Not for the first time in Whitehall, we are seeing a power struggle between elected government ministers and civil servants under their control claiming the right to follow their own agenda. 300 middle-ranking mandarins in the Foreign Office have written to the Foreign Secretary attacking Israel’s conduct in Gaza, suggesting that it contravened international humanitarian law. Their letter implied that they should not be asked to do any work that might encourage or condone it.
The administration called their bluff. Permanent under-secretary Olly Robins, doubtless with Foreign Secretary David Lammy’s approval, told them that if they maintained their position, then their ultimate – and honourable – recourse was to resign. This response in turn caused outrage, with allegations that the government was looking for ‘”plausible deniability” for enabling breaches of international law’.
Electors need to know that those who are paid to act in their interests will do so
The government is right. Behind the UK’s ideal of a politically neutral civil service lies a bargain. Civil servants, even if technically serving at the Crown’s pleasure, have substantial security and cannot be fired on political grounds; in return, they agree loyally to obey instructions from any incumbent government so long as they are domestically lawful. Any claim to accept the former benefit without also shouldering the burden that goes with it is unacceptable.
Nor ought it to make any difference that (even if true) Israel is in breach of international law. This is right as a matter of law: the High Court confirmed last July that senior civil servants were bound to promote government policy (for example, the Rwanda scheme) whatever their views of its legality on the international plane. It is also right morally. So long as you accept payment from the UK taxpayer to further the policies of the UK, it is verging on dishonest to pick and choose which instructions you care to follow because of your own views on international law.
Nor should we give much time to the argument appearing in the original letter that civil servants implementing policies contrary to the UK’s international obligations might face international criminal proceedings. For one thing, the point is pretty clearly moot. As the civil servants concerned know perfectly well, whatever the strict legalities of the matter, the prospect of their actually being hauled up is in practice nil. And even if it was not, there is much to be said for the idea that this is a risk you take when you agree to serve your country. If you don’t like it, then, as the government says, you can always resign.
Nevertheless, any congratulations directed at David Lammy for getting the right answer should be cautious. To say the least, Labour has not been entirely principled here.
There is now a curious mismatch between what it expects of civil servants and ministers. Shortly after the election this government changed the Ministerial Code to oblige all ministers to obey not only domestic but international law. It seems a little odd that a minister should nevertheless be able to instruct his civil servants to help him break his own obligations under the Ministerial Code. But perhaps we can let that pass.
It’s also worth comparing Labour in opposition and in office. We have been here before. In 2023 and 2024, as mentioned above, civil servants invoked supposed qualms over international law to drag their heels over the Rwanda migration scheme. The same thing happened over Gaza itself in April last year, when the civil service unions used similar arguments to insist their members had the right to refuse to process export licences for arms to Israel.
Did the Labour party tell them in either case that the honourable course was to follow instructions or to resign? Of course it didn’t. If anything, it egged them on, seeing this as a heaven-sent chance to embarrass the government. How times change.
We seem to have reached a position of some confusion. For once, however, there is a fairly clear right answer. As an excellent Policy Exchange report pointed out in 2023, to preserve the constitutional balance, three things need to be made absolutely explicit by the government. First, decisions on international relations, including whether to risk putting the UK in breach of its supposed international obligations, must lie with ministers. Second, for the consequences of these decisions, ministers should be accountable to Parliament alone. And thirdly, it must follow that civil servants who wish to stay in their jobs don’t have the right to second-guess these determinations on the basis of their own views about international law.
Electors need to know that those who are paid to act in their interests will do so; that elected ministers will be able to carry out policies that they have decided on; and that in the end those decisions fall to be tested in the ballot box and not set at nought by Sir Humphrey. The government is now on the right track. Let’s hope it stays there.
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