BROWN PAPER: The Civil Service Code and International Law

Setting out the argument why civil servants are bound to comply with international law and whether the Rwanda Act provides a get out

May 06, 2024

Introduction

This post is a long read so, before you start, please make yourself a brew and grab some of your favourite biscuits.1

The civil service union, the FDA, has taken the unusual step of launching a judicial review of the Government in connection with the Safety of Rwanda (Asylum and Immigration) Act 2024 (the “Rwanda Act”).23

As far as I can tell from the article on the Independent website, the judicial review arises as out concerns that the Rwanda Act gives a minister the ability to take a decision in direct contravention of international law. This, says the FDA, risks putting civil servants in breach of the Civil Service Code (the “Code”).4 Civil servants have been given guidance by the Director General in the Cabinet Office who is responsible for propriety and ethics which states there is no breach of the Code.5

This is something I have been having a few debates about on Twitter recently.6 I have taken the position that there is an argument the Code does require civil servants to comply with international law. During those debates the following points have been put, often as mere assertion:

The Code does not require compliance with international law.
The Code requires civil servants to do whatever the government tells them to do.
A civil servant is not bound by international law and cannot, therefore, breach it.
There is no personal liability for civil servants.
International law has only the reach into domestic law which parliament allows it. Where parliament has empowered a minister to disregard international law, that is the end of it.

Largely debates on Twitter are done by assertion because it is not a media designed for detailed discussion or evidence.

So, in this post I want to set out my reasoning as to why I think the Code does require compliance with international law. I will also discuss the potential consequences which I think a civil servant would be at risk of if they comply with a ministerial instruction.

By doing so, I think the five points summarised above are met.

I hope by setting out my thinking I can show that sometimes, in order to come to a position, you need to widen out your considerations before narrowing them back in again.

Those who have taken the contrary position to me on twitter have often been entirely sure there is no problem for the civil servants. I verge on the side of concluding the Code does impose a requirement

In any event I think lawyers, politicians, civil servants and the public at large should all welcome a definitive answer. We will see, in time, if the Code does require compliance with international law and if, in these specific circumstances, that requirement is displaced.

As you will also find out later in this post, this did not need to end in a judicial review at all.

The Code

The Code sets out the core requirements placed on civil servants in the hope of protecting the impartial nature of our civil service.7 It is made up of four key values

‘integrity’ is putting the obligations of public service above your own personal interests
‘honesty’ is being truthful and open
‘objectivity’ is basing your advice and decisions on rigorous analysis of the evidence
‘impartiality’ is acting solely according to the merits of the case and serving equally well governments of different political persuasions

The Code then goes on to talk about “standards of behaviour” which flow from these values and sets out a little more detail on what is required.8 They are framed as a collection of “must/must not” bullet points which elucidate the behaviours.

There are two which are relevant to this discussion: integrity and objectivity. As we will see, these are (at least potentially) in tension when it comes to an issue such as this.

Objectivity

I want to start first with the objectivity behaviour. There are two main reasons for starting with it: first, because it does lend some support to those who say that civil servants are under an obligation to do as they are told; second because it just does not require the same length or complexity of analysis.

Within the bullet points of objectivity we can find

you must not frustrate the implementation of policies once decisions are taken by declining to take, or abstaining from, action which flows from those decisions.

In other words, within the context of the Rwanda Act, a civil servant must take the actions which flow from the decision taken by a minister as to whether the UK will comply with an interim measure indicated by the ECtHR.9

It is this particular behaviour those who are advocating most vociferously for mass resignation or sackings seem to have honed in on, either consciously or because it is almost an invocation of Thatcher’s aphorism:

advisors advise, ministers decide.

Integrity

One of the bullet points within the integrity behaviour states:

you must comply with the law and uphold the administration of justice.

At first blush you could be forgiven for thinking, given than we have a dualist legal system, “comply with the law” means only domestic law and that, as there is now an Act of Parliament authorising a minister to decide whether or not the UK complies with an interim measure of the ECtHR, a civil servant who makes decisions on deportation to Rwanda, or who actively takes part in that deportation, is not in breach of the Code. In fact, that is what many on Twitter have been saying.

