Civil servants union the FDA has submitted an application for a judicial review over concerns that Home Office staff could be in breach of international law if they implement the Safety of Rwanda Act.
The FDA believes there could be a conflict between the Act and European Court of Human Rights rules.
Under the Act, a minister can 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, according to the FDA, and may conflict with the duty of civil servants under the Civil Service Code to act in compliance with the law, which includes international law.
A letter from Darren Tienrey, the director general of propriety and ethics in the Cabinet Office, to Sir Matthew Rycroft, the Home Office permanent secretary indicated that civil servants must defer to ministers over decisions involving removing asylum seekers to Rwanda.
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The union’s general secretary Dave Penman said the union had not taken the action lightly and that the government had put civil servants in an impossible position.
He said: “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.
He called the framing of the Act “irresponsible” and added: “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.”
Penman underlined that the policy was a matter for parliament and civil servants knew they had to support the government of the day and implement policy, regardless of their political beliefs. However, they also knew they had an “a legal obligation to adhere to the civil service code.”
The FDA said it pointed out to ministers in March that the provisions in the then-Bill, which indicated ministers may have discretion to ignore Rule 39 orders from the European Court of Human Rights, would be a breach of international law. Civil servants had a legal obligation under the civil service code to “uphold the rule of law and administration of justice”, it stated. Only another act of parliament could overrule the legal obligation of the civil service code.
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.
It is thought to be the first time civil servants have attempted to block a government policy in the courts.
Political commentators say that voting on further legislation to allow for breaches of international law and revisions to the civil service code could open up further divisions within the Conservative party and delay the implementation of the Rwanda plan.
A government spokesman said: “The Home Office already sought advice from the director general of proprietary and ethics in the Cabinet Office on the issue of the Civil Service Code and claims over the legality of implementing the Rwanda deportation scheme under the new legislation.”
An attempt to halt the asylum seeker plan by the PCS union in 2022 failed when the High Court ruled that the flights ordered by then home secretary Priti Patel could go ahead. Then PCS general secretary Mark Serwotka said the Rwanda removals policy showed the government had “learned nothing from the Windrush scandal”, in which Commonwealth nationals with a right to live in the UK were wrongly deported and denied access to services.
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“PCS is not prepared to countenance our members being put in potentially dangerous and traumatic situations, where they may be asked to act illegally,” he had said.
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