Andrew Tettenborn

The European court has seriously overstepped over Rwanda

The European court has seriously overstepped over Rwanda
The European Court of Human Rights in Strasbourg (Photo: Getty)
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Last night’s abrupt order from the European Court of Human Rights that led to the grounding of the first Rwanda deportation flight delighted progressives everywhere. They will of course say – rather in the fashion of twentieth-century home secretaries calmly refusing to reprieve a condemned murderer – that the law is merely taking its course, and that we should be proud that the rule of law has been upheld.

This sounds comforting. It is also wrong-headed. The Rwanda debacle in fact raises very serious questions about the legitimacy of the Strasbourg judges and their interference with national administrations.

To remind you of the background, concerted lawfare in the English courts failed to block the flight. However, the Strasbourg court's intervention (or rather, one of its judges who happened to be on duty that night) led to the operation being halted. This wasn’t because it infringed the human rights of the deportees: we don’t know, and won’t for some time, whether it did or not. Instead the judge used a slightly concerning power in the procedural rules of the Strasbourg court which allow it to issue governments with interim orders, ‘just in case’. The UK government complied, though an appeal seems likely.

That a series of events like this should be possible should worry us a lot.

First, while it’s often necessary for national judges to issue peremptory orders holding the ring while the lawyers sort out what the parties’ rights actually are, it is by no means clear that any such power should be given to human rights judges. No doubt their judgments deserve great respect when they are carrying out their proper function of weighing state action as a matter of principle against some perceived higher norm. But once they stray outside this field and start essentially supervising the day-to-say administration of justice, which is essentially what Strasbourg did yesterday, they deserve a good deal less. Put bluntly, that is not, or at least should not be, their job.

Secondly, the European Court of Human Rights retains what respect it has at a national level precisely because it never claims to be a final court of appeal. Disappointed litigants frequently have to be told that they do not have the right to ask Strasbourg to reverse a decision they do not like, but that instead its function is far more limited: it is merely an impartial international body which may on occasion be asked to arbitrate if a citizen alleges that a state has infringed important moral rights.

Unfortunately, this defence does not work for interim orders like the one we saw from the court in this case. In practice, if not in law, the Strasbourg court last night played the part of an appeal court calmly reversing the decision of a national judge with whom it disagreed. An Iraqi asylum seeker, having asked the English courts up to the Supreme Court for an order stopping his flight and been refused, then demanded what was essentially the same thing from Strasbourg and got it. If you see this as a blatant case of the Strasbourg court interfering directly with the legal process in this country, you are right.

All this, however, leaves us with the big question. What should Priti – who is understandably livid, and as soon as the decision was announced made it clear that preparations for the next flight were continuing as normal – do now? For the moment at least, she has wisely ruled out the idea of the UK withdrawing from the European Convention entirely, even though it can do so with six months’ notice and decisions like this may well cause more voters to see such a solution as eventually inevitable.

Any solution is likely to be untidy. However Priti’s best option could well be to brave it out, and announce that the UK government not only plans to proceed with the next flight to Kigali, but also on that occasion to ignore any order not to do so emanating from any court outside the UK.

This sounds drastic. But politically it is attractive, particularly were Priti to add that the UK would abide by any later final judgment the Strasbourg court chose to give on the issue of whether human rights had indeed been broken. Not only would this way of proceeding nicely chime with British public opinion, much of which sees the immigration system – with some reason – as being systematically abused, and wants something done about it. It would also put the court, and the Council of Europe which overseas the Convention, in a difficult position.

True, disobeying a peremptory order from Strasbourg is a technical breach of the Human Rights Convention. But on the other side, a statement from Strasbourg that it intended to continue making interim orders and expecting unquestioning obedience to them would also sound impossibly self-important and bossy. In addition, there is a further embarrassment for Strasbourg and the human rights establishment. As long ago as 2011 the Council of Europe, which oversees the Court, itself admitted in one of its periodical declarations on the working of the Convention (the so-called İzmir Declaration) that the use of interim orders as a kind of transnational last-ditch immigration appeal was not in the spirit of the Convention. It might well feel that, faced with the Rwanda difficulty in 2022, discretion was the better part of valour. Particularly, of course, if it knew that its standing with the British public was already on a knife-edge. Strasbourg may be overbearing: but politically at least, it is very far from stupid.

Update: An earlier version of this piece suggested the European Court of Human Rights ‘immediately ordered the operation stopped’. We are happy to clarify that while the court’s decision ultimately led to the operation being halted, the court only considered a single case before it, rather than the entire operation. We would also like to clarify that while there has been some suggestion the UK government will appeal, it has not yet said so publicly.