The FDA has today submitted an application for judicial review relating to the relationship of the Civil Service Code with the UK government’s Safety of Rwanda Act. The Act provides that it is for a minister to determine whether to comply with a Rule 39 order made by the European Court of Human Rights. A direction to ignore such an order would breach international law, and this conflicts with the duty of civil servants under the Civil Service Code to act in compliance with the law, which includes international law.

FDA General Secretary Dave Penman said: “This is not a decision that we have taken lightly. The government has had plenty of time to include an explicit provision in the Act regarding breaking international law commitments which would have resolved this, but it chose not to.

“Civil servants should never be left in a position where they are conflicted between the instructions of ministers and adhering to the Civil Service Code, yet that is exactly what the government has chosen to do.

“This is not an accident, or down to poor drafting. It’s a political choice from the government, made not for the good of the country but to avoid upsetting either of the warring factions within its own party.

“It’s also irresponsible. Those seeking to undermine the integrity and impartiality of the civil service have seized on the difficulties the government has had in implementing this policy, to accuse civil servants of acting politically.

“We have been clear all along that our challenge is not about the policy itself – that is a matter for Parliament. Civil servants know that they have to support the government of the day and implement policy, regardless of their political beliefs, but they also know they have a legal obligation to adhere to the Civil Service Code. Faced with a government that is prepared to act in this cowardly, reckless way, it is left to the FDA to defend our members and the integrity of the civil service.

“We do not welcome this action, but neither are we prepared to shy away from it as we must protect the interests of our members and the integrity of the Civil Service Code.”

 In March, FDA General Secretary Dave Penman wrote to the Home Secretary and Minister for the Cabinet Office, outlining the union’s concerns regarding the provisions in the then-Bill, which indicated ministers may have discretion to ignore Rule 39 orders from the European Court of Human Rights. These provisional orders, similar to an injunction from a UK court, would potentially be issued to prevent the deportation of an asylum seeker, before the final decision being taken by the court. 

Ignoring a Rule 39 order would be a breach of international law and civil servants have a legal obligation under the Civil Service Code to “uphold the rule of law and administration of justice”. Neither Ministers nor guidance can overrule the legal obligation of the Civil Service Code, only another act of parliament can. There is therefore a potential conflict between any instructions that might be given by a minister and the legal obligations under the Code, if a minister was to decide to ignore a Rule 39 order.

The FDA will be represented by Tom Hickman KC of Blackstone Chambers, instructed by Edward Cooper, Head of Practice OMS Employment at Slater and Gordon.