Should civil servants follow instructions to act unlawfully?
[This blog first appeared on the new Constitution Society website. I have been somewhat surprised that no-one has yet challenged my conclusions.]
The UK Internal Market Bill (IMB) continues to draw much criticism and opposition as it makes its way through Parliament – but what questions do its drafting and possible implementation raise for civil servants?
Clause 45 of the Bill controversially provides that “The following [various regulations etc.] have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent …”. Three main questions arise from this.
- Should civil servants have refused to help Ministers draft this legislation?
- In the unlikely event that the legislation is enacted and comes into force, should civil servants refuse to enforce the regulations that are ‘incompatible’ with international law?
- What should happen to a civil servant who believes that the answer to either or both questions is ‘Yes!’, but the Attorney General and Cabinet Secretary decree that the answer is ‘No’?
Let’s start by looking at the Civil Service Code which summarises civil servants’ ethical responsibilities. It records that the service’s core values include integrity and honesty – but the key requirement is that officials must “comply with the law”. Unfortunately it doesn’t say which law.
Under the Constitutional Reform and Governance (CRaG) Act, the code forms part of civil servants’ terms and conditions Civil servants may (but are not obliged to) complain to the Civil Service Commission if they feel that they are being required to act in a way which conflicts with the code. The Commission may then make recommendations about how the matter should be resolved, but the government is not required to comply with the Commission’s advice.
So, to Question 1: Should civil servants have refused to help Ministers draft this legislation?
The short answer is ‘No!” Officials are not failing to comply with any law or any other duty when engaged in drafting the legislation.
Question 2, however, is harder: Should civil servants refuse to enforce any regulations that are “incompatible” with international law?
I would defer to a well-reasoned legal opinion to the contrary, but I suggest that the answer is ‘Yes’ – they should refuse. They are required to “comply with the law” and that means every law, not just most of them. I fail to see how enforcing regulations that are incompatible with international law can be said to be complying with the law.
As an aside, I can imagine legislation which might force officials to break international law. “[Designated civil servants] may be required by their Secretary of State to enforce [specified regulations] and [the Civil Service Code] shall not apply to this instruction”. That’s not legal drafting but you get the idea.
On to Question 3:
First, what might have happened to officials reluctant to help draft the IMB? They could have asked to be transferred to other duties but their managers would have been under no obligation to agree to such a request and, indeed, may have had difficulty finding someone else to do it. The official must then continue to do the work – or resign, as did Treasury Solicitor Jonathan Jones.
So then what should happen to civil servants who believe that they are being asked to work other than in compliance with international law, but the Cabinet Secretary, advised (arm-twisted?) by the Attorney General, tells them that domestic law (as in the new Internal Market Act) takes precedence? The Civil Service Commission might have a key advisory role but, absent that, I suspect that we are in employment law territory.
Mandarins would in the past have expressed sympathy for those whose consciences caused them to refuse certain duties, and would have tried hard to find them other work, or offer honourable retirements. But the CRaG Act has given officials a statutory protection that was not previously available. Civil servants can now persuasively argue that their terms and conditions of employment incorporate the requirement to comply with all laws, and dare anyone to discipline them.
Much would then depend on the numbers. A small number could perhaps be transferred to other equally valued positions. But it would be hard to quash a significant rebellion. Senior officials might point out that resignation was an option, but why would anyone want to take that route? Resignation is an unrealistic option for many staff with family and financial responsibilities, especially in the middle of the current economic crisis. And I suspect that Employment Tribunals and the courts would be sympathetic.
Finally, here are some other interesting scenarios to consider:
- Would a ministerial direction help? I think not. Directions are extra-statutory and (although they can be used to authorise expenditure outwith a department’s powers) they can surely not be used to contravene clear statutory or international law.
- What should happen if ministers, in the absence of an agreement with the EU, ordered HMRC to fail to collect import duties so as to speed flows through Dover and reduce food prices. As I understand it, this would be a clear breach of WTO treaties which forbid the application of favourable tariffs in the absence of free trade agreements. Unless there were covering domestic legislation, I would expect HMRC to refuse to obey such an order.
- How should the civil service in Scotland respond to Scottish legislation purporting to disapply UK law? Following my logic, they should ignore it and continue to apply UK law north of the border. This in turn suggests that it could be unwise for Whitehall ministers to argue (to the contrary) that domestic legislation (in the form of the IMB) can neuter international law, for that would appear to create an unwelcome precedent for use by devolved legislators. (Note, by the way, that the Scottish courts are even now being asked to rule on whether an independence referendum would require UK government permission to proceed under Section 30 of the Scotland Act.)
Editor – Understanding Government