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.