Legal battle over Rwanda refugee plan is just the beginning

The legality of Priti Patel’s scheme could end up in the hands of the ECHR, says Sean O’Grady

Migrants are still arriving at Dover despite the threat of deportation (Gareth Fuller/PA) (PA Wire)

Hardly is the ink dry on the Nationality and Borders Act 2022 than its enforcement has been passed to the High Court for judicial review.

Whether they’re called “left wing activists” or “lawyers doing their job,” they have succeeded in at least temporarily delaying the first plane-load of refugees being sent to Rwanda.

The policy is so unusual and arguably inhumane that it was inevitable it would end up in the courts. It is equally to be expected both that the Home Secretary should be hopping mad and that the legal action be the subject of lurid newspaper headlines. If the policy is purely performative and designed to stoke up a “culture war” as critics claim, then it has already had that effect.

The grounds for judicial review are varied. There are two separate actions, including one involving a trade union whose members are now obliged to undertake work against their conscience. Some revolve around whether Rwanda is indeed a "safe" country. However, the most tricky aspect is whether the new law contravenes human rights legislation. That legislation is both domestic - the Human Rights Act 1998 (HRA), which the government seeks to abolish - and also international, being the European Convention on Human Rights 1951 (ECHR). The HRA is in fact merely the domestic “expression” of the ECHR, and was mainly enacted to permit human rights cases to be heard in British courts, rather than the European Court of Human Rights in Strasbourg. Neither have anything to do with the European Union, which has its own charter of human rights.

As with the rows about whether the Northern Ireland Protocol of the UK-EU Withdrawal Agreement, part of an international treaty, can be disapplied unilaterally by the UK via an act of Parliament, so analogous arguments will be tested about whether the new Nationality and Borders Act 2022 in some sense overrides the HRA and/or the ECHR.

In due course, through judicial appeal, it will no doubt end up in the Supreme Court and there are some signals that it may rule in favour of the government. If the case then goes to the European Court of Human Rights in Strasbourg, the government might well lose. And then there will be further calls for Britain to withdraw from the ECHR. This would be regarded with some shame and horror by many given that the ECHR arose from the Holocaust and the atrocities of the Second World War, and the British were prime movers of it and the first nation to ratify the ECHR, more than 70 years ago. Britain has always accepted ECHR court rulings, if grudgingly.

The ECHR would take note of what the Supreme Court thinks. There is a misunderstanding that the Supreme Court is a hotbed of lefty “Remoaner” liberals because it struck down Boris Johnson’s unlawful prorogation of parliament in 2019 under then president Lady Hale. In fact, the court ruled on narrow grounds of constitutional law and on the particular question of whether the advice offered to the Queen was lawful. It wasn’t. That judgement did not betoken the Supreme Court being “activist” or “liberal” by analogy with its US counterpart, which occupies a very different space in the US balance of powers. It is was just doing its job, just as the solicitors and barristers are merely representing their clients in the courtroom.

In any case, the current Supreme Court president, Lord Reed of Allermuir, has indicated on a few occasions that he’s not much interested in striking down laws made properly by parliament. For example, he told the Parliamentary Constitution Committee last month: “We laid down… very clear guidance on how we apply Acts of Parliament. It is an aspect of parliamentary supremacy. It is the Government, of course, who enter into treaties; the Government make international law by agreeing with other Governments. According to parliamentary sovereignty, the Government cannot alter domestic rights and obligations at their own hand. The Government has to go through Parliament and get Parliament to legislate, and that is why the Act of Parliament is essential and the treaty does not, by itself, alter the law at all. When I say “at all”, that is an overstatement; there are certain limited effects that a treaty can have, but it certainly cannot override an Act of Parliament.”

The upshot of all this is that the plight of the refugees en route to Rwanda will be a legal, political and media football for many months to come, keeping the migration issue on the political agenda, but making little if any immediate impact on the refugee situation in the English Channel.