Unions condemn rule change that could force civil servants to break law on Rwanda plan
Unions have condemned a planned change to Whitehall rules meaning civil servants must ignore Strasbourg judgments halting Rwanda deportation flights.
The illegal migration minister, Michael Tomlinson, said on Wednesday that ministers were planning to tweak the civil service code to order officials to follow ministerial decisions even if they block last-minute injunctions from the European court of human rights.
In a sign of confusion between government departments over the proposals, other sources said that ministers would not change the civil service code but would instead offer new guidance for civil servants.
And in a further development, the Guardian has learned that the first civil service commissioner, Gisela Stuart, has not been consulted about the plans. It would be considered “best practice” for the head of the independent statutory body to be consulted before significant changes to Whitehall rules.
Tomlinson did not spell out the exact details, but told BBC Radio 4’s Today programme: “My expectation is 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 our excellent and efficient civil servants.”
Dave Penman, the head of the FDA union, said that changing either the code or guidance would not alter the obligations of senior civil servants to work within the law.
“Changing guidance or changing the civil service code does not change the facts. If the ECHR rules a deportation unlawful, those are the facts of the case,” he said.
“Ministers are trying to put civil servants in an invidious position by placing them between serving ministers and their professional obligations.
“It looks as if ministers are trying to avoid leaving the ECHR and are asking civil servants to break the law instead.
“What must be remembered, however, is that ministers under their own code have the obligation not to put civil servants in a position where they are in breach of the civil service code.”
Mark Serwotka, the general secretary of the PCS union, said: “This latest ruse by ministers is symptomatic of their desperation to keep their unlawful, unworkable and inhumane Rwanda scheme on life support.
“In continuing to push the scheme, ministers are acting unlawfully. Now they appear to be trying to force civil servants to do the same. This attempt to rewrite the civil service code is an unacceptable attempt to make civil servants complicit in illegality. This is in itself unlawful.
“PCS will not allow it to stand. Our legal challenge to the Rwanda scheme led to the supreme court declaring the scheme unlawful. We will not hesitate to take further action through the courts to defend our members from this latest attack.”
Garry Graham, the deputy general secretary of Prospect, said: “The civil service code requires that civil servants provide objective advice to ministers based on a rigorous analysis of the evidence. They have a duty under the code to comply with the law and uphold the administration of justice.
“It is not for ministers to dictate the terms of the advice they receive.
“This is a desperate attempt by the party of government to placate their own backbenchers. It is vitally important for our democracy that civil service impartiality is not compromised.”
Adam Wagner, a human rights lawyer, said plans to amend the civil service code were “obviously a non-starter”.
“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,” he said.
“So it’s not civil servants who make these decisions, and amending the civil service code won’t make any difference.”
Rishi Sunak is seeking to win over Tory rebels before Wednesday night’s vote on his Rwanda plan after facing the biggest Conservative revolt of his leadership.
Two deputy party chairs and a ministerial aide quit to join the ranks of the Tory rebels in the Commons on Tuesday night.
Sixty Conservatives supported changes to the safety of Rwanda bill put forward by the Tory veteran Sir Bill Cash, as rightwingers pushed to ensure UK and international law cannot be used to prevent or delay a person being removed to Rwanda.