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Crossing the line

By introducing legislation that breaches international law the government is putting civil servants in an impossible position.

By introducing legislation that breaches international law the government is putting civil servants in an impossible position. They must make their own decisions about what to do, but it is only parliament that can constrain ministers’ actions, argues Alex Thomas

Civil servants will occasionally ask each other whether they know their 'line'. By this they mean the action that, if pursued by a government, would cause them to resign. Mostly it is a hypothetical question. Few civil servants going about their normal work seriously consider taking an ethical stand – they are more interested in sorting out the latest submission to a minister or hitting the next project deadline.

But public servants have started asking in earnest. The government’s top civil service lawyer, Sir Jonathan Jones, is believed to have resigned over the unlawful clauses in the government’s UK Internal Markets (UKIM) Bill. Sir Jonathan found his line; we may soon see how close his colleagues are to theirs.

The civil service code is a compass not a map

The standards of behaviour expected from civil servants are set out in the civil service code. It requires them to follow core values as set out in legislation: impartiality, integrity, honesty and objectivity. But those values, while essential, do not say what to do in any specific situation.

For anybody, resigning on principle is a huge personal decision. Financial and family commitments, uncertainty over future employment, giving up career prospects and leaving a profession all mean that few would take the step without provocation. Principled resignation may be easier for those at the top, perhaps nearer the end of their careers, who have achieved their goals and can negotiate a pay-off and look forward to jobs on company boards. But even if someone finds a new job it is not the way officials at any level would choose to terminate their employment.

Like any organisation, people resign from the civil service for all sorts of reasons. And even departures on ethical grounds are rarely prompted by constitutional and legal upheaval. There are times when a civil servant might decide to leave not because the government is acting improperly, but when they have concluded that they personally cannot serve impartially. Governments by their nature deal with issues of moral controversy. Animal experimentation, welfare reform, law and order, immigration matters, foreign policy, just about every department has a corner where civil servants might find their personal ethics challenged by entirely legitimate government policy.

An official could try to avoid working in difficult areas and will usually find a way to square their conscience. But if they ultimately decide that the only answer is to leave government service that makes for a straightforward resolution

Government breaching its legal obligations takes the civil service code close to breaking point

It is far more difficult when it is the government’s behaviour that challenges the codes, especially when legal obligations are breached. Civil servants are required to “comply with the law and uphold the administration of justice”. Lawyers have additional obligations through their professional regulators to act with independence in the interests of justice and to uphold the rule of law.

This is not entirely uncharted territory. The Blair government suffered resignations over the legality of the Iraq war, and David Cameron told the Commons that implementing the European Court of Human Rights judgment on prisoner voting would make him “physically ill”. But successive governments have strived to sustain a reasonable argument that their actions are compliant. No minister has previously said at the despatch box that their policy “does break international law in a limited and specific way”.

And beyond the codes, the process and legitimacy of decision making matters to civil servants. When a government acts unlawfully its general legitimacy is called into question, not just specific activities in individual policy areas.

So what is a conscientious civil servant to do when they think the rules are being broken? The cabinet secretary – presumably both the outgoing and incoming office holders, given that work on the UKIM Bill has been ongoing for some time – has concluded that the breach of international law envisioned in the legislation does not break the civil service code.

This provides professional cover but not everyone will agree, and many civil servants will still feel extremely queasy about the legality and ethics of this work. Some employed directly on the bill will ask to move to different duties. Others will be considering their position in government service altogether.

They will be balancing the extent of the breach against their loyalty to the civil service, their personal circumstances, a natural desire not to be forced out by a government intent on challenging institutional norms and protections and – perhaps above all – whether their resignation would simply mean someone less qualified, and more prepared to compromise, would replace them. One consequence of Sir Jonathan’s resignation is that his successor as head of the Government Legal Department will be implicitly indicating that they are comfortable with the government’s approach to the UKIM Bill.

There are enough arguments either way to justify any one person staying or going. But civil servants would do well to keep a close eye on their 'line' and should not sell their integrity short. Resignation is one answer, a simple refusal to work on unlawful legislation is another. That could not be sustained for long, but it would make the point.

The government’s actions show the weakness of the UK’s constitutional safeguards

These personal dramas are just one part of a wider constitutional argument. The requirement for civil servants not to work on unlawful activities has in the past offered some protection against governments pursuing such policies.

Whether it is for show to convince its backbenchers, or because the prime minister really wants to exercise the powers in the UKIM Bill, a government that has explicitly admitted that its actions breach international law is a significant and unwelcome development. The House of Commons endorsing the principle of the unlawful legislation is another.

The resignation of one top lawyer had little effect on the government’s behaviour, which shows the hollowness of the argument that the civil service can in these circumstances be a constitutional bulwark. The civil service has no independent legitimacy, and ministers in the end get their way.

The situation must ultimately be resolved at a political level. The constitutional protections around the rule of law rely on the lord chancellor and attorney general rather than the civil service code. These law officers – aside from Lord Keen, the advocate general – have so far shown themselves unwilling to step in, though the lord chancellor, Robert Buckland, has said that “if I see the rule of law being broken in a way that I find unacceptable then of course I will go”.

The only effective and legitimate constraint is parliament, and in particular the House of Commons. Recent government softening on some of these matters suggests that pressure from MPs is having some effect, but in the end the 'line' that matters is the one that ministers and parliamentarians choose to draw.

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