Ignoring ECHR orders would threaten rule of law, warns former chief justice

Any move to allow ministers to ignore European Court of Human Rights orders stopping the removal of migrants would undermine the rule of law, senior legal figures have warned.

A former Lord Chief Justice and the Law Society of Wales and England have expressed concern amid reports that the UK Government has caved in to backbench Tory rebels and agreed to amend its controversial Illegal Migration Bill allowing ministers to ignore European judges in certain situations.

One group of Tory MPs said a deal has been reached with Rishi Sunak on proposed amendments, with reports that among the measures agreed is a plan to give the Home Secretary powers to disregard injunctions from the European Court of Human Rights – so-called Rule 39 orders – in some instances.

It comes as the Prime Minister hopes to see off a backbench rebellion, with other amendments expected to include requiring British judges to decide a deportation would cause “serious and irreversible harm” in order to block it.

Lord Thomas, a cross-bench peer who headed the judiciary between 2013 and 2017, warned that such proposals could face defeat in the Lords, and said that any such move would set “an extraordinarily bad example”.

“I think it is a very serious step for the Government to be contemplating putting into force,” he told BBC Radio 4’s Today programme.

Defending the principle of the European Court of Human Rights, he said the fact of interim decisions in some cases “does not in any way detract from the importance of a judgment being made by a court”.

“Many people would say having the power to ignore a court order is something – unless the circumstances were quite extraordinary – this is a step a government should never take because it is symbolic of a breach of the rule of law.”

The Government is expected to publish the amendments on Thursday ahead of debates and votes next week.

Richard Atkinson, the deputy vice-president of the Law Society of England and Wales, said he was concerned that the UK was heading towards a “clear and serious breach of international law”.

“The rule of law means governments respect and follow domestic and international law and disputes are ruled on by independent courts.

“This amendment would undermine the global rules-based order, set a dangerous precedent within the international community and damage the UK’s standing in the world.

Tighter controls

The Bill has been at the centre of controversy, with critics warning the proposed legislation leaves the UK foul of its international obligations and opposition parties dismissing it as unworkable.

But right-wing Tory MPs have signalled it does not go far enough, with some calling for ministers to take the UK out of the European Convention on Human Rights (ECHR) to drive through tighter border controls.

Others on the liberal wing want to see the Prime Minister commit to establishing safe routes via which asylum seekers can come to Britain.

The apparent compromise comes after Mr Sunak failed to guarantee he could achieve his plan to “stop the boats” by the next election, and said it “won’t happen overnight”.

He had pledged to “stop the boats” as one of the five main priorities of his leadership.

But asked in an interview with Conservative Home whether he was confident he could do that by the next election, the Prime Minister said: “I’ve always said this is not something that is easy; it is a complicated problem where there’s no single, simple solution that will fix it.”

The UK Government’s Illegal Migration Bill is aimed at changing the law to make it clear people arriving in the UK illegally will not be able to remain in the country.

They will either be sent back to their home country or to a nation like Rwanda with which the UK has a deal, although legal challenges mean no flights carrying migrants have taken off for Kigali.

More than 5,000 migrants have arrived in the UK after crossing the Channel this year.

Home Office figures published on Tuesday confirmed the provisional number of people making the journey to date in 2023 stands at 5,049.

A UK Government spokesperson said: “The Prime Minister and Home Secretary are focused on delivering the five priorities for 2023 – halving inflation, growing the economy, reducing debt, cutting waiting lists and stopping the boats.

“While we have been clear there is no silver bullet, our Stop the Boats Bill will ensure anyone arriving illegally will be detained and swiftly removed, ending the unfair practice of people skipping the queue.”