From a political angle, there are many ways one could interpret the current rash of stories about the Government gearing up for a head-on confrontation with the European Court of Human Rights (ECtHR) over the Rwanda policy. Here are two.
First, the Government – or at least, sources within it – expects Strasbourg to thwart the scheme, either by commission or omission, and is priming public expectations and laying the groundwork for what would end up being a year or more of campaigning against the Convention (ECHR) ahead of the next election.
Second, ministers could be trying to send the strongest possible signal to Strasbourg that an adverse judgment would set off such a row, in the hope of steering it towards a favourable judgment.
The latter is by no means a forlorn hope. The ECtHR is a political court, whatever else it is, and its judges do sometimes rule with realpolitik in mind.
Veterans of the Major Government might remind their successors about their surprise victory in the 1993 case Secretary of State for Social Security v Thomas and Others, on issues arising from the (then) unequal pension age; those who doubted the legal advice, and argued the Court would not insert itself into a major domestic row, proved right.
Of course the ECtHR has previously intervened on this issue, and as Richard Ekins points out, used rather innovative means to do it. Hence, perhaps, some pessimism in Downing Street. But it is not a gestalt entity; there is no guarantee the single judge who issued the interim order will even hear the next case.
The exact shape of that case will depend in part on the exact form of the Government’s proposals, which we have not yet seen. It also isn’t clear that any case could actually make it through the domestic courts and reach Strasbourg, let alone be decided, by the next election, at least with the law as it stands.
But in very broad terms, here are a few ways round two in Strasbourg could play out.
First, the ECtHR could rule that the Rwanda scheme is compatible with the Convention. Don’t laugh! Consider this, from this press release announcing the interim order:
“…the Court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues.”
Basically, the core ECHR question is whether or not Rwanda is considered a safe country. This had not been finally determined when the ECtHR intervened; domestic courts had decided an interim order was unnecessary, and it disagreed.
Notwithstanding the constitutional issues raised by Ekins, the domestic courts have now determined that Rwanda is safe. (AAA and others v Secretary of State for the Home Department.) The door is thus open to the Court ruling the scheme compliant, perhaps with some caveats.
Alternatively, the Court could rule the entire scheme incompatible with the Convention. This wouldn’t be good for the Government, exactly, but it would provide very clear battle lines and an easy problem to explain to the electorate.
For that reason alone, it probably won’t happen. Furthermore, as a matter of law, nobody I’ve spoken to can see an easy way for the core idea of the Rwanda scheme to be ruled unlawful if Rwanda is deemed to be safe.
Which means were Strasbourg minded to block the scheme – and given the sort of people who end up working there, some undoubtedly want to – the more likely approach is a sort of judicial Fabian strategy: either kick the whole thing into the long grass, or lock it into a cycle of stipulations and reconsiderations that would make the whole thing practically inoperable until after the next election.
Realpolitik, after all, cuts both ways. If the judges are thinking politically, the prospect of the Tories threatening drastic action on the ECHR will be mediated by the prospect of them losing office in 2024.
There is some degree of overlap between the first and last of these scenarios: a favourable judgment with good-faith stipulations and a series of vexatious requirements. But whatever the spirit in which they were offered, such requirements could include the following.
First, the above-mentioned press release about the interim judgment refers to “the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge”, because Rwanda is outside the scope of the Convention.
This could be remedied by upgrading the current Memorandum of Understanding between London and Kigali into a full treaty, with binding provisions in the relevant areas. Under the terms of the Constitutional Reform and Governance Act 2010, this would need to be laid before Parliament and approved, with the political risks that entails.
Second, there could be a range of interventions regarding proper procedure for individual cases: procedural fairness, access to lawyers, funding, timing, and so on. Depending on their content, such interventions could make the scheme practically inoperable by dragging out the time and expense involved in processing each case.
Were the ECtHR feeling vexatious, it could then build even more time and expense into the system by admitting lots of individual appeals; if not, it might content itself to hearing a test case.
This is perhaps the shoal upon which the policy is most likely to founder. It has in fact struck these rocks before: when the High Court ruled Rwanda safe in AAA, it simultaneously overturned the Home Office’s decision in each specific case before it.
Whatever Strasbourg decides, the domestic courts seem unlikely to further complicate things overmuch.
Notwithstanding the waning importance of the mirror principle – that judges should aim to “provide ‘no more, but certainly no less’ rights protection than would be provided by the Strasbourg Court” – it is fair to say that the current Supreme Court has been considerably more cautious in its dealings with flagship government policies than was the Hale court.
(However one possible measure trailed in the Daily Telegraph – “prevent all small boat migrants from submitting a judicial review of their exclusion from the asylum system” – would open a new front in the “ongoing constitutional turf war over so-called ‘ouster clauses’” that would have nothing to do with Strasbourg.)
The political choices facing Rishi Sunak will depend on the eventual decision. But assuming he doesn’t decide to withdraw, here are two broad possibilities.
If the stipulations are reasonable, the Government could meet them, ratifying a treaty to address the concerns outlined above and properly resourcing processing and appeals.
Moreover, progress on virtual hearings during the pandemic means many of the reasons the “deport first, appeal later” policy set out in the Immigration Act 2014 was struck down in 2017 may no longer hold, allowing the Home Office to get individuals to Rwanda much faster.
(Doing away with considering individual cases entirely would likely entail leaving not just the Convention but other international obligations too, so is off the table.)
If he deems the requirements unreasonable, the Prime Minister could alternatively proceed despite being deemed in breach of the ECHR.
This isn’t entirely without precedent: the UK did resist Strasbourg’s ruling that prisoners should be able to vote for a long time, and to this day most of them can’t (although we did end up with a face-saving fudge “in some limited circumstances“.)
It would upset the people you’d expect; there would be much shroud-waving in certain quarters about the rule of law. There would be an annual demand at the Council of Ministers that the UK comply.
Some might raise the spectre of our being expelled from the Convention, although given that Russia was only forced out in September, and Turkey remains a signatory, the Prime Minister can take his own view about how likely this is.
But it would be a political risk. Provided the relevant provisions were enshrined in an Act of Parliament – and it would need to be very carefully drafted – and he managed to pass it, no court, domestic or foreign, could legally compel the Government to change course, any more than they could on prisoner voting.