Ministers are now taking powers in the illegal migration bill, currently before the House of Lords, to ignore rule 39 injunctions and are pressing for reforms of the system that would require the ECHR to grant a right of appeal to such interim measures and open up the process to public scrutiny.
Prof Ekins’ assessment has been backed by two of Britain’s leading judges. Former supreme court judge Lord Sumption said the legal basis for Rule 39 injunctions was “slender,” and amounted only to “recommendations, not orders.”
Strasbourg ‘not empowered’
He said: “The Human Rights Convention, which is the only instrument that the state parties have actually agreed, does not, on the face of it, empower the Strasbourg Court to enlarge its own jurisdiction through its internal procedural rules. It confers binding force of some final rulings of the court, but not on interim measures.
“If interim measures are available in cases like this, it is probable that no legislative scheme for the prompt removal of illegal immigrants can succeed.”
Former law lord Lord Hoffman said rule 39 injunctions were only “advisory” but Strasbourg had wrongly extended them to being legally binding.
“A court cannot in this way enlarge its jurisdiction by its own bootstraps. And if the court had no jurisdiction to make such an order, member states are free to ignore it,” he said.
Prof Ekins said the European convention did not empower the Strasbourg court to grant interim injunctions and member stations only had an obligation to comply with final judgements.
“Instead, a Rule 39 measure is an act of a single judge, often made without a hearing and without giving reasons. The UK has a strong argument that in trying to force states to comply with Rule 39 measures the Strasbourg Court is acting beyond the scope of the ECHR and thus lacks jurisdiction,” said his report.