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The United Kingdom Ministerial Code and International Law: A Response to Richard Ekins and Guglielmo Verdirame

Published on December 11, 2015        Author: 

Until very recently, little attention had been paid by academic international lawyers to the United Kingdom’s Ministerial Code (though see this discussion of the role of the Code with respect to legal advice relating to the Iraq War of 2003). The Code, is a document issued by the Cabinet Office, but effectively by the Prime Minister. It sets out the standards of conduct expected of ministers with respect to the discharge of their duties. As was recently stated in this House of Commons Briefing Paper on the Code [p.3],”It has become the convention for the Code to be released at the beginning of a new administration and at a new Parliament.” Paragraph 1.2 of the 2010 version of the Code (as well as some earlier versions) stated that the Code was to be read against “the background of overarching duty on Ministers to comply with the law including international law and treaty obligations . . .” However, in October 2015, Paragraph 1.2 was changed to state that: “The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law . . .” without any reference to international law or treaty obligations. Much has been written in the British media and in legal blogs about this change (see here for posts on the UK Constitutional Law blog and here, here and here for pieces in the Guardian and on the BBC).

This post responds to just one of the pieces that have been written in support of the change. We argue that the position set out in the piece by our colleagues, Richard Ekins and Guglielmo Verdirame (and in a twin piece by the same authors) misconceives the role of the reference to international law in the previous version of the Ministerial Code; misunderstands the relevance of international law to the rule of law; and goes too far in drawing a distinction between the binding force of international law on the state and on state officials. Read the rest of this entry…