Leaving the convention is political sledgehammer to crack a legal nut

On Tuesday the Government’s policy of sending asylum seekers for resettlement in Rwanda was thwarted by the European Court of Human Rights in Strasbourg. With the numbers eligible to be flown out of Britain now down to zero, the debate about our continuing participation in the European Convention on Human Rights has been reignited.

It’s important that instead of jumping to a hasty conclusion we reflect upon what has actually happened. The Strasbourg court took a decision akin to an emergency injunction made on an application by one of the parties concerned.

It issued this interim measure having been presented with some relevant evidence, while having not heard the full case.

The power to order an interim measure under Rule 39 of the convention should only be granted on an exceptional basis, where applicants would otherwise face a real risk of serious and irreversible harm.

I find the decision the court took hard to reconcile with the facts.

The issue of harm was carefully considered by our domestic courts, and it was concluded that asylum seekers sent to Rwanda would not be exposed to a risk to life or limb, and indeed could be brought back to the UK should such a risk arise. Moreover, by indicating that the Rule 39 order would apply until three weeks after our domestic courts have determined the judicial review, it has ignored the fact that our High Court and the appellate courts all held that to suspend flights was not necessary.

The Strasbourg court has a supervisory jurisdiction, but it is not a court of fourth instance (whereby its function is to deal with errors of fact or law allegedly committed by a national court). For those who are calling for withdrawal from the convention, however, I would urge caution. The old adage that hard cases make bad law can be extended further to say that hard cases make for bad policy.

Instead of revolution, why not look to reform? Our government led reforms to Strasbourg processes back in 2012 with the Brighton Declaration. The hard work put in by British judges, who engaged with their Strasbourg counterparts and helped create a better climate of comity, has meant that in recent years things have worked well. Further reform at a European level is achievable. The court should continue the process it began at Brighton, and increase the scope of the “margin of appreciation” it gives to member states. While it should still be unafraid to find violations due to procedural failings, it should not get into the weeds of domestic decisions.

In the immediate term, the Strasbourg court must now hear the fullest submissions of the British government that the interim measure preventing implementation of the Rwanda policy should be lifted. I hope that, in light of these submissions, the court accepts the clear assurances already given by our government to our domestic courts that asylum seekers concerned will be at no risk of serious and irreversible harm.

The court’s decision has been taken in a febrile political climate. There is a real risk that the situation escalates in a way that would be in no one’s interest.

The unity of Europe in the face of Russian aggression has been strong and has sent a clear message to the world that our values will be defended.

The expulsion of Russia from the Council of Europe, and indeed the European Convention itself, is a reminder that our fundamental rights and liberties have to be respected.

Rightly, Britain is taking a lead in supporting the work of the International Criminal Court in its attempts to hold people to account for war crimes in Ukraine. As the Government takes action on the Northern Ireland Protocol to protect the Good Friday Agreement, which is underpinned by the European Convention on Human Rights, talk of withdrawal from a system that British Conservative lawyers wrote is logically inconsistent, to say the least.

The Strasbourg court’s decision is hard to understand, but leaving the European Convention of Human Rights on this basis would be using a political sledgehammer to crack a legal nut, with serious consequences for our country and for our role in the world.