I’m a QC – I believe we got it wrong on Rwanda. But not in the way you think

The ECHR overplayed its hand here. Should it continue to do so, it will find no shortage of pushback

Jonathan Fisher
Friday 17 June 2022 19:11
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The court applied its own rules to enable it to grant these injunctions

This week, the European Court of Human Rights (ECHR) decided to challenge and block a deportation flight of migrants to Rwanda at the 11th hour. The intervention has drawn the ire of our prime minister and, unsurprisingly, the UK is now closely considering its relationship with the ECHR and what benefits it can bring.

We must be clear – under the European Convention on Human Rights (the Convention), the European Court’s decisions are binding on a litigating state when they amount to a final judgment. But this is not the position here. This stage of the proceedings has not been reached.

Allow me to explain: it is in my professional opinion that there is nothing in the Convention that empowers the court to grant the kind of injunctions we saw on Tuesday night.

The rules of court instead state that a signatory state – such as the UK – must not stop someone’s access to the court, but this is another matter. The court applied its own rules to enable it to grant these injunctions, but in my eyes this justification for intervention was weak. In short, I believe the ECHR overstepped the mark.

So, what’s the role of the ECHR? Well, it is to adjudicate on important issues of principle – not to micromanage cases. Many of these cases are complex and highly fact-specific. For an international court to interfere at an interim stage (as we saw earlier this week) is unhelpful, especially where the issue has already been carefully considered by the domestic courts. In doing so, it has very much trodden on the UK’s (and Priti Patel’s) toes.

The UK’s domestic court system, which is headed by the UK Supreme Court, is more than capable of performing the function of safeguarding human rights in the UK.

And we must not forget that these Rwandan deportations had gone through three layers of the UK’s judiciary already. Our judiciary has a wealth of experience – and is highly skilled at making these sorts of complex decisions. Senior judges are highly proficient. They do not need the involvement of the ECHR – and to me it is somewhat heavy-handed for their expert assessments to have been cast aside.

The ECHR should be nudged into recognising that, wherever possible, decisions should be left to member states – unless intervention is strictly necessary; such as in case where there is “imminent threat of irremediable harm”.

In the Rwanda case, a careful balancing exercise had to be carried out. But my question is this: who better to carry out this complex balancing exercise than the UK’s own highly skilled judges? Plainly, they had already concluded – from the evidence before them – that this threshold had not been met in this case. We should trust and believe them.

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As for where we go from here – greater clarity and understanding is clearly needed around the role that the ECHR should play, and the issues on which the UK is best left to its own devices.

If this case tells us anything, it is that the waters have become muddied. Greater communication and clarity would work in everybody’s favour.

But it is my professional opinion that the ECHR has overplayed its hand here. Should it continue to do so, it will find no shortage of pushback and calls for reassessment of the present arrangement between the UK and the ECHR.

Jonathan Fisher QC was a member of the UK’s Commission on a Bill of Rights, 2010-11

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