Illegal Migration Bill

Lord Sandhurst Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I shall speak to Amendment 119 and to the overall challenge to Clause 53. To be absolutely clear, there is no reason why the Government should not ignore and override an interim measure by the Strasbourg court. The requirement that Amendment 119 seeks to impose is also neither necessary nor appropriate. I regret to say that I disagree with the conclusion of the Joint Committee: what is proposed does not breach Article 34 of the convention.

Neither is Clause 53 a circuitous route to block interim measures. It permits Ministers to disapply the duty to remove a person to whom interim measures under Rule 39 have been asserted by the European court. Equally, the Minister will retain the power to ignore the interim measure if he or she so wishes. There are a number of reasons for this. First, as has been explained by my noble friend Lord Wolfson on previous occasions—I think he will add more later this evening—our treaty obligations have force in our domestic law only when Parliament enacts legislation to this effect, hence the Human Rights Act direct effect. Secondly, and of importance to others in this House who, like me, value this country’s good name and reputation, the interpretation which is now used to found this interim measure was placed only in 2005 on Rule 39 by the Strasbourg court. That decision was contrary to previous decisions of that court: in other words, it did not follow what we would call precedent. Indeed, it was contrary to the express intentions of those who drafted the convention, as a study of the travaux préparatoires would make plain.

Time does not permit tonight a lengthy exegesis, but for those who would benefit from further learning on this topic, I recommend the recent policy exchange paper, Rule 39 and the Rule of Law, by Richard Ekins KC (Hon), professor of law and constitutional government at the University of Oxford, with a preface by Lord Hoffmann, formerly a judge of the House of Lords, and a foreword by Lord Sumption, a former Supreme Court justice. It is important for us all to understand that Rule 39(1) states:

“The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings”.


That is just an indication of view or, as Lord Hoffmann says, a shot across the bows. It is not a power to make an order or direction against a contracting party. The court has not been given power under the convention to make an interim order binding on a party to the convention. The convention does not, in terms, as it would have to, confer a power to grant binding interim relief. The member states, including this country, made a deliberate decision in 1949, and subsequently, not to empower the court in this way.

I have already referred to Lord Sumption. He described Professor Ekins’s arguments as timely and powerful. In the preface to the paper, Lord Hoffmann explains that a ruling of a court such as the Strasbourg court is binding upon parties only if the court had jurisdiction to make it, and that not only is there nothing in the language of the convention which expressly confers such a power but that the usual aids to the construction of a treaty—the travaux préparatoires and the subsequent practice of the court—reflect a clear understanding that no such power exists. The court does not have jurisdiction.

What has happened in the court’s recent jurisprudence is that this advisory power—a sensible advisory power—has been assumed to be a power to grant legally binding interlocutory relief. In short, there is no breach of treaty obligations by the United Kingdom if it does not comply with an interim direction, so Clause 53 should remain and Amendment 119 is inappropriate.