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Commentary

London and Strasbourg: Destined for Divorce?

Ernest Davies signing the European Convention on Human Rights on behalf of the United Kingdom on November 4, 1950.

On June 14th, a plane carrying asylum seekers was due to take off from Britain to Rwanda under the terms of a deal agreed upon between the two countries back in April. The asylum partnership agreement, according to which migrants who enter the UK unlawfully can be resettled in Rwanda, was established in order to deter illegal migration across the English Channel. 

But at the last minute, this first deportation flight was blocked by an interim ruling of the European Court of Human Rights (ECHR) in Strasbourg. The veto took effect despite three successive judgements from British courts which upheld the legality of the government’s policy. The flight was halted and the migrants on board remain in the country for the time being.

Specifically, Strasbourg objected to one of the seven individuals, in this case an Iraqi man, being deported. The court’s interim judgement explained: “In light of the resulting risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the Convention legal space … and the absence of any legally enforceable mechanism for the applicant’s return to the UK … the court has decided to grant this interim measure to prevent the applicant’s removal.” The Convention refers to the European Convention on Human Rights.

Indeed, Strasbourg’s interference amounts to a temporary measure rather than a definitive block. The UK government’s ambition had been to remove these individual migrants to Rwanda while their asylum cases were reviewed by British judges. If the courts were later to rule in favour of their asylum applications, the government claims that it would have abided by its duty to ensure the safe return of the successful applicants to British territory from Rwanda. The Supreme Court decided to support the government’s line that no irreversible damage would be suffered by the deportees while they awaited the results of these legal proceedings from the African country. Therefore, it was judged that the government’s assurance to fly them back to the UK in the event that their asylum claims succeeded was enough of a guarantee. 

This was the judgement that Strasbourg overruled with its interim measure. 

Contrary to Britain’s courts, the ECHR was more impressed by the argument that, since Africa lies beyond the jurisdiction of Strasbourg, there was a legitimate concern that the applicants’ rights could not be assured protection away from UK soil. As a result, the European judges held that the migrants in question, at least for the time being, must be permitted the right to stay in Britain until the legal battles are over and their asylum status decided.

Indeed, it is crucial to understand that the British courts overruled by Strasbourg did not conclude that the deportation policy was either legal or illegal. That is the subject of an ongoing judicial review, due to be decided in July. If the European court continues to frustrate government policy, even after the Tories win—as they possibly will—the case regarding the legality of their plans, then Boris Johnson will be on far stronger grounds arguing that the ECHR is guilty of an intolerable degree of interference in the domestic affairs of a law-governed democracy.

But short of withdrawing from the Convention, what can the prime minister do? It would require an act of Parliament to adjust British law so as to evade this particular interim judgement from Strasbourg. That is what Dominic Raab, the present Lord Chancellor, is attempting to achieve with his eye-catching proposal for a British Bill of Rights—the first of its kind in this country since 1689. It would include provisions, the government claims, underlining that 

interim measures from the European Court of Human Rights … such as the one issued … which prevented the removal flight to Rwanda … are not binding on UK courts.

Such provisions might be enough to succeed in this case. But will it forever avert the possibility of divorce between London and Strasbourg? The government seems to think so, arguing that there is no contradiction between passing a new Bill of Rights “to strengthen freedom of speech and curb bogus human rights law” and keeping Britain’s “fundamental commitment” to the European Convention.

Clearly, Johnson is anxious to avoid divorce. He believes that by merely asserting the supremacy of the UK Parliament above “interim measures” hailing from Strasbourg, the government will no longer find itself in the difficult position of having to entertain such a drastic move. The stink that the left-wing media would cause in reaction to a British withdrawal from the Convention can thus be avoided.

But “interim measures” sent from Strasbourg are one thing; “final judgements,” as the Convention makes very clear, are quite another. According to Article 46 of the Convention, signatories must “abide by the final judgement of the court in any case to which they are parties.” Johnson’s plans for an updated Bill of Rights offer no way around the fact that ultimate rulings by the ECHR have unambiguous binding force in UK law.

Lord Jonathan Sumption, the mediaeval historian and retired Supreme Court Judge, clearly explains in Trials of the State that the Convention is a “dynamic treaty.” In other words, it “does not just say what our domestic law should be, but also provides a supranational mechanism for altering it and developing it in future.” It is an unavoidable fact of the Convention that some degree of legislative power, whatever the new Bill of Rights might contain, is transferred to an international body which is based in Strasbourg and outside Britain’s constitutional framework. Only by withdrawing can that lost sovereignty be reclaimed.

The Convention was drafted, not least by many experienced British lawyers, following the wreckage of the Second World War. It predates our entry into the European Community, achieved by Sir Edward Heath in 1972, and has also survived our exit, secured by Boris Johnson in 2020. The Convention is not, like the European Union, about pooling national sovereignty to achieve collective political goals. Rather, it is an international code of fundamental rights, somewhat similar to America’s Bill of Rights that was ratified by all thirteen U.S. colonies in 1787. Of course, that achievement on the part of the American founding fathers established a set of basic freedoms that transcended the sovereignty of individual states and enjoyed a privileged status above the ordinary plane of democratic politics. Those who drafted the Convention simply wished for a similar code of fundamental freedoms to be enshrined on this side of the Atlantic—except that countries, as opposed to states, were the parties concerned. As such, Britain (along with others) was recruited to Strasbourg in the same way that George Washington encouraged the likes of Maine and Pennsylvania to sign up to the Constitution of the United States. 

