A senior official in the Cabinet Office yesterday wrote to the Home Office Permanent Secretary and others setting out his view of the responsibility of civil servants if the European Court of Human Rights recommends Rule 39 interim measures intended to halt deportations to Rwanda. The letter is here and its substance is contained in these two sentences (emphasis added):
Section 5 of the Safety of Rwanda (Asylum and Immigration) Act confirms 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 an interim measure of the European Court of Human Rights.
In the event that the Minister, having received policy, operational and legal advice on the specific facts of that case, decides not to comply with a Rule 39 indication, it is the responsibility of civil servants to implement that decision.
Before analysing this letter, it is important to remember that civil servants are bound to comply with a wide range of international laws and not just the European Convention (and its court). This was recently made clear in a recent Rwanda case in the Supreme Court which said that ...:
... there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda. ... Non-refoulement is a core principle of international law. Asylum seekers are protected against refoulement by several international treaties ratified by the UK [including] article 33(1) of the United Nations 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“the Refugee Convention”).
So yesterday's letter does not appear to grant permission to civil servants to organise deportations to Rwanda in contravention of the Refugee Convention etc. However, putting this on one side, some elements of the letter do intrigue me.
The highlighted phrase purports to suggest that UK courts, including the Supreme Court, may not get involved in this decision making even though the Minister will have made their decision on a rule 39 recommendation on (possibly flawed) policy, operational and legal advice. I would expect this to be challenged in what would be a fascinating constitutional case.
More generally, the ECHR's Rule 39 allows the court to “indicate” interim measures to stop governments from taking action that could or would violate someone’s human rights. According to the court, “they play a vital role in avoiding irreversible situations that would prevent national courts and/or the Court from properly examining Convention complaints and, where appropriate, in securing to the applicant the practical and effective benefit of the Convention rights asserted”.
The court has no enforcement powers, of course, and can only operate effectively if national governments and their courts accept its indications. In the court’s recent jurisprudence, therefore, this apparently advisory power has been assumed to be a power to grant legally binding interlocutory relief. The legally binding nature of the recommendations seems until now to have been accepted in the UK (though perhaps not in Russia?). But our Parliament has now decided that UK Ministers are in future free to ignore Rule 39 recommendations. I again suspect that this reversal will be challenged in the UK courts. (Arguments which support Parliament's and the Government's position may be found in this Policy Exchange paper.)
Incidentally, given the gravity of the issue, and the status of the recipients of the letter (all Permanent Secretaries) I am slightly surprised that the letter was not signed by the Cabinet Secretary himself. Maybe he has reservations?
It would also have been helpful to know whether the Government’s chief lawyer, the Attorney General, agrees with the advice coming out of the Cabinet Office. I have commented previously on ...
... 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" ... she agreed that the Government had confirmed in litigation that ... the reference to the rule of law [in the Civil Service Code] 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".
It looks as though she may not yet have decided on which side the chips should fall.
Notes
I am not a lawyer and would be very glad to be corrected if I have got anything wrong in the above analysis. If so I will correct the web version of this newsletter.
Further information and analysis about civil servants’ professional responsibilities may be found in my Civil Servants, Ministers and Parliament which may be accessed in a number of formats from as little as £1.00.
Martin Stanley
This sets out my thinking on the issue: https://open.substack.com/pub/thelawdrafter/p/brown-paper-the-civil-service-code?r=1v3j0p&utm_campaign=post&utm_medium=web&showWelcomeOnShare=true
Thanks Martin, that was really interesting