Was it Theresa May who broke the taboo? In April 2016, in her only public speech during the Brexit referendum campaign, the then Home Secretary reluctantly concluded that the UK should remain in the EU, but leave the European Convention on Human Rights. This was the first time a cabinet minister had openly called for withdrawal from the ECHR.
Of course, when she became Prime Minister three months later, she attempted no such thing, perhaps reasoning that leaving the EU was quite enough work for the moment. Still, the question has not gone away. The Government says that it remains committed to UK membership of the ECHR, but, as the Channel crisis continues, its commitment seems to be waning.
Earlier in the year, Rishi Sunak, was reported to be considering contesting the next election on a commitment to withdrawing from the ECHR if the European Court of Human Rights were to find his new immigration legislation incompatible with the Convention. Only this week, Robert Jenrick, the Minister for Immigration, said that the Government would do “whatever is necessary” to stop “the small boats”, clearly implying that this included withdrawal from the ECHR.
The Supreme Court will soon hear the Government’s appeal in the Rwanda litigation, and the Government may well prevail. The Court of Appeal’s recent judgment, which held that removing asylum-seekers from the UK to Rwanda would breach Article 3 of the ECHR, is open to serious question, and the Supreme Court under Lord Reed’s leadership is a much more legally disciplined institution than when he took over from Lady Hale in January 2020.
If the Government’s appeal succeeds, the litigants will proceed to the Strasbourg Court, which may eventually find against the UK. But more immediately, well in advance of any final judgment, an anonymous judge of the Court may indicate “interim measures” under Rule 39 of “The Rules of Court”, which would instruct the UK not to carry out removals until some later date.
The Strasbourg Court’s Rule 39 practice is incompatible with the text and structure of the ECHR and should be firmly rejected: the Convention confers binding force on final rulings of the Court, but not on “interim measures”. Section 55 of the Illegal Migration Act 2023 seems to recognise this, providing ministers with the power to decide whether or not to remove a person from the UK despite an “interim measure”. This is an oddly framed power, and it is a miracle that it was ever enacted. Between government lawyers and the law officers, it is very difficult for the Government even to put before Parliament legislation that the Strasbourg Court might in the end disapprove.
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