Welcome reform to an over-mighty court
There is a well-established principle in international law known as non-refoulement. This holds that no one should be deported to a country where they would face torture, cruel, inhumane or degrading treatment or punishment, and other irreparable harm. It is incorporated in the 1951 Refugee Convention to which the UK is a signatory. If an attempt is made by the state to contravene this principle, the courts can rightly intercede to stop it happening.
But when a government seeks to remove someone to a safe country where he or she would not face harm, should it then accede to a court demand to stop it? This is the key point behind the current argument over the powers in the Illegal Migration Bill designed to stop the small boats crossing the Channel.
The Government is prepared to beef them up so that the Home Secretary can ignore rulings of the European Court of Human Rights if it tries to stop what under international law would be a justifiable deportation. Last summer, a flight to Rwanda carrying migrants who had entered the country illegally was halted at the dead of night by a single judge in Strasbourg on grounds that are not entirely clear. The Bill will be tightened to let the Home Secretary, in certain circumstances, ignore interim injunctions, known as Rule 39 orders, that halt deportation flights.
Downing Street had been reluctant to engineer a confrontation with the Strasbourg court, fearing that this would affect the UK’s membership of the Council of Europe or undermine its commitment to the European Convention on Human Rights. But Rule 39 orders are not part of the Convention. They are essentially procedural matters that have been elevated since 2005 into a form of legally binding case law that is being deployed in circumstances never envisaged by the authors of the Convention.
Lord Thomas, a former Lord Chief Justice, said that amending the Bill to allow judicial orders to be ignored was a serious challenge to the rule of law. But it is not. It is a challenge to a court which has misconstrued the law. Lord Thomas might have a point if the Government were taking the power to ignore any interim ruling against it by any court. However, it should not be possible for a supra-national court to reinterpret international treaty-based law as it sees fit. Judges and others in the House of Lords who will doubtless try to block this measure should think carefully before doing so.
