CivilServants, International Law & Rwanda
The publication of the Safety of Rwanda (Asylum and Immigration) Bill raises, yet again, the question of whether civil servants can be ordered to ignore the UK’s international legal obligations.
I have accordingly updated the relevant text within my Civil Servants, Ministers and Parliament. Here is the result:-
Civil servants may not ignore or seek to circumvent laws which confer rights upon UK citizens. The Civil Service Code says that civil servants must 'comply with the law and uphold the administration of justice'.
This obligation (and the other Civil Service Code obligations) were incorporated into civil servants’ terms and conditions of employment by the Constitutional Reform and Governance (CRaG) Act[2].
Should civil servants accept instructions which are incompatible with international law? The majority of lawyers experienced in these fields suggest that the answer is ‘No’ – they should not.
This extends to officials' duty to comply with any interim measures imposed by international courts in advance of their final decisions. The leading case is Mamatkulov and Askarov v. Turkey which held that any failure to comply with interim measures would frustrate obligations and rights provided in the relevant international treaty.
The fundamental point is that civil servants are (under their Code and the CraG Act) required to “comply with the law” and that means every law, not just most of them. I and others fail to see how those employed in areas subject to international law can avoid complying with that law. In addition, of course, the Ministerial Codes (in both Westminster and Belfast) are very clear that Ministers may not ask civil servants to do things which are illegal or improper.
Here is a brief history of the debate.
The status of international law was considered when an amended Ministerial Code was published in 2015. This (still) required Ministers to obey the law, but omitted previous versions’ references to the need to obey international law. The Cabinet Office itself did not draw attention to this potentially significant change, but responded, on being challenged, that the previous reference to international law had been unnecessary as it was subsumed within the definition of law.
This point was expressly considered in R (Gulf Centre for Human Rights) v (1) The Prime Minister and (2) The Chancellor of the Duchy of Lancaster [2018] EWCA Civ 1855. The key text is in paras 19-22 where the Court of Appeal held that the reference to "international law and treaty obligations" in the previous (2010) Ministerial Code had been subsumed within the stated duty "to comply with the law" ... they are not independent obligations but simply part of the "overarching" duty of compliance with the law. ... the reference to the duty "to comply with the law" in the 2015 Code is general and unqualified. In so far as that duty includes international law and treaty obligations, they are so included. It is not necessary for there to be specific inclusive language."
There have been very few examples of civil servants ever being asked to do something illegal ... until 2020 when the Johnson government tabled the Internal Market Bill some of whose provisions - if enacted - would have conflicted with international law in the form of the Brexit Withdrawal Agreement. Clause 45 of the Bill provided that “The following [various regulations etc.] have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent …”. The Bill drew much criticism and opposition as it made its way through Parliament and the controversial provisions were withdrawn from the Bill.
The Cabinet Secretary determined (correctly in my view) that civil servants could not refuse to help draft the Bill. It was far less certain that they could have implemented the provisions of the Act (if it had become law) and so contravene international law. The same principles apply to the distinction between drafting and implementing the Rwanda legislation - see further below.
Following publication of the Internal Market Bill, there was a lively Twitter debate in October 2021 where one lawyer argued that international law is in some ways dissimilar to domestic law and (if I understood correctly) applies only to states (such as the UK) and not to individuals within those states. The UK as a whole might therefore breach international law, but its civil servants could not. I did not find the argument 100% persuasive and – more importantly – neither did those experienced international and constitutional lawyers who joined the debate.
A deeper and longer analysis of the debate (though not dealing with the role of civil servants) may be found in David Allen Green’s ‘The Law and Policy Blog’ published on 12 October 2021. In short, he argued that the UK government was not about to breach the Northern Irish Protocol by accident or through recklessness, or on the basis of a grey area of interpretation. It intended to deliberately breach the Protocol by using domestic legislation. This was, in essence, the United Kingdom government asserting that a legal obligation did not bind it. This would be a fundamental repudiation of the general principle that a legal command should be obeyed.
