The competence of an unnamed judge of the European Court of Human Rights granting an interim injunction is one of five difficult legal questions that the controversial power raises, the government has said, as it justified the need for reform during a House of Lords debate.

The Illegal Migration Bill, which is at committee stage in the Lords, would grant the government an explicit power to ignore rule 39 injunctions. The procedure was used to stop a deportation flight taking off for Rwanda last June.

During a Lords debate this week, Labour peer Baroness Chakrabarti asked justice minister Lord Bellamy what assessment the government had made of the benefits of the ECtHR's jurisdiction, provided by rule 39, to grant interim measures where there is an imminent risk of irreparable harm to a claimant in an ongoing application.

Christopher Bellamy

Justice minister Lord Bellamy

Bellamy said the court’s regular internal review of procedures began to look at the interim measures process last November.

The minister acknowledged that interim measures are an important mechanism for securing individuals’ convention rights in exceptional circumstance, but the rule 39 power raised at least five ‘quite difficult’ legal questions:

  • What is the basis of the legal power;
  • What is the procedure with which the power is exercised;
  • What is the competence of the single judge;
  • What is the effect in domestic law of such an order; and
  • What constitutes a breach of the order.

Former justice minister Lord Wolfson of Tredegar suggested the real problem lay in rule 39 orders being made by an unnamed judge. The state had little opportunity to make representations before or after an order is made, he added.

Bellamy agreed, ‘particularly where the interim measures order... overrides three reasoned judgments by the domestic court at first instance, the Court of Appeal and the Supreme Court’.

However, Labour peer Baroness Kennedy of the Shaws said the UK risked losing credibility by not engaging with rule 39 orders. ‘It has been so useful, for example in relation to Russia, because interim measures have already got in under the wire and now, of course, Russia has been expelled from the Council of Europe,’ she said.

 

This article is now closed for comment.