Professor Alexander Orakhelashvili
How much could be justified by using the fine-tuned label of “dualism” when the application of international law in UK courts is at stake? This matter recently arose in the latest High Court judgment in FDA v Cabinet Office ([2024] EWHC 1729 (Admin)), delivered on 5 July 2024, in relation to section 5(2) of the Rwanda Act, which says that “It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure” ordered by the European Court of Human Rights under section 39 of its Rules. The key question tackled was whether civil servants have a duty to comply with ministerial orders that violate international law, which issue inevitably turns on whether ministers themselves are authorised to violate international law. The whole range of constitutional issues arising under legislation, the Ministerial Code and common law actively feed into this matter.
The High Court took notice of the earlier decision on Gulf Centre in which it was decided that the duty of ministers under the Ministerial Code to act in accordance with the law includes the duty to act compatibly with international law. The Court noted that “The strong convention that Ministers will act so that the United Kingdom complies with its international obligations means that this will usually be so. But it is a corollary of dualism that domestic law may require or permit acts which violate the United Kingdom’s international legal obligations.” Apparently, this case was so special that it was not deemed to have been addressed in Gulf Centre (para.132). In that regard, Mr Justice Chamberlain has singled out the cases in which “a statute required a Minister to act in a way that clearly violated international law”, as presumably “the requirement to comply with international law would have to yield to the statute” (para.133). But then his Lordship has proposed another thesis, far reaching but as though meant to be an extension of the first one, that “the same analysis applies in a case such as the present, where statute permits, rather than requires, the Minister to act in violation of international law.” Consequently, “the fact that Parliament has not itself determined whether the United Kingdom should comply does not mean that it has said nothing about that question. It has said that the United Kingdom’s compliance is to be decided by the Minister” and this was the case “just as surely as if Parliament itself had mandated non-compliance” (para.135).
The Judgment queries: “If a civil servant is required to comply with both domestic and international law, but the first is not consistent with the second, what does the Code require the civil servant to do?” (para. 136). The principle that legislation should normally be interpreted as compliant with international law did not help, according to the Court, because the Parliament was very clear that it intended authorising possible violations of international law (para.103). Hence, “If s. 5(2) were read as permitting a decision not to comply only where compatible with international law, the Minister would have no choice to make at all. That would be contrary to the plain meaning of the words that Parliament used.” (para.104).
What can be said about the Court’s approach? In the first place, the direct relevance of international law in relation to officials and ministers, as well as before UK courts’ is confirmed. The Court alludes to Parliament’s rather clear intention to approve violations of international law, and legislation drafted this way is very rare if not exceptional (also if we consider the context which surrounded the adoption of the Rwanda Act). Hence, given how section 5(2) is drafted, we could get a possible idea about what it could take to induce a UK court to interpret a legislative instrument as an authorisation to act contrary to international law. On its own, therefore, the background approach towards international law embodies in this case specifically is not problematic as far as this particular judgment is concerned. This leaves open the issue of whether and to what extent courts would be authorised to distinguish between valid an invalid determinations under section 5(2), as English public law does allow courts to proceed with some legislative enactments that way. For the time being, this will probably remain a matter of speculation, given the new government’s latest position on the Rwanda plan. There is, thus, some irony in the fact that the High Court’s judgment was rendered on the same day as the General Election was held.
The Court’s judgment also repeatedly alludes to the notion of “dualism” which arguably validates the ministers’ ability to violate international law as a “corollary of dualism”. But the fact that the parliament has here expressly legislated against international law (which it hardly ever does) says nothing about or against the overall place of international law in the UK’s legal system. This decision does not help those who would like to use the “dualist” thesis against the role of international law in other cases. The thesis that the UK’s legal system is “dualist” is, as I have discussed earlier in my inaugural lecture (here, here and here), merely a doctrinal invention and it has little to do with more concrete aspects of interaction between international and domestic law in the UK’s legal system. “Dualism” is not a legal concept; it is an ideology motivated by political utilitarianism to provide legitimation to governmental action in defiance to international law where the Constitution does not even require such action to be taken.