On June 6th 2024 a hearing will be held before the Administrative Court of England and Wales whose results could fundamentally alter the course of constitutional development in the U.K. Depending which way the court rules, we will discover firstly whether the U.K.’s ‘deep state’ is going to become more, or less, powerful; and secondly whether international law is going to strengthen, or weaken, its grasp over our domestic constitutional arrangements. And, as a result, we will see held up for critical reflection two of the central themes of government in our times: a creeping managerialisation, which sees governing itself as a matter simply of the implementation of pre-conceived aims and objectives, and the globalisation of political reason (what I have elsewhere, borrowing from Phillip Cerny, called ‘raison du monde’).
Indefensibly, however – though in a manner entirely in keeping with the way in which such matters are nowadays covered in the media – essentially nobody has any idea that this hearing will happen at all, let alone what it is about, except for a few nerds and cranks. This post is partly my attempt to get the word out, for what good it will do.
The Rwanda Scheme
The case, FDA v Secretary of State for the Cabinet Office, is a dispute between the main trade union of Whitehall mandarins (senior civil servants in the U.K.) and the Government, over guidance which was issued by the Cabinet Office towards the end of April 2024. This guidance informed civil servants that they will not be in breach of the Civil Service Code if they ignore so-called ‘rule 39’ injunctive measures from the European Court of Human Rights (ECtHR), which are supposed to be indicated by the Court “in cases of imminent risk of irreparable harm to a Convention right”. Such measures are used, for instance, to issue a stay on a deportation or removal in a situation in which the Court is persuaded that this would result in serious risk of a rights violation; the Cabinet Office’s guidance essentially instructs civil servants that they are free ignore such measures. However, the FDA is arguing that the Cabinet Office’s guidance, is, in a word, wrong. In its view, if civil servants do ignore ‘rule 39’ measures, it will put them in breach of their duty in the Civil Service Code to “comply with the law and uphold the administration of justice”. And this means the guidance itself is unlawful and must be struck down.
This requires a little explanation and unpacking, not least because this litigation is simply another episode in what has descended into something of a shaggy dog story. To tell this story as briefly as I can, last year Parliament passed the Illegal Migration Act 2023, which is the legal framework for the Government’s so-called ‘Rwanda scheme’. The idea here is that asylum seekers who come to the U.K. will be removed to Rwanda to make their asylum applications there, and will remain in Rwanda if successful. This is to deter illegal migration, along the lines of Australia’s own apparently successful equivalent in Papua New Guinea, Nauru, and so on.
The Rwanda scheme, though, currently lies in abeyance. This is because an Iraqi man among the first batch of asylum seekers identified for removal was able to obtain an interim injunction from the ECtHR, via its ‘rule 39’ procedure, which required a stay of his removal – the plane in which he and six other asylum seekers were to be sent to Rwanda was, dramatically, stopped at the airport minutes before take-off. This gave the legal advisers of those on board time to work up a claim for judicial review of the process by which their clients’ removal decisions were made. And, sure enough, last year the Supreme Court ruled in AAA v Secretary of State for the Home Department [2023] UKSC 42 that, while the Rwanda scheme was not unlawful per se, the Government had not done enough to make sure that Rwanda was a ‘safe’ destination – not in the sense of being physically insecure, but in the sense that a person removed from the U.K. to Rwanda might end up then being sent from there back to his country of origin if his asylum application failed. This had the potential to expose asylum seekers to torture, imprisonment and so on, and was hence in contravention amongst other things of s. 6 of the Human Rights Act 1998, which requires public bodies such as the Home Office to act compatibly with ECHR rights (like the right not to be tortured).
The Government went away and scratched its head for a while, and eventually came back to propose a truly bizarre Bill – what is now the Safety of Rwanda (Immigration and Asylum) Act 2024 – designed specifically to deal with the decision in AAA. This piece of legislation stipulates that courts are to find Rwanda to be safe irrespective of whatever evidence is adduced (an extraordinary thing to happen in itself). And it also stipulates that if the ECtHR indicates ‘rule 39’ interim measures to prevent removal of a given asylum seeker, courts “must not have regard to” those measures. It is for a Government Minister, and a Government Minister alone, to decide on whether to comply. ‘Rule 39’ measures indicated by the ECtHR, in other words, are henceforth to be ignored in respect of the Rwanda scheme. This is, transparently, to prevent a repeat of what happened last time, and to ensure that when people are ordered to be removed to Rwanda the ECtHR cannot interfere.
“Complying with the law and upholding the administration of justice”
With the Act’s coming into force, the Cabinet Office duly issued guidance to civil servants in the Home Office (which is responsible for matters of immigration and asylum) instructing them, in essence, to behave as though the Act is what it is: law. They are to ignore the effect of ‘rule 39’ measures issued by the ECtHR and to process removals accordingly – unless, of course, the competent Minister instructs them otherwise. This is, after all, what the legislation requires.
The problem, though, is that pesky Civil Service Code. The relevant provision reads as follows (emphasis mine):
You must… comply with the law and uphold the administration of justice.
