Strasbourg tightens the rules

Interim measures restricted to ‘exceptional circumstances’

The European Court of Human Rights is planning to tighten up the rules governing interim measures — in effect, temporary injunctions. In future, these would be available only in “exceptional circumstances” where there was an “imminent risk of irreparable harm”.

Interim measures issued by the Strasbourg court last year prevented the UK from sending asylum-seekers to Rwanda, triggering a debate on whether the UK should remain a party to the human rights convention.

Parliament passed legislation which the government argued would enable it to get round interim measures — even though these are regarded as binding by the human rights court. That provision of the Illegal Migration Act 2023 is not yet in force.

European Court of Human Rights (from above)

Rule 39 of the rules of court currently begins:

The Chamber or, where appropriate, the President of the Section or a duty judge… may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.

This would be replaced by the following paragraph. I have marked what seem to be, the most important changes in bold.

The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings. The Court’s power to decide on requests for interim measures shall be exercised by duty judges appointed pursuant to paragraph 4 of this Rule or, where appropriate, the President of the Section, the Chamber, the President of the Grand Chamber, the Grand Chamber or the President of the Court.

Insiders at the court say that this does no more than reflect existing practice. And that seems to be borne out by the court’s press release. But the new wording suggests a much tougher approach to considering requests for interim measures.

The court has also announced that it will end the much-criticised practice under which judges who deal with applications for interim measures are not normally named.

These changes were approved by the court on 6 November and the new draft rules were sent yesterday to member states and others for their comments. They are not expected to take effect before the new year.

As I said here yesterday, if the home secretary James Cleverly wins his appeal to the Supreme Court on Rwanda tomorrow it’s unlikely that the human rights court would grant interim measures to block the migrants’ removal. Even so, this well-timed intervention by Strasbourg should go down well in Whitehall. Though judges at the court have been concerned about rule 39 for some time, I suspect the new wording demonstrates the effectiveness of the UK’s lobbying efforts.

Here is the full text of the proposed new rule:

The court’s registrar has invited comments on the draft before 4 December.