England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MITTING J
Case No. 2016/1314

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/08/2018

Lord Burnett of Maldon LCJ, Sir Terence Etherton MR and Lord Justice Hamblen:

Introduction

1. The appellant ("GCHR") appeals against the refusal of Mitting J of 17 March 2016 to grant permission for judicial review of the Government's decision to amend the Ministerial Code ("the Code") with effect from 15 October 2015 ("the Decision"), conditional or limited permission having been granted by Arden LJ.

Factual background

2. The Code was introduced in 1997. The then Prime Minister summarised its effect in the following terms:

"I will expect all Ministers to work within the letter and spirit of the Code. Ministers will find the Code a useful source of guidance and reference as they undertake their official duties in a way that upholds the highest standards of propriety…I believe we should be absolutely clear about how Ministers should account, and be held to account, by Parliament and the public."

3. The 2015 Code begins with a section headed Ministers of the Crown. This sets out as a General Principle at paragraph 1.1 that Ministers "are expected to behave in a way that upholds the highest standard of propriety". At paragraph 1.2 it is stated that Ministers are expected to observe the Seven Principles of Public Life (Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership) and various principles of Ministerial conduct which are listed at 1.2 a. to j.
4. The Code then deals in more detail with how Ministers are expected to conduct themselves in relation to Government; Appointments; their Departments; Civil Servants; Constituency and Party Interests; Private Interests; Presentation of Policy; Parliament and Travel.
5. It states at paragraph 1.3 that if there is an allegation about a breach of the Code and the Prime Minister, having consulted with the Cabinet Secretary, feels that it warrants further investigation, then the matter will be referred to the independent adviser on Ministers' interests.
6. The Decision involved an amendment to paragraph 1.2 of the Code. The previous (2010) version of the Code provided (underlining added):

"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"

7. It was amended so as to provide:

"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."

8. The judicial review challenge relates to the Decision to delete the underlined words ("the Deletion").

Procedural background

9. GCHR filed its Claim Form on 14 January 2016. The grounds upon which permission for judicial review was sought were:

(1) The Deletion breached the principle of legality because it was taken in secret and without consultation;

(2) The Code was amended for an improper purpose/in an improper manner, and

(3) The Decision to make the Deletion was irrational.

10. On 11 February 2016 Cranston J refused permission for judicial review on the papers.
11. On 17 March 2016 there was an oral renewal hearing before Mitting J at which he too refused permission.
12. GCHR sought permission to appeal from the decision of Mitting J on three grounds:

(1) He mischaracterised the significance of paragraph 1.2 of the Code;

(2) He wrongly held that a change from one lawful wording to another could not give rise to a judicial review with any prospect of success, and

(3) He wrongly concluded that changes to paragraph 1.2 did not give rise to an arguable challenge because the content of paragraph 1.2 did not give rise to a direct legal obligation.

13. On 28 December 2016 Arden LJ refused permission on the first ground of appeal but granted conditional or limited permission to appeal on the second and third grounds. She stated that permission was being given:

"only in so far as [GCHR] contends and is able to show that the new version of clause [1.2] of the Ministerial Code has a different meaning from that which the 2010 Code had… I do not consider that the grounds of appeal are arguable if there is no change of substance in the two versions of the Code".

14. In order to pursue the appeal GCHR therefore first needs to establish that the Deletion involves a change in substance.

Does the Deletion involve a change in substance?

15. GCHR contends that the words deleted from the 2010 Code imposed an obligation on Ministers under the Code to comply with international law and treaty obligations which do not themselves form part of domestic law. GCHR says that the obligations under the 2010 Code went beyond Ministers' legal duties. The effect of the Deletion and the limitation of the duty to one of compliance "with the law" in the 2015 Code is that Ministers' obligations under the Code no longer extend beyond their legal duties, resulting in a change in substance.
16. In support of this argument GCHR relies in particular upon:

(1) The fact that the wording was changed. It is submitted that it is to be inferred that the change was made for a substantive reason, particularly in the absence of any other satisfactory explanation for the change.

