Gulf Centre for Human Rights, R (On the Application of) v The Prime Minister & Anor

A non-statutory ministerial code did not create separate legal duties merely by referring to an existing overarching duty with which it was to be read. Its meaning depended on the language and referential function of the provision, rather than speculation about the reason for an amendment.

A general and unqualified duty to comply with the law included international law and treaty obligations insofar as they formed part of that duty. Deleting express words which did not add an independent obligation made no substantive change. A judicial-review challenge based on irrationality, improper purpose, consultation or inadequate explanation could not succeed where the amendment changed wording but not meaning.

Gulf Centre for Human Rights sought judicial review of the Government’s 2015 amendment to paragraph 1.2 of the Ministerial Code. The amendment removed express references to international law, treaty obligations and the administration of justice from the background to the stated duty on Ministers to comply with the law.

Cranston J refused permission on the papers and Mitting J refused it on oral renewal. Arden LJ granted limited permission to appeal only if the claimant could show that the deletion changed the substance of the Code. The central issue was whether the deletion removed a Code-based obligation on Ministers to comply with international law and treaty obligations beyond their legal duties.

1. Appeal dismissed. The court held that the deletion made no substantive change to the Ministerial Code. Permission to apply for judicial review was therefore refused.
2. Paragraph 1.2 of the 2010 Code did not set out or impose a separate, free-standing duty on Ministers to comply with domestic or international law. It referred to the pre-existing overarching duty against which the Code was to be read. The Code did not create new or different duties: it referred to duties existing outside it.
3. The reference to international law and treaty obligations was subsumed within the duty to comply with the law. Those words did not identify independent obligations. The 2015 duty to comply with the law was general and unqualified and, insofar as international law and treaty obligations formed part of that duty, they remained included without express inclusive wording.
4. The court gave weight to the Government’s public and litigation-confirmed explanation that the amendment was not intended to alter Ministers’ obligations. It would in any event have been perverse to construe the paragraph contrary to that repeatedly stated meaning, particularly where the claimant characterised that construction as unsatisfactory.
5. As there was no change in meaning, a challenge based on irrationality or improper purpose was unarguable. There was likewise no arguable duty to consult before, or give further reasons for, a non-substantive alteration. It was unnecessary to determine the consequences of a substantive change or the claimant’s sufficient interest.

• Court of Appeal (Civil Division): dismissed the appeal and refused permission to apply for judicial review: [2018] EWCA Civ 1855.
• High Court (Mitting J): refused permission for judicial review on oral renewal on 17 March 2016.
• High Court (Cranston J): refused permission for judicial review on the papers on 11 February 2016.