Rwanda and the Civil Service Code: A Postscript

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. (A previous relevant Substack is here.) Ministers thought otherwise and issued ‘Guidance’ accordingly. The FDA (the senior officials’ trade union) challenged this guidance in the High Court but lost.

The judge’s decision was published on 5 July when all our attention was elsewhere, the general election having taken place the day before. I thought it might therefore be useful to summarise the decision, below. The full decision is here.

The election of the Labour government meant that the decision might be of purely theoretical interest, at least for the next five years. But I wonder how well it would have survived any appeal? The Supreme Court might have something to say about the interaction of the Civil Service Code and the ‘dualist’ theory of international law.

But that is speculation. Here is my shortened version the court’s own summary of its reasoning:

(a) According to ECHR case law, governments are obliged to take all reasonable steps to comply with a Rule 39 Indication -  the equivalent of an injunction in UK law. Removing an individual to Rwanda in the face of a Rule 39 Indication to the contrary would constitute a clear violation of this obligation, which is binding on the United Kingdom as a matter of international law.

(b) The United Kingdom applies the dualist theory of international law. This means:

(i) International law is not part of domestic law unless it has been incorporated into domestic law by or under an Act of Parliament or through the common law, where consistent with statute.

(ii) The obligations in Article 34 ECHR (including the obligation to comply with Rule 39 Indications) have not been incorporated into, and so are not part of, domestic law.

(iii) Although there is a strong convention that the Government will act so as to comply with the United Kingdom’s obligations under international law, a decision by the Government to act in a way which clearly violates those obligations is not, ipso facto, contrary to domestic law. As a matter of domestic law, such a decision is permissible in principle.

(c) Civil servants must refuse to carry out Ministerial instructions which are contrary to domestic law. But there is no equivalent constitutional rule that civil servants must refuse to carry out instructions which are clearly contrary to international law. Any such rule would transform almost every obligation binding on the United Kingdom on the international plane into a domestic constraint on Ministerial action. This would be fundamentally incompatible with dualism.

(d) The Rwanda Act restates or enacts a general rule that decisions about whether the United Kingdom will comply with a Rule 39 Indication are for a Minister and only a Minister. This means that such decisions are not for domestic courts, but also that they are not for anyone else, including civil servants.

(e) As a matter of domestic law, the Minister has the option of deciding that the United Kingdom will not comply with the Rule 39 Indication, even though that would place the United Kingdom in clear violation of international law.

(f) The Civil Service Code must be interpreted in context. The context includes the unique employment relationship between civil servants and the Crown, which has to be understood against a framework of constitutional rules of law and conventions, including those described in above.

(f) Interpreted in that way:

(i) As a general matter, the Code’s obligation to “comply with the law” includes an obligation to comply with domestic law and act so that the United Kingdom complies with its international law obligations.

(ii) However, in the special case where domestic and international law are not consistent, “the law” with which civil servants must comply includes the rules and conventions governing conflicts between domestic and international law. These include both the domestic constitutional rule that it is permissible in principle for Ministers to decide to act in ways which violate international law and s. 5(2) of the 2024 Act, which confirms or enacts that rule in the Guidance scenario. Here, the obligation to “comply with the law” requires civil servants to comply with any domestically lawful Ministerial decision to remove individuals to Rwanda in the face of a Rule 39 Indication. It follows that Ministerial Guidance correctly states the effect of the Code.

(g) The Civil Service Code does not purport to cover all eventualities. Its simple instruction that civil servants must “comply with the law” is not “a positive statement of the law which is wrong”.  Nor is the Government obliged to give more detailed advice or instructions. The Code is therefore not unlawfully unclear. In any event, the Guidance tells civil servants what to do in the Guidance scenario and this judgment confirms that the instruction is correct as a matter of domestic law.

Footnote

I have not seen any legal or academic discussion of this decision. It would be helpful of readers could draw attention to any such discussion, now or in the future, in comments on this Substack.

Martin Stanley