I will come on to the exact points that my right hon. Friend is making; they are fair and important ones.
As night follows day, if we do not make changes in this respect, we will find ourselves in a few months’ time in exactly the same position that my right hon. Friend the Member for Witham (Priti Patel) was in as Home Secretary in the summer of 2022, wherein the Strasbourg Court could issue one, or potentially many, rule 39 interim measures. The decision about what to do will fall to a Minister—perhaps my hon. and learned Friend the Minister for Countering Illegal Migration—and other colleagues within Government. The courts will be involved and we will find ourselves in a very difficult, indeed intractable, situation. As I have said before, setting this scheme in train without knowing what we would do when that happens is a bit like pulling the pin out of a grenade but not being prepared to throw it. This is entirely foreseeable. Let us find a way through this challenge.
To answer the question from my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) and to address the legitimate challenge that is made to those like me who make this argument, we have to go back to the foundation of the Court. Many of my colleagues say, “Well, it was great Conservative and British jurists who were the authors of the European convention on human rights. Why would you want to alter what they created?” With respect, that is a misunderstanding of what was done when the convention was founded and the treaty signed. No one signed up to the Court being able to make binding injunctions. In fact, quite the opposite: it was considered at the time and rejected. The UK, like all other signatories to the European convention, expressly declined to give the Court the power to make binding interim measures. This was created by activist judges in 2005, in response to the Mamatkulov and Askarov v. Turkey case, whereby the Court conferred upon itself a power that was not given in the treaty. It is a mistake that the United Kingdom has for many years, by convention, gone along with the approach the Court has taken to itself.
1 pm
Do not take my word for it; take the word of many eminent jurists and lawyers. When this very point was considered in the other place during the passage of the Illegal Migration Act 2023, a not dissimilar point—I will not put words into their lordships’ mouths—was made by the noble Lord Sandhurst, the noble Lord Faulks and the noble Lord Woolf. In a foreword to an important piece related to this debate, the noble and learned Lord Sumption made a similar and very important point.
In fact, the professor of international law at the University of Oxford, Professor Richard Ekins, whom many of us respect highly, has said that to change the current approach is not to breach the rule of law but to defend the rule of law, because we, as signatories to the European convention, expressly objected to the approach, which has been conferred by activist judges outside the rule of law. We should not be following through with this.