The unelected judge and the flight he grounded
On the night of 14 June 2022, a Home Office flight sat on the tarmac at RAF Boscombe Down, engines ready, a handful of asylum seekers aboard, bound for Rwanda. It never left. A duty judge in Strasbourg, working alone, issued a Rule 39 order and grounded it. Nobody in Britain knows his name, not the public, not the ministers who authorised the flight in the first place. He heard no evidence in open court, gave no reasoned judgment, and answered to no electorate anywhere. Having stopped a flight sanctioned by an Act of Parliament, he went back to bed.
None of that is exaggeration. The court’s own president confirmed the sequence a year later, defending the practice in public. Parliament had passed the legislation. British courts had already declined to block the flight. Yet it stayed on the ground, because a judge in another country, put there by nobody in Britain, decided it should.
Here, in miniature, sits the case against the European Court of Human Rights, and for replacing it with our own laws, applied by our own judges, answerable to our own Parliament.
Britain helped write the Convention in 1950, largely to stop the horrors of totalitarianism recurring across a shattered continent. Churchill backed it. British lawyers drafted much of it. It was, for its time, a fine idea.
What nobody foresaw was a mechanism by which an unnamed duty judge, working alone at night with no adversarial hearing, could override a democratically enacted immigration policy on a phone call’s notice. Strasbourg has not so much applied the Convention as colonised it, reading into the text rights and vetoes its framers never intended and could not have envisaged.
Human rights are not the objection here. Habeas corpus, free speech, and the rule of law were protected in Britain for centuries before Strasbourg existed, mostly through common law and a Parliament willing to assert itself. What is objectionable is where the final word now sits. In a functioning democracy that word belongs to elected representatives, answerable at the ballot box, not to a supranational tribunal whose fifty judges could be named, if pressed, by perhaps a handful of Foreign Office officials.
A rule that removable people can remove their rule-makers is, more or less, thedefinition of democracy. Strasbourg fails that test; Parliament passes it easily. Rwanda is no special case either. The same court has instructed Britain on prisoner voting, on deporting foreign criminals, on the limits of surveillance, each time assuming that judges abroad understand British circumstances better than British judges do.
British courts already interpret the Human Rights Act, weigh proportionality, and protect individuals against an overreaching state. Strasbourg adds only a second, foreign layer of adjudication empowered to overrule the first, with no duty to justify itself in terms any British voter could check.
Leaving the Convention, runs the usual retort, would put Britain in the company of Belarus, the only other European state outside it. That confuses shame with argument. Britain built the rights the Convention now claims credit for well before Strasbourg existed, through centuries of common law. A written domestic bill of rights, drafted by Parliament and interpreted by judges accountable through the ordinary machinery of appeal and, eventually, statute, would protect the same freedoms without the imported veto that no election can touch.
Conservatives, of all people, ought to grasp the deeper principle. Law earns its legitimacy from consent, and consent has to be renewed at the ballot box. Give the final say over a policy that was voted in to a judge who cannot be voted out, and something in the constitution has quietly broken. Strasbourg’s judges may be able, distinguished, even right from time to time. None of that is the point.
Whether the anonymous duty judge had Rwanda right is not the question worth asking. The real one is why any single unelected official, in any country, should hold a veto over what Britain’s own Parliament has decided. Leave the Convention, repeal the Human Rights Act, and legislate protections of our own, tested and amended by people we can throw out at the next election.
Nothing about that retreats from rights. It restores the one mechanism that has ever reliably secured them: A Parliament that answers to those it governs.
Madsen Pirie