Key Facts
- •The FDA challenged guidance from the Cabinet Office on civil servants' obligations under the Civil Service Code regarding compliance with a European Court of Human Rights (ECtHR) Rule 39 Indication against the Rwanda migrant removal policy.
- •The Guidance stated civil servants must implement a Minister's decision to proceed with removals despite a Rule 39 Indication.
- •The 2024 Act granted Ministers sole discretion on compliance with Rule 39 Indications.
- •The FDA argued the Code requires compliance with both domestic and unincorporated international law, including ECtHR Rule 39 Indications.
- •The Defendants argued the Code must be interpreted in light of dualism and Parliamentary sovereignty; Ministers alone decide on compliance with unincorporated international law.
Legal Principles
Effect of ECtHR Rule 39 Indications
Mamatkulov v Turkey, Paladi v Moldova, OM and DS v Ukraine
Dualist theory of international law in UK
JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry, R (Miller) v Secretary of State for Exiting the European Union, R (SC) v Secretary of State for Work and Pensions
Status of Article 34 ECHR obligation in domestic law
Human Rights Act 1998
Ministerial Code and international law
R (FDA) v Prime Minister, R (Gulf Centre for Human Rights) v Prime Minister
Constitutional role of civil servants
Constitutional Reform and Governance Act 2010, Carltona Ltd v Commissioners of Works
Statutory interpretation
R (Westminster City Council) v National Asylum Support Service, R (O) v Secretary of State for the Home Department, Pepper v Hart, Presidential Insurance Co Ltd v St Hill, Williams v Central Bank of Nigeria
Interpretation of Civil Service Code
R (Bloomsbury Institute Ltd) v Office for Students, Federal Republic of Nigeria v JP Morgan Chase Bank NA, Hartlepool Borough Council v Llewellyn
Judicial review of Government policy and guidance
R (A) v Secretary of State for the Home Department, R (Equality and Human Rights Commission) v Prime Minister
Outcomes
Permission for judicial review granted, but claim dismissed.
The court found that the 2024 Act granted Ministers the sole discretion to decide whether to comply with ECtHR Rule 39 Indications, even if non-compliance violated international law. The Civil Service Code, correctly interpreted, requires civil servants to implement lawful Ministerial decisions, even those violating international law. The Guidance accurately reflects this.