BROWN PAPER: Promises Writ in International Law
Is there an argument the Crown is bound in public law by treaties it has ratified but which Parliament has not incorporated into domestic law?
Introduction
Unless you’ve been living under a rock, or you’ve somehow disconnected yourself from the internet, you will have seen coverage the Supreme Court judgment on the “Rwanda case”.1 If you haven’t, then you must surely have seen the news that the Safety of Rwanda (Asylum and Immigration) Act 2024 has now concluded its passage through Parliament and received Royal Assent.2
I should probably say, at the outset, that if you’re hoping for an in-depth analysis of the judgment, the policy response or the Act then this isn’t the post for you and you may find something else interesting on the back catalogue.
The court did make an interesting observation in paragraph 143 of the judgment which may impact on approaches to statutory interpretation of retained EU law
“Secondly, the purpose of the 2020 Act is to end the application within domestic law in the United Kingdom of parts of retained EU law. As Lord Pannick observed in his written case, such an Act of Parliament should be construed fairly in accordance with its terms, and not by reference to a presumption that it applies to as little retained EU law as possible.”
I have not, yet, considered what, if any, impact it does have but it may feature in a future post at some point.
So, then, what is this post actually about?
Well, as alluded to in the subtitle, it is to consider if there is a way to rely on treaties His Majesty’s Government have ratified but which Parliament has not then gone on to incorporate.
This post is very early thinking and has not yet been researched to any particular degree. It may turn out, in time, to be wide of the mark. That said…
Dualism
Before getting to the bones of the potential argument it is worth setting out why it is even worth considering. The legal systems within the United Kingdom operate what is called a “dualist” approach to international law. Put simply, this approach divorces domestic law and international law - unless and until Parliament incorporates the commitments His Majesty’s Government has made on the international plane into domestic law, those commitments are not law within the United Kingdom.3
That should be the end of this post. And yet, it is not.
Promises, promises…
At paragraph 26 of the Rwanda judgment, the Supreme Court says
The principle of non-refoulement is therefore given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law.
Although it is obiter, and almost certainly not intended to hint at a potential jurisprudential move it did rekindle a thought I have been having on and off for a while. I had since put it to the back of my mind, but it has re-emerged due to some Twitter discussion relating to the Civil Service Code.4 5
The argument
A legitimate expectation arises where a public authority gives a person, either expressly or implicitly, a reason to believe a certain outcome will occur - in particular where the public authority is making a decision. Generally speaking it requires someone to rely on the statement to their detriment.
HMG has, as referred to in the judgment, repeatedly committed itself to certain principles, and therefore implicitly expectations of acting in a certain way. Where people have placed reliance on those commitments - that they will be treated in a certain way, with respect for certain rights - then perhaps they have the constituent elements of legitimate expectation.
turn to dust …
The question of relying on legitimate expectation has been addressed by Lord Kerr in R (on application of SG and others) v Secretary of State for Work and Pensions.6
Lord Kerr’s judgment shows that the idea that ratification of a treaty can give rise to a legitimate expectation is not completely alien to English law. At least one Court of Appeal judgment has appeared to accept the notion that ratification is a representation by the Crown they will abide by the treaty.
He went on to conclude that, even though it is to say the least controversial, it was time to at least apply legitimate expectation to treaties which confer rights.
Lord Kerr was in the minority and, in any event, none of the other justices elected to adopt his position.
or do they?
Much of the objection is founded in dualist theory. However, I think there is an argument that objection is misplaced. It is correct, and must be correct, that provisions of international law do not form part of domestic law unless incorporated. That may, though, turn out to be beside the point.
Legitimate expectation is already part of the domestic law, and there may be no good reason for not holding the Crown to representations it makes when it makes them through ratification of a treaty when the same representations in any other form would be enough to found a legitimate expectation.
So, is the he notion of using legitimate expectation to rely on treaty rights dead?
I do not think it is.
Arguably the passage of the Rwanda Case judgment I quoted at the beginning of this post suggests the Supreme Court may at least be open to considering it.
The Rwanda Act may give rise to cases where the question of whether a legitimate expectation of being able to rely on ratified treaty rights in the absence of incorporation arises finally being settled, one way or another, by the Supreme Court.
And given the genesis of the Rwanda Act we may very well be in a game of “dare” between the executive and the judiciary which leads to the settling of the question in a way the executive would rather not happen.
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Customary international law may have direct effect into the domestic law of the UK without incorporation.
It was put to the back of my mind largely because I had written everything before that point on this post, then life took over, and I have neglected writing on here. I need to do better, because I think these things are worth forcing out of my brain even if I am the only person reading them.
I will write a post on that in short order*. It is an interesting debate, and it is also one which throws up another interesting point regarding the Rwanda issue.
*Let’s see - I do intend to, but the habit of writing seems to have gone and I need to force myself to write regularly so it does become a habit again.