Rwanda scheme: FDA seeks judicial review as civil servants 'could be made to break law'

Union says “cowardly” and “reckless” approach threatens the integrity of the civil service
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The FDA union has applied for a judicial review over concerns that Home Office civil servants could be forced to breach international law over the Rwanda scheme.

Earlier this week, the Cabinet Office confirmed new guidance has come into effect requiring officials to disregard European Court of Human Rights rulings blocking deportation flights to Rwanda if told to do so by a minister. 

But the FDA has accused the government of being “cowardly” and “reckless” and said its approach threatens the integrity of the civil service.

The Safety of Rwanda (Asylum and Immigration) Act passed into law last week, giving ministers the power under UK law to decide whether to comply with any interim measure issued by the ECHR in relation to the Rwanda scheme. One of these so-called “pyjama injunctions” – which can be issued late at night – scuppered the first flight intended to deport asylum seekers to the East African country in 2022.

The latest guidance tells civil servants to “immediately refer the case for a ministerial decision on whether or not to proceed with removal” in the event of such a measure.

In a letter this week, Darren Tierney, director general of the Cabinet Office’s propriety and constitution group, said that in doing so, civil servants would be acting “in accordance with the civil service code… including the obligation not to frustrate the implementation of policies once decisions are taken”.

However, critics have said the guidance would force civil servants to break international law – therefore violating the civil service code, which requires them to comply with the law.

After the draft guidance was published earlier this year, the FDA said ministers must update either the civil service code or the legislation to include an explicit provision addressing breaking international law commitments.

In a statement, FDA general secretary Dave Penman said the government had had “plenty of time” to update the safety of Rwanda bill before it passed into law, “but it chose not to”.

“Civil servants should never be left in a position where they are conflicted between the instructions of ministers and adhering to the civil service code, yet that is exactly what the government has chosen to do,” he said.

“This is not an accident, or down to poor drafting. It’s a political choice from the government, made not for the good of the country but to avoid upsetting either of the warring factions within its own party.”

He said failing to resolve the conflict between civil servants' obligations to follow ministers' instructions under the Safety of Rwanda Act and to comply with the law was "irresponsible".

“Those seeking to undermine the integrity and impartiality of the civil service have seized on the difficulties the government has had in implementing this policy, to accuse civil servants of acting politically," he said.

“We have been clear all along that our challenge is not about the policy itself – that is a matter for parliament. Civil servants know that they have to support the government of the day and implement policy, regardless of their political beliefs, but they also know they have a legal obligation to adhere to the civil service code.

"Faced with a government that is prepared to act in this cowardly, reckless way, it is left to the FDA to defend our members and the integrity of the civil service.

“We do not welcome this action, but neither are we prepared to shy away from it as we must protect the interests of our members and the integrity of the civil service code.”

A government spokesperson said: "The Home Office already sought advice from the director general of propriety and ethics in the Cabinet Office on the issue of the civil service code and claims over the legality of implementing the Rwanda deportation scheme under the new legislation."

In his letter, Tierney wrote: "In implementing the decision, civil servants would be operating in accordance with the civil service code, including the obligation not to frustrate the implementation of policies once decisions are taken. They would be operating in compliance with the law, which is the law enacted by parliament under which the minister’s specifically recognised and confirmed discretion would be exercised.

"The code does not require or enable civil servants to decide not to do so, and so to frustrate the will of parliament and ministers, on the basis that non-compliance with a Rule 39 indication would or might be a breach of Article 34 ECHR. Accordingly, in the present context, neither the civil service code, nor the broader constitutional function of the impartial civil service, require or enable the civil service to decline to implement such a decision by ministers."

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