“Comply with the law”

However, it is not quite that straightforward. We need to think about the impact of case law which may have a bearing on the interpretation. The meaning of “comply with the law” has been considered, within the context of the Ministerial Code, by the Court of Appeal in Gulf Centre for Human Rights, R (on the application of) v The Prime Minister and another.10 The substance of the claim is summarised as follows:

GCHR contends that the words deleted from the 2010 Code imposed an obligation on Ministers under the Code to comply with international law and treaty obligations which do not themselves form part of domestic law. GCHR says that the obligations under the 2010 Code went beyond Ministers' legal duties. The effect of the Deletion and the limitation of the duty to one of compliance "with the law" in the 2015 Code is that Ministers' obligations under the Code no longer extend beyond their legal duties, resulting in a change in substance.11

Before setting out, and discussing, the conclusion, it is worth jumping back in the judgment slightly to identify the substance of the decision at issue:

The Decision involved an amendment to paragraph 1.2 of the Code. The previous (2010) version of the Code provided (underlining added):
"The Ministerial Code should be read alongside the Coalition agreement and the background of the overarching duty on Ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life"12

Gulf Centre’s claim was dismissed on the basis their key contention (i.e. that set out above) was unsustainable for the following reasons:

First, the 2010 Code neither set out nor imposed any separate or free-standing duty on Ministers in relation to compliance with the law, domestic or international. It referred to the "overarching duty" which Ministers already owed, against which the Code is to be read. The Code did not create new or different duties; it simply referenced existing duties outside the Code.
Secondly, the reference to "international law and treaty obligations" in the 2010 Code is subsumed within the stated duty "to comply with the law". That duty includes those obligations. Whatever the precise meaning of the reference to those obligations, they are not independent obligations but simply part of the "overarching" duty of compliance with the law.
Thirdly, it follows that the key relevant duty under the 2010 Code is the "overarching" duty "to comply with the law". That is equally the key duty under the 2015 Code.
Fourthly, the reference to the duty "to comply with the law" in the 2015 Code is general and unqualified. In so far as that duty includes international law and treaty obligations, they are so included. It is not necessary for there to be specific inclusive language.13

It is clear from this that, at least in respect of the Ministerial Code, “comply with the law” includes “comply with international law”. This makes sense given the position of ministers as agents of (and arguably part of the corporation aggregate that is) the Crown and that the Crown is bound in international law. In some of the debates on twitter people have questioned whether Gulf Centre applies to the Code. It is correct, at least to my mind, for them to point out that it is a decision on the impact of a different code. Some have used that to claim that even if “comply with the law” means international law in the Ministerial Code, it does not in the Code and that the only law civil servants are bound to follow is domestic law.

Ultimately we will find out, should the FDA judicial review get permission, if the meaning in the Code is the same. That said, I think it would be a very strange decision to conclude it means only domestic law.

Zooming out

At the start of this post I said

I hope by setting it out I can show that sometimes, in order to come to a position, you need to widen out your considerations before narrowing them back in again.

Now is the time for us to do that, so that we can see why I think it is almost unarguable to say the meaning of “comply with the law” in the Code takes a different meaning from the Ministerial Code.

In order to make sense of this, we need to consider the constitutional position of the civil service and those who work within it. Oddly, this is not as settled as you might think or hope.

In 1998, the House of Lords Select Committee on Public Service published a report which included discussion of the constitutional position of the civil service.14 Evidence to it suggested the traditional orthodox view was that civil servants were servants of the Crown not a minister, and that a minister was “first amongst equals”; however, after a legal challenge the Court of Appeal were compelled to adopt a “heterodox position” and “elevate departmental practice into a doctrine of law”.15

The doctrine referred to in that evidence is the principle set out in Carltona Ltd v Commissioners of Works.16 The “departmental practice” being referred to in the House of Lords was that of officials within a ministerial department taking decisions which fell, as a matter of law, to a minister to take:

Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected to competently perform the work, the minister would have to answer for that in parliament.17

It is worth noting that what Lord Greene MR is talking about here is not delegation: “the decision of such an official is, of course, the decision of the minister”. This is perhaps better described in Nelms v Roe where officials are described as the “alter ego of the minister”.18

The Carltona principle became firmly embedded in our common law, with officials regularly taking decisions which were, according to statute, for ministers to take. There has, perhaps, been some wing-clipping of the principle by the Supreme Court. In R v Adams the Supreme Court questioned whether it was correct to say, as a matter of law, that “a statutory duty placed on a minister may “generally” be exercised by a member of his department”.19 It suggested the question as to whether or not a statutory power could be exercised by officials within a department was a pure matter of construction unencumbered by the presumption that the principle was taken to apply.20

Crucially, though, for the purposes of this post, the Supreme Court did not seek to undermine the Carltona principle. Although the judgment does, to the extent obiter comment can, bring into question the application of the principle to any given power it acknowledges the principle is well established.21

Zooming back in

As a civil servant is the alter ego of a minister, ensuring coherence of law in this area pushes towards applying the conclusion(s) in the Gulf Centre case to the interpretation of the Code.

Conclusion on the Code

Hopefully you are still with me after the brief detour into the legal position of the civil servant. You may well be asking, though, “so what? why does that matter?”. Well, Carltona provides a solid basis for concluding that the Code requires a civil servant to comply with international law. It would not make sense when ministers are required to comply with international law to not require those who are appointed to act as their alter ego to do the same thing.

