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Clause 54 of the Illegal Migration Bill: A Rule of Law Analysis for House of Lords Report Stage

Murray Hunt

This Report summarises the Bingham Centre's Rule of Law analysis of the Government's proposal in clause 54 of the Illegal Migration Bill that Parliament authorise Ministers to choose not to comply with "interim measures" of the European Court of Human Rights. The purpose of the Report is to inform consideration of clause 54 by the House of Lords on the second day of the Bill's Report stage, on Monday 3 July. The House will be considering an amendment to delete the clause.

The Report sets out exactly what is proposed in clause 54 and explains its effect. It summarises the Government's explanations of why the provision is necessary and the arguments made by Professor Richard Ekins in Policy Exchange's publication Rule 39 and the Rule of Law which the Government invokes in support of clause 54. It considers the Government's explanations of why the clause is compatible with the ECHR. It distinguishes between arguments about the process by which interim measures are made and arguments that the European Court of Human Rights does not have jurisdiction to make binding interim orders. Clause 54 is not purely about the Rule 39 process; it also accepts the Policy Exchange argument that the Court's interim measures can be ignored because they are made without jurisdiction.

The Report goes on to evaluate the Rule of Law arguments for and against clause 54. It considers the process by which interim measures are indicated, and concludes that there are a number of improvements that could be made to that process. These are legitimate matters for the UK to pursue through the usual intergovernmental processes in the Council of Europe, but they do not affect the Court's jurisdiction to indicate binding interim measures and therefore cannot justify giving ministers a power not to comply with such measures.

However, the Report also concludes that, contrary to the central argument made in the Policy Exchange paper, interim measures of the European Court of Human Rights are binding in international law and the Court does have jurisdiction to indicate such binding interim measures. Policy Exchange's jurisdictional analysis overlooks the significance of a central provision in the Convention. As the Venice Commission recently had to remind Russia, when States signed up to the ECHR they expressly accepted, in Article 32, two significant propositions about the jurisdiction of the Court. First, that the jurisdiction of the Court extends to all matters concerning the "interpretation" as well as the application of the Convention. And second, "in the event of dispute as to whether the Court has jurisdiction, the Court shall decide." The States' express agreement to that unequivocal provision in the text of the Convention is the principal answer to the jurisdictional argument made by Policy Exchange and others seeking to defend clause 54 as a Rule of Law-promoting measure. Taken together with Articles 1, 19 and 34 of the Convention, there is a clear legal basis in the Convention for interim measures being legally binding.

In any event, far from being the sudden power grab by the Court depicted by Professor Ekins, subverting the original intent of the drafters, the consistent and widespread acceptance by Council of Europe Member States of the binding nature of interim measures has been the result of the steady evolution of the Court over time. This evolution has happened with the Member States' clear agreement, into an international court of the stature requiring recognition of the inherent jurisdiction which follows from the nature of the judicial function conferred on it by the parties to the Convention. That normative evolution is reflected in consistent State practice across the Council of Europe's 46 member states, not merely by complying in practice but also in frequent intergovernmental statements demonstrating acceptance of the legal basis for binding interim measures and underlining the importance of treating interim measure as binding.

The UK Government has itself long accepted that interim measures are binding, not only by acquiescing in this exercise of the Court's jurisdiction (by routinely treating the measures as binding and complying with them), but by proactively promoting their binding force in those intergovernmental statements and advocating that other States, such as Russia, treat them as binding and comply with them.

In the light of such consistent and well-established State practice accepting that there is a legal basis for binding interim measures, including the UK's own State practice, the Report concludes that for the UK Government now suddenly to assert that the Court has no jurisdiction to make binding interim measures would be contrary to the Rule of Law in a number of respects. It would go against the UK's express agreement in Article 32 of the Convention that the Court has jurisdiction to interpret the Convention and to decide disputes about whether it has jurisdiction. It will inevitably lead to breaches by the UK of its obligation not to hinder the right of individuals to seek legal remedies for violations of their human rights in Article 34. It will undermine legal certainty and go against the legitimate expectations that arise from consistent State practice.

The Report goes on to point out the degree of international concern being caused by clause 54, in particular in the Council of Europe because it will undermine the authority of the Court of Human Rights and encourage other States to refuse to comply with interim measures. It also calls into question the UK Government's recent reaffirmation of its "deep and abiding commitment" to both the European Convention and the European Court of Human Rights in the Reykjavik Declaration.

Parliament therefore should not agree to give the Government the power to disregard interim measures if a Minister chooses not to comply, because that would be to authorise breaches of international law by the Government, which the House of Lords has previously refused to do in relation to other Bills such as the UK Internal Market Bill.

Clause 54 should therefore be removed from the Bill by the House of Lords, just as it removed an equivalent provision from the UK Internal Market Bill.

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