Last night’s intervention by the European Court of Human Rights (ECtHR), purporting to block removal of asylum-seekers to Rwanda, is a remarkable abuse of judicial power, which discredits European human rights law.

A duty judge in the ECtHR seems to have granted an application for ’interim measures’, indicating that the UK should not remove the applicant to Rwanda until at least three weeks after the final domestic decision in the ongoing judicial review proceedings. If the UK complies, flights to Rwanda could thus not depart until at least three weeks after the Supreme Court has given judgment, on appeal from the Court of Appeal or a leapfrog appeal from the High Court. If the Supreme Court in the end upholds the lawfulness of removal to Rwanda, it is of course entirely conceivable – indeed probable – that the ECtHR will make further interim measures. What this means is that, if the UK complies and if the ECtHR (as it routinely does) takes its time then the government’s Rwanda policy may not go ahead for years. That would effectively end it.

There are arguable grounds of legal challenge to the government’s Rwanda policy. But the High Court and the Court of Appeal have both rejected the argument that interim relief should be granted, which would have blocked removals to Rwanda until a full hearing had taken place and the challenge had been resolved. Yesterday, the Supreme Court refused permission to appeal. Importantly, all the UK courts took seriously the government’s undertaking to seek to ensure the applicant’s return to the UK if the court in the end holds removal unlawful.

The European Court of Human Rights has now purportedly overturned this Supreme Court decision. Strictly, the ECtHR is not part of the UK legal system and is not one of our appellate courts. When a person alleges that the UK has breached his or her ECHR rights and has exhausted their domestic legal remedies, they may apply to  Strasbourg – but not before. The ECtHR should turn away applicants who attempt to turn to Strasbourg too soon. Likewise, the principle of subsidiarity, which the text of the ECHR Protocol 15 now affirms, should require the ECtHR to support national authorities and to recognise that they have the primary responsibility for considering rights compliance.

In a press release issued yesterday, the ECtHR says that it has decided to grant an interim measure in the case of KN v the United Kingdom. Rule 39 of the Rules of Court provide that the ECtHR may 'indicate to the parties any interim measure which they considers [sic.] should be adopted in the interests of the parties or of the proper conduct of the proceedings.' In this case, the decision seems to have been made by a duty judge appointed to decide requests for interim measures. The request to indicate an urgent interim measure was received on 13 June, the day before the Supreme Court decision.

This is very odd indeed. The request for interim measures has come before the Supreme Court has ruled. More importantly still, what proceedings are underway before the ECtHR in relation to which interim measures are required? The ECtHR’s press release says only that a request for an interim measure was received on 13 June. It says nothing about when a substantive application to the ECtHR was made, or when permission was granted. That may well be because no such application has been made, or permission granted, precisely because the applicant has not exhausted his domestic legal remedies. 

What seems to have happened is that the ECtHR has decided that interim measures should be granted despite there being no substantive application properly before the court. In effect, the ECtHR has taken upon itself to supervise the Supreme Court, overriding its decisions about interim relief in circumstances where it has no jurisdiction to act. Extraordinarily, the ECtHR’s decision seems to have been made ex parte and on the papers, which means that the UK has had no opportunity to contest the decision. This is deeply unfair. It is intolerable that the UK’s freedom to deport unlawful asylum-seekers is to be suspended, possibly for years, on the say-so of one (anonymous?) judge before whom the UK did not even have a right of audience.

What is the status of the court’s 'interim measures'? In its published factsheet, the ECtHR openly acknowledges that interim measures do not form part of the ECHR itself. The convention does not give the court authority to grant interim relief. That 'interim measures' are not legally binding is signalled in the text of Rule 39 itself, which speaks about indicating to the parties what the court thinks is appropriate. This is not the language of court orders. However, in a series of judgments over the last two decades, the court has asserted that failure to comply with the interim measures it considers appropriate will constitute a breach of Article 34, which provides that the ECtHR may receive individual applications alleging breach of the convention, and states undertake not to hinder effective exercise of this right. (Note that the Human Rights Act 1998 does not give domestic legal effect to Article 34, so the ECtHR’s assumed jurisdiction has no application in UK law but is capable only of having effect in international law.)

It seems that in this context, as so often, the ECtHR has remade the convention in its own image, conferring upon itself a jurisdiction to which the states did not agree. The UK would be well within its rights to deny that the court has authority to place it under a legal obligation to comply with yesterday’s 'interim measures'. Under Article 46, the UK has an obligation to abide by the final judgment of the court in any case to which it is a party. An interim measure ordered by a duty judge of the ECtHR, without a proper application alleging UK breach of the ECHR, which should not be possible until domestic remedies have been exhausted, is not a final judgment of the court in a case to which the UK is a party. In any case, the UK should reserve its rights not to comply with judgments that clearly depart from the text of the convention and that purport to exercise a jurisdiction that is to be found nowhere in the treaty itself.

It is possible that a UK court might decide to order interim relief in light of the ECtHR’s decision, anomalous though it is. If a UK court did so, then the government would have had to stop the flights. But in the absence of any such domestic judgment, the government would clearly have acted lawfully, as a matter of domestic law, in removing the applicant to Rwanda. If our argument above is correct, it would not even have placed the UK in breach of an international legal obligation. But it is no surprise that this argument was not made, or appreciated, late on Tuesday evening.

The Rwanda policy may in the end be held to breach convention rights. But the UK courts have held that interim relief should not be granted. In these circumstances, the government should be free to proceed with its policy. The ECtHR’s intervention is flatly contrary to the scheme of the ECHR and the principle of subsidiarity. It is open to the government simply to go ahead with removals to Rwanda, reasoning that it has no international legal obligation to comply with the ECtHR’s procedurally dubious press release or interim order. Alternatively, it may choose to invite parliament to legislate to mandate its Rwanda policy, which would require the government to press ahead.

The ECtHR has disgraced itself in this extraordinary intervention. The decision amounts to a repudiation by the Strasbourg Court of the principle of subsidiarity. Neither government nor Parliament should tolerate this assertion of judicial power over the UK.

 

Richard Ekins, head of Policy Exchange’s Judicial Power Project and professor of law and constitutional government, University of Oxford; John Finnis QC (hon),  professor emeritus of law and legal philosophy, University of Oxford; Sir Stephen Laws KCB, QC (Hon), former first parliamentary counsel and a member of the Independent Human Rights Act Review; Simon Murray, barrister at 39 Essex Chambers, Yuan Yi Zhu, senior fellow, Policy Exchange’s Judicial Power Project.

 

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