The FDA’s argument is that the Civil Service Code’s requirement to “comply with the law” has to include international law. And since in its view ‘rule 39’ measures issued by the ECtHR would constitute part of international law, Government guidance instructing civil servants in the Home Office to ignore such measures would have to itself be unlawful, since it would put civil servants in the position of being in breach of the Code. It would force them into a position of not being compliant with ‘the law’. And since the Code forms part of the employment relationship between civil servant and Government (as provided by s. 5 of the Constitutional Reform and Governance Act 2010), this would effectively mean requiring individual civil servants to breach their terms of service.
There are various rebuttals that could be issued to this, and no doubt will be issued. For instance, there is a strong argument to be made that ‘rule 39’ measures are not in fact law at all and that the ECHR does not actually authorise the ECtHR to issue them. (Richard Ekins set out the case for this in very eloquent and detailed form back in 2023 before the Illegal Migration Bill came into effect – his suggestion that “The Government should make a statement indicating that the U.K. does not accept that the ECHR authorises the Strasbourg Court to grant binding interim relief” can now, however, raise little but a bitter laugh.) And international law is itself quite clear that individual officials do not have personal liability for failures on the part of the state to fulfil international obligations – so it does not seem, to my eye, as though being required to ignore ‘rule 39’ measures would put any individual civil servant in the position of personally failing to comply with international law even if one were to accept that such measures are binding law at all.
But the really interesting aspect of this litigation is the wider context. No doubt civil servants should comply with the law, and no doubt this should be a rule governing their conduct. But regular readers will recall that a rule is never in itself determinate. What does ‘complying with the law’ mean? And, in particular, it seems apposite to ask: which law should civil servants comply with, if laws conflict with one another? Should it be international law, as the FDA asserts? Or should it be our domestic statute law, which in the form of the Safety of Rwanda Act 2024 is quite clear about the effect and import of ‘rule 39’ measures?
This question has its doctrinal aspects, of course. But, as we have seen, when courts deal with indeterminate rules, it is always likely that they will resort (consciously or otherwise) to extra-legal considerations in order to come up with an answer. And this case is pregnant with such considerations, as it taps into deep currents that move beneath the surface of our politico-legal life. In particular, it brings out two of the most pernicious features of modern government, and how they relate specifically to the status of the civil service and its relationship to both the public and Parliament – the increasing dominance of a technocratic, anti-democratic mindset within the organs of the State, and a hypertrophied sense that ‘the global’ must always and in every respect trump the national.
The first of these is the result of what, following the international legal theorist Martti Koskenniemi, I tend to call ‘managerialisation’ – which he describes as the tendency to see governing as merely a matter of the implementation of already existing and predetermined purposes and values. The managerial mindset is not concerned with debating the rights and wrongs of those purposes and values; it is only interested in the technical matter of how they are most efficiently realised. The result is a denial of both law and politics as such, and a lionisation of ‘expertise’ as the justification for governing. Legitimacy derives from a claim, basically, to know best, rather than to represent the people, a nation, and so on. And the consequence is an idealisation of ‘knowing best’ (rather than being representative) as the essence of government. (For the reasons why this has transpired, see posts here and here.)
The growth in the recalcitrance, independence and power of the civil service in the U.K. – mirrored, of course, throughout the world – is an obvious exemplar of this governing style. Rather than imagining themselves to exist simply to put into effect the policies of the elected Government, which represents the people, instead civil servants increasingly seem to think their job is to realise a particular set of values – generally those of the ‘new elite’ classes from whose ranks they generally spring. And hence there is a growing gulf between, on the one hand, the people who make up those classes (and who do not generally think very critically or sceptically about their own values) and, on the other hand, everybody else, when it comes to opinions about the proper role of civil servants. Are they there to serve? Or are they there to in some sense rule, since they purport to possess more of that quality of ‘knowing best’ than, say, the average voter or elected politician?
The second feature of modern government that I mentioned is the marked understanding that governance is itself something that happens globally or regionally rather than within the confines of the domestic state. Yes, borders exist, and yes, there are still such things as states and national governments, but any and all problems are to be treated as being in some sense transnational in scope – and requiring international organisations and international coordination to resolve. This can productively be thought of under the rubric of raison du monde – the tendency to imagine that we are moving inexorably toward a world-state or global Government, and to see everywhere justifications for its existence, from Covid to climate change to sustainable development to comprehensive sexuality education and so on.
The FDA’s case against the Cabinet Office brings these two tendencies – managerialisation and globalisation – to a concentrated focal point, for obvious reasons. The entire litigation seems to be motivated by an underlying reluctance on the part of Home Office civil servants to accept that their job is not to have opinions or beliefs, but to execute policy on behalf of the elected Government, which represents the people. Nobody seriously believes that these people are worried about being sacked for acting in breach of the Civil Service Code if they ignore ‘rule 39’ measures indicated by the ECtHR: why would the Government sack them for doing what it wants them to do? Their objection is transparently political. And it seems to be inspired by a vision of human rights as in some sense transcending the petty concerns of the nation state. This is in turn emblematic of an aesthetic preference for a globalised, transnational approach to matters of immigration and asylum, wherein supranational bodies like the ECtHR, to whom the truth has been revealed, foist it upon national governments to merely implement.
