Out From Under

Nick Cohen still has his moments:

People go on about the awful pressure of 24/7 media on our leaders, and how hard the constant scrutiny must be to bear. But politicians and civil servants know that more means less.

As more news sites and tweeters repeat the same stories, and millions of ‘diverse’ voices say the same thing, the basics of power go unexamined.

Take the ministerial code, which guides the conduct of politicians in office. It is one of the fundamentals of public life. The opposition (such as it is) and the media can use it as a stick to beat the government.

The prime minister can fire ministers who break it. ‘Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety,’ it begins.

OK, but how? When the Conservatives formed their coalition with the Liberal Democrats, the May 2010 code spelt out their duties. 

1.2 The Ministerial Code should be read alongside the Coalition agreement and the background of the overarching duty on Ministers to comply with the law “including international law and treaty obligations and to uphold the administration of justice” and to protect the integrity of public life. [My emphasis] 

With the Liberal Democrats gone, and Conservatives governing alone, a fresh version of the code was issued earlier this month.

It opens with David Cameron promising that his ministers will be ‘transparent in all we do’. He will root out ‘any form of misconduct’ and always remember that ‘good government is precious’.

But the means by which ministers will bring about ‘good government’ have changed without anyone noticing. The revised October 2015 ministerial code spells out their new duties.

1.2 The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life.

All reference to complying with ‘international law and treaty obligations’ and upholding ‘the administration of justice’ has gone.

Why?

I think I can rule out a clerical error: a junior civil servant nursing a hangover and dreaming of his girlfriend does not bang out documents as important as the ministerial code.

Rather, Cameron is easing pressure on his ministers to abide by international standards and preparing for a new constitutional settlement.

The courts are always turning to treaties to inconvenience the executive. The UK ratified the United Nations Convention on the Rights of the Child in April 1990, for instance.

In recent years, the Supreme Court has used it as a benchmark to judge claims that the government’s welfare cuts adversely hit women and children and in deportation cases.

Then there is international labour law, which the unions will use as a weapon against the government’s remarkably vindictive trade union legislation.

And then there are…well the thousands of treaties Britain has signed. But really this is about one treaty. The European Convention on Human Rights drives Conservatives as wild as the European Union does.

Under Chris Grayling’s guidance, the party produced a strategy document ‘Protecting Human Rights in the UK’, setting out how it would stop European Court of Human Rights judgements being binding on British judges and the court forcing the government to change British law.

The Tories did not propose leaving the convention; not even Putin’s Russia has done that. Instead, Conservative politicians would decide how to apply it. Among the proposals was the recommendation:

We will amend the Ministerial Code to remove any ambiguity in the current rules about the duty of Ministers to follow the will of Parliament in the UK.

Adam Wagner, a human rights barrister, spoke for many lawyers when he said ministers could not decide what treaty obligations they followed. We would end up like Russia. No one would trust or believe us when we gave our word.

If the Conservatives wanted to leave the European Convention on Human Rights, they should leave it. They could not, however, sign an international treaty, and then say, ‘stuff it, we won’t abide by clauses we don’t like’.

But that is precisely what the Conservatives are planning to do.

The removal of the obligation on British ministers to abide by the solemn undertakings the British state has made is the first step in taking Britain out from under the international rule of law.