The ECHR has strayed far from its original purpose. It would be better for Britain to leave it

The Strasbourg court has become politicised, interrupting our sovereign right to decide who should enter our country

TGiven the interim measure’s disreputable character, it is disappointing the Government did not ignore Strasbourg’s press release and let the Rwanda plane fly

his week, the European Court of Human Rights (ECHR) in Strasbourg scuppered the British Government’s agreement with Rwanda to send asylum-seekers there. It found in favour of an Iraqi man who did not want to go. The plane did not fly. The whole project has been, at least temporarily, grounded.

Defenders of the Strasbourg court often point out that it acts as a last resort. Only once a case has been through all the legal processes of a country – such as Britain – that is a signatory to the Court’s founding Convention does Strasbourg come into play. It then decides whether the human rights of aggrieved individuals have been infringed. This, its defenders argue, is a careful, deliberative process, respectful to each member state.

That is not at all what happened on Tuesday evening. An unnamed Strasbourg judge sat late, and heard only one side of the story. The man’s case was put. The UK Government case was not. Back home, all the British courts petitioned had refused to grant interim relief which would have prevented the flight taking off. The British legal process is ongoing.

Nevertheless, Strasbourg intervened with an “interim measure”. It did not give its legal reasoning. Since the case in this country continues, it may well have been in breach of its own rules.

Here in Britain, we often hear justified complaint about “government by press release”. In this case, we have adjudication by the same process (or rather, lack thereof). The only official information Strasbourg put out was a sevenparagraph press release.

In the House of Lords this week, I heard several peers trying to embarrass the Government by pointing out that the European Convention on Human Rights was drawn up in 1950 by leading Conservative lawyers and politicians, blessed by Winston Churchill. Why were Conservatives now clashing with this noble body, they asked.

The Convention – and the Court – were indeed so established. But the ECHR much later became something quite different, and altogether unchurchillian. From the 1970s, Strasbourg began to big itself up. The Convention on Human Rights, it decided, was a “living instrument”. This meant, in non-legal language, that the judges now felt free to make up new law as times changed, a recipe for politicisation. Its “interim measures” were deployed to make that instrument livelier still.

Suppose the great man were alive today. “Did you know, Sir Winston,” one might ask him, “that, in the body you helped establish, a non-british judge can summarily interrupt a British legal process, overrule what all British judges have so far said and tell the British Government that it cannot remove an illegal entrant from its own country?” It is fun to imagine his growling response.

Bishops, lawyers and politicians are throwing around words like “shameful” and “immoral” to describe the flights to Rwanda. How moral or shame-free is this external, perfunctory, one-sided and intrusive means of stymying the policy of our duly elected Government? Given the interim measure’s disreputable character, it is disappointing the Government did not ignore Strasbourg’s press release and let the plane fly.

For an exasperatingly long time, Conservative governments have talked about a remedy – introducing a British Bill of Rights. Now it seems we really are getting close to one. The text of a Bill is expected soon. The motive behind the reform may be good, but I fear the dangers are high.

For some years now, the Judicial Power Project at the think tank Policy Exchange has moved from being a voice in the legal wilderness to a group that has shifted the argument. Led by Professor Richard Ekins of Oxford University (who comes from New Zealand, another jurisdiction based on the common law), it has entered the national conversation to remind us of our own legal tradition.

Both our common law and our system of parliamentary sovereignty instinctively mistrust universal declarations of rights. Rights do indeed matter, but they grow out of actual cases and, where necessary, are introduced by particular legislation. Parliament is often acting in response to public demand.

In this way, Britain became a country with some of the bestprotected rights and liberties in the world without inventing some grand schedule of human rights and leaving its interpretation in the hands of judges.

Until the Tony Blair era, we understood the difference between the rule of law (good) and the rule of lawyers (not so good). Since then, we have suffered from what Professor Ekins calls “rights inflation”. Many lawyers like such inflation – more interesting work for them, none of the responsibility which politicians have for handling the unintended consequences.

The arrogation to judges of power that rightly rests with MPS reached its dangerous apogee in the Supreme Court’s judgement against the prorogation of Parliament in 2019. The court’s president, Lady Hale, seemed almost recklessly excited by the chance to stop Brexit (which, in the end, she failed to do).

Under her successor, Lord Reed, the court is showing a more careful understanding of its proper limits. But if Parliament invents a British Bill of Rights, it effectively invites judges with a taste for judicial expansionism to make that, too, “a living instrument”. By “repatriating” human rights, we might even end up giving the judges more political power than they have under the Strasbourg set-up.

The pure Ekins position – that we should return to our pre-21st-century world of “legislated rights”, backed by the common law, is the most sensible one. After all, judges, when appointed, swear “to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. If we muddle up the laws and usages of this realm with those of a foreign jurisdiction, trouble starts. As Priti Patel suggests in her interview in this paper today, better to leave the ECHR altogether.

If the Government insists on a British Bill of Rights, however, it would do well to take its stand on the original 1950 document. The human rights the Charter asserts are mostly well expressed and surely acceptable to most British people. It is the later accretions which have caused so much trouble.

In a way, it is a good thing that this has all come to a head over an immigration issue. There is probably no other matter of public policy in which lawyers have worked harder or more successfully to frustrate the wishes of the electorate, expressed again and again in general elections.

Unlike some, I do not believe that lawyers are wrong to take illegal migrants as clients – their duties, like those of doctors, apply to everyone. But what I do resent is the modern phenomenon by which “lawfare” is used for essentially political ends.

Not everyone thinks that immigration should be low, although polls suggest most do. Some believe that high levels make us richer and more vigorous as a country. But almost everyone, except activist lawyers and wannabe Labour MPS, believes that the elected government should have the right and the power to control who can come and live here.

Only nasty people wish harm to the people in small boats (50,000 in the past five years) who try so hard to cross the Channel, but most normal people think that the trade which transports them at such risk is, dare one say it, “shameful” and “immoral” – much, much more wicked than a safe flight to a safe place supervised by British government officials. This matter needs confronting.