Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The question of judicial power is now firmly back on the national agenda. The decision of the European Court of Human Rights (ECtHR) to intervene to stop the first flight to Rwanda may well be the greatest crisis in our country’s tortuous relationship with the European Convention on Human Rights (ECHR) since the prisoner voting saga.
The Strasbourg Court has said that the UK government may not proceed with its Rwanda plan until the UK courts have fully considered the argument that implementation of the plan breaches the ECHR. This intervention comes despite the UK courts – the High Court, Court of Appeal and finally the Supreme Court – concluding that interim relief should not be granted.
The ECtHR has said that the asylum-seeker in question should not be deported until three weeks after the final domestic judicial decision in his own ongoing judicial review proceedings – which presumably means after the Supreme Court’s decision on appeal from the High Court and Court of Appeal.
If the Supreme Court upholds the Government’s policy, an application will no doubt be made to the ECtHR, which will promptly make further “interim measures” restraining deportation until it hears the full application and decides the merits of the case.
In other words, if the Government complies with the ECtHR’s recent decision, the Rwanda policy cannot be put into action for the foreseeable future, which may mean in effect that it is finished. Whatever one thinks about the merits of the policy, no one should accept that the ECtHR is entitled to intervene in this way – at this stage – to undermine the policy by delay.
The radical nature of the ECtHR’s intervention should not be overlooked. While it may seem this way at times, the ECtHR does not strictly hear appeals from our Supreme Court. It hears applications claiming that the UK, or another member state, has breached someone’s Convention rights. It can only hear applications “after all domestic remedies have been exhausted”.
In this case, domestic remedies have not been exhausted. The asylum-seeker’s judicial review proceedings are ongoing, and he may yet persuade the High Court (or the Supreme Court) that the government is acting unlawfully, breaching his ECHR rights and thus the Human Rights Act 1998 (HRA), in which case the government has promised to seek to ensure he returns to the UK.
In a Policy Exchange paper published yesterday, my colleagues and I make clear that the ECtHR had no jurisdiction to make “interim measures” in this context. The claimant cannot make an application to the ECHR alleging breach of his Convention rights because his domestic legal proceedings are ongoing. The ECtHR’s decision about “interim measures” was made despite the Court not having a substantive application properly before it.
The ECtHR’s decision may have been made by a single duty-judge in Strasbourg. The decision was made ex parte, that is, without the UK having an opportunity to be heard. This is unfair, to put it mildly. It is unjust for the ECtHR to attempt to override a decision made in the course of ongoing domestic legal proceedings without hearing from the UK. It is intolerable for the ECtHR to attempt to disable the UK from acting for an indefinite time period on the say-so of one judge who did not hear argument from the UK.
There is no provision for appeal against this decision or for it soon to be revisited. The Strasbourg Court’s decision violates the principle of subsidiarity in the ECHR, which is the idea that national authorities have the primary responsibility for securing Convention rights and that the role of the ECtHR is to support them in due course.
The Government should not accept that the UK is bound by this decision. Rule 39 of the Rules of Court provides 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.”
This is not the language of binding court orders. However, as in other cases, the ECtHR has simply made up new law, ruling that if a state fails to comply with interim measures, then it also breaches Article 34 of the ECHR, which provides that the Court may receive individual applications and that states should not hinder exercise of this right.
For the reasons given in our Policy Exchange paper yesterday, the UK would be well within its rights to deny that the ECtHR’s recent decision about “interim measures” imposes a legal obligation on the UK.
The ECtHR’s decision itself has no effect in domestic law. The HRA gives effect to the ECHR in our law but does not incorporate Article 34. Unless UK courts were somehow persuaded, late on Tuesday evening, to issue injunctions in reliance on the ECtHR’s decision – which would have been a bad legal mistake on their part – it would have been perfectly lawful, in domestic law, for the government to have gone ahead with the Rwanda flight on Tuesday night notwithstanding the ECtHR’s intervention.
The Government has a strong argument to make that the UK is not bound by the ECtHR’s decision, either because that Court has simply made up its jurisdiction to provide interim relief or, more specific to this case, because it had no proper application before it. The government should not act as if the ECtHR’s decision is binding.
There is a strong case to repeal, or at least sharply amend, the HRA, as I have argued in a number of Policy Exchange papers. However, repealing the HRA would not address the ECtHR’s latest decision, which, as I say, has no effect in our domestic law.
For the same reason, replacing the HRA with “a modern Bill of Rights”, as the government proposes, would make no difference. In any case, human rights law reform should not aim to empower British rather than European judges. It should aim to restate the primacy of Parliament and to stop human rights litigation from undermining parliamentary democracy and the rule of law.
Amending the HRA and limiting the powers of UK courts is an important part of this process. However, if the UK is to remain a party to the ECHR, as the government proposes, it must be willing, in suitable cases, to resist judgments of the ECtHR which clearly depart from the ECHR and threaten vital national interests.
In the present case, the Government should firmly maintain that the UK has no obligation in international law to comply with the ECtHR’s recent decision, which was made without jurisdiction, and that it is free to implement its policy unless a UK court says otherwise. (If a UK court has relied on the ECtHR’s decision, its judgment should be promptly appealed.)
The Supreme Court might in the end in such circumstances rule against the government on the merits, which is a reason why the government would have been well-advised to accept Policy Exchange’s recommendation in February that any scheme to address the crisis in the Channel should be very clearly mandated by legislation that applied notwithstanding the HRA. Parliament should take responsibility for what should be done, rather than leaving this to be settled by litigation either in London or in Strasbourg.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The question of judicial power is now firmly back on the national agenda. The decision of the European Court of Human Rights (ECtHR) to intervene to stop the first flight to Rwanda may well be the greatest crisis in our country’s tortuous relationship with the European Convention on Human Rights (ECHR) since the prisoner voting saga.