(2) Contextual materials which suggest that the Government and the Conservative Party were dissatisfied with the reference in the Code to "international law". In this connection particular reliance is placed on a letter to the Guardian in October 2015 from Paul Jenkins, the Treasury Solicitor from 2006-14.

(3) The importance placed on the reference to "international law and treaty obligations" by legal commentators and Ministers – see, for example, Lord Bingham's comments in his Grotius lecture and the then Attorney General's speech to Government lawyers in October 2015.

17. We do not consider that much assistance is to be derived from assumptions that may or may not have been made as to the effect of the 2010 Code or from speculation as to the reason why the Deletion was made. What matters is the meaning of paragraph 1.2 in the 2010 and in the 2015 Codes and whether any change in substance was made. As to that, critical to GCHR's argument is its assertion that the 2010 Code itself imposed obligations over and beyond Ministers' legal duties.
18. In our judgment GCHR's key argument is unsustainable for a number of reasons.
19. First, the 2010 Code neither set out nor imposed any separate or free-standing duty on Ministers in relation to compliance with the law, domestic or international. It referred to the "overarching duty" which Ministers already owed, against which the Code is to be read. The Code did not create new or different duties; it simply referenced existing duties outside the Code.
20. Secondly, the reference to "international law and treaty obligations" in the 2010 Code is subsumed within the stated duty "to comply with the law". That duty includes those obligations. Whatever the precise meaning of the reference to those obligations, they are not independent obligations but simply part of the "overarching" duty of compliance with the law.
21. Thirdly, it follows that the key relevant duty under the 2010 Code is the "overarching" duty "to comply with the law". That is equally the key duty under the 2015 Code.
22. Fourthly, the reference to the duty "to comply with the law" in the 2015 Code is general and unqualified. In so far as that duty includes international law and treaty obligations, they are so included. It is not necessary for there to be specific inclusive language.
23. In view of both the language used and the referential status of paragraph 1.2 of the Code, in our judgment the Deletion does not involve any change in substance. If, however, there could be any doubt about this, it has surely been removed by the public explanations made by the Government that the 2015 Code did not change the duty to comply with the law which existed in the 2010 Code. In particular:

(1) In October 2015 Lord Faulks, then Minister of State at the Ministry of Justice, was asked the following question in Parliament:

"Will the Minister please give the House a categorical assurance that the amendment to the Ministerial Code will make absolutely no difference to Ministers' existing duty to comply with international law and treaty obligations?"

His answer was:

"Neither Parliament nor courts are bound by international law, but a member of the Executive, including a Minister such as myself, is obliged to follow international law, whether it is reflected in the Ministerial Code or not. All Ministers will be aware of their obligations under the rule of law"

See House of Lords Hansard 28 October 2015, Column 1170.

(2) In November 2015, in response to a question in Parliament as to why the Code had been changed, Lord Faulks stated:

"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".

See House of Lords Hansard 3 November 2015, Column 1522.

(3) The Cabinet Office has stated in relation to paragraph 1.2 of the 2015 Code:

"'Comply with the law' includes international law."

This statement, from the Cabinet Office, was reported in the Guardian on 22 October 2015 and is referred to in the House of Commons Library Briefing Paper Number 03750 of 12 January 2017.

24. The Government has further confirmed in these proceedings that no substantive change was made.
25. Even if we considered it was open to us to do so, it would be perverse for this court to interpret paragraph 1.2 in a way in which the Government has repeatedly stated was not intended and which GCHR itself says would be most unsatisfactory.
26. For all these reasons we are satisfied that the Deletion involved no change in substance. If so, there can be no grounds for successfully challenging Mitting J's refusal of permission. As Arden LJ observed: "The proposition that a change in wording with no change in meaning was irrational is unarguable"; equally, "purpose is immaterial in the absence of any change in substance". It is similarly unarguable that the Respondents should be obliged to consult prior to making such a non-substantive change or explain the Deletion beyond the public explanations already given.
27. In the light of these conclusions it is not necessary to address the further arguments raised as to what the position would be if there was a substantive change or as to whether GCHR has a sufficient interest to bring the claim.

Conclusion

28. For the reasons outlined above we dismiss the appeal and refuse permission to apply for judicial review.