My Lords, it is a pleasure to follow the noble Lord, Lord Griffiths of Burry Port, and not only because we share a family background in south Wales. Given my legal background,
I am going to focus on one issue. It is a legal issue, but an important one highlighted by my noble friend the Minister in opening this debate.
Last year the Government attempted to remove a small number of people to Rwanda. The group applied to court for an injunction to prevent their removal until the full challenge to the removal order had been adjudicated. That claim for interim relief failed three times. The Government won in the High Court, won again in the Court of Appeal and won for a third time in the Supreme Court.
However, the claimants applied to the European Court of Human Rights in Strasbourg. On 14 June last year a single, unidentified judge—we do not know who it was because these things are done anonymously —of the Strasbourg court indicated interim measures under rule 39 of that court’s rules to the effect that the claimants should not be removed from the UK until all the UK litigation had concluded.
The Government acted consistently with that rule 39 interim measure indicated by the Strasbourg court and did not remove the claimants. The amendment in the name of the noble Lord, Lord Paddick, charges that in this Bill the Government seek to act contrary to the rule of law and their obligations under international law. So far as the Strasbourg court and rule 39 are concerned—my focus today—that is wrong for at least three reasons. The first reason is grounded in international law, the second reason is grounded in domestic law and the third reason goes to what the Bill actually says.
First, on international law, when we signed up to the European Convention on Human Rights, we signed up to a written document that set out our obligations clearly. One of those obligations is in Article 46(1). We have to abide by a final judgment given by the Strasbourg court against the UK. But an indication under rule 39 is not a final judgement against the UK. Indeed, as the Strasbourg court recognises—see the rule 39 factsheet on its own website—in the convention itself, there is no jurisdiction to grant interim measures. That is not surprising. In 1949 a draft version of the convention included a power to grant provisional measures, but that did not find its way into the final text. As with Sherlock Holmes’s nocturnal dog that did not bark, sometimes it is the clause which is not in the contract which is in fact the most important. Rule 39 indications therefore rest on the court’s own decision in 2005 by a majority that it has jurisdiction to make them—overturning, I might add, the same court’s more forthright previous decisions that it did not have jurisdiction to make them.
The first point is that the Strasbourg court’s jurisdiction to grant rule 39 indications is itself questionable. That, no doubt, is why they are called indications and not injunctions or orders. I invite my noble friend the Minister to confirm that, although historically the UK has taken on board the indications of the Strasbourg court under rule 39—no doubt for good political reasons—that is not because we have a treaty obligation to do so. We do not.
Secondly, not abiding by a rule 39 indication is not a breach of our domestic law. The Strasbourg court attempts to ground rule 39 indications in Article 34 of the convention, but the Human Rights Act, which
incorporates the convention into our domestic law, deliberately excluded Article 34. To pick up a point made by Professor Ekins KC in his recent Policy Exchange paper, that is important. A civil servant is bound by Acts of Parliament, and it is no answer for a civil servant to refuse to do something ordered by a Minister, on the authority of this Parliament, because it might, or might arguably, involve a breach of international law. We are a dualist state, and international treaties have no application in domestic law, unless and until they are given effect by this Parliament.
Thirdly and finally, the Bill does not require a Minister to refuse to give effect to a rule 39 indication, although I accept that the default position is that the duty to remove takes priority. The Bill gives a Minister discretion that is to be exercised personally. As my noble friend the Minister pointed out, Clause 53(5) sets out specific points to which the Minister should have regard. These include whether the UK was given an opportunity to make submissions before, or after, the rule 39 indication was made; the “form” of the measure; and its “likely duration”. These are all pretty basic points, you might think, but they have to be made because they are currently not part of the procedures of the Strasbourg court. Were it to adopt the fairly basic procedures that we have in this jurisdiction surrounding the making of injunctions, a large part of the problem would go away. Therefore, the solution is likely to be, at least in part, in a reform of the procedures of the Strasbourg court. I noted with interest that Robert Jenrick indicated that the Government now have a renewed and focused engagement with that court, which I welcome very much.
However, for the reasons I stated, the Bill’s provisions on interim measures engender no breach of the rule of law, no failure to meet our international commitments and no requirement for Ministers to ignore the decisions of judges. For those reasons, if the noble Lord, Lord Paddick, pushes his amendment to a vote, I urge the House to reject it.
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