If “comply with the law” in the Code does not mean the same as it does in the Ministerial Code, there is the potential for the minister to be put in breach of their code by the acts of a civil servant who is not held to the same standard.

It is also worth noting here the Code does not contain any provision to resolve a conflict between two of the principles or behaviours. I would suggest, however, that any conflict between a requirement to comply with the law and a requirement not to frustrate the implementation of a policy must be resolved in favour of compliance with the law. I think it is possible, therefore, to reasonably imply a limitation of the requirement not to frustrate policy as only applying to lawful policies.

I do not think, given the Gulf Centre case, and the constitutional position of the Crown that “this is authorised by domestic legislation” is always sufficient to make something a “lawful policy” within the meaning of the codes.

The Rwanda Act

There are then those arguments made on Twitter that even if the Code does require compliance with international law the Rwanda Act somehow overrules that.

Sovereignty of domestic law

One such argument is that even if civil servants are bound to comply with international law, the Rwanda Act takes precedence over any such duty because it is domestic law and Parliament is sovereign. The first thing to consider is the status of the Code. The Code is issued pursuant to a statutory duty placed upon the Minister for the Civil Service22 The Code must require civil servants who serve certain administrations to:

carry out their duties for the assistance of the administration as it is duly constituted for the time being, whatever its political complexion.23

It must also require civil servants to carry out their duties:

(a)with integrity and honesty, and
(b)with objectivity and impartiality.24

The Code is underpinned by domestic law and forms, by automatic operation of domestic law, part of the terms and conditions of service of civil servants who are covered by it.25 Therefore, I do not think the argument anything done in consequence of the Rwanda Act takes precedence because it is domestic law has merit - I think it is, at least on the context of this debate, somewhat of a red-herring.

Dis-application of the Code

Another argument made on Twitter is that the Rwanda Act has implicitly dis-applied the requirement in the Code that civil servants comply with international law.26 When I have seen this argument put, it has relied on section 5 of the Rwanda Act:

5 Interim measures of the European Court of Human Rights
(1)This section applies where the European Court of Human Rights indicates an interim measure in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of, or made under, the Immigration Acts.
(2)It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure.
(3)Accordingly, a court or tribunal must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to the Republic of Rwanda under a provision of, or made under, the Immigration Acts.
(4)In this section—
(a)a reference to “the Immigration Acts” does not include the Illegal Migration Act 2023 (see instead section 55 of that Act);
(b)a reference to a Minister of the Crown is to a Minister of the Crown acting in person.27

Effectively the argument is that because Parliament has empowered a minister to decide whether to comply with an interim measure of the ECtHR a decision not to comply must be given effect by civil servants. To the extent this runs contrary to the Code, this takes precedence because it comes later in time than the Act underpinning the Code.

In order to make good that argument it would need to be shown there is an irreconcilable inconsistency between the two. However, that argument fails, at least in my mind, for two main reasons:

first, the Secretary of State could make decisions relating to deportation personally and could make arrangements for deportation which do not involve civil servants;
second, and perhaps more crucially, section 5 of the Rwanda Act only deals with interim measures of the ECtHR.

In order to fully consider the impact of section 5 of the Rwanda Act it is worth engaging in a little bit of statutory interpretation.28

Section 5(1) sets out the circumstances in which the remainder of the section is “switched on”. It requires the ECtHR to have indicated interim measures. Once they are indicated, section 5(2) provides that a minister, and only a minister, may decide if the UK will comply with the interim measure. Section 5(3) explains the consequences of section 5(2) - it prevents a court or tribunal from having regard to the interim measure when determining an appeal against a decision to deport.

The use of the word “accordingly” at the beginning of subsection (3) is interesting. It could, quite easily, be read as a continuation of (2) such that the effect of (2) is limited by (3). In other words, section 5 has no bearing at all on the duties of civil servants - it merely serves to give a minister the power to prevent a court from taking into account the existence of interim measures.

In those circumstances, the Rwanda Act cannot be said to limit the duty of a civil servant to comply with international law. This is, potentially, strengthened by the dis-application by section 2 of the Rwanda Act only of the Human Rights Act 1998.29 It Parliament had intended to relieve civil servants of any duty to comply with international law, they could easily have dis-applied the ECHR at this point too.

Conclusion on the Rwanda Act

Assuming the case that civil servants are required to comply with international law is made out, I do not see a compelling argument for implied dis-application by the Rwanda Act.

Consequences for civil servants

As mentioned earlier in this post, the Code forms part of the terms and conditions of service for civil servants.30 Breaching the Code is a disciplinary offence for which a civil servant may be dismissed. It would, of course, be somewhat churlish to instigate disciplinary proceedings particularly in light of the Cabinet Office guidance telling civil servants they must implement any decision of the minister.31

Another potential consequence for civil servants lies in the offence of Misconduct in Public Office. The elements of the offence are:

A public officer acting as such.