The legal position was then tested in 2022 when Northern Ireland Minister Edwin Poots demanded that officials stop building the Border Control Posts required by the UK/EU Northern Ireland Protocol. Mr Poots' Permanent Secretary told Stormont's Agricultural Committee that he was "absolutely required to comply with the law ... I am accountable to the Minister generally, but in this case I am acting against the Minister's wishes." The Northern Ireland courts agreed. A judge ruled that "There shouldn't be any doubt or confusion hanging over those civil servants who have to comply with the law. I propose to make an order, suspending the order or instruction given by the Minister for Agriculture until further order of this court or completion of these proceedings".
There was an interesting exchange in the House of Lords Constitution Committee on 28 June 2023. Attorney General Victoria Prentis agreed that "the rule of law requires compliance by the state with its obligations in international law". The above-mentioned change in the Ministerial Code was then brought to her attention and she agreed that the Government had confirmed in litigation that, nevertheless, the reference to the rule of law included the rule of law in the sphere of international law.
Ms Prentis was rather more cagey when questioned about her role if there were ever a serious conflict between domestic law (which can be altered by Parliament) and an international law obligation of the UK. Commenting later, George Peretz KC said that her reluctance to be pinned down reminded him of a Private Secretary in "Yes Minister" when asked whether, when the chips were down, he'd be loyal to his Minister or to the Civil Service. "My job", he said, "is to see that the chips stay up".
Then came the December 2023 draft Safety of Rwanda (Asylum and Immigration) Bill which contains quite dramatic 'notwithstanding' (or 'ouster') provisions which purport to disapply large swathes of international law. Crucially, however, it does not apply the CRaG Act and so does not remove civil servants' duty to comply with international law.
Here are extracts from Joshua Rozenberg's commentary (emphasis added) drawing on the views of Mark Elliott, Professor of Public Law at the University of Cambridge.
What clause 1 is trying to establish is that removing a “relocated individual” to Rwanda once the Rwanda treaty has been ratified would not be a breach of international law. But there is an obvious flaw in this proposition. Parliament makes national law but not international law. Simply saying something is in compliance with international law does not make it so. The most that this legislation can do is to stop the courts of the United Kingdom finding removals to Rwanda unlawful. It cannot affect the UK’s international treaty obligations.
...
Subsection (2) says: It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with [interim measures]. ... there is no escaping what this stark subsection means. A junior minister, on behalf of the United Kingdom, may choose to break what the court responsible for its enforcement regards as a binding provision of international law. The minister would be acting lawfully — but His Majesty’s government would not.
After all, he explains, this bill is "an affront to the separation of powers and the rule of law, in that it effectively reverses a Supreme Court judgment, undermines the judicial function and attempts to remove from the courts’ jurisdiction questions about the legality of government decisions. In orthodoxy, the principle of parliamentary sovereignty — which makes whatever parliament enacts lawful — would be a complete answer to these charges. But, in Privacy International[3], Lord Carnwath said “it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review”. For a court to take the step implied in this comment — by holding, in effect, that parliament had exceeded its authority by seeking to limits the courts’ constitutional role — would be fraught with risk for the judiciary. It is, however, conceivable that the Rwanda Bill might transform what has largely remained a hypothetical question about the fundamental relationship between parliament and the courts into a live one.
Ultimately, [Elliot] believes [that] the Rwanda Bill is "proceeds on the basis of the sleight of hand that the UK parliament, because it is sovereign, can somehow free the government from its international legal obligations. But this is to conflate the sovereignty of the UK parliament in domestic law with the UK’s sovereignty on the international plane as a state. It is precisely in exercise of its state sovereignty that the UK can enter, and has entered, into binding treaty obligations. The peculiarity that the UK’s parliament, as a matter of domestic law, is sovereign in the sense of being (in orthodoxy, at least) beyond judicial control cuts no ice whatever on the international level.
Martin Stanley - Author - How to be A Civil Servant
[2] https://www.legislation.gov.uk/ukpga/2010/25/contents
[3] https://www.supremecourt.uk/cases/docs/uksc-2018-0004-press-summary.pdf