What is Raab Afraid Of? Rule 39 is Necessary - and Very Rarely Used

The government would be better to argue its case than indulge in political grandstanding over the European Court.

Ben Keith in The Times on 23 June 2022

David Josse QC and Ben Keith comment in The Times

Ministers aim to “break the formal link” with the European Court of Human Rights in Strasbourg as a result of last week’s interim measure preventing removal of an asylum seeker to Rwanda. Dominic Raab, the justice secretary, has said that the UK did not sign up to rule 39 — the provision the European judge used — as it is part of the rules of the court and not the Convention on Human Rights.

But what is frightening him? The use of the power is rare. In 2021, the court granted 227 rule 39 injunctions for all the 46 Council of Europe states, and just five of those were against the UK. In comparison, there were 24 against Greece and 17 against France.

Raab is also incorrect. To have teeth the convention requires a temporary enforcement mechanism. Rule 39 applies in immigration and extradition cases and prevents removal only where there is a “real risk of serious and irreversible harm” because of a potential breach of human rights. It is as much a part of the convention as the court itself and the ability of individuals to challenge the power of the state.

The court is not all-powerful. It can make declarations about breaches of human rights and award limited compensation. Ultimately, it has no power to force a signatory country to do anything. Its strength is in improving the rule of law throughout the Council of Europe by pressuring states into improving their human rights.

There is a distinction between the attack on the Human Rights Act and the court. The legislation is enforced by UK judges in UK courts which “must take into account” the views of the Strasbourg court.

The argument about the mission creep of article 8 — the right to respect for private and family life — interfering with UK law is not about Strasbourg but about the application of the decisions of European judges by the courts in the UK. It has been developed and interpreted by British judges. Any British Bill of Rights would inevitably contain the same provision.

In the Rwanda case, the Strasbourg court was arguably being more conservative than the London courts. The former considered that removal to Rwanda would place the individuals beyond the jurisdiction of the court and the UK government and so it preserved the status quo with no individual being placed at risk.

It has not criticised the UK, but ordered a delay of a few weeks while the domestic courts make a final decision on this important policy in the context of UK law. The government should argue its case rather than use political grandstanding against a highly respected court.

The article, published in The Times on 23 June 2022, can be read here.