The PCS challenge on arms sales to Israel shows the strengths and limits of civil service unions

Relationships between the government and civil service unions have been strained in recent years. There was series of strikes over pay in 2022 and the first half of 2023, and unions have been critical of the government’s efforts to require civil servants to spend more time in the office.

There have also been high-profile interventions about the legal obligations of civil servants. PCS Union (representing more junior civil servants) is arguing that their members have been put in breach of their obligation to act lawfully under the civil service code by authorising arms exports to Israel. And both PCS and the FDA (the union for the most senior officials) have complained about confusion over how officials are expected to act over the relocation of asylum seekers to Rwanda.

Civil service unions are in an unusual position. They have a duty to represent their members. But at the same time as those members are required to impartially advise on and implement the policies of the very government they are striking against, complaining about or taking to court. Unions also need to do their bit to maintain the civil service’s impartiality.

Union activity can benefit the civil service

For ministers and senior officials alike, union activity can sometimes be frustrating. But unless the government wants to ban unionisation (as Margaret Thatcher did with GCHQ in 1984, a decision reversed by Labour in 1997 and which remains deeply controversial) then unions have a legal right to represent their members and will continue to be important players in debates about the size, shape, remuneration and ethical obligations of the civil service workforce.

Indeed, having strong unions can benefit the civil service. A group of union leaders who can credibly negotiate on behalf of officials, both fighting for the best deal possible but then selling compromises, makes it easier to manage the civil service workforce. If the unions lost credibility, or fragmented, it would be harder to agree employment terms with officials and the civil service workforce could become more disruptive. 

Union action reflects confusion about officials’ obligations on international law

Beyond pay and conditions, the FDA and PCS efforts to clarify civil service legal obligations are in the public interest, even as ministers brief out their frustration.

Both relate to international law, and the duties of civil servants to follow it. On this, there is disagreement. Sir Jonathan Jones, former head of the Government Legal Department, has said that “the civil service code requires civil servants to ‘comply with ‘the law’”, and “it is at least arguable that ‘the law’ includes both domestic and international law”. ¹⁷ www.civilserviceworld.com/news/article/new-guidance-on-rwanda-scheme-may-be-of-limited-comfort-to-civil-servants  Other lawyers, like Lord Wolfson, argue that if ministers and parliament decide that the UK as a state ought to breach an international agreement, then it is not “a matter for the individual civil servant, whose important task it is to carry out the instructions of ministers and the will of Parliament”. ¹⁸ www.policyexchange.org.uk/wp-content/uploads/Government-Lawyers-the-Civil-Service-Code-and-the-Rule-of-Law.pdf

It is right for the unions to want to clarify the boundaries of civil servants’ duty to act lawfully. The FDA has argued that even though the government’s Rwanda legislation enables ministers to override the obligations of the European Convention on Human Rights, it stays silent on the civil service code, and officials deserve to know whether their activities are legal. ¹⁹ www.fda.org.uk/home/Newsandmedia/News/Penman-calls-on-government-to-resolve-conflict-between-civil-servants-legal-obligations-and-ministerial-instruc…  PCS has taken a more activist stance, explicitly arguing that civil servants have a duty to follow international law. The union has said that it is pursuing its Israel case in part because the union “concurs with the view” of the International Court of Justice that “some of the alleged acts by Israel in Gaza could potentially be considered within the provisions of the Genocide Convention”. ²⁰ www.civilserviceworld.com/professions/article/union-eyes-legal-action-to-halt-civil-service-work-on-arms-exports-to-israel

Civil servants deserve clarity about the legality of their professional activities and the government should not be asking officials to contravene the civil service code. Over Rwanda and, until recently, Israel/Gaza it has suited the government to leave civil servants’ obligations ambiguous, but that is not sustainable. Whether through legislation, legal action or amendment to the civil service code the position needs to be clear.

Civil service unions have a particular responsibility to show restraint on political activity

Most civil service union activity fairly uncontroversially matches the work of unions in other sectors. Representing individuals in disputes with their employer is standard practice, and whatever the merits of arguments for more pay or flexibility to work remotely, this is how unions across the economy work. And it is important for civil service unions to support their members in questions of lawfulness and propriety.

But on broader social and political questions civil service unions are different to other representative organisations. The PCS lawsuit on Rwanda was announced in the context of the union arguing the government’s policy was “morally reprehensible and utterly inhumane”. ²³ www.pcs.org.uk/news-events/news/pcs-campaign-against-governments-rwanda-policy  The union has encouraged members to attend demonstrations about the Israel/Hamas conflict run by the activist group Stop the War and called both Labour and the Conservatives’ stance on the conflict “deplorable”. ²⁴ www.pcs.org.uk/news-events/news/pcs-continues-support-stop-war-palestine-solidarity-demonstrations

The bulk of PCS’s members are outside the most politically restricted group of government employees. But all civil servants are under a duty to act impartially. Campaigns against government policy are unwise, even if not improper, and risk undermining the important legal and professional clarifications sought by the unions. 

Government works best when there is high mutual trust between ministers and civil servants. That means a recognition on the part of ministers that challenge from civil service unions is appropriate and often constructive. But it also means political restraint on the part of the trade unions. The cause of an impartial civil service supporting democratically accountable ministers is one around which both should be able to unite.