Clearly a civil servant acting as a civil servant is a public officer acting as such.

Wilfully neglects to perform his duty and/or wilfully misconducts himself.

The standard required to demonstrate willful neglect/wilful misconduct is:

deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not.

This may well be difficult to prove, but there must, given the amount of reported disquiet about whether a civil servant will be acting in breach of the Code, be at least the risk of this element being made out.

To such a degree as to amount to an abuse of the public's trust in the office holder.

This is a matter for a jury to determine, but greater the risk of harm to individuals (for example, by refoulement) and damage to confidence in, or the reputation of, an institution the more likely this is to be made out.

Without reasonable excuse or justification.32

Again, this may be difficult to prove in light of the guidance issued by the Cabinet Office.33 A civil servant may well be able to successfully argue that they are entitled to place reliance on the guidance issued by the civil servant who is responsible for safeguarding propriety and ethics.

As with the disciplinary proceedings, it would be churlish of the Crown to prosecute a civil servant for misconduct merely for putting into effect the policies of the government of the day. However, there are two notes of caution to be sounded.

First, Misconduct in Public Office can be prosecuted by way of private prosecution. There have been examples in the recent past of activists attempting to bring a private prosecution and so the risk of proceedings being attempted is not entirely theoretical.34 Although it is to be hoped the Director of Public Prosecutions would exercise the power to take over conduct of any such proceedings and then immediately discontinue them, this is outside of the control of the government.35

Second, there must come a point where a civil servant does, notwithstanding that they are merely giving effect to a ministerial decision, commit Misconduct in Public Office. It cannot be a defence to all criminal liability to merely be doing as you are told.

The question, really, boils down to this:

in circumstances where it is unclear if the civil service code introduces a free-standing domestic duty on civil servants to comply with international law, is it reckless for them to carry out an act which would require them to fail in that compliance?

Conclusion on the consequences for civil servants

I do think it is unlikely that, as a matter of practical reality, individual civil servants would suffer personal consequences for carrying out the wishes of ministers to deport someone to Rwanda. However, I do not think the risk of those consequences can currently be ruled out as a matter of law. Neither of these consequences rely on the incorporation status of international law, they are consequences which might flow from the application of law which is entirely domestic in nature. (In any event, the international law in question has been incorporated into domestic law.)

This post is public so feel free to share it if you think you know people who would be interested.

Conclusion

Firstly I would like to start by thanking you for sticking with the post this far. I have done as much as I thought I could get away with to keep this short but, the fact is, it is a complicated issue which cannot be wished away by appeals to the idea civil servants must always follow orders. I hope I have done the issue justice.

I for one welcome the intended litigation on this issue. It is unfair to expect civil servants to take the risk, however theoretical or remote, of the consequences of carrying into effect the decisions of ministers when there are cogent arguments which could be made to say they would be in breach of their legal obligations by doing so.

Whichever way a court ultimately decides, clarity on this issue is key for all those who have to work within the vagaries of the constitution and its application to the various things we call the Crown. If nothing else, I think it is intellectually interesting.

As I have worked through the research and thinking on this issue, I have alighted on some threads which I think, at some point, someone needs to tug and come to a firm conclusion.

First, the proper constitutional position of the civil service. There are a number of things which suggest we may have taken a wrong turn at some point by assuming civil servants are there to do the unhindered bidding of ministers. I think it would make an interesting post to set those out and think about what inferences can be drawn and at some point I might well return to the issue and do that. I doubt I will be able to come to any firm conclusions on what the correct position is - that would likely require years of full-time research and I need to actually work to earn a living - but I think it would, nevertheless, be an interesting exercise to do for this substack.

Second, there is a hint in the Gulf Centre case of some overarching, free-standing, common law duty on ministers to comply with international law. That could be an interesting additional angle to look at within the context of the legitimate expectation discussion in my previous post:

BROWN PAPER: Promises Writ in International Law

The Law Drafter

April 26, 2024

Read full story

As I said at the start of this post we will see, in time, if the Code does require compliance with international law and if, in these specific circumstances, that requirement is displaced.

Whatever conclusion the courts eventually come to (I would be surprised if this ends up with only a first instance judgment), this issue will develop our constitutional and public law and, in doing so, help to clarify at least some of the relationship between different parts of the Crown.

I would like to end this post on one final thought: it may not have come to this; the Code is issued by the Minister for the Civil Service, none other than than the Prime Minister himself.36 The minimum requirements for the Code make no reference to ensuring compliance with the law, international or otherwise.37 The Prime Minister could, therefore, have simply amended the Code to make it clear “comply with the law” does not include international law.

Whether, in those circumstances, the FDA would have launched proceedings on the basis there is a free-standing duty of compliance is unclear. What is clear, though, is that would have been a much narrower set of grounds than are currently open to argue.

Thank you for reading this brown paper. If you have any comments please