On the Civil Service and the Executive
I am therefore filled with a sense of foreboding about FDA v Secretary of State for the Cabinet Office. The position of the law is not totally clear – because if it was, the litigation would not have commenced. And this means that the decision of the Administrative Court lies open to extra-legal considerations. Put simply, the Court might decide to adopt a ‘small c’ conservative approach and show deference to the Government (whose guidance, in the end, really only instructs civil servants to abide by what is contained in the Safety of Rwanda Act). But it might very well be influenced by the kind of managerialist and internationalist preferences which are now so clearly dominant in the social classes within which judges are nowadays mostly situated. And in the latter circumstance the Court may well end up holding the Cabinet Office’s guidance to be unlawful.
This would be a huge embarrassment for the Government in the middle of a General Election campaign, of course (although I suppose there is a chance the judgment will not be handed down until after the election is over). But an awful lot more is at stake in this case than the electoral fortunes of the Tory party. Indeed, to take us back to the introduction to this post, nothing less than the path of constitutional development in the U.K. is up for grabs in the decision which the Court will ultimately hand down. This is because, first, it has the potential to radically alter the delicate balance of power within the executive itself. And it is because, second, it has the potential to make impossible the very exercising of executive power within the framework of Government.
First things first, then. I have written before about our failure, in the U.K., to properly conceptualise the constitutional role of the civil service. As I put it back in March:
[T]he civil service is itself part of the executive – it implements the decisions of Government on policy. Government must therefore be able to appoint the civil servants it wants, get rid of those it does not want, and determine their conditions of service. This is [because] civil servants, like every other element of the framework of British Government, must be answerable to somebody, and since under our existing constitutional arrangements this cannot be the legislature, the judiciary, or indeed the electorate, then it has to be those most well-equipped to exercise oversight – which is to say the Government.The regulation of the civil service, in other words, is political… And this of course means that the procedures by which that regulation takes place are also inherently political – and that [therefore] such procedures should be outside of the purview of the judiciary… [T]he regulation of the civil service must be political in the most elementary sense: it is the constitutional role of the electorate to eject Governments which abuse it, and therefore it is an usurpation of the electorate when the judiciary imposes its own view.
To put the matter more bluntly and straightforwardly than this: the Government must control the civil service within the U.K.’s constitutional arrangements, because that is the means by which our very democracy functions. Governments make policy, and it is civil servants who must implement it; this then allows the electorate to discern whether policy is good or bad, and vote accordingly. If civil servants do not implement policy – or if courts interfere with the way in which Government regulates the civil service – the signals break down and the electorate is left unclear as to whether problems are due to bad policy or bad civil servants. Voters, in a very real sense, are thereby made unsure about whom to vote for. This describes our current predicament very well, of course, but the problem will be made immeasurably worse if courts get into the habit of ruling guidance and instructions issued to civil servants unlawful on the grounds of failure to comply with some nebulous understanding of what ‘international law’ entails. The result of that can only be yet further muddying of the waters and yet further alienation of voters from what still purports to be British democracy.
The second concern is with the effect that a ruling in FDA’s favour will have on the very exercising of executive decision-making itself. If civil servants cannot be instructed to do anything that could be construed as being a violation of international law on the basis that the Civil Service Code requires them to “comply with the law”, then this is tantamount to extending to civil service unions a freestanding right to recourse to the courts whenever their members are called upon to do anything they don’t like. They will be able to simply cast around for a plausible argument that Government policy goes against customary international law, or some vaguely worded multilateral treaty provision, and that will be that – Government will be prohibited from requiring civil servants to implement the policy in question. The results of that can be readily imagined: complete indecisiveness and inactivity on the part of Government, for fear of litigation – except in regard to policies that it is well known that civil servants approve of. Does that sound like a recipe for a healthy relationship between Government and electorate, and a firm footing on which Government can approach the very serious problems which increasingly confront us, both domestically and abroad?
These two likely consequences of a judgment in FDA’s favour are linked, of course, in that they would work very favourably alongside one another in respect of the processes of managerialisation and globalisation of governance which I earlier identified. Both of those proceeses would be vastly strengthened were a situation to arise in which civil servants – imbued with a managerial ethos par excellence – could refuse to follow instructions on the basis of some perceived lack of consonance with the strictures of international law. And the further consequence of that would of course be a cementing into law of the forces which are already working so strongly to undermine the exercise of representative democracy – whereby the citizens of a country elect sovereign Governments – within the U.K.
It is to be hoped that this situation does not come to pass through the Court’s decision in FDA v Secretary of State for the Cabinet Office. But I would not be at all surprised if it did; it is in the water regardless, since the managerialisation and globalisation of our politics is currently showing no sign of abating. Whatever the judgment that is handed down, in other words, it is those phenomena to which we must attend, interrogate, evaluate – and overturn. But watch this space, regardless, for an analysis of the judgment when it becomes available.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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