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.