Under the Rwanda bill, civil servants face an impossible dilemma. The government must put this right

Ministers want to break the law; civil servants have a legal duty to uphold it
Home secretary James Cleverly. Photo: Uwe Deffner/Alamy Stock Photo

By Dave Penman

14 Mar 2024

Dogs are not just for Christmas, and the civil service code is not just for civil servants. It’s obvious when you think about it. It’s a professional and ethical guide for civil servants, but what civil servants do is determined by ministers. That’s why paragraph 1.3 of the ministerial code makes clear: 

“Ministers must uphold the political impartiality of the civil service and not ask civil servants to act in any way which would conflict with the civil service code as set out in the Constitutional Reform and Governance Act 2010” 

Which takes us neatly to the safety of Rwanda (immigration and asylum) bill.  

Whatever your thoughts on this bill and the policy behind it, it has become totemic for this government. They have decided that making this policy work is existential to their future. But as we’re increasingly seeing, the Conservative Party is becoming fractious and factionous (I think I just made that word up there). Competing political factions are increasingly prepared to exert their muscles, no more so than over the “stop the boats” pledge the prime minister has hooked his political fortunes to. 

All of those elements have come to play over the Rwanda bill and whether individuals subject to deportation under the scheme may be able to block that with an application to the European Court of Human Rights. Cue booing from stage right. If they have a credible challenge, then the court can issue a Rule 39 order, which is effectively an injunction on the UK to stop the deportation whilst the substance of the case is heard.  

Like injunctions in our courts, some would have you believe they are handed out like sweeties at a seven year old’s birthday party, but in reality they are rare and a high bar to get over. They’re often called “pyjama rulings” because judges are roused in the middle of the night to consider the application. They are not a substantive decision on the case, just a stay on the country not to act whilst the case is heard. 

The government finds these rather inconvenient. And so, clause 5 of their bill concerns interim measures indicated by the ECHR in relation to the transfer of asylum seekers to Rwanda.  

It currently states that it is for ministers to decide whether to comply with such interim measures. As Lord Stewart of Dirleton, the advocate general for Scotland, explained on behalf of the government at the committee stage of the bill in the House of Lords: “We treat international law with the utmost seriousness and pay close attention to our obligations. But, in the case of this provision, the minister will be accountable to parliament for the exercise of that personal discretion, and each decision will be dependent upon the individual facts of each case. Nothing in clause 5 requires the United Kingdom to breach its international obligations.”  

Essentially, ministers will decide whether to abide by a Rule 39 order. Are you still with me at the back? 

So here’s the rub. Ignoring a Rule 39 order would be considered a breach of international law. Don’t just take my word for that. The Strasbourg Court has stated on many occasions that failure to comply with an interim measure constitutes a breach of Article 34 of the ECHR. Indeed, on 11 February the Telegraph reported that: “The attorney general and solicitor general agreed that interim measures indicated by the European Court of Human Rights under Rule 39 of the rules of court are binding as a matter of international law and there is no respectable argument to the contrary”.  

Reads like a direct quote, doesn’t it? 

The civil service code meanwhile is unequivocal: civil servants “must comply with the law”. We’ve dug back in parliamentary archives to show that this wording is intended to cover international law and treaty obligations. 

Civil servants don’t just have a professional duty to abide by the code – it’s a legal obligation as the code is enabled by the Constitution Reform and Governance Act 2010. 

Ministers want to break the law; civil servants have a legal duty to uphold it.  

This is no accidental conflict. The legislation in the Rwanda bill is deliberately vague.  

"The civil service code is statutory; it cannot be overridden by ministers or guidance, only parliament"

The faction within the Tory party that doesn’t like sticking a single digit up to our international partners would baulk at parliament ruling it will break our international obligations. Another faction is more prone to displaying that digit. Faced with this circle to square, the government chose to lump the dilemma on civil servants. Unable to pass clear binding legislation, this is a fudge to get ministers out of a quandary. 

The civil service code is statutory; it cannot be overridden by ministers or guidance, only parliament. If the bill contained unequivocal language, it would be clear and would override the provisions in the code. But it didn’t and it deliberately didn’t to get the government out of their political bind. 

So civil servants now face the dilemma that the ministerial code specifically says they shouldn’t – a conflict between the instructions of ministers and their obligations under the civil service code. No civil servants should ever face this dilemma and no minister should ever put them in this position.  

This should be clear blue water territory. But it is not. Instead, it is an indication of how the government is prepared to throw civil servants under a bus to solve their own internal party factionalism. 

That’s why we’ve written to ministers saying they must put this right. They can do this either by amending the code to make it clear civil servants can be instructed to break international law. This would require parliament. Or, the government can amend the legislation. 

Let’s be clear, if the government can get a majority in parliament for it, they can override the civil service code. It’s not pretty having a government explicitly instruct their civil servants to break the law, but hey – that’s democracy.  

But what they want do is hide from that. 

Clarity is what we’re seeking – plain and simple. If the government won’t give that to civil servants then we’ll need to seek that elsewhere.  

Dave Penman is general secretary of the FDA union

Read the most recent articles written by Dave Penman - Q: What do lanyards have to do with delivering public services? A: Absolutely nothing


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