My Lords, this part of the Committee’s deliberation is on Clause 5, “Interim measures of the European Court of Human Rights”. I will speak to a number of amendments in this group, but it is worth starting by looking at the Government’s ECHR memorandum provided with the Bill. On Clause 5, in paragraph 29 of the memorandum, the Government are very sparse in their view about their determination on interim measures. The memorandum says:
“The Government considers that the provision is capable of being operated compatibly with Convention rights”.
It does not say how the Government consider that to be the case. When the Minister responds to this debate, I am sure many noble Lords in the Committee will look forward to hearing how the Government consider that the provision can be compatible.
It is probably worth putting what we are talking about in context because, listening to some of the debate regarding interim measures, you would think that hundreds and hundreds of these are scattered around denying—as some would say—the UK courts having sovereignty in determining cases. Since 2017, there have been 660 requests against the UK for an interim injunction and only 15 have been granted—that is 2%—by the European Court of Human Rights.
It is interesting to note that, in 2023 regarding the UK, the court received 61 requests for an emergency intervention and only one was granted. We are potentially talking about only small numbers—on average, between five and six interim measures per year. We are not talking about hundreds of interim measures being ruled on and granted by the European Court of Human Rights against the UK. Of course, interim injunctions are only issued by the European Court of Human Rights pending a full judgment where the applicant faces an exceptional and immediate risk of irreparable harm in the meantime.
In Clause 5 of this Bill, it is for the Minister and the Minister alone to decide whether a person could be removed to Rwanda while their case is being decided by the European Court of Human Rights. My first question to the Minister is: in what circumstances would a Minister not wish to comply with an interim measure from the European Court of Human Rights? Are there any cases within the last four years in which the Government would have presumed not to have abided by an interim measure by the European Court of Human Rights?
Case law on the European Court of Human Rights has been clear for 20 years: failure to comply with interim measures is a violation of Article 34 of the convention, under which states undertake not to hinder in any way the effective exercise of the rights of the applicants to bring their claims before the court. Some noble Lords at Second Reading said they disagreed with the court’s view that failing to comply with interim measures was a breach of the European Convention on Human Rights.
However, Article 32 of the convention, which the UK voluntarily signed up to—it was not forced to do so—says that:
“The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention”.
In that sense, the final arbitrator of whether a state should invoke and carry out interim measures is down to the European Court of Human Rights and not a Parliament of one of its states. That is the convention to which we signed up.
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The UK has always complied with Rule 39 interim measures, bar one, and it has publicly declared the need for other states to do so in the last few years—such as Russia, in allowing some of its dissidents to be freed from jail. It is absolutely fine for us to criticise judicial decisions, but that does not mean that we do not have
to follow them. Fundamental to the rule of law, and as a matter of international law, they are binding. Failure to comply with interim measures would therefore amount to a violation of the European Convention on Human Rights.
Amendment 57, in the name of my noble friend Lord German, to which I and the noble Lord, Lord Kerr, have put our names, seeks to do one simple thing: it would omit that only a Minister can decide whether the UK will comply with an interim measure of the European Court of Human Rights. It would mean that our courts could determine whether an interim measure is an appropriate fact that needs to be taken into consideration when determining, in the limited cases that are allowed, that an individual should not be deported to Rwanda.
Amendment 59, also in the name of my noble friend Lord German, and also signed by myself and the noble Lord, Lord Kerr, would remove the requirement that a court or tribunal must not have regard to interim measures when considering applications or appeals relating to decisions to remove a person to Rwanda. The obligation to comply with interim measures is not incorporated into domestic law, but they are binding in the UK as a matter of international law. As I have already previously said, if that is in dispute, Article 32 says that it is for the European Court of Human Rights to determine the jurisdiction and implication of an interim measure. Therefore, not to decide to comply would breach international law.
Prior to the discussion on Rwanda and the removal of individuals to that country, it was not a decision to be made by the Government—the Government just complied with interim injunctions. It is worth noting that it is so unusual for this to happen that the Civil Service Code was amended last month. Previously, it said that the Civil Service must comply with interim injunctions; that has now changed to say that, if a Minister makes a decision that it should not then it will not. As I have said, it is unclear whether a Minister would choose not to comply with an interim measure. I have already asked the Minister to give an example of where that would happen.
This clause demonstrates a cavalier attitude to international law which is reckless and dangerous. This is not about a foreign court, as the Prime Minister suggests, interfering in UK law; it ensures that states respect the rights and guarantees set out in the convention, which the UK played an instrumental role in drafting and freely entered into. If we continue with what is in Clause 5, I believe that the UK will undermine its ability to champion the rule of law and human rights abroad. I beg to move.