With a week to go before the House of Lords gets down to detailed discussion of the Safety of Rwanda (Asylum and Immigration) Bill, battle lines are being drawn over what might happen if interim measures are issued by the European Court of Human Rights, temporarily stopping migrants from being sent to Rwanda. Use of the court’s rule 39 was “possible, but not necessarily likely”, one of the government’s law officers said cautiously last week.
Clause 5 of the bill says:
It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure.
Explaining this provision in the House of Lords, the Home Office minister Lord Sharpe of Epsom suggested it meant that a decision would be made by ministers rather than officials.
Other peers interpreted the provision rather differently.
“I view with dismay,” said Lord Anderson of Ipswich KBE KC, “the proposal to defy successive rulings of the court — whose opinion on the matter is decisive under article 32 of the European Convention on Human Rights — to the effect that these measures are binding on the states party to the convention.”
Article 32, I should explain, says it is for the Strasbourg court to decide what the human rights convention means. A ruling that interim measures are binding on member states was first made by the court’s grand chamber in 2005 and confirmed in 2009. It was based on article 34 of the convention, which says that member states undertake not to hinder the right of an individual to challenge an alleged violation.
But two former justice ministers remained unconvinced.
Lord Wolfson on Tredegar KC pointed out that there was nothing in the wording of the convention to say that interim measures were binding. He seemed to cast doubt on the court’s powers in article 32 to interpret article 34:
So far as the UK specifically is concerned, we have said, rightly and for good political reasons, that compliance with rule 39 orders is our usual policy. All other things being equal, so it should be. But accepting compliance as our usual policy is quite different from accepting a rule 39 direction as a legal obligation, which we should not do because it is not.
Wolfson was supported by Lord Faulks KC. He complained that the interim measure adopted late on 14 June 2022, which blocked a previous attempt to send migrants to Rwanda,
was based on the Strasbourg court’s own rules rather than on what is in the European convention. It was made by a still-anonymous judge. No reasons were given and there was no chance for the government to come back on a return date. This breaks just about every rule of natural justice and procedural fairness that normally applies in applications for interim relief.
Faulks seems to have overlooked the fact that the government was indeed allowed a chance to come back at a later date — although this was not made public until 11 April 2023, which was when I first reported it. The court said:
On 24 June 2022, the UK government wrote to the European Court to ask for a review of the decision to grant an interim measure and for the interim measure to be lifted. Following communication of that request to the applicant and following consideration of the parties’ submissions and the material before the court, the measure was confirmed on 1 July…
The court concluded that the material presented by the government was not sufficient to enable it to be satisfied that the applicant could and would be returned to the UK in the event that he was successful at any stage in his legal proceedings, including in the proceedings before this court.
Moreover, in case of a finding that the applicant’s removal to Rwanda put him at real risk of irreparable harm during the period pending the final determination of his asylum application, his return to the UK at the conclusion of appeal proceedings or proceedings before this court would be inadequate to protect against that risk.
Faulks also seems to have overlooked the short reasons published by the human rights court immediately after the interim measures were granted, which I reported on 15 June 2022. And it’s worth adding that the court now names the duty judge who grants an interim measure.
International law
There was a brief mention of this last topic last Tuesday in a lecture given to the Society of Conservative Lawyers by Sir Christopher Greenwood GBE CMG KC, Master of Magdalene College, Cambridge and a former judge at the International Court of Justice. A recording of the lecture has been published:
Greenwood explained that the International Court of Justice did not hear ex parte applications — with only one side represented — except in a case of real emergency. Any such order would continue only until there could be an inter partes hearing, with both sides represented.
A problem in my view with rule 39 measures in the European Court of Human Rights is that you do not have that. Sometimes they are inter partes, but it has been possible to go to the court, to go to a judge, and get an interim order, which may effectively put a stop to what the state was going to do permanently — because the delay is such that it cannot in effect ever be put right at a later date if the measures should not have been granted.
The court has done a lot to tighten up on rule 39. These latest reforms make it something to be used only in exceptional circumstances. But I think it would be better still if there were to be a procedural change which would ensure that, where a measure was granted ex parte, the state always had the opportunity either to appeal it to a panel of judges or to come back for an inter partes hearing with a complete clean sheet, within a very short period of time.
I do not think that decision is as important as this should be taken which are binding upon a state where the state has not been heard in respect of it; and that is one of the reforms that I would like to see.
Greenwood was referring to the procedural reforms proposed last November, which the court has not yet formally adopted. At the time they were published for consultation, they were said to reflect existing practice. The sooner that practice is confirmed and codified, the less confusion there will be.
Update 12 February: Today’s Telegraph publishes a leaked extract from advice given by the government’s law officers a year ago.
It said:
The attorney general and solicitor general agreed that interim measures indicated by the European Court of Human Rights under rule 39 of the rules of court are binding as a matter of international law and there is no respectable argument to the contrary.
You describe Eddy Faulks (orse Lord Faulks KC, brother of the more famous Sebastian, and a one time government minister) complaining of an interim measure adopted by the European Court of Human Rights late on 14 June 2022. It had blocked a previous government attempt to send migrants to Rwanda, and was based on the Strasbourg court’s own rules rather than on what is in the European convention. The government had no chance, said Faulks, to come back on a return date and to be heard ‘on notice’: ie with both parties in court. This breaks just about every rule of natural justice and procedural fairness that normally applies in applications for interim relief, said Faulks; and so it would have done, had Faulks been right.
He was not. You replied that Faulks seems to have overlooked the fact that the government was indeed allowed a chance to come back at a later date, ie on notice. On 24 June 2022, the UK government wrote to the European Court to ask for a review of the decision to grant an interim measure and for it to be lifted. After consideration of the parties’ submissions and the material before the court, the Strasbourg court’s order was confirmed on 1 July 2022. By most standards for a measure like that in such a court 16 days was an impressive time turnaround, surely?
As it happens, and quite separately, Faulks was in the Supreme Court in Potanina v Potanin [2024] UKSC 3 http://www.bailii.org/uk/cases/UKSC/2024/3.html – judgments last Thursday, 31 January 2024. He was arguing for much the same notice point for a very rich Russian. Mr Potanin had been denied an effective right of reply to an application made by his former wife in the English and Welsh family courts, he said. ‘In his swansong in this court’ said Lord Leggatt (for the majority in the Supreme Court), ‘Lord Faulks KC on behalf of the husband has mounted a direct challenge to the correctness of [the family courts' procedural] approach. On examination it turns out to be built on sand’ (at para [40]). The husband’s appeal that he had not been permitted a proper chance to reply – that he was denied proper notice – was allowed.