UK government’s Rwanda guidance urges civil servants to ignore international legal obligations

As UK Prime Minister, Rishi Sunak, delivered a press conference on Thursday following the successful passing of his Rwanda ‘Asylum and Immigration Bill’ on the third reading in the House of Commons, it emerged that civil servants had been issued with a new guidance directing them to ignore rulings from the European Courts.

In a bid to pacify dissenting MPs, senior officials in both the Cabinet Office and the Home Office, just hours before the crucial vote, published details of the guidance which had been sent to civil servants informing them that they will be expected under the new emergency legislation, to ignore any directions/orders from the European Courts of Human Rights (ECHR) and that they will be required to defer only to instructions received directly from ministers.

The guidance puts civil servants in an ‘invidious position’

The unions representing civil servants and other civil service representative bodies, have expressed extreme disquiet over the possibility that civil servants may end up breaching international law by following the orders of the minister.

David Penman, Head of the FDA union for civil servants, was clear about where he and his members stood in regard to the guidance received. He felt the guidance would put his members in an ‘invidious position’ and said:

‘The ministerial code says you should not put civil servants in a position where there’s a conflict between their obligations under the Civil Service code and instructions you give them as a minister…pretending that you can do that is not actually doing it because a civil servant has to deal with facts, not illusion or bluster or rhetoric’

He added:

‘It’s about whether the UK can ignore its international obligations. A wheeze to get around it doesn’t change the substance’

Remove all roadblocks, including the civil service blob’

There have been accusations that the government after the recent frosting of relations between certain ministers and the civil servants, has been considering plans to rewrite the formal set of principles for civil servants in order to address concerns of right-wing Tory MPs, who believe the legislation doesn’t go far enough to block last minute injunctions (Rule 39 orders) from the European Court of Human Rights. Warnings from high profile Tories such as the former Home Secretary, Dame Priti Patel, urged the Prime Minister to ensure that:

‘all potential roadblocks are removed, ‘including the civil service blob’

Patel went on to suggest that it was important that the civil service code could not be used by officials to obstruct minister’s decisions.

Cabinet office has denied this and has said that the guidance is simply to provide clarity for ministers and officials in respect of the Rwanda Bill.

The Prime Minister’s official spokesperson responded to the accusation by saying:

‘What we are looking to do is to provide further guidance so there is clarity for ministers and civil servants on the application of this. This is simply about ensuring civil servants act within the code. This is simply about making sure that we’ve taken every conceivable step to ensure that we get flights of the ground as quickly as possible should the bill progress through the House, as we continue to believe it will’

Once a decision is made by a Minister, ‘they will be carried out’

Comments made by the illegal migration minister, Michael Tomlinson had caused outrage at the offices of civil servants unions, when he said on air during a BBC programme that:

‘there will be further confirmation that it will be for ministers to decide and then, once those decisions are made, they will be carried out [by civil servants]’

Deputy General of Prospect Union, described any attempts to amend the code or to reinterpret it as:

‘a desperate attempt by the party of government to placate their own backbenchers’

Doughty Street Chambers, Human Rights Barrister, Adam Wagner, declared on his Twitter account, that any such plans would be ‘a non starter’. He added:

‘Civil Servants can only advise on the basis of the law, and the government’s advice from the Attorney General and (barrister) Sir James Eadie apparently is, rightly, that Rule 39 measures must be complied with in order not to breach the UK’s duties under the European Court of Human Rights’.

‘I’ve been crystal clear,’ I will ignore Rule 39 Orders

The UK Prime Minister, Rishi Sunak, during his press conference on Wednesday was repeatedly asked if he was prepared to ignore the so called ‘Pajama-injunctions’ – Rule 39 orders issued from Strasbourg by the ECHR, the emergency blocking powers of which were used in the past to thwart flights to Rwanda. He was emphatic in his response. He said:

‘I’ve been crystal clear repeatedly that I won’t let a foreign court stop us from getting flights off and getting this deterrent up and running…The bill specifically contains a power that makes clear that ministers are the ones that make these decisions. Parliament has supported that. [The bill also] makes it perfectly clear that the domestic courts should respect that decision. I would not have put that clause in the bill if I was not prepared to use it. So, look, if you’re asking me are there circumstances in which I will ignore rule 39, then the answer is clearly yes’

 

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