Rt Hon Lord Lilley

    Lord Lilley:

    Will the noble and learned Lord comment on the decision of the French Government to ignore Rule 39 rulings and, in particular, to send someone back to Uzbekistan?

    Lord Hope of Craighead:

    I was trying to explain that I am not getting engaged in that kind of debate. We have discussed the issue very fully in Committee —this is Report, and I have stated my position. I hope that the noble Lord, who has spoken now, will be content to accept that I can proceed and present my position.

    Lord Lilley:

    But your position is that this is now settled and that member states all agree, when they patently do not.

    Lord Hope of Craighead:

    My Lords, I am not going to respond. As I say, this is Report, and I am adopting a very particular position on settled practice, which the United Kingdom has participated in without exception, ever since the matter first was put into the rules. That being so, the idea that this country can simply unilaterally depart from that practice when it suits it is contrary to international law and is misconceived. My amendment, therefore, seeks to avoid that position and would allow the courts of this country to play a part in the procedure.

    The Constitution Committee said in its report that Clause 5(3) raises “serious constitutional concerns”. I agree with that. As the committee put it:

    “It is conceivable that a person may bring legal proceedings in the UK to compel a minister to adhere to an interim measure”.

    Clause 5(3), as it stands, would prevent our courts giving effect to an interim measure in that way. The committee regarded that as a breach of the principle of the independence of the judiciary, which all Ministers of the Crown are under a duty, under Section 3 of the Constitutional Reform Act 2005, to uphold.

    Our courts and tribunals should be able to exercise that role. There may be defects in the procedures adopted by the European Court of Human Rights; among other things, there is no right for the party against whom proceedings are brought to appear and express a view, whereas in our courts that certainly is a position, and our procedures are much more consistent with what we regard as in accordance with proper procedures. What my amendment seeks to do, very simply, is to enable our courts and tribunals to exercise that role in this important matter. I beg to move.