Posted by Sam Fenny - Memes and headline comments by David Icke Posted on 5 June 2024

Is a U.K. Court About to Declare That Civil Servants Must Obey ‘International Law’ Over Parliament?

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.

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