Does the European Court of Human Rights need modernising?

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On 28 March, a new version of the European Court of Human Rights’ Rules of Court went into effect, including a modification to Rule 39, which governs interim measures. The amendments attempt to match the Rule’s substance with established case law and practice regarding the issuance of interim measures, with an overall objective of clarifying the law and improving transparency. The most significant change is in the threshold required to trigger the issuing of an interim measure and the Court will now require “an imminent risk of irreparable harm to a Convention right.”

The previous version of the rule had deeply strained the relationship between the UK Government the Court, via the latter’s late-night issuance of interim measures, so-called ‘pyjama injunctions.’ In response to the record number of migrants crossing the English Channel illegally, former Prime Minister Boris Johnson announced in April 2022 that the government would deport a number of asylum seekers to Rwanda. In June 2022, however, the ECtHR ordered an interim measure that halted flights from the United Kingdom to Rwanda due to the risk that genuine refugees will be returned from Rwanda to their home countries, where they will face mistreatment.

The necessity of eliminating the threat presented by Rule 39 to the UK’s national sovereignty appears increasingly central to the Conservative Party’s aims

The necessity of eliminating the threat presented by Rule 39 to the UK’s national sovereignty appears increasingly central to the Conservative Party’s aims. The government aims to evade compliance with interim measures by enacting the Safety of Rwanda Bill, which allows ministers to disregard emergency injunctions and compel Supreme Court judges to view Rwanda as a safe country for deportation. The bill passed through the House of Lords and now awaits Royal Assent before being fully enacted. In light of the incident on 23 April in which seven people died while attempting to cross the English Channel, Conservative Party members who support the Rwanda Bill have further criticised the ECtHR’s desire to impose an interim measure, and Suella Braverman described the incident as the “most sobering reminder possible of why we have to end those crossings.”

In the recent case Verein KlimaSeniorinnen Schweiz v Switzerland, four women expressed their concern that their country is not doing enough to counteract climate change, which has a severe impact on their daily lives and health. The ECtHR decided that there was a violation of the right to respect for private and family life, and that Switzerland failed to meet its positive duties to combat climate change.

This case is significant in demonstrating the ever-growing ECtHR’s interference of politics in countries that are parties to the Convention

This case is significant in demonstrating the ever-growing ECtHR’s interference of politics in countries that are parties to the Convention. The UK’s Energy Secretary Claire Coutinho commented on the case on social media: “I’m concerned by the Strasbourg Court decision. How we tackle climate change affects our economic, energy, and national security. Elected politicians are best placed to make those decisions.”

The UK’s criticism of the ECtHR centres on its growing effect on domestic politics through the issuance of interim measures and the lowering of the standards for governments to interfere with human rights. This makes it more difficult for the government to make decisions that are consistent with its immigration and climate policies. The repercussions of the ECtHR’s meddling in domestic politics include the possibility of the UK exiting the Convention.

Despite several warnings by Prime Minister Rishi Sunak and other members of the Cabinet that they intend to leave the Convention, no official process has begun. This is because withdrawing from the Convention would come across obstacles such as the risk of damaging its international reputation and jeopardising stability in Northern Ireland, since the Convention is baked in to legal elements of the Good Friday Agreement. Sir Jonathan Jones KCB KC, in order to reduce tensions between the UK Government and the ECtHR, proposed reforms to Rule 39 procedures, such as allowing governments to make urgent representations before a ruling and a judgement, with reasoning provided by a panel of judges rather than just one.

Image: CherryX via Wikimedia Commons

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