The High Court and the ongoing cliché of “dualism”

Professor Orakhelashvili: the High Court decision in FDA v Cabinet Office, regarding some matters of the application of international law in UK’s legal system.

Aston Webb building

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...Read full article