Ministerial code amendment indicates a government that doesn’t like international transparency, accountability and scrutiny

Last year I wrote about how the government has quietly edited the ministerial code, which was updated on October 15  without any announcement at all. The code sets out the standard of conduct expected of ministers. The latest version of the code is missing a key element regarding complicity with international law. 

The previous code, issued in 2010, said there was an “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”.

The new version of the code has been edited to say only that there is an“overarching duty on ministers to comply with the law and to protect the integrity of public life”.

A Conservative party policy document had revealed that the ministerial code will be rewritten in the context of the UK withdrawing from the European convention on human rights. In order to help achieve these aims the document says:

“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.”

Yasmine Ahmed, director of Rights Watch, an organisation which works to hold the government to account, said:

“This amendment to the ministerial code is deeply concerning. It shows a marked shift in the attitude and commitment of the UK government towards its international legal obligations.”

The Conservatives have planned since 2010 to scrap the Human Rights Act (HRA), which was the previous Labour governments’ legislation, designed to supplement the European Convention on Human Rights. It came into effect in 2000. The Act makes available a remedy for breach of Convention right without the need to go to the European Court of Human Rights in Strasbourg.

The citizen rights protected by the Act are quite basic. They include the right to life, liberty and the right to a fair trial; protection from torture and ill-treatment; freedom of speech, thought, religion, conscience and assembly; the right to free elections; the right to fair access to the country’s education system; the right NOT to be given the death penalty; the right to marry and an overarching right not to be discriminated against.

Cameron has argued that it should be repealed just 15 years after its implementation … so that he can pass another unspecified Act – a British Bill of Rights. Why would any government object to citizens being afforded such established, basic protections, which are, after all, very simple internationally shared expectations of any first world liberal democracy?

In the Conservative proposals to scrap our existing human rights framework, and replace it with their own, one sentence from the misleadingly titled document  – Protecting Human Rights in the UK, (found on page 6 ) – is particularly chilling: “There will be a threshold below which Convention rights will not be engaged.”

Basically this means that human rights will no longer be absolute or universally applied – they will be subject to stipulations and caveats. And discrimination. The government will establish a threshold below which Convention rights will not be engaged, allowing UK courts to strike out what are deemed trivial cases.

The Tories’ motivation for changing our human rights is to allow reinterpretations to work around the new legislation when they deem it necessary. The internationally agreed rights that the Tories have always seen as being open to interpretation will become much more parochial and open to subjective challenge.

Any precedent that allows a government room for manoeuvre around basic and fundamental human rights is incredibly dangerous.

No other country has proposed de-incorporating a human rights treaty from its law so that it can introduce a Bill of Rights. The truly disturbing aspect of Cameron’s Bill of Rights pledge is that rather than manifestly building on the HRA, it’s predicated on its denigration and repeal. One has to wonder what his discomfort with the HRA is. The Act, after all, goes towards protecting the vulnerable from neglect of duty and abuse of power of the State. The Universal Declaration of Human Rights was an International response to the atrocities of World War Two and the rise of fascism and totalitarianism.

During their last term, the Tories contravened the Human Rights of disabled people, women and children. It’s clear that we have a government that regards the rights of most of the population as a mere bureaucratic inconvenience, to be simply brushed aside. 

The abolition of the Political and Constitutional Reform Committee: some implications

Last year I also wrote about the Political and Constitutional Reform Committee, which was originally established for the duration of the 2010 parliament and was very quietly scrapped following a meeting of party whips.

The cross-party Committee was primarily established to scrutinise the plans of the Coalition government, such as the House of Lords Reform and the Alternative Vote – many of which never made it onto the statute books.

The parliamentary Committee’s main role was to scrutinise proposed major constitutional changes. This undemocratic development is especially worrying given the likelihood of significant constitutional changes in this parliament, with the referendum on membership of the European Union set to be held.

There are further plans for devolution of powers to Scotland and Wales, as well as to cities, and it is expected that these will be delivered at the same time as the government repeals the Human Rights Act, and finalises drawing up a bill of rights to replace it.

Considerable doubt exists among experts that the Council of Europe, a human rights watchdog responsible for ensuring the Convention is upheld, will accept the Tories’ proposals. In fact the plans are highly unlikely to be accepted. As a result, it is quite widely believed Britain will disengage from the European Convention on Human Rights (ECHR) and undermine Europe’s’ civil liberties framework in the process.

Cameron has previously pledged to withdraw from the European Convention on Human Rights, indicating plainly that he is indifferent to the fact that such a withdrawal would very likely spark a complex constitutional crisis in the UK.

If the Human Rights Act is repealed in its entirety, the repeal will apply to the whole of the UK. The Scotland Act gives powers to the Scottish Parliament, provided that they comply with the ECHR (among other things). This would not change with repeal of the Human Rights Act alone.

However, human rights are also partially devolved (the Scottish Parliament, for example, has set up a Scottish Human Rights Commission), and so any unilateral repeal of the Human Rights Act by Westminster would violate the Sewell Convention, which outlines that the Westminster government will: “not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.” Nicola Sturgeon has stated clearly that the Scottish National Party oppose the repeal of the Human Rights Act.

And similar principles apply through the memoranda of understandings with each of the devolved legislatures in the UK.

In Northern Ireland, human rights are even further devolved than in Scotland, and the Human Rights Act (HRA) is explicitly mentioned in the Good Friday Act in 1998. To repeal the HRA would violate an international treaty as the Agreement was also an accord between two sovereign states – the UK and the Irish Republic.