Tempting though it may be, it is historically inaccurate to blame Tony Blair for the current mess. The Human Rights Act (HRA), passed by Blair in 1998, is quite different from the Convention. Britain has been a member of the ECHR since 1951. All the HRA did was empower British courts to take account of the Convention when evaluating UK laws, regulations, or government decisions. Prior to the HRA, anyone with a human rights grievance was forced to seek redress directly from Strasbourg. The HRA shortened this journey, giving anyone in Britain the chance to have their personal claims heard and their Convention rights protected in UK courts. Under the HRA, even acts of Parliament must be interpreted in a manner compatible with the Convention. But crucially, if this is legally impossible, British courts can only issue a “declaration of incompatibility” saying so. Parliament is free to ignore it—unless Strasbourg chooses to involve itself with a “final judgement” of the sort described in Article 46 and shoots down the Parliamentary act in question. 

The HRA is a piece of typically Blairite symbolism. It leaves much more to Parliament than, say, the American Bill of Rights left to Congress or to individual state legislatures. When made by UK courts, “declarations of incompatibility” at best only put pressure on the government of the day to repeal or amend whatever law is believed to clash with the Convention. But political pressure, like private conscience, can be ignored. The problem is that this ceases to be a feasible option if Strasbourg reinforces an otherwise toothless declaration with a “final judgement.” Paying no attention to that fact would put Britain in breach of international law, given our treaty obligations as signatories to the Convention. 

Quite apart from Tory moaning about the New Labour government, it is not Blair’s mickey-mouse scheme to “modernise” Britain’s human rights law in 1998 that truly compromised our sovereignty. The real problem is Article 46—a legal obstacle that will continue to apply within Britain even if the Conservatives were to throw Blair himself, alongside his HRA, on the bonfire. 

Boris Johnson has made it clear that “all options are under constant review” to ensure that government policy can take effect, up to and including withdrawal from the Convention altogether. That is a dramatic decision that should really be undertaken, if at all, by a self-assured government, rather than a weak one still hobbling from the recent Conservative confidence vote. There is every reason to believe that the government does not properly comprehend the problem. Indeed, according to Raab, “the Bill will make clear that the UK Supreme Court is the ultimate judicial decision-maker on human rights issues and that the case law of the European Court of Human Rights does not always need to be followed by UK courts.” This would be a blatant violation of Article 46. 

The question, therefore, is what privileged legal status the new Bill of Rights will be given so that its provisions can take precedence over ECHR judgements. Even so, will Strasbourg tolerate the apparent assertion that Article 46 is no longer relevant? After all, Britain voluntarily signed the Convention and remains bound by its terms. It is reasonable for the court to expect compliance from a state that entered freely into an international agreement. Might the government try to renegotiate Britain’s relationship with Strasbourg, as David Cameron attempted to do with respect to the European Union in 2015/16? Or is divorce a matter of destiny—the certain outcome of an irresolvable conflict that the government is scared to face? 

Much will of course depend on whether Strasbourg, following its recent interim judgement, further involves itself in the controversy over Britain’s asylum partnership agreement with Rwanda. If the European court continues to make trouble—especially after a government triumph in the upcoming judicial review of the deportation policy—Strasbourg’s lack of sensitivity to public opinion will all but guarantee Britain’s eventual withdrawal from the Convention. Alternatively, if the government wins against the legal challenge later this month, Strasbourg may be tactful enough to take the view that, while its interim measure played an important temporary role, the deportation policy can now go into effect without further wrangling. 

There arises an interesting question to be asked about the attitude of Johnson himself. 

Does he prefer the idea of a swift divorce, for which he would have to take ultimate political responsibility, or an ongoing psychodrama full of antagonism and complexity that can be blamed on outside forces? In the latter case, Johnson can pose as the staunch protector of Britain’s sovereignty against a gaggle of left-wing lawyers, unpatriotic politicians, and utopians hopelessly in love with open borders. This plays well with the majority of people in this country who for many centuries have been consistently hostile to the idea of foreign interference on home soil. The sentiment was epitomised by Queen Elizabeth I during her legendary speech to the troops at Tilbury in 1588: “think foul scorn that Parma or Spain, or any prince of Europe, should dare to invade the borders of my realm.” This powerful national feeling, then addressed to an English kingdom, can still be said to animate most people in Britain.

Oddly enough, it may in fact suit the UK’s fairly unpopular Prime Minister, keen for a comeback in the polls, to have this saga go on for a while longer.

Harrison Pitt is a writer for The European Conservative. Based in the UK, he has also been published in The Spectator, Quillette, Spiked-Online, The Critic, and others.

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