The government is looking into ways to force civil servants to obey ministers if they decide to ignore court rulings blocking deportation flights to Rwanda, a minister has confirmed.
Plans being considered range from amending the civil service code to reminding civil servants of their duty under the code to serve the government of the day with impartiality, according to reports.
Civil service unions have described the proposals as "desperate" and "madness", while the former head of the Government Legal Department said changing the civil service code would be “odd, confused and damaging”.
On Wednesday, a Downing Street spokesperson denied that Government was planning to rewrite the civil service code, and said that additional guidance would be provided to the Home Office.
Asked about the rumoured plan to amend the civil service code on BBC Radio 4's Today programme this morning, illegal migration minister Michael Tomlinson said: “At the moment the rules are very clear that civil servants advise, ministers decide.”
Also questioned on whether government would tell officials they have to advise ministers to ignore judges, Tomlinson said ministers are “looking at the details of that”.
"My expectation is that there will be further confirmation that it will be ministers to decide, and then once those decisions are made they will be carried out by our excellent and efficient civil servants," he added.
The reports come after former home secretary Priti Patel called for Rishi Sunak to confirm that the civil service code cannot be used by officials to obstruct decisions.
The Rwanda Bill states that ministers will have the power to decide whether to comply with Rule 39 orders, which are rulings by European Court of Human Rights judges that have blocked flights sending UK asylum seekrs to Rwanda.
Patel said the government "must force the civil service" to let ministers use this power "to ensure our robust plans to tackle illegal migration can be operationalised" in an op-ed for The Sun.
The Telegraph reported that a Downing Street source described Patel's proposals as a “constructive practical suggestion”.
Sir Jonathan Jones, who resigned as GLD permanent secertary and Treasury solicitor in 2020, said such a proposal could leave civil servants with a choice between breaking international law; disobeying ministers in an attempt to uphold the civil service code; or resigning or moving jobs.
Changing the civil service code would be “odd, confused and damaging”, he added, creating problems for the civil service “without solving anything”.
Ministers view updating the civil service code as a “nuclear option”, according to The Times, which reported that another tactic being considered is to send a letter to all officials clarifying that the civil service code requires them to follow decisions made by ministers, including if they decide to ignore Rule 39 orders.
But Institute for Government programme director Alex Thomas, a former senior civil servant in the Cabinet Office, said this proposal would not “change anything – the law is the law".
Dave Penman, general secretary for the FDA, also stressed that "changing the civil service code does not change the law".
He told HuffPost: “They’re essentially advising civil servants to act illegally, which will put them in conflict between their obligation to uphold the rule of law and to follow their instructions from elected ministers. Ministers have an obligation to not put civil servants in that position. This is madness."
Proposals to push civil servants to ignore the rulings are thought to be part of an attempt to lure rebel MPs away from voting down the safety of Rwanda (asylum and immigration) bill tonight at the bill's third reading.
Garry Graham, deputy general secretary of Prospect, called the proposals a "desperate attempt by the party of government to placate their own backbenchers".
“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," he said.
“It is not for ministers to dictate the terms of the advice they receive... It is vitally important for our democracy that civil service impartiality is not compromised.”
PCS general secretry Mark Serwotka also slammed the plans, warning the union could take legal action in response to any attempts to force civil servants to "act unlawfully".
"This latest ruse by ministers is symptomatic of their desperation to keep their unlawful, unworkable and inhumane Rwanda scheme on life support," Serwotka said. "PCS will not allow it to stand. This attempt to rewrite the Civil Service Code is an unacceptable attempt to make civil servants complicit in illegality. This is in itself unlawful."
The civil service code states that civil servants must "serve the government, whatever its political persuasion, to the best of your ability in a way which maintains political impartiality" but also must "comply with the law and uphold the administration of justice".
Officials should provide information and advice to ministers "on the basis of the evidence, and accurately present the options and facts", and should not ignore "inconvenient facts", the code states. It also says they should not "frustrate the implementation of policies once decisions are taken by declining to take, or abstaining from, action which flows from those decisions".