Former head of government’s legal service says obligation that ministers must comply with international law – dropped from revised code – had irritated PM

The former head of the government’s legal service has accused Downing Street of “contempt for the rule of international law” after it quietly abandoned a key plank of the ministerial code.

In a sharply-worded letter to the Guardian, Paul Jenkins claimed the obligation that ministers must comply with international law had caused “intense irritation” to David Cameron.

Jenkins, who was the government’s most senior legal official from 2006 until he stepped down last year, is the most high-profile legal figure to raise the alarm over a rewrite of the ministerial code published last week.

Until last Thursday, the ministerial code referred to an “overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice”. The new version simply refers to a duty to comply with “the law”.

Jenkins wrote: “It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up.

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“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.”

The Cabinet Office has insisted that the code was clear on the need to comply with the law, including international law.

However, some lawyers believe the change signals a “marked shift” in the UK government’s respect for the rule of law, which they say is particularly concerning at a time when the UK is expanding its use of lethal force abroad.

Tom Watson, the deputy Labour leader, on Monday added his voice to the criticism. In a letter to Cameron, seen by the Guardian, Watson said the rewrite “fundamentally changes the standards to which ministers are held accountable”.

He added: “The amendments potentially represent a significant departure from responsibilities and sends a message about the UK’s commitment to both international and UK law. It seems a far-reaching change on which parliament should have been consulted.”

Watson also pressed Cameron to explain whether the attorney general, Jeremy Wright QC, and other cabinet members were consulted before the new code was “slipped out” in a written statement in the House of Lords by George Bridges, the Cabinet Office parliamentary secretary.

A spokesman for the attorney general’s office said details of internal discussions or advice would not usually be disclosed.

In the letter, Watson pointed out that the revised ministerial code was published on the same day that the attorney general delivered a keynote speech to the government legal service international law conference.

In the speech, Wright said: “International law binds the UK, both as a central tenet of our constitutional framework and as a distinct legal regime at the international level. The constitutional principle to respect the rule of law and comply with our international obligations is reflected in the ministerial code – which applies as much to me as much as to any other minister.

“The code states that there is an overarching duty on ministers to comply with the law, including international law and treaty obligations to uphold the administration of justice and to protect the integrity of public life.”

The group Rights Watch UK is leading a legal challenge to the prime minister, urging him to reinstate immediately the previous version of the ministerial code.

“For the government to erase from the ministerial code the starting presumption that its ministers will comply with international law is seriously concerning,” said Yasmine Ahmed, director of Rights Watch UK.

“It evidences a marked shift in the attitude and commitment of the UK government towards its international legal obligations.”

She added: “There are numerous obligations at international law, including, for instance, those obligations governing the use of force set out in the UN charter, which have not necessarily been incorporated into domestic law, but which it is only proper that ministers should be explicitly required to comply with when exercising their powers.”

Frank Berman QC, a former legal adviser to the Foreign Office, said it was “impossible not to feel a sense of disbelief at what must have been the deliberate suppression of the reference to international law in the new version of the ministerial code”.

In a letter to the Guardian, he wrote: “Instead of rushing to the courts over what is primarily an issue of political morality rather than pure law, why doesn’t an MP (government or opposition) simply put down a question to the PM asking him to say whether, after the changes to the ministerial code, the duty of ministers to comply with the law continues to include international law and treaties? And then give wide publicity to the answer.”

The Cabinet Office denied there was any intention to weaken international law and the administration of justice by omitting the phrases from the new code.

A spokesman said: “The code is very clear on the duty that it places on ministers to comply with the law. ‘Comply with the law’ includes international law.



“The wording was amended to bring the code more in line with the civil service code. The obligations remain unchanged by the simplified wording. The ministerial code is the prime minister’s guidance to his ministers on how they should conduct themselves in public office.”