Civil servants can’t boycott the government’s deportation orders on the ground that they contradict international law, the High Court ruled on Friday.
The court dismissed a legal challenge against government guidance on Rishi Sunak’s flagship Rwanda deportation policy hours after the prime minister conceded election defeat.
The challenge, brought in May by the FDA trade union, was against government guidance published in April that says civil servants are obligated to carry out the home secretary’s decision not to comply with an intervention by the European Court of Human Rights (ECHR), known as a “Rule 39 indication,” and not to frustrate the implementation of policies once decisions are taken.
The challenge came after months of dispute between the government and public service unions which argued that if civil servants carry out the government’s Rwanda deportation orders despite ECHR interventions, they would be breaking the Civil Service Code, which requires them to “comply with the law and uphold the administration of justice.”
On Friday morning, Mr Justice Chamberlain allowed FDA’s application for judicial review but ruled in favour of the government.
“In our dualist legal system, such a decision may be contrary to a strong convention, but—in domestic law terms—is permissible in principle,” the judge said.
The judge also rejected that the Civil Service Code prevented civil servants from assisting a minister who decides to violate international law.
“Any such rule would make it practically impossible for a Minister to act contrary to international law. Since the implementation of Ministerial decisions almost always requires the assistance of civil servants, it 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,” he said.
In the UK, the dualist theory is applied, meaning international law is not part of domestic law unless it’s incorporated by Parliament or through the common law, and the government can decide to break international law without breaking domestic law.
In his 33-page ruling, Mr Justice Chamberlain said no application to adjourn the case was made in light of the general election being announced, with the departing Conservative government having told the court in London that it planned to begin removals on July 24.
However, Labour’s election victory is likely to mean the end of the stalled plan to send illegal immigrants to Rwanda, without a single asylum seeker being deported from the UK.
Following the decision, FDA general secretary Dave Penman said it was “disappointing” that the challenge was denied, but welcomed “clarity” from the High Court.
“Civil servants were faced with legal obligations to comply with the law and a deliberate attempt by government to fudge this issue due to their own internal political differences,” he said.
“The court has ultimately decided that the then-government was explicit enough about the intent to break international law when passing the legislation, and that Parliament had indeed sanctioned that possibility. Clarity is what we were seeking and the court has provided that.
“This was a deliberate act from government. The vagueness of their position reflected their own internal difficulties, and left the matter of whether domestic legislation was sufficient to supersede a civil servant’s obligations under the Civil Service Code in doubt.
“No government should ever put the Civil Service in this position. We are grateful to the court for bringing clarity over this point, as well as establishing the principles around breaches of international law and civil servants’ obligations to uphold it.”
