It was recently reported that the union which represents civil servants – the Public and Commercial Services Union – was considering taking legal action to prevent its members in the Department for Business and Trade “from being forced to carry out unlawful acts”. In this case, being required to process arms sales to Israel, which the union suggested could make them criminally liable for being complicit with war crimes.  

The Government continues to maintain that arms sales to Israel are lawful, with Deputy Prime Minister Oliver Dowden recently telling the BBC that Israel is "still facing this existential threat from Hamas" and was "prosecuting a legitimate war of self-defence".

He added that the UK would “of course act in accordance with our obligations under law in respect of arms sales", implying that arms sales could be suspended if there is clear evidence of systematic Israeli violations of international humanitarian law.  

Dowden’s position is inconsistent with separate comments, made in a leaked recording by the Conservative chair of the House of Commons’ Committee on Foreign Affairs, Alicia Kearns, suggesting that the Government has already received advice from its own lawyers stating that Israel has breached international humanitarian law. 

The matter could quickly be cleared up if the Government was willing to publish its internal legal advice, but it has so far refused to do so – on the basis that the advice is confidential. Kearns, a former Foreign Office and Ministry of Defence official, has repeatedly pressed ministers, including Foreign Secretary David Cameron, on the legal advice they have received and called for the Government to come clean.  

Adding to the pressure, last week former Supreme Court justices were among 600 lawyers who wrote to the Government saying that weapon exports to Israel must end because the UK risks breaking international law over a "plausible risk of genocide" in Gaza.  

This controversy has fuelled a long-running debate over who is to determine what is lawful and ethical in government policy, and what the duty is of civil servants in such cases. Such matters were highly topical during  Brexit, and have also been at issue in the context of the Government’s handling of immigration.  

Some commentators argue that it is civil servants’ duty to obey ministers, who have democratic legitimacy by virtue of their election to office, no matter what. Others point out that the civil service code, which defines and expands on four core values of the civil service, is crystal clear in its obligation on civil servants to act with integrity and to comply with the law.  

I explored this issue at length previously, in which I discussed the dilemmas facing public servants when they are tasked with implementing a policy with which they do not agree or that they consider is unethical or illegal. “Is our primary duty to the elected government of the day, even when it may be breaking the law or wilfully deceiving the public?" I observed. "Or is our duty to some broader notion of the 'public good’"?

If the latter, how is that to be defined, and by whom? If we stay silent in the face of wrongdoing, do we become complicit ourselves? But if we speak out, are we breaking our pledge of impartial service to the government of the day and undermining the foundation of trust between politicians and officials?”  

After grappling with the matter from several different angles, I eventually came to the conclusion that the only viable course for a civil servant who felt conflicted, and unable to carry out ministerial orders, was to ask to be reassigned or to resign.

As I put it in my own resignation letter from the Foreign Office in 2019, “each person has to find their own level of comfort”. You don’t have the right to change policy – that is for elected politicians and the ultimate verdict of voters. But you do have a right to your own personal conscience, and a right not to be a part of something you believe to be unethical. 

That may sound like a harsh judgement, requiring blameless civil servants to lose their jobs for something which may in hindsight end up being determined to have been wrong. But, government could not function if officials downed tools any time they had a concern. In a democracy, advisors advise, and ministers decide.  

There will always be ambiguity over what is unlawful, unconscionable or unethical because these are subjective decisions. In the case of arms sales, the UK’s export licensing criteria only provide overall guidelines, which are open to interpretation.  

Ruins of a destroyed mosque in Khan Yunis, south of the Gaza Strip. Photo: Abed Rahim Khatib/dpa

For example, when I was Head of Human Rights in the Foreign Office, it was our department’s responsibility to advise on whether a particular arms sale might put us in breach of the export guidelines’ human rights criteria.

We had to weigh up considerations such as: whether the recipient country was a functioning democracy; whether it had a disciplined and accountable chain of military command, subject to civilian oversight; its overall record on respect for human rights and humanitarian law; whether breaches are properly investigated and perpetrators duly punished, or whether there is a pattern of repeated violations, and failure to sanction those who commit them; the circumstances in which the weapons might be put to use – for offensive or defensive purposes; for legitimate military reasons to protect national security against a legitimate enemy, or to suppress internal dissent; to be used in a proportionate manner, or indiscriminately, in a way which put unacceptable numbers of civilians at risk; whether the equipment in question had a dual use function, different from the one for which the weapons were ostensibly being sought, which meant they might end up being used for inappropriate purposes; and the risk of the weapons being diverted from their intended destination and falling into the hands of a terrorist group or unregulated militia instead.   

Thus, for example, a country might ask to buy a relatively innocuous sounding piece of equipment, such as protective armour or night vision goggles, for the ostensible purpose of helping their police forces maintain order during large public demonstrations. This sounds reasonable. However, if the country in question has a track record of ruthlessly suppressing internal dissent, or of oppressing particular minorities, then we might recommend against the sale.  

In short, we had to weigh up the kind of weapons being sought, the nature of the country trying to buy them, and the circumstances in which the weapons might be used. Different analysts can come to different conclusions – as evidenced by the fact that the Foreign Office’s human rights department often used to end up in vigorous disagreement with different parts of Whitehall over the appropriateness of certain arms sales.  

In the case of Israel, I can see why arguments might be made in either direction. There are many, grave concerns, which I share, about Israel’s conduct of the conflict in Gaza and its blocking of aid to the desperate civilians there, as well as over its long-standing treatment of Palestinians, occupation of the West Bank, and construction of new settlements in violation of international humanitarian law.   

If I was still Head of the Human Rights in the Foreign Office, I would definitely argue in favour of suspending arms sales, until we saw more consistent efforts to protect civilians and aid workers, and facilitate aid into the Strip. 

But, whatever my personal abhorrence of Israel’s current Government, and deep anguish over its conduct in Gaza, I accept that others might come to a different conclusion – pointing to Israel’s status as a democracy, with a civilian-led, generally disciplined military, which is entitled to respond to the unprecedently brutal attack on it on 7 October 2023 by Hamas. Not least since Hamas continues to assert its desire to destroy Israel, continues to hold more than 100 Israeli hostages, and bears prime responsibility for putting civilians at risk by its own tactics of hiding among them.  

It is hard to write about this subject without risking a ton of opprobrium on my head, from those who can see no good in the Palestinians, or only evil in Israel. But, as so often in foreign policy, nothing is black and white.

I have no doubt that behind the scenes there is a vigorous debate going on across Whitehall, and between civil servants and ministers, on the UK’s overall approach towards Israel and Gaza. That is entirely as it should be, and civil servants should neither be lionized or penalised, for simply doing their job.