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.
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.