From a political perspective, there are many ways to interpret the current flurry of stories about the government’s preparations for a confrontation with the European Court of Human Rights (ECtHR) over the Rwanda policy. Here are two.
First, the government – or at least, its internal sources – hopes that Strasbourg will thwart the scheme, by commission or exclusion, and is preempting public expectations and laying the groundwork for what will culminate in a year or more of campaigning against the convention. (ECHR) Dr. in front of the next election.
Second, ministers are trying to send the strongest possible unit to Strasbourg, which is an unfavorable verdict will be Close such a row, hoping it will lead to a favorable ruling.
The latter is by no means an idle hope. The ECtHR is a political court, whatever else it is, and its judges occasionally rule realpolitik in mind
Major government veterans may remind their successors of their stunning victory in the 1993 case. Secretary of State for Social Security v Thomas and others, on issues arising from (then) unequal pension ages; Those who doubted the legal advice and argued that the court would not embroil itself in a major domestic row were proved right.
Of course the ECtHR has intervened in this matter before, and as Richard Ekins points out, used rather innovative ways to do so. Hence, perhaps, a bit of pessimism in Downing Street. But it is not a gestalt entity; There is no guarantee that the single judge issuing the interim order will also hear the subsequent case.
The exact shape of that case will depend in part on the exact form of the government’s proposals, which we have yet to see. It’s also unclear whether a case could actually make it through the domestic courts and reach Strasbourg, with the next election, at least with the law standing.
But in a very broad perspective, here are a few ways to play round two in Strasbourg.
First, the ECtHR could rule that the Rwanda scheme is compatible with the Convention. Don’t laugh! Consider, from this press release announcing the interim order:
“…the Court decided to grant this interim measure to prevent the applicant’s removal until the domestic courts had the opportunity to first consider these matters.”
Basically, the main ECHR question is whether Rwanda is considered a safe country. This had not been conclusively determined when the ECtHR intervened; The domestic court decided an interim order was unnecessary, and it was disagreeable.
Despite the constitutional issues raised by Eakins, domestic courts have now determined that Rwanda is safe. (AAA and others v Secretary of State for the Home Department.) is thus scheme compliant, perhaps opening the door to court judgment with some caveats.
Alternatively, the Court may rule that the entire scheme is compatible with the Convention. It won’t be good for the government, of course, but it will provide very clear battle lines and an easy issue to convince voters.
For that reason alone, it probably won’t happen. Furthermore, as a matter of law, the people I spoke to could not see an easy way to outlaw the original concept of the Rwanda project if Rwanda was deemed safe.
Which means that Strasbourg was intent on blocking the scheme – and given the kind of people who end up working there, some would no doubt want to – the more likely approach is a sort of judicial Fabian trick: either throw the whole thing into the tall grass, or put it on terms and conditions. Get stuck in a cycle of revisions that will make the whole thing virtually useless until after the next election.
realpolitik, after all, cut both ways. If judges are politically minded, the possibility of threatening tough action on the ECHR will be mediated by the prospect of losing their post in 2024.
There is some degree of overlap between the first and last of these situations: a favorable judgment with good-faith conditions and a series of vexatious requirements. But depending on the spirit in which they are assigned, such requirements may include the following.
First, the above-mentioned press release about the interim judgment mentions the “absence of any legally enforceable process for the applicant’s return to the UK in the event of a successful eligibility challenge”, as Rwanda is outside the scope of the Convention.
This could be remedied by upgrading the current Memorandum of Understanding between London and Kigali to a full treaty, with binding provisions where relevant. Under the terms of the Constitutional Reforms and Governance Act 2010, it has to be tabled in Parliament and ratified with political risk.
Second, there may be a range of interventions regarding appropriate procedures for individual cases: procedural fairness, access to lawyers, funding, time, and so on. Depending on their content, such interventions can make the scheme virtually ineffective by dragging down the time and cost involved in processing each case.
If the ECtHR feels vexed, it may create more time and expense in the system by admitting too many separate applications; If not, it may be content to hear a test case.
This is probably the tax on which the policy founder is most likely to be. It has actually hit these rocks before: when the High Court ruled Rwanda safe AAAIt also overruled earlier Home Office decisions in each specific case.
Whatever Strasbourg decides, domestic courts seem unlikely to overcomplicate matters.
Despite the waning importance of the mirror principle—that judges should aim to “provide ‘no more, but certainly less’ protection of rights than that afforded by the Strasbourg Court”—it is fair to say that the current Supreme Court is substantially more of a flagship government policy than the Hellenic Court. Also more cautious in his behavior.
(However, a possible measure has been delayed since then The Daily Telegraph – “prevent all small boat migrants from submitting to judicial review of their exclusion from the asylum system” – would open a new front in the “ongoing constitutional battle over the so-called ‘exclusion clause'” that will have nothing to do with Strasbourg.)
The political choices facing Rishi Sunak will depend on the final decision. But assuming he doesn’t decide to withdraw, there are two broad possibilities.
If the conditions are reasonable, the government can meet them, agree to an agreement to address the concerns described above and to appropriately process and resource appeals.
Furthermore, the advancement of virtual hearings during the pandemic meant that the Home Office could be allowed to deport individuals to Rwanda for many of the reasons that the “deport first, appeal later” policy set out in the Immigration Act 2014 was scrapped in 2017. quickly
(Not considering individual cases fully may leave not only Conventions, but also other international obligations, off the table.)
If he considers the requirements to be unreasonable, the Prime Minister may proceed in the alternative, notwithstanding what constitutes a violation of the ECHR.
It’s not entirely without precedent: the UK resisted the Strasbourg ruling that prisoners should be able to vote for a long time, and to this day most of them can’t (though we ended up with a face-saving fudge “in some limited circumstances”.)
It would annoy people as you would hope; There will be a lot of hoopla in certain quarters about the rule of law. The Council of Ministers will have an annual demand that the UK adheres to.
Some may raise the specter of our expulsion from the convention, although Russia was only forcibly expelled in September, and Turkey remains a signatory, the prime minister can take his own view of how likely this is.
But that would be a political risk. If the relevant provisions are included in an Act of Parliament – and it needs to be drafted very carefully – and he is able to pass it, no court, domestic or foreign, can legally force the government to change course, any more than they can. Prisoner vote