General: UK: GCHR legal challenge, don't erase accountability!

11.02.16

Help Needed

The Gulf Center for Human Rights  is a small NGO taking on a big task: taking the UK government to court over its decision to remove longstanding obligations on government ministers to comply with international law and uphold the court system. On 15 October 2015 the government quietly deleted these requirements from the Ministerial Code. The code is important. It is how we ensure the accountability of government ministers. But we need your help. If we cannot fundraise a sufficient amount to cover the government's legal costs in the event that we lose then we will have to withdraw our judicial review. We have set a target of £10,000. Please help us to get there by contributing what you can. We explain below the recent changes to the Ministerial Code.  

The Ministerial Code

What’s the Ministerial Code, you ask? This is the instruction manual for ministers; the rules and standards for how the government of the United Kingdom conducts itself. It has been in use since around the Second World War and has been published since 1992. Breaching the code leads to investigation by the Independent Adviser on Ministers Interests and, even more importantly, scrutiny by Parliament.

Important for Human Rights

Since 2001, the Ministerial Code has consistently directed ministers as part of the most important “overarching duty” in the document to comply with international law. This is important because ministers often act on the international plane as well as the domestic one - for example, in authorising the use of military force overseas - and because international human rights and humanitarian law - which are heavily relied on to protect the vulnerable - are largely based on international law. 

The Ministerial Code also contained an obligation on ministers to uphold the administration of justice. This is important too, because ministers should not take actions that undermine the courts - either by cutting away their funding, or by publicly criticising judges or judgments. This principle has been steadily eroded in recent years. 

All Change

On 15 October 2015, without fanfare, the UK government issued a new Ministerial Code which quietly deleted both requirements. Removing just 13 words is all it took. Embarrassingly for the government, on the very same day the Attorney General gave a keynote speech  emphasising the importance of these very same instructions in the Ministerial Code.  

More embarrassment followed, when the former Treasury Solicitor (the head of the government legal department) took the extraordinary step of criticising the change and the government’s explanation, as follows:

 “It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up. As the government’s most senior legal official I saw at close hand from 2010 onwards the intense irritation these words caused the PM as he sought to avoid complying with our international legal obligations, for example in relation to prisoner voting. Whether the new wording alters the legal obligations of ministers or not, there can be no doubt that they will regard the change as bolstering, in a most satisfying way, their contempt for the rule of international law.”

More criticism by the former Attorney General  and the former Lord Chancellor and Director of Public Prosecutions followed.

And the UK government’s response? It claims that the changes make no difference, and were a mere tidying up exercise. But this is belied by the accounts of ex-government lawyers and by the governments’ own human rights pre-election manifesto, “Changing Britain’s’ Human Rights Laws”, which stated that the Ministerial Code would be changed to pave the way for watering down the UK's human rights commitments. 

Why it Matters

GCHR as an organisation relies on international law and the courts. It works throughout the Middle East on protecting human rights defenders from authoritarian governments. We cannot call these governments to account if at the same time western governments are diminishing their commitments to international law and the separation of powers. Often these oppressive regimes rely on support from western governments, and when this happens we also rely on international law and the courts in holding the UK government to account, just as we did when the Ministry of Justice sold prisons and probation services to the Saudi Arabian government. Our judicial review of that decision helped to stop it in its tracks. But if the UK government is allowed to dismantle this important instruction to ministers then our work, and the lives of people that we work to protect, will get harder.

But surely the government can do what it likes, you say? Well, to a point. The wording in the ministerial code has long been pointed to by international lawyers as ensuring the smooth running of the international legal order. The foremost judge of recent times, Lord Bingham, drew attention to it  in his work on the rule of law.  In any system of government, the Ministerial Code would be an important document, but in the UK's unwritten constitution, built on convention and custom, it really does matter. Even so, the government may be entitled to change the code, but - and this is important - it cannot lawfully do so by pretending that the changes make no difference. That is neither transparent nor rational. Clearly, the changes make a difference. And it is this duplicity which GCHR are challenging.

We Need Your Help

In order to carry on with our legal challenge, GCHR needs to fundraise the monies to cover a contribution to the government’s legal costs if we lose. We have applied for a ‘protective costs order’, which will limit our costs exposure, but we still need to do everything we can to raise monies to cover some of these costs. If we cannot meet the costs cap set by the court then we will have to abandon the case. Please therefore help us meet our goal of £10,000.  If we win and do not need these monies, then they will be redirected to GCHR’s work in protecting human rights defenders in the Middle East. If we are forced to withdraw, or if we manage to meet the amount  we need to offer the government, then we will pay anything extra to our own excellent legal team’s costs, who are acting without payment and have already put in a lot of work to get us this far: Jason Coppel QC  and Hannah Slarks of 11KBW and Adam Hundt and Dan Carey of Deighton Pierce Glynn solicitors. 

Please Donate!

Please contribute what you can: https://www.gofundme.com/ministerialcode  

See further:   http://www.theguardian.com/law/2015/oct/26/ministerial-code-no-10-showing-contempt-for-international-law  

http://www.theguardian.com/law/2015/oct/22/lawyers-express-concern-over-ministerial-code-rewrite