The Rwanda Bill and the rule of law
Our constitutional tradition strictly separates international law from domestic law
The Safety of Rwanda Bill is back in the House of Lords on Monday and will face a flurry of wrecking amendments. One focus of contention will be clause 5 of the Bill, which concerns “interim measures of the European Court of Human Rights”. Rule 39 of the Rules of the Strasbourg Court purports to authorise a single judge to grant binding interim relief, equivalent to an injunction in domestic law. In June 2022, an anonymous judge of the Court purported to exercise this power to stop the first flight to Rwanda from departing.
The Government fears, not unreasonably, that even if Parliament legislates to enable removals to Rwanda to proceed, it will still face Rule 39 interim measures. The point of clause 5, like section 55 of the Illegal Migration Act 2023, is to authorise the Minister to decide whether or not to comply with the Rule 39 interim measure. This will mean that Parliament has authorised the Minister to remove someone to Rwanda even if a Strasbourg Court judge says otherwise.
… the rule of law does not require the UK to treat international law in the same way that Ministers relate to domestic law
For many parliamentarians, clause 5, like section 55, is an affront to the rule of law, because the UK has an obligation in international law to comply with decisions of the Strasbourg Court, in the same way that Ministers are required to obey the orders of British courts. It is not so. The moral ideal of the rule of law does not require the UK to treat international law in the same way that Ministers relate to domestic law. Our constitutional tradition strictly separates international law from domestic law for a reason.
In any case, there are good reasons to deny that the UK has an obligation in international law to comply with Rule 39 interim measures. The European Convention on Human Rights (ECHR) does not authorise the Strasbourg Court to grant binding interim relief. The Court has taken upon itself a power that the member states chose not to confer. For many years, the Court recognised that it had no authority to compel member states to comply with interim measures, which were merely advisory. But in 2005, the Court saw its chance and asserted that member states had an obligation to comply and would breach the ECHR if they did not. In a paper for Policy Exchange last June, backed by two former top judges, I set out the case against the Strasbourg Court’s Rule 39 practice, showing that it cannot possibly be reconciled with the text and structure of the ECHR.
The UK is perfectly entitled to refuse to comply with the Strasbourg Court’s lawless assertion of a power to grant binding interim relief. Parliament does not flout the rule of law if it enacts legislation that spells out that Ministers do not have to comply with Rule 39 interim measures. Indeed, one reason to enact such legislation is to help stamp out the unconstitutional notion that civil servants should disobey Ministers and instead obey an anonymous Strasbourg Court judge, a notion that turns fundamental constitutional principle on its head.
In debate in the House next week, some peers will argue that clause 5 is incompatible with the rule of law. Some of them may also deploy an even less plausible argument, namely that clause 5 is incompatible with judicial independence. The argument would run like this. Section 3(1) of the Constitutional Reform Act 2005 says that Ministers “must uphold the continued independence of the judiciary” and the section defines “the judiciary” to include international courts. Judicial independence, the argument continues, forbids a Minister from interfering with or seeking to set aside any ruling of the judiciary, which is what a Minister would be doing in deciding not to comply with a Rule 39 interim measure.
Thus, if Parliament legislates to authorise Ministers to ignore interim measures, Parliament is complicit in breaching judicial independence. Alternatively, one might later argue in court that clause 5 is limited by section 3, which means that one could bring a legal challenge to a Minister’s decision not to comply.
This is not a good argument, as I explain in more detail in a new Policy Exchange research note, published today. Ministers have a general duty to uphold the “continued independence of the judiciary”. Section 3(5) then imposes on them a particular duty not to seek to influence particular judicial decisions through special access to the judiciary. Quite right too. But in authorising a Minister not to comply with a Rule 39 interim measure, Parliament is clearly not enabling the Minister to influence any particular judicial decision through special access to the judges in question. Neither is Parliament somehow authorising the Minister to question or challenge the independence of the Strasbourg Court, or any judge of the Court.
Clause 5 does not authorise a Minister to interfere with any judicial ruling or even to set aside such a ruling. If the Home Secretary decides not to comply with a Rule 39 interim measure, he does not thereby interfere with — compromise — the reasoning or decision-making of the European Court of Human Rights, or any one of its judges. Neither does he somehow “set aside” a ruling of the Court, or of one of its judges, for the Rule 39 interim measure will continue to enjoy whatever status in international law, if any, that it is entitled to have. In any case, for the reasons I noted above, it is inaccurate to term Rule 39 interim measures a ruling of an international court, because the ECHR itself clearly denies any single judge of the Court authority to make such a decision.
Reading the Constitutional Reform Act to require Ministers to comply with rulings of international courts, when Parliament has not enacted specific legislation to this effect, would collapse a fundamental rule of our constitutional law. It would also be very hard to square with the terms of the Human Rights Act 1998, which does not give direct legislative effect to the case law of the Strasbourg Court in this way. No one before the present controversy has ever argued that the UK’s failure to follow judgments of the Strasbourg Court, say in relation to prisoner voting, is somehow incompatible with judicial independence.
I hope that in the debate next week, no one will break new ground by asserting that the venerable principle of judicial independence requires Ministers to comply with the Strasbourg Court’s lawless Rule 39 practice.
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