Strasbourg Jurisdiction Questioned as Rwanda Flight Blockage Comes Under Scrutiny
In a newly released report by Policy Exchange’s Judicial Power Project, human rights law experts argue that the European Court of Human Rights lacks the authority to impose binding interim measures on governments. The report, titled “Rule 39 and the Rule of Law,” asserts that the Strasbourg court’s ‘rule 39‘ procedure was never officially endorsed by member states, urging the government to vigorously challenge its legal validity.
Last June, a Strasbourg judge invoked the Rule 39 procedure, halting the departure of a deportation flight bound for Rwanda.
Former Supreme Court justice Lord Sumption, in the foreword of the Policy Exchange paper, characterizes the legal basis of this power as ‘slender.’ He warns that the availability of interim measures in such cases could potentially undermine any legislative framework for prompt removal of undocumented immigrants.
Currently under review in the House of Lords, the Illegal Migration Bill aims to grant explicit authority to the government to disregard rule 39 injunctions. However, Richard Ekins, the author of the Policy Exchange report and a professor of law and constitutional government at the University of Oxford, contends that the UK already possesses the legal entitlement to reject compliance.
According to the report, the European Convention on Human Rights does not empower the Strasbourg court to grant interim relief. Although member states are obligated to comply with final judgments from the court, they hold no such obligation for interim rulings. The report highlights that rule 39 measures often stem from the decision of a single judge, frequently made without a hearing or reasons provided. Consequently, the report argues, the UK has a compelling case to assert that the Strasbourg court exceeds the scope of the ECHR and lacks jurisdiction in its efforts to enforce compliance with Rule 39 measures.
Sumption emphasizes in his foreword that “the human rights convention, which is the only instrument that the state parties have actually agreed to, does not inherently empower the Strasbourg court to expand its jurisdiction through internal procedural rules.” While the convention holds binding force for some final court rulings, it does not extend to interim measures.
During his speech in Dover this morning, Prime Minister Rishi Sunak expressed that the government’s proposed legislation would convey a clear message: individuals arriving illegally will face detention and removal within weeks, either to their country of origin or a safe third country like Rwanda. The Prime Minister referred to this legislative initiative as unprecedented
