The UK government is once again navigating legal and political hurdles over its plan to send asylum seekers to Rwanda. The latest debate is over the emergency bill that legally declares Rwanda a safe place to send refugees (despite the supreme court ruling the opposite).
The government has now told civil servants that, if a minister tells them to, they must ignore rule 39 orders from the European court of human rights in Strasbourg.
The court enforces the European convention on human rights, to which the UK and 45 other European countries are party. Rule 39 allows the court to issue interim measures to stop any of these governments from taking action that could or would violate someone’s human rights.
When is rule 39 used?
The court uses rule 39 only in urgent, exceptional cases where the person at the heart of the case faces real and irreparable harm to their life and health. Usually, this is when facing extradition or deportation to a country where they may be tortured or killed. Rule 39 measures are sometimes called “pyjama injunctions” because of the late-night nature of some rulings.
The court has been using this power for many years, and states usually comply. The court has only issued a handful of rule 39 orders to the UK. In some years it hasn’t issued any. In 2021 and 2022 it issued five per year. For comparison, in 2022 the court used these measures against Greece 101 times, Poland 64 times and Russia 59 times.
These measures are temporary. They simply stay the execution of extradition or deportation orders so the court can review the case. This is what happened in June 2022 to stop the first planned deportation flight to Rwanda from taking off.
The court has also used an interim measure to secure Russian opposition leader Alexei Navalny’s transfer to Germany for treatment after being poisoned by a nerve agent. In another case, the court prevented the closure of an opposition television station in Georgia, which could have violated freedom of speech protections.
Can rule 39 injunctions be overruled or ignored?
Because these measures are temporary, rare and often made as a last resort, the court does not have time to present its reasons in detail for granting them. There is also technically no way to formally appeal against them, but the court will lift them if the relevant parties can show the measures are no longer necessary. More often, the measures are lifted when the court delivers its final judgment on the case.
In response to criticism, largely from the UK, the court has recently acted to make the process more transparent, deciding that the identity of the judge who issues the measures should be publicised, and the formal judicial decision sent to the parties. These are welcome developments, but may mean slower decision making which could be disastrous for human rights in some cases.
The court is clearly open to improving its practices, but such reforms need to be done in a spirit of collaboration, rather than an outright rejection.
The UK has already been condemned once for failing to respect a rule 39 order. The court prevented British forces from transferring two suspected terrorists over to Iraqi authorities in 2010, as there was a risk they could be sentenced to death. The UK ignored this measure, and the court found that by doing this the UK government violated the European convention on human rights – a significant condemnation in its own right.
Persistent violation of rule 39 measures would be more problematic. Even countries with much worse record of compliance with the court’s orders than the UK have never legally declared that interim measures can be ignored by its ministers. States cannot use domestic law to ignore their obligations under international law.
In extreme cases, persistent violation of human rights can mean that a state is expelled from the Council of Europe, the body that oversees the convention, as happened with Russia in 2022.
The UK and human rights law
It is difficult to overstate the role the UK played in the creation and functioning of the Council of Europe and the European convention on human rights. The statute of the Council of Europe was signed in London in 1949, and the UK is a founding member.
The prime minister, Rishi Sunak, has vowed not to let “foreign” courts stop the UK from sending asylum seekers to Rwanda. A policy of ignoring rule 39 measures does not mean leaving the European convention on human rights immediately, but it doesn’t look good.
The UK should not be able to pick and choose which decisions of the court to follow, because everyone else could feel enabled to do the same. Similarly, calls from some Conservative politicians to withdraw from the convention altogether arguably undermine the system that great British experts and diplomats helped to build by implying it is not fit for purpose.
Withdrawing would ultimately leave people in the UK without a robust instrument or framework for challenging violations of their human rights.
The government must make a sober calculation: is ignoring around five interim measures per year worth undermining the most effective international system of human rights protection in the world? I would very much hope not.