The Strasbourg Court has said that the UK government may not proceed with its Rwanda plan until the UK courts have fully considered the argument that implementation of the plan breaches the ECHR. This intervention comes despite the UK courts – the High Court, Court of Appeal and finally the Supreme Court – concluding that interim relief should not be granted.
The ECtHR has said that the asylum-seeker in question should not be deported until three weeks after the final domestic judicial decision in his own ongoing judicial review proceedings – which presumably means after the Supreme Court’s decision on appeal from the High Court and Court of Appeal.
If the Supreme Court upholds the Government’s policy, an application will no doubt be made to the ECtHR, which will promptly make further “interim measures” restraining deportation until it hears the full application and decides the merits of the case.
In other words, if the Government complies with the ECtHR’s recent decision, the Rwanda policy cannot be put into action for the foreseeable future, which may mean in effect that it is finished. Whatever one thinks about the merits of the policy, no one should accept that the ECtHR is entitled to intervene in this way – at this stage – to undermine the policy by delay.
The radical nature of the ECtHR’s intervention should not be overlooked. While it may seem this way at times, the ECtHR does not strictly hear appeals from our Supreme Court. It hears applications claiming that the UK, or another member state, has breached someone’s Convention rights. It can only hear applications “after all domestic remedies have been exhausted”.
In this case, domestic remedies have not been exhausted. The asylum-seeker’s judicial review proceedings are ongoing, and he may yet persuade the High Court (or the Supreme Court) that the government is acting unlawfully, breaching his ECHR rights and thus the Human Rights Act 1998 (HRA), in which case the government has promised to seek to ensure he returns to the UK.
In a Policy Exchange paper published yesterday, my colleagues and I make clear that the ECtHR had no jurisdiction to make “interim measures” in this context. The claimant cannot make an application to the ECHR alleging breach of his Convention rights because his domestic legal proceedings are ongoing. The ECtHR’s decision about “interim measures” was made despite the Court not having a substantive application properly before it.
The ECtHR’s decision may have been made by a single duty-judge in Strasbourg. The decision was made ex parte, that is, without the UK having an opportunity to be heard. This is unfair, to put it mildly. It is unjust for the ECtHR to attempt to override a decision made in the course of ongoing domestic legal proceedings without hearing from the UK. It is intolerable for the ECtHR to attempt to disable the UK from acting for an indefinite time period on the say-so of one judge who did not hear argument from the UK.
There is no provision for appeal against this decision or for it soon to be revisited. The Strasbourg Court’s decision violates the principle of subsidiarity in the ECHR, which is the idea that national authorities have the primary responsibility for securing Convention rights and that the role of the ECtHR is to support them in due course.
The Government should not accept that the UK is bound by this decision. Rule 39 of the Rules of Court provides 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.”
This is not the language of binding court orders. However, as in other cases, the ECtHR has simply made up new law, ruling that if a state fails to comply with interim measures, then it also breaches Article 34 of the ECHR, which provides that the Court may receive individual applications and that states should not hinder exercise of this right.
For the reasons given in our Policy Exchange paper yesterday, the UK would be well within its rights to deny that the ECtHR’s recent decision about “interim measures” imposes a legal obligation on the UK.
The ECtHR’s decision itself has no effect in domestic law. The HRA gives effect to the ECHR in our law but does not incorporate Article 34. Unless UK courts were somehow persuaded, late on Tuesday evening, to issue injunctions in reliance on the ECtHR’s decision – which would have been a bad legal mistake on their part – it would have been perfectly lawful, in domestic law, for the government to have gone ahead with the Rwanda flight on Tuesday night notwithstanding the ECtHR’s intervention.
The Government has a strong argument to make that the UK is not bound by the ECtHR’s decision, either because that Court has simply made up its jurisdiction to provide interim relief or, more specific to this case, because it had no proper application before it. The government should not act as if the ECtHR’s decision is binding.
There is a strong case to repeal, or at least sharply amend, the HRA, as I have argued in a number of Policy Exchange papers. However, repealing the HRA would not address the ECtHR’s latest decision, which, as I say, has no effect in our domestic law.
For the same reason, replacing the HRA with “a modern Bill of Rights”, as the government proposes, would make no difference. In any case, human rights law reform should not aim to empower British rather than European judges. It should aim to restate the primacy of Parliament and to stop human rights litigation from undermining parliamentary democracy and the rule of law.
Amending the HRA and limiting the powers of UK courts is an important part of this process. However, if the UK is to remain a party to the ECHR, as the government proposes, it must be willing, in suitable cases, to resist judgments of the ECtHR which clearly depart from the ECHR and threaten vital national interests.
In the present case, the Government should firmly maintain that the UK has no obligation in international law to comply with the ECtHR’s recent decision, which was made without jurisdiction, and that it is free to implement its policy unless a UK court says otherwise. (If a UK court has relied on the ECtHR’s decision, its judgment should be promptly appealed.)
The Supreme Court might in the end in such circumstances rule against the government on the merits, which is a reason why the government would have been well-advised to accept Policy Exchange’s recommendation in February that any scheme to address the crisis in the Channel should be very clearly mandated by legislation that applied notwithstanding the HRA. Parliament should take responsibility for what should be done, rather than leaving this to be settled by litigation either in London or in Strasbourg.