Cabinet Office hit with judicial review over claim that Rwanda bill could force civil servants to breach international law

A trade union representing civil servants has launched a judicial review challenge relating to an alleged conflict between the Civil Service Code and the UK government's Safety of Rwanda (Asylum and Immigration) Act 2024.

The FDA, which represents professionals and managers in public service, said 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 (ECHR).

The union claims that a direction to ignore a Rule 39 order would breach international law, conflicting with the duty of civil servants under the Civil Service Code to act in compliance with the law, which includes international law.

The Bill will allow Parliament to confirm Rwanda as a “safe third country”, thereby enabling the removal of persons who arrive in the United Kingdom under immigration law.

According to the FDA, Rule 39 orders from the ECHR operate similarly to an injunction and could be issued to prevent the deportation of an asylum seeker ahead of a final decision being taken by the court. 

FDA General Secretary Dave Penman said: "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 added: "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.”

The judicial review application has been lodged against the Cabinet Office.

However, Darren Tierney, Director General of the Propriety & Constitution Group at the Cabinet Office said civil servants carrying out a decision not to comply with a rule 39 order does not go against the civil service code.

In a letter sent Monday (29 April) to Sir Matthew Rycroft, Permanent Secretary at the Home Office, the Director General said: "In implementing the decision, civil servants would be operating in accordance with the Civil Service Code, including the obligation not to frustrate the implementation of policies once decisions are taken.

“They would be operating in compliance with the law, which is the law enacted by Parliament under which the Minister’s specifically recognised and confirmed discretion would be exercised.

"The Code does not require or enable civil servants to decide not to do so, and so to frustrate the will of Parliament and Ministers, on the basis that non-compliance with a Rule 39 indication would or might be a breach of Article 34 ECHR civil servants would be operating in accordance with the Civil Service Code, including the obligation not to frustrate the implementation of policies once decisions are taken.

"Accordingly, in the present context, neither the Civil Service Code, nor the broader constitutional function of the impartial Civil Service, require or enable the Civil Service to decline to implement such a decision by Ministers."

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

Adam Carey