Repealing the HRA unilaterally would put the UK in violation of the Good Friday Agreement, and its international treaty obligations to Ireland.  This would certainly damage our international reputation, as well as having consequences for the reciprocity on which the Treaty depends.

It’s quite possible that it would also be understood within Northern Ireland as a violation of both letter and the spirit of the Good Friday Agreement, signalling that the UK government were no longer committed to the Agreement.

The Good Friday Agreement was also subject to a referendum in both Northern Ireland and the Republic of Ireland, both having to consent for the Agreement to be implemented.  The referendum enabled the Agreement to have widespread legitimacy, but importantly, because it took place in both parts of Ireland, it answered historic Republican claims to be using violence to secure the “right to self-determination” of the Irish people.

It was also necessary to changing the Irish Constitution. So a unilateral move away from UK commitments carries serious bad faith and democratic legitimacy implications, potentially with deeply problematic historical consequences.

The Conservatives also have plans to reintroduce the redefining of parliamentary constituency boundaries in a way that will be advantageous to the Conservative party. It is estimated that the planned changes will help the Tories to win up to 20 extra seats at a future election.

It was during the last term that the proposals were originally put forward. Labour and Liberal Democrat MPs were joined by those of smaller parties – including the SNP, Plaid Cymru, the DUP,  the Greens and Respect – to defeat the proposals, giving them majority in voting down the Tory plans for boundary changes.

The Tories had also committed to implementing a form of “English vote for English” laws – a move which will further undermine ties within the UK. But this pre-election pledge placed an emphasis upon English voting rights to undermine the nationalist appeal of UKIP south of the Border, whilst spotlighting the constitution to bolster the Scottish National Party in Scotland, again using nationalism tactically to disadvantage the Labour Party.

At a time when the government is planning potentially turbulent constitutional changes in the forthcoming parliament, the move to abolish the watchdog – the Political and Constitutional Reform Committee – will serve to insulate the Tories from democratic accountability and scrutiny.

The Political and Constitutional Reform Committee had instigated an inquiry in 2013 regarding increasingly inconsistent standards in the quality of legislation, which resulted in several key recommedations, one of which was the development of a Code of Legislative Standards, and another was the creation of a Legislative Standards Committee.

The government response  at the time was little more than an extravagant linguistic exercise in avoiding accountability, transparency and scrutiny. Having waded through the wordy Etonian etiquette of paragraph after paragraph in the formal responses to each recommendation, the meaning of each may be translated easily enough into just one word: no.

For example: “A bill when it is published is the collectively agreed view of the whole Government on how it wishes to proceed. The process by which it has arrived at that view is a matter for the Government, not for Parliament.”

“The Government does not believe that a Code of Legislative Standards is necessary or would be effective in ensuring quality legislation. It is the responsibility of government to bring forward legislation of a high standard and it has comprehensive and regularly updated guidance to meet this objective. … Ultimately, it is for Ministers to defend both the quality of the legislation they introduce and the supporting material provided to Parliament to aid scrutiny.”

It’s troubling that the House of Lords Constitution Committee raised concerns during the inquiry that there is currently no acceptable watertight definition of what constitutional legislation actually is. The current ad hoc process of identifying which bills to take on the Floor of the House of Commons in a Committee of the whole House lacks transparency: it is clear that differentiation is taking place in order to decide which bills are to be considered by a Committee of the whole House, but the decision-making process is “unclear.” The very worrying response:

“The Government does not accept that it would be helpful to seek to define “constitutional” legislation, nor that it should automatically be subject to a different standard of scrutiny. The tests suggested by Lord Norton and the list of characteristics suggested by Professor Sir John Baker are themselves subjective: whether something raises an important issue of principle, or represents a “substantial” alteration to the liberties of the subject [citizen], for example, are matters more for political rather than technical judgement.

Well no, such matters may be more for legal judgement, given the current framework of Human Rights and Equality legislation. The idea that the law is superior to the megrims of rulers is the cornerstone of English constitutional thought as it developed over the centuries. The Universal Declaration of Human Rights and the European Convention on Human Rights both refer to the Rule of Law.

The Universal Declaration of Human Rights of 1948, is the historic international recognition that all human beings have fundamental rights and freedoms, and it recognises that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”

And of course there are implications for our current understanding of the word “democracy.”

There you have it: the government does seem to regard the liberty of citizens to be enclosed within their own doctrinal boundaries. Those Tory boundaries are entirely defined by partisan dogma and value-judgements, ad hoc justifications, all of which distinctly lack any coherence and rational expertise. Or independence and protection from state intrusion and abuse.

This is a government that has taken legal aid from the poorest and most vulnerable, in a move that is contrary to the very principle of equality under the law. Without access to justice, we simply cease to be free.

The Tories have turned legal aid into an instrument of discrimination. They have tried to dismantle a vital legal protection available to the citizen – judicial review – which has been used to stop the Conservatives abusing their powers again more than once. The Tories have restricted legal aid for domestic abuse victims, welfare claimants seeking redress for wrongful state decisions, victims of medical negligence, for example.

Reflected in many Conservative proposals and actions is the clear intent on continuing to tear up British legal protections for citizens and massively bolstering the powers of the state.

The hypocrisy is evident in that this is a government which claims to pride itself on a dislike for “big state” interventions. But in every meaningful way, the Tories are vastly increasing state powers and an all pervasive, intrusive authoritarian reach.