been in regular communication with the Committee of Ministers over how best to reflect those judgments in our own law. That is an iterative process, which involves Ministers going from time to time to Strasbourg. At the moment, Parliament has given no indication—I suspect that this is what lies behind the question—that it wants to give prisoners the vote.