My Lords, I support the amendments in the name of my noble friend Lady Chakrabarti, and in the names of the noble Viscount, Lord Hailsham, and the noble Lord, Lord Coaker, which are less powerful protections.
We as a country proclaim our compliance with the rule of law. We signed up to a convention that set up a court that would be the ultimate determiner of what that convention meant. That court, over a period of time, habitually issued Rule 39 statements or orders. Almost invariably, they are complied with. The court itself, in a case called Mamatkulov and Askarov v Turkey
in 2005, said that those orders made under Rule 39 were binding in international law, not domestic law. If we had set up that court to be the final arbiter of what the convention meant, then we should accept it. How could I not, having heard the noble and learned Lord, Lord Hoffmann, with his leading counsel, the noble Lord, Lord Howard? They are two of the most effective advocates of their generation—therefore, not to be relied on because they are advocates, putting the contrary view.
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Your Lordships’ Constitution Committee addressed this issue in paragraphs 60 and 61 of its report on the issue of what to do about Rule 39 orders, saying that:
“Arguments have been made that interim measures are not judgments of the European Court of Human Rights, such that the UK is bound to adhere to interim measures as a matter of international law”.
That is the view of the noble Lord, Lord Howard, and the noble and learned Lord, Lord Hoffmann, but the report states that:
“Others have expressed a contrary view. The European Court of Human Rights, drawing on Articles 1 and 13 ECHR, considers it a breach of international law for a signatory state not to comply with interim measures”.
Therefore, accepting the Howard/Hoffmann view, they have got it over the net. There is an argument that it might not be binding in international law.
The provisions of the Bill at the moment leave it to a Minister of the Crown to decide whether the United Kingdom will comply with the interim measures. When he replies, can the noble and learned Lord, Lord Stewart, confirm that this decision by a Minister will be subject to judicial review? Assuming that it is, presumably the Minister will regard himself as bound by the Ministerial Code. By committing himself to it, he accepts that he must comply with the law. I am very glad to see the noble Lord, Lord Faulks, in his place, because in 2015, on behalf of the Government—it has never been subsequently tested—he confirmed that despite the omission of an explicit reference to international law in the Ministerial Code, the reference to law in the Ministerial Code applies to international law.
No Minister would therefore wish to break international law. If judicial review was sought of an order by a Minister not to comply with Rule 39, it would presumably be open to the court to say that whether the Minister is acting lawfully depends on whether not to comply with a Rule 39 order is in breach of international law—for which the court could then make an interim order restraining the effect of the Minister refusing to comply with Rule 39.