You may remember that I - and many others more distinguished than me - argued that ministers could not require civil servants to help deport asylum seekers to Rwanda in breach of an order from the European Court of Human Rights.
This judgement must be right, surely? The opposite decision would have endorsed the principle that Civil Servants could frustrate the will of Parliament whenever there was a clash between domestic and international law. This is thankfully rare, but when it occurs it seems to me we are servants of the Crown and must act accordingly (or resign).
Thanks Francis. I hadn't seen those reports. It will be interesting to see how the dualism debate plays out over the coming years.
In the meantime, though, I remain deeply unhappy that any employer might be allowed to order their employee to break any law, national, international or foreign. I can't think think of a single example where this would be OK unless absolutely necessary to save lives etc.
This surely applies even more strongly to government as an employer. Governments can, with Parliamentary approval, change laws, including withdrawing from treaties. They should not refuse to use these democratic solutions to problems and merely assert that their employees can ignore laws, especially when those laws are drafted so as to protect individuals against the state.
I wonder, too, whether you have inadvertently drawn attention to a constitutional argument. We are servants of the Crown, not of the Executive or of Parliament. Maybe that helps if/when we decide to obey international law when it clashes with its domestic equivalent?
Having said all this, I can of course see both sides of the argument and would never criticise anyone who decided to help Ministers deport an asylum seeker to a dangerous destination. But I hope no-one is ever asked to do so!
There was some analysis from a law professor, Martin, which confirms your account without adding much. The learned professor is not too fond of the principle of dualism... https://blog.bham.ac.uk/lawresearch/2024/07/the-high-court-and-the-ongoing-cliche-of-dualism/
Other reports are purely factual https://www.localgovernmentlawyer.co.uk/governance/396-governance-news/57909-union-loses-high-court-battle-over-rwanda-scheme-and-civil-service-code
This judgement must be right, surely? The opposite decision would have endorsed the principle that Civil Servants could frustrate the will of Parliament whenever there was a clash between domestic and international law. This is thankfully rare, but when it occurs it seems to me we are servants of the Crown and must act accordingly (or resign).
Thanks Francis. I hadn't seen those reports. It will be interesting to see how the dualism debate plays out over the coming years.
In the meantime, though, I remain deeply unhappy that any employer might be allowed to order their employee to break any law, national, international or foreign. I can't think think of a single example where this would be OK unless absolutely necessary to save lives etc.
This surely applies even more strongly to government as an employer. Governments can, with Parliamentary approval, change laws, including withdrawing from treaties. They should not refuse to use these democratic solutions to problems and merely assert that their employees can ignore laws, especially when those laws are drafted so as to protect individuals against the state.
I wonder, too, whether you have inadvertently drawn attention to a constitutional argument. We are servants of the Crown, not of the Executive or of Parliament. Maybe that helps if/when we decide to obey international law when it clashes with its domestic equivalent?
Having said all this, I can of course see both sides of the argument and would never criticise anyone who decided to help Ministers deport an asylum seeker to a dangerous destination. But I hope no-one is ever asked to do so!