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Thursday 14 March 2024

Penman calls on government to resolve conflict between civil servants' legal obligations and ministerial instructions

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As reported in the Guardian, the FDA has written to Home Secretary James Cleverly and Minister for the Cabinet Office John Glen to raise concerns that the government’s Safety of Rwanda (Asylum and Immigration) Bill places civil servants in a conflict between their professional and legal obligations and instructions from elected ministers. 

Clause 5 of the Bill concerns interim measures indicated by the European Court of Human Rights (ECHR) in relation to the transfer of asylum seekers to Rwanda. It currently states that it is for ministers to decide whether to comply with such interim measures. Setting out his concerns, Penman said: 

"If ministers instruct civil servants not to comply with an interim measures indication, they will be putting the UK in breach of international law. Whilst we recognise that it is ultimately for democratically-elected ministers who are accountable to Parliament to decide how the UK should implement treaty commitments, the difficulty arises because civil servants have personal legal obligations under domestic law not to act contrary to international law. That obligation is not capable of being overridden by any ministerial instruction or guidance.”  

Talking to Times Radio, Penman set out how the government can move this Bill forward, while addressing these concerns: 

“You can change the Civil Service Code to say civil servants are allowed to break the law, or you can change the primary legislation”. 

Currently, the government is doing neither.

Writing for Civil Service World, Penman argued that their unwillingness to do this “is an indication of how the government is prepared to throw civil servants under a bus to solve their own internal party factionalism”.    

Penman has stressed that “this is not a political commentary on the Rwanda Bill”, rather he is simply seeking clarity for FDA members.  

The FDA has requested the government urgently responds to these concerns and will update members when the government has responded and the union is clear on the next steps it intends to take. 
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