The government’s safety of Rwanda (asylum and immigration) bill, not for the first time, contemplates action which (to put it no higher) risks putting the UK in breach of its international law obligations.
Indeed, the bill expressly provides that it is to apply notwithstanding any interpretation of international law by a court or tribunal. And the home secretary has made a statement under section 19(1)(b) of the Human Rights Act 1998, that he is unable to certify that the bill is compatible with the European Convention on Human Rights. In particular, clause 5 says that if the European Court of Human Rights indicates an interim (Rule 39) measure preventing an individual’s removal to Rwanda, only a minister can decide whether to comply with that measure, and the UK courts are to ignore it.
Where does this leave civil servants who will be required to give effect to the bill, in particular to make the practical arrangements for people to be sent to Rwanda?
If and when enacted, the bill will be law in the UK. Removal of an individual in accordance with the bill will therefore be lawful under domestic law, unless they obtain an order from a UK court preventing it. Clause 4 of the bill provides only a very narrow route for obtaining such an order, relating to a person’s “particular individual circumstances”.
"Civil servants might understandably have reservations about taking action which leads to or facilitates a breach by the UK of its international law obligations, particularly those under human rights treaties"
But what about international law? International law applies to states, not individuals – including officials – in a state. Nonetheless, civil servants might understandably have reservations about taking action which leads to or facilitates a breach by the UK of its international law obligations, particularly those under human rights treaties. The civil service code requires civil servants to “comply with the law and uphold the administration of justice”. It is at least arguable that “the law” includes both domestic and international law. That would be consistent with the position adopted by the government, and accepted by the High Court, in a case concerning similar wording in the ministerial code.
The issue might arise most acutely where the ECHR had granted a Rule 39 measure, meaning it had concluded that an individual faced an imminent risk of irreparable harm if sent to Rwanda before the case could be heard in full. At the moment, guidance to civil servants says they must “defer removal immediately” in these circumstances. But under clause 5 of the bill, a minister could decide to ignore the Rule 39 measure and send the person to Rwanda anyway.
The government has produced new draft guidance to civil servants about what to do in this situation. It says that where the ECHR indicates a Rule 39 measure, “the Home Office caseworker must immediately refer the case for a ministerial decision on whether or not to proceed with removal”. It will be for the minister, “having received policy, operational and legal advice on the specific facts of the case”, to decide to comply with the Rule 39 measure. And “Home Office officials shall proceed with removal if the relevant minister approves that course of action”.
The guidance is thus clear about what civil servants are expected to do in these circumstances. It means they can expect no adverse consequences if they go ahead with removal where a minister has decided to disregard a Rule 39 measure. Conversely, civil servants will presumably face the risk of disciplinary action if they refuse to implement such a ministerial decision.
The guidance refers to civil servants “operating under the civil service code”, but makes no reference to the obligation under the code to comply with the law. The message to civil servants seems to be that, whatever the code says, they don’t need to worry about international law. Rather: “The implications [of a decision to disregard a Rule 39 measure] in respect of the UK’s international obligations are a matter for ministers”.
Perhaps civil servants will find the guidance helpful. Perhaps the situation it covers will never arise (because the bill is materially amended in the House of Lords, or the ECHR accepts that Rwanda is safe and no Rule 39 measures are granted). But it is pretty extraordinary that such guidance is thought necessary in the first place. Neither the guidance nor the bill itself can alter the UK’s obligations under international law, nor cure a breach of those obligations, nor avoid the consequences of such a breach for the UK, whether in the form of legal remedies or reputational damage. And the guidance may be of limited comfort to civil servants who simply think that ignoring orders of a court to whose jurisdiction the UK subscribes, about the risk that someone may suffer irreparable harm, is an unpalatable thing to do.
Sir Jonathan Jones was Treasury solicitor and permanent secretary of the Government Legal Department from 